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Hasker 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. 14.) Defendants timely removed the action to the U.S. District Court for the Western District of North Carolina, (ECF No. 1), and subsequently filed a motion to transfer venue to the Middle District of North Carolina, (ECF No. 11). The court entered an Order granting Defendants' motion and transferring the action to this Court. (ECF No. 12.) Before the Court is Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6). (ECF No. 17.) For the reasons set forth below, Defendants' motion will be denied.

         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. 14 ¶ 6.) In February 2014, 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. ¶ 8.)

         Several times during Plaintiff's first few weeks of employment, “Argueta asked [her] . . . if she would like to hang out with him after work to have drinks and smoke pot.” (Id. ¶ 14.) Plaintiff told Argueta “that she was not interested.” (Id.) At the time, Plaintiff was twenty years old and Argueta “was approximately forty-five years old.” (Id.) On Sunday, March 9, 2014, after Plaintiff had worked a six-hour shift that ended at 10:30 pm, she “sat down in the restaurant to eat.” (Id. ¶ 15.) Argueta approached Plaintiff, offered her a beer, and told her to “go get beer from the cooler.” (Id.) Plaintiff complied, and returned with two beers. (Id.) Argueta “encourage[d] Plaintiff to drink . . . alcohol, ” pouring her a glass of wine, and “three to four shots of liquor.” (Id. ¶¶ 15, 16.) “At some point Plaintiff told . . . Argueta that she did not want to drink anything else because he was not drinking, and Argueta then drank a shot.” (Id. ¶ 16.)

         Plaintiff then left the building and walked outside into the restaurant parking lot, as did Argueta. (Id. ¶ 17.) While in the parking lot, “Argueta began making sexual advances to Plaintiff, pushing himself up against her and trying to kiss her.” (Id. ¶ 18.) Despite Plaintiff's attempts to push Argueta away, he “continued to press up against her” and “unbutton [her] pants.” (Id.) Plaintiff was shocked, “pushed Argueta's hands away[, ] . . . buttoned her pants … [and] attempted to move away.” (Id.) Argueta then “pushed Plaintiff up against his van” and began kissing her, while rubbing his hands on her body. (Id.) Argueta “then put one of his hands down [Plaintiff's] pants.” (Id.) Plaintiff pulled away from Argueta and despite trying to convince her to stay with him, Plaintiff, who was upset, went to her car and left the parking lot. (Id.)

         The next day, Monday, March 10, 2014, Argueta called Plaintiff before work and told her that her supervisor, Wilkes, and Gino DiPuorto, the general manager, “had seen Plaintiff and . . . Argueta ‘on the [surveillance] tape' and that they were going to ask Plaintiff about it.” (Id. ¶ 19.) Argueta told Plaintiff to tell Wilkes and Gino DiPuorto that “nothing happened, ” they were “just hanging out, ” and that the incident was “consensual and casual.” (Id.) Plaintiff then received a telephone call from Wilkes who asked Plaintiff “to come in early because she needed to talk to [her].” (Id. ¶ 20.) When Plaintiff arrived at the restaurant, she had an initial meeting with Wilkes, followed by a meeting with both Wilkes and Gino DiPuorto. (Id. ¶ 21.) During that meeting, Plaintiff told Gino DiPuorto that she had been given alcohol by Argueta who “had tried to pressure her into having sex with him.” (Id.) Plaintiff also told Gino DiPuorto that Argueta “had shoved his hand down her pants, against her will.” (Id.) Gino DiPuorto began yelling at Plaintiff and “characterized the whole incident as if it were Plaintiff's fault.” (Id.) He then took away all of Plaintiff's subsequent Sunday shifts, and threatened to “immediately fire” Plaintiff if she ‘“messed up' again.” (Id.)

         Following this incident, Plaintiff “was forced to work with . . . Argueta every time she worked, ” and he “continued to make advances to [her], repeatedly asking and suggesting that they get together after work.” (Id. ¶ 24.) After telling “Argueta that she did not want to go out with him or have any kind of relationship with him outside of work, ” he began to act “angry and spiteful toward Plaintiff.” (Id. ¶¶ 24, 25.) On several occasions, Plaintiff complained about Argueta's conduct to Wilkes, who “promptly relayed these complaints to the Defendant Owners.” (Id. ¶ 25.) Nevertheless, Argueta's behavior continued. (Id.)

         On or about May 7, 2014, Argueta “began yelling and cursing at Plaintiff” so loudly that Wilkes “could hear Argueta from the other side of the restaurant.” (Id. ¶ 26.) Argueta also “repeatedly threatened to fire Plaintiff and repeatedly told her that he would get rid of her if she did anything wrong at all.” (Id.) Plaintiff became upset and cried, and again complained to Wilkes, telling her that “she felt like Argueta was retaliating against [her] for refusing to have a sexual relationship with him.” (Id. ¶ 27.) In response, Wilkes told Plaintiff that “Argueta had Dated this type of thing many times before, that the owner knew about it, and that she (Wilkes) could not do anything to stop him.” (Id.) Plaintiff resigned that day, May 7, 2014. (Id.)

         Approximately one month later, on June 17, 2014, 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. ¶ 45.) On September 30, 2015, the EEOC issued a determination finding reasonable cause to believe that Plaintiff's employer had violated Title VII. (Id.; ECF No. 19 ¶ 45.) The EEOC also issued a Notice of Right to Sue on December 31, 2015. (ECF No. 14 ¶ 45; ECF No. 19 ¶ 45.) Plaintiff then filed the instant lawsuit seeking compensatory and punitive damages, as well as injunctive relief. (ECF No. 14 at 9-10.) Defendants filed an Answer to Plaintiff's Complaint, (ECF No. 19), and subsequently moved to dismiss for failure to state a claim pursuant to Rule 12(b)(6), (ECF No. 17).[2]


         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)[3]

         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 agree that Plaintiff has exhausted her administrative remedies with respect to her Title VII claims. (See ECF No. 14 ¶ 45; ECF No. 19 ¶ 45.) The Court therefore has subject matter jurisdiction over Plaintiff's Title VII claims.[4]

         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).

         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.” (ECF No. 18 at 14.) 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, 260-61 (4th Cir. 2001).

         Here, Plaintiff alleges that Argueta made sexual advances to her in the restaurant parking lot, which included: “pushing himself up against her and trying to kiss her;” kissing her; rubbing his hands on her body; and putting one of his hands down her pants. (ECF No. 14 ¶ 18.) Plaintiff also alleges that Argueta repeatedly asked her out and suggested that they get together after work. (Id. ¶ 24). These allegations, accepted as true, are sufficient to allege that Argueta's harassing conduct was based on Plaintiff's sex. See Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 142 (4th Cir. 1996) (explaining that “[a]n employee is harassed or otherwise discriminated against ‘because of' . . . her sex if, ‘but for' the employee's sex, . . . she would not have been the victim of the discrimination”).

         Despite having satisfied this element, however, “[n]ot all sexual harassment that is directed at an individual because of his or her sex is actionable.” Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996). To be actionable, the harassing conduct must be severe and pervasive, i.e., “so extreme as to amount to a change in the terms and conditions of employment.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

         The determination of whether conduct is severe or pervasive is both subjective and objective. EEOC v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009). As such, a plaintiff “must show that [she] did perceive, and a reasonable person would perceive, the environment to be abusive or hostile.” Id. Although a plaintiff may subjectively believe that the offending conduct created a hostile work environment, “[c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview.” Harris, 510 U.S. at 21 (emphasis added). In deciding whether conduct is sufficiently severe or pervasive to create an objectively hostile and abusive work, courts must consider the totality of the circumstances including: “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with [the] employee's work performance.” First Union Nat'l Bank, 202 F.3d at 242. Such a determination, however, “is not, and by its nature cannot be, a mathematically precise test.” Harris, 510 U.S. at 22.

         In this case, Plaintiff alleges that, during her “first week or two” at the restaurant, Argueta asked Plaintiff several times “to hang out with him after work to have drinks and smoke pot.” (ECF No. 14 ¶ 14.) Plaintiff's Complaint further alleges that approximately two weeks after being hired, on the evening of March 9, 2014, Argueta approached Plaintiff at the end of her shift and offered her beer, wine, and shots of liquor, which Plaintiff drank. (Id. ¶¶ 15-16.) Plaintiff alleges that she then left the restaurant to go to her car in the parking lot where the following incident occurred:

Argueta began making sexual advances to Plaintiff, pushing himself up against her and trying to kiss her. Plaintiff attempted to push Argueta away, but Argueta continued to press up against her. Argueta then began to unbutton Plaintiff's pants. Plaintiff was shocked and unsure how to respond, but pushed Argueta's hands away and buttoned her pants. When Plaintiff attempted to move away, Defendant Argueta pushed Plaintiff up against his van and began kissing Plaintiff and rubbing his hands on her body and then put one of his hands down her pants. Plaintiff pulled away from Argueta and told him that she wanted to leave. Defendant Argueta tried to get Plaintiff to stay with him, but Plaintiff was too upset. Plaintiff then went to her car and both left the parking lot.

(Id. ¶¶ 17-18.) Plaintiff also alleges that, after the above incident, she was “forced to work with . . . Argueta every time she worked, which was very uncomfortable, ” and he continued making advances to her, including “repeatedly asking and suggesting that they get together after work.” (Id. ¶ 24). Plaintiff states that, after telling Argueta that “she did not want to go out with him or have any kind of relationship with him outside of work, ” he “began acting very angry and spiteful toward [her], making insulting comments to her.” (Id. ΒΆ 24-25.) According to the Complaint, on the day that ...

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