United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
CARLTON TILLEY, JR. SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on a Motion to Dismiss [Doc.
#13] pursuant to Federal Rule of Civil Procedure 12(b)(6)
filed by Defendant Bermuda Run CC, LLC (“BRCC”)
and a Partial Motion to Dismiss [Doc. #18] pursuant to
Federal Rule of Civil Procedure 12(b)(6) filed by Defendant
Jay Christmas. For the reasons explained below, BRCC's
Motion [Doc. #13] will be granted in that the assault and
negligent retention and supervision claims against it will be
dismissed with prejudice pursuant to Plaintiff Kevin
Watkins' concession [Doc. #21]. Mr. Christmas' Motion
[Doc. #18] will be granted in part and denied in part in that
the Title VII claim against him will be dismissed with
prejudice pursuant to Mr. Watkins' concession [Doc. #20]
and will otherwise be denied as to the batteryclaim against him.
time of the incidents giving rise to this lawsuit, Mr.
Watkins was an employee of BRCC in Bermuda Run, North
Carolina. (Am. Compl. [Doc. #12] ¶ 18.) According to the
Complaint, while employed by BRCC as a server in the dining
area, Mr. Watkins was continually sexually harassed by Mr.
Christmas, the head chef. (Id. ¶¶ 18-20,
23, 25-26, 28.) Mr. Watkins alleges that Mr. Christmas began
making “sexual, lewd, and unwanted comments”
towards him beginning in or about July 2015 and that the
harassment continued through December 2015. (Id.
¶¶ 19, 22.) After the initial incident, Mr. Watkins
confronted Mr. Christmas telling him that the comments were
“unwanted and inappropriate.” (Id.
¶ 21.) In spite of this, the harassment continued.
(Id. ¶ 22.) In August 2015, the following
Christmas approached Plaintiff during work hours on the BRCC
facility grounds. Plaintiff was plugging in an electrical
cord and Christmas approached Plaintiff and said “while
you're down there, why don't you plug this into your
mouth?” Christmas was pointing to his penis when this
comment was made.
(Id. ¶ 23.) After the August 2015 incident, Mr.
Watkins again confronted Mr. Christmas and told him that such
behavior must stop. (Id. ¶ 24.) The harassment
culminated with a series of events on December 3, 2015. On
that date, Mr. Christmas (1) approached Mr. Watkins from
behind, put his hand on Watkins' shoulders, and forced
his knee between Plaintiff's buttocks, (2) made lewd
comments about Mr. Watkins' anus in front of another
coworker, and (3) again approached Mr. Watkins from behind
and grabbed his buttocks. (Id. ¶¶ 25, 26,
28.) According to the Complaint, Mr. Christmas'
“lewd, suggestive, and sexual comments” were
heard by other employees of BRCC. (Id. ¶ 37.)
the events of December 3, 2015, Mr. Watkins informed BRCC
management of what had transpired. (Id. ¶¶
30, 31.) According to the Complaint, the General Manager of
BRCC told Mr. Watkins that BRCC wanted him to be “made
whole.” (Id. ¶ 32.) The Manager agreed to
allow Mr. Watkins to transfer, so he did not have to work in
close proximity with Mr. Christmas. (Id. ¶ 33.)
Ultimately, BRCC was unable to transfer Mr. Watkins to
another property, but they did give him two paid days off to
“recover from the trauma” of December 3.
(Id. ¶¶ 34, 35.) Mr. Christmas was allowed
to continue his supervisory role at BRCC despite the
allegations of sexual harassment. (Id. ¶ 38.)
result of these events, on March 21, 2016, Mr. Watkins filed
a Charge of Discrimination with the U.S. Equal Employment
Opportunity Commission (“EEOC”). (Id.
¶ 8.) On February 2, 2017, the EEOC issued a Notice of
Right to Sue. (Id. ¶ 9.) On May 3, 2017, Mr.
Watkins filed the present action in the General Court of
Justice, Superior Court Division, Davie County, alleging
three causes of action against BRCC, Christmas, and Chessie
Ventures, Inc. (See Compl.) Notice of Removal
was filed on June 7, 2017, by Mr. Christmas. [Doc. #1.] Two
weeks later, an Amended Complaint was filed removing
Defendant Chessie Ventures, Inc. from this action. [Doc.
#12.] Accordingly, only BRCC and Mr. Christmas remain as
defendants. The Amended Complaint alleges (1) sexual
harassment/hostile work environment under Title VII of the
Civil Rights Act of 1964 (“Title VII”) against
both Defendants, (2) assault against both Defendants, and (3)
negligent retention and supervision against BRCC.
12, 2017, BRCC filed a Motion to Dismiss [Doc. #13] pursuant
to Federal Rule of Civil Procedure 12(b)(6) and Mr. Christmas
filed a Partial Motion to Dismiss [Doc. #18] pursuant to
Federal Rule of Civil Procedure 12(b)(6). BRCC moved to
dismiss the claims of assault and negligent retention and
supervision against it, and Mr. Christmas moved to dismiss
the Title VII and assault claims against him. On August 2,
2017, Mr. Watkins filed Responses to both Motions to Dismiss.
[Docs. #20, 21.] In his first Response, Mr. Watkins conceded
that the Title VII claim against Mr. Christmas “[is]
not rightly relevant to Defendant Christmas
individually” and should be dismissed. [Doc. #20 at 1.]
Further, Mr. Watkins conceded that both the assault and
negligent supervision and retention claims “are rightly
dismissed solely for Defendant BRCC.” [Doc. #21 at 1.]
Thus, the only claims remaining are the Title VII claim
against BRCC and the assault claim against Mr. Christmas. The
sole issue to be addressed is Mr. Christmas' Motion to
Dismiss the assault claim.
addressing Mr. Christmas' Motion, the Court must assess
jurisdiction. Federal courts are “courts of limited
jurisdiction.” Owen Equip. & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978). When a pendent state
law claim, like assault, is presented to a federal court in
conjunction with a federal question claim, the federal court
has supplemental jurisdiction to hear the pendent state law
claim if it forms “part of the same case or
controversy” as the federal claim. See Eriline Co.
S.A. v. Johnson, 440 F.3d 648, 653 (4th Cir. 2006)
(quoting White v. Cnty. of Newberry, 985
F.2d 168, 171 (4th Cir. 1993)); 28 U.S.C. §§ 1331,
1367. Whether or not a federal law claim and a state law
claim form part of the same case or controversy “is
determined by whether they derive from a common nucleus of
operative fact and are such that [a plaintiff] would
ordinarily be expected to try them all in one judicial
proceeding.” Hinson v. Norwest Fin. S.C.,
Inc., 239 F.3d 611, 615 (4th Cir. 2001).
Watkins' Title VII claim against BRCC arises under
federal law and this Court has federal question jurisdiction
over that claim. 28 U.S.C. § 1331. Mr. Watkins'
assault claim is a state law cause of action, and this Court
has jurisdiction over it if supplemental jurisdiction is
proper. Here, Mr. Watkins' state law claim alleges that
Mr. Christmas, his supervisor at BRCC, harassed him verbally
and physically several times over the span of six months, at
his workplace. These same allegations form the basis of his
Title VII claim against BRCC. Thus, because the claims
“derive from a common nucleus of operative fact,
” Mr. Watkins' assault claim arises from the
“same case or controversy” as the underlying
Title VII claim and supplemental jurisdiction exists. See,
e.g., Johnson v. Paramont Mfg., LLC, No. 1:05CV79,
2006 WL 2711830, at *4 (W.D. Va. Sept. 21, 2006) (holding
that supplemental jurisdiction existed over state law claims
of battery, wrongful discharge, and tortious interference
with a contract in a Title VII case because claims formed
part of the same case or controversy).
found jurisdiction proper, the Court next turns to Mr.
Christmas' Motion to Dismiss the remaining claim against
him. “A motion to dismiss under Rule 12(b)(6) tests the
sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Republican Party of
N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992).
“To survive a motion to dismiss, 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 Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is facially plausible if
the plaintiff provides enough factual content to enable the
court to reasonably infer that the defendant is liable for
the misconduct alleged. Id. “[I]n evaluating a
Rule 12(b)(6) motion to dismiss, a court accepts all
well-pled facts as true and construes these facts in the
light most favorable to the plaintiff in weighing the legal
sufficiency of the complaint.” Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255
(4th Cir. 2009).
Mr. Watkins' termed his claim “assault, ”
this Court will also address the associated tort of battery.
Legal labels characterizing a claim cannot, standing alone,
determine whether it fails to meet [the 12(b)(6)] standard.
Even where such a label reflects a flat misapprehension by
counsel respecting a claim's legal basis, dismissal on
that ground alone is not warranted so long as any needed
correction of legal theory will not prejudice the opposing
party. All that is required is that the pleaded claim afford
the opposing party fair notice of the nature and basis or
grounds of the claim and a general indication of the type of
Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995)
(holding that district court incorrectly dismissed claim at
12(b)(6) stage where plaintiff labeled claim “sexual
molestation” but plead a claim for battery). Assault
and battery are two separate common law actions that
“go together like ham and eggs.” McCracken v.
Sloan, 252 S.E.2d 250, 252 ( N.C. App. 1979). “An
action for assault protects an individual's interest in
freedom from apprehension of a harmful or offensive contact
while an action for battery protects an individual's
interest in freedom from intentional and unpermitted contacts
with his person.” Burwell v. Giant Genie
Corp., 446 S.E.2d 126, 128 ( N.C. Ct. App. 1994).
“The elements of assault are intent, offer of injury,
reasonable apprehension, apparent ability, and imminent
threat of injury.” Hawkins v. Hawkins, 400
S.E.2d 472, 475 ( N.C. Ct. App. 1991). Whereas, “[a]
battery is made out when the ...