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Kennedy v. Argueta

United States District Court, M.D. North Carolina

March 31, 2017



          LORETTA C. BIGGS, District Judge.

         Plaintiff initiated this action on March 23, 2016, in state court, alleging gender discrimination and retaliation in violation of 42 U.S.C. § 2000e-2 et seq. (“Title VII”), as well as various state law claims. (ECF No. 7.) Defendants timely removed the action to this Court. (ECF No. 1.) Before the Court is Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6). (ECF No. 15.) For the reasons set forth below, Defendants' motion will be granted in part and denied in part.

         I. BACKGROUND

         Defendants Aldo DiPuorto, Maria DiPuorto, and the Aldo and Maria DiPuorto Partnership (“Defendant Owners”) own and operate restaurants under the name “Elizabeth's Pizza, ” one of which is located in Thomasville, North Carolina. (ECF No. 7 ¶ 6.) On or about July 15, 2013, Plaintiff was hired as a waitress by Kim Morgan Wilkes (“Wilkes”), the restaurant's Waitress Manager/Head Waitress. (Id. ¶ 7.) Wilkes served as Plaintiff's supervisor, responsible for the training, scheduling, and calculation of payroll for the waitress staff. (Id.) While employed at the restaurant, Plaintiff's job performance was “competent and satisfactory.” (Id.) Francisco Argueta (“Argueta”), who had been hired by Defendant Owners in or about 2002, was employed at the restaurant as its Kitchen Manager. (Id. ¶¶ 8, 9.) Argueta also “served as the general manager of the restaurant whenever Defendant Aldo DiPuorto and/or his son, Gino DiPuorto, [1] were not present, which was most of the time.” (Id.)

         Immediately upon being hired, Argueta began making “crude, ” sexual comments to Plaintiff, and “repeatedly subjected [Plaintiff] to unwanted and offensive sexual harassment.” (Id. ¶ 14) For example, Argueta asked Plaintiff about her sex life and “repeatedly” made comments about “need[ing] a girl on the side.” (Id.) Plaintiff would respond to Argueta's comments by saying “that she did not talk about such things and that she did not like him making such comments to her or the other waitresses.” (Id. ¶ 15.) Plaintiff also complained to her supervisor, Wilkes, about Argueta's inappropriate “comments and behavior toward her.” (Id. ¶ 18.)

         A few days after being hired, Plaintiff responded to “one of Argueta's sexual comments” by asking him “how can you sleep at night?” (Id. ¶ 16.) In response, Argueta said, “‘like this' and, while looking at Plaintiff, moved his hand back and forth in front of his crotch as if he were masturbating.” (Id. ¶ 16.) Plaintiff “promptly” complained to Wilkes about this incident, which Wilkes later witnessed because it was “recorded by the surveillance cameras in the restaurant.” (Id. ¶ 18.)

         On or about July 22, 2013, after Plaintiff made another complaint to Wilkes about Argueta, Wilkes confronted Argueta, with Plaintiff present, and told him that his conduct “was inappropriate and that he needed to stop.” (Id. ¶ 19.) In response, Argueta told both Wilkes and Plaintiff that they “needed to get laid so that [they] would be in better moods.” (Id.) Plaintiff continued to report and complain to Wilkes about the ongoing sexual harassment by Argueta. (Id. ¶ 20.) Although Wilkes relayed Plaintiff's complaints to Defendant Owners, Argueta's harassment “nevertheless continued.” (Id.) Upon learning that Plaintiff was complaining to her supervisor about his conduct, Argueta's behavior toward Plaintiff “became even more offensive, in an effort to retaliate against her and cause her to leave.” (Id. ¶ 21.) Specifically, in addition to making sexual comments to, and around, Plaintiff, Argueta “also began yelling and screaming at Plaintiff on each occasion when she worked.” (Id.)

         Then, on or about July 28, 2013, Argueta, “without provocation, ” slapped Plaintiff on her buttocks “so hard that it left a hand print on Plaintiff's skin.” (Id. ¶ 22.) Plaintiff confronted Argueta and told him “that he had hurt her” and, in response, “Argueta smiled and commented . . . that there was an insect on Plaintiff's ‘butt.'” (Id.) That same day, Argueta falsely accused Plaintiff of stealing a tip left for another waitress, “and [made] other derogatory comments about Plaintiff, urging Wilkes to fire [Plaintiff].” (Id. ¶ 23.)

         Four days later, on or about August 1, 2013, Plaintiff quit her job at the restaurant, “because she could no longer stand Defendant Argueta's constant harassment and retaliation.” (Id. ¶ 25.) Plaintiff also initiated a criminal complaint against Argueta, on August 2, 2013, “based upon his physical assault.”[2] (Id. ¶ 26.) On August 27, 2013, Plaintiff filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”) based on gender discrimination and retaliation in violation of Title VII. (Id. ¶ 43.) On September 30, 2015, the EEOC issued a determination finding reasonable cause to believe that Plaintiff's employer had violated Title VII. (Id. ¶ 43; ECF No. 17 ¶ 43.) The EEOC later issued a Notice of Right to Sue on December 31, 2015. (Id.) Plaintiff then filed the instant lawsuit seeking compensatory and punitive damages, as well as injunctive relief. (ECF No. 7 at 8-9.) Defendants filed an Answer to Plaintiff's Complaint, (ECF No. 17), and subsequently moved to dismiss for failure to state a claim pursuant to Rule 12(b)(6), (ECF No. 15).[3]


         A motion to dismiss made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure “challenges the legal sufficiency of a complaint, ” including whether it meets the pleading standard of Rule 8(a)(2). Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2) requires that a complaint to contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), thereby “giv[ing] the defendant fair notice of what the . . . claim is and the grounds upon which it rests, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

         A complaint may fail to state a claim upon which relief can be granted in two ways: first, by failing to state a valid legal cause of action, i.e., a cognizable claim, see Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012); or second, by failing to allege sufficient facts to support a legal cause of action, see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). Dismissal under Rule 12(b)(6) is only appropriate “when the complaint ‘lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.'” Capital Associated Indus., Inc. v. Cooper, 129 F.Supp.3d 281, 300 (M.D. N.C. 2015) (quoting Brown v. Target, Inc., No. ELH-14-00950, 2015 WL 2452617, at *9 (D. Md. May 20, 2015)).

         On a Rule 12(b)(6) motion, the Court must accept all factual allegations in the complaint as true, Iqbal, 556 U.S. at 678, and construe all factual allegations in the light most favorable to the plaintiff, Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). “Although the Supreme Court has . . . made clear that the factual allegations in a complaint must make entitlement to relief plausible and not merely possible, . . . ‘[w]hat Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations.'” McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (internal citations omitted) (alteration in original) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).


         A. Gender Discrimination and Retaliation under Title VII (Claim 4)[4]

         Title VII of the Civil Rights Act of 1964 prohibits an employer from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Before a plaintiff files suit under Title VII, she must exhaust her administrative remedies which requires that she, first, file a charge with the EEOC. Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000). A plaintiff's failure to exhaust administrative remedies deprives the court of subject matter jurisdiction over the claim. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). The parties here do not argue in their briefs that Plaintiff has failed to exhaust her administrative remedies with respect to her Title VII claims.[5] (See ECF No. 7 ¶ 43; ECF No. 17 ¶ 43.) Plaintiff alleges that she filed an EEOC charge based on gender discrimination and retaliation on August 27, 2013 which culminated in the EEOC's finding of reasonable cause and the issuance of a Notice of Right to Sue on December 31, 2015. (Id.) The Court therefore has subject matter jurisdiction over Plaintiff's Title VII claims.[6]

         1. Hostile Working Environment based on Gender Discrimination

         A plaintiff may bring suit against an employer under Title VII when “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations omitted). To establish a claim for hostile work environment based on gender discrimination, a plaintiff must show “that the offending conduct (1) was unwelcome, (2) was based on her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) was imputable to her employer.” Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc).

         Plaintiff's Complaint includes allegations sufficient to satisfy the first element of this claim - that Argueta's allegedly harassing conduct was unwelcome. Specifically, Plaintiff alleges that:

(i) she “immediately complained to . . . Argueta about his inappropriate conduct, ” (ECF No. 7 ¶ 18);
(ii) she responded to Argueta's “crude, ” sexual comments “by complaining to him that she did not talk about such things and that she did not like him making such comments to her or the other waitresses, ” (id. ¶¶ 14, 15);
(iii) on one occasion, in response to . . . Argueta's “sexual comments, ” she asked him, “how can you sleep at night?” (Id. ¶ 16); and
(iv) she complained to her supervisor, Wilkes, about Argueta's allegedly harassing conduct on more than one occasion, (id. ¶¶ 18-20).

         With respect to the remaining elements of Plaintiff's hostile work environment claim, Defendants argue that Plaintiff has failed to plead facts necessary to satisfy each element. (ECF No. 16 at 11.) Defendants contend that, as to the second element, Plaintiff “pleads no facts as to how [Argueta] treats male employees to show his behavior was based upon sex.” (Id.) While this may be true, a plaintiff may plead allegations of “explicit or implicit proposals of sexual activity” to satisfy this element because, as recognized by the Supreme Court, “it is reasonable to assume those proposals [in most male-female sexual harassment situations] would not have been made to someone of the same sex.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Further, conduct that is “sexually motivated, ” rather than merely “sexual in content, ” also supports claims of discrimination based on sex. See Lack v. Wal-Mart Stores, Inc., 240 F.3d 255, 260-261 (4th Cir. 2001).

         Here, Plaintiff alleges that:

(i) when she began working at the restaurant, “Argueta immediately began making crude comments of a sexual nature to Plaintiff and in her presence, ” (ECF No. 7 ¶ 14);
(ii) Argueta asked about her sex life on her second night at work, (id.);
(iii) Argueta repeatedly commented that “every man needs a girl on the side, ” and “every man needs to be satisfied, ” (id.);
(iv) in response to Plaintiff asking Argueta how he could sleep at night, Argueta said “‘like this' and, while looking at Plaintiff, moved his hand back and forth in front of his crotch as if ...

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