United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge.
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.
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
“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.
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.
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, &
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.
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.
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.
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.
filed her First EEOC Charge on December 14, 2015. Compl.
¶ 101. Plaintiff filed a Second EEOC Charge on September
19, 2016. Compl. ¶ 107.
STANDARD OF REVIEW
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.
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.
Count I - Direct Sexual Harassment
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.
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.
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 ...