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Tilson v. Every Day Is A Holiday, Inc.

United States District Court, W.D. North Carolina, Charlotte Division

August 1, 2017

JANIE TILSON, Plaintiff,
v.
EVERY DAY IS A HOLIDAY, INC., GARY SPANGLER & TODD GREAR Defendants.

          ORDER

          Graham C. Mullen United States District Judge.

         THIS MATTER is before the Court upon the Defendants' Motion to Dismiss. Doc. No. 11. Plaintiffs have filed a response memorandum and defendants have filed a reply memorandum. This matter is now ripe for disposition.

         I. BACKGROUND

         On January 13, 2017, Plaintiff filed a complaint against Every Day is a Holiday, Inc. d/b/a Centurion Stone of the Carolinas (“Centurion”), Gary Spangler (“Spangler”), and Todd Grear (“Grear”), (collectively “Defendants”). The complaint alleges claims for direct sexual harassment, hostile work environment, and retaliation under Title VII, intentional infliction of emotional distress, sexual assault and battery, conversion, invasion of privacy, and breach of contract. Compl. ¶¶ 115-63. Plaintiff's allegations arise out of Plaintiff's past romantic relationship with Defendant Spangler, which Plaintiff claims ended after a pattern of alleged sexual misconduct and behavior by Defendant Spangler. Compl. ¶¶ 3 & 22.

         Defendant Centurion is a North Carolina corporation owned by Defendant Spangler and Defendant Grear with its principal place of business in Mecklenburg County, North Carolina. Compl. ¶ 5. Defendant Spangler is majority owner of Defendant Centurion and is Defendant Centurion's Chief Executive Officer. Compl. ¶ 6. Defendant Grear is minority owner of Defendant Centurion and is Defendant Centurion's President. Compl. ¶ 7. Defendants Spangler and Grear are the only two owners of Defendant Centurion. Compl. ¶¶ 6-7. Plaintiff previously worked as a sales representative for Defendant Centurion in its Mecklenburg County office. Compl. ¶ 15.

         From around August 2005 until February 2015, Plaintiff and Defendant Spangler maintained a romantic relationship. Compl. ¶¶ 12 & 18. On or about September 2006 Plaintiff began working for Defendant Spangler and Centurion. Compl. ¶ 14. Upon the cessation of their romantic relationship, Plaintiff contends Plaintiff and Defendant Spangler entered into an agreement, whereby Defendant Spangler would pay Plaintiff Nineteen Thousand Dollars ($19, 000.00) in multiple installments in exchange for “certain[] contribut[ions] to [Defendant Spangler's] life” provided during their prior relationship. Comp. Exh. G. Defendant Spanglar made 2 of the 9 monthly payments required by the contract. Compl. ¶ 25. From February 2015 to October 2015, Plaintiff alleges that Defendant Spangler engaged in harassing conduct towards Plaintiff and threatened to fire or demote Plaintiff if she refused his advances. Compl. ¶¶ 37, 41, 51, & 54.

         Plaintiff alleges that she informed Defendant Grear of said conduct. Compl. ¶ 38. In response to the alleged disclosure, Plaintiff alleges that Defendant Grear “did not say anything, ” “did not take any action, ” and “shrugged his shoulders.” Compl. ¶ 39.

         Plaintiff and Defendant Spangler reconciled in August 2015. Compl. ¶ 39. After this reconciliation, on August 23, 2015, Plaintiff alleges Defendant Spangler forced her to have sex. Compl. ¶ 74-77. Defendant Spangler and Plaintiff went on a trip to Japan in September 2015 during which Plaintiff alleges Spangler forced her to have sex. Compl. ¶ 79. Following that trip, on or about September 2015, Plaintiff and Defendant Spangler ended their reconciled personal relationship. Compl. ¶ 82.

         After the relationship was ended in September 2015, Plaintiff alleges Defendant Spangler engaged in additional misconduct, including sending Plaintiff nude photos of herself that he had previously obtained. Compl. ¶¶ 84-85. Part of this course of misconduct allegedly included threatening Plaintiff's job and status at Defendant Centurion and resulted in Plaintiff allegedly suffering from “high anxiety, stress and high blood pressure, ” requiring medical treatment. Compl. ¶¶ 88 & 92.

         After four days of being on medical leave, on or about October 2015, Plaintiff alleges she was terminated from her employment at Centurion and that Defendants Spangler and Grear demanded return of all Centurion-owned property in Plaintiff's possession with which Plaintiff complied. Compl. ¶¶ 97-99. Plaintiff alleges the reason for termination was her refusal to have a personal relationship with Defendant Spangler. Compl. ¶ 100. Defendants deny that Plaintiff was ever terminated by Centurion. Compl. ¶ 102.

         Plaintiff filed her First EEOC Charge on December 14, 2015. Compl. ¶ 101. Plaintiff filed a Second EEOC Charge on September 19, 2016. Compl. ¶ 107.

         II. STANDARD OF REVIEW

         To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). However, “[a] court is not required to accept [t]hreadbare recitals of the elements of a cause of action supported by mere conclusory statements. Id.

         III. DISCUSSION

         The Defendant's Motion to Dismiss is a partial motion to dismiss. It asks the Court to dismiss the following claims: Count I, Title VII direct sexual harassment; Count III, Title VII retaliation claim as to Defendants Spangler and Grear; Count IV, intentional infliction of emotional distress as to Defendants Centurion and Grear; Count VII, invasion of privacy; and Count VIII, breach of contract. The Court will analyze each of these claims below.

         a. Count I - Direct Sexual Harassment

         Plaintiff's first claim is titled “Title VII - Direct Sexual Harassment” and is brought against Defendant Centurion. Title VII recognizes two forms of sexual harassment; they are commonly referred to as quid pro quo and hostile workplace harassment. Katz v. Dole, 708 F.2d 251, 254 (4th. Cir. 1983).

         The Defendants argue this claim should be dismissed because (1) the claim of “direct sexual harassment” cannot be brought under Title VII and (2) the claim as described by the Plaintiffs is wholly duplicative of Plaintiff's Title VII claims for hostile work environment.

         First, the Court will consider whether the heading of the Plaintiff's claim is a fatal flaw. The Court does acknowledge that the form of sexual harassment alleged by the Plaintiff is most commonly referred to as “quid pro quo.” See, e.g. McKinnish v. Donahoe, 40 F.Supp.3d 689, 697 (W.D. N.C. 2014). Yet, past courts have used the term “direct sexual harassment” to refer to this claim and have described quid pro quo harassment as direct sexual harassment. See, e.g., Leibovitz v. New York City Transit Auth., 252 F.3d 179, 188 (2d. Cir. 2001) (“Two forms of sexual harassment are recognized under Title VII: direct discrimination (the so-called “quid pro quo” variety) . . . and “hostile workplace environment” harassment”); Jennings ...


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