Ball v. Heilig-Meyers Furniture Co.

• Decision Date: 10 February 1999
• Docket Number: No. 98-599-CIV-T-17A.,98-599-CIV-T-17A.
• Parties: Bobbi A. BALL, Plaintiff, v. HEILIG-MEYERS FURNITURE COMPANY, Defendant,
• Court: U.S. District Court — Middle District of Florida

35 F.Supp.2d 1371

Bobbi A. BALL, Plaintiff, v. HEILIG-MEYERS FURNITURE COMPANY, Defendant,

No. 98-599-CIV-T-17A.

United States District Court, M.D. Florida, Tampa Division.

February 10, 1999.

Ellen Sly Masters, Ellen Sly Masters, P.A., Lakeland, FL, Jonethan Stidham, Stidham & Stidham, P.A., Bartow, FL, for Bobbi A. Ball.

Richard N. Margulies, Edward L. Birk, McGuire, Woods, Battle & Boothe, L.L.P., Jacksonville, FL, for Heilig-Meyers Furniture Company.

ORDER ON MOTION TO DISMISS

KOVACHEVICH, Chief Judge.

This cause is before the Court on Defendant's Motion to Dismiss (Dkts.4,5), which seeks to dismiss all five Counts of Plaintiff's Complaint. Plaintiff filed a Response to Defendant's Motion to Dismiss (Dkt.6) and an Amended Complaint (Dkt.11). Plaintiff's Amended Complaint makes no substantive changes beyond replacing the term "employees" with "store manager."

STANDARD OF REVIEW

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the Plaintiff's Complaint to determine whether it sets forth sufficient allegations to establish a claim for relief. Under Conley v. Gibson, 355 U.S. 41 45, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), a district court should not dismiss a complaint for failure to state a claim solely on the pleadings "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which could entitle him to relief." Additionally, when deciding a motion to dismiss, a court must accept the truthfulness of well-pleaded facts and resolve them in the light most favorable to the Plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); see also Beck v. Deloitte et al., 144 F.3d 732, 735-36 (11th Cir.1998) (quoting St. Joseph's Hosp., Inc. v. Hospital Corp. of America, et al., 795 F.2d 948 (11th Cir.1986)).

To dismiss a complaint for failure to state a claim, the Plaintiff's Complaint must only meet an exceedingly low standard of sufficiency. See Ancata v. Prison Health Serv., Inc., 769 F.2d 700, 703 (11th Cir.1985). However, when no construction of the facts can produce a cause of action as to a dispositive issue of law, dismissal is appropriate. See Executive 100, Inc. v. Martin County, 922 F.2d 1536 (11th Cir.1991); see also Powell v. United States, 945 F.2d 374 (11th Cir. 1991). Using this standard, the Court turns to the consideration of the claims asserted.

BACKGROUND

The following allegations, taken from the Complaint, are considered true for present purposes of deciding whether to dismiss the Plaintiff's Complaint. See Beck, 144 F.3d at 735. Plaintiff, Bobbi A. Ball (Ball), began her employment with the Defendant, Heilig-Meyers Furniture Co. (Heilig-Meyers), in 1996. Ball's original position was terminated, but she was rehired in October 1997 by Heilig-Meyers to fill the position of collector/cashier/term writer.

Ball alleges that during the course of her employment with Heilig-Meyers, her employment was conditioned upon her submission and acquiescence to the store manager's unwelcome and unwanted sexual advances. Such advances included vulgar language and vulgar comments delivered by the store manager. These comments were often accompanied by physical contact with Plaintiff's posterior and breasts. Plaintiff states that while working at the copy machine with other employees, the store manager would approach her and rub his genitalia against her posterior. On one instance, the store manager rubbed his hand across Ball's posterior, grabbed her posterior and commented, "Girl, you just don't know how sexy that is. I would like to get a piece of that." Further, the store manager commented to Plaintiff and another female employee that he would like to see them together in a sexual act.

While employed at Heilig-Meyers, Ball gave birth. When breast-feeding her child, she would lock herself in the break room so that she could be alone with her child. On multiple occasions, the store manager stood outside the break room door and made such comments as, "Feed me" and "I'm hungry." The store manager also tried to enter into the break room on several of these occasions.

During Ball's employment with Defendant, she attended classes to become a massage therapist. During this period, the store manager made sexually explicit comments about massage therapy to her. Such comments included inquiries into the price for oral sex and whether she massaged "the nads." (Compl.¶ 9(h).) When Ball asked the store manager to stop the explicit comments and to stop touching her, the store manager responded that he was in charge and would treat his employees any way he wanted to.

During late Spring, 1997, the store manager began stating that Ball was not doing her job and started criticizing her for being late to work when she was not. Ball regularly complained to her supervisors and co-workers about the store manager's conduct but received no assistance. After receiving no assistance from the Defendant's main office, Ball quit Heilig-Meyers on May 9, 1997. In December of 1997, Ball was issued a "Notice of Right to Sue" by the U.S. Equal Employment Commission.

DISCUSSION

A. Count I (Sexual Harassment)

Defendant moves to have Count I of Plaintiff's Complaint dismissed to the extent it requests relief under 42 U.S.C. § 1981. Defendant states that Plaintiff fails to specify the statutory basis upon which the first count of sexual harassment is based. As such, the Defendant claims that the Court is required to look to the jurisdictional paragraph of paragraph two of the Complaint. Id. Here, Defendant asserts, Plaintiff bases jurisdiction upon Title VII, as well as the Civil Rights Act of 1991 (42 U.S.C. § 1981). From this, Defendant moves for the dismissal of Count I on the basis that it is well established that sexual harassment is not actionable under 42 U.S.C. § 1981. See Runyon v. McCrary, 427 U.S. 160, 167, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); see also McCoy v. Johnson Controls World Services, Inc., 878 F.Supp. 229, 232-33 (S.D.Ga.1995).

While Defendant would prevail against a claim of sexual harassment under section 1981, the Court does not find a 42 U.S.C. § 1981 assertion in the wording of Count I. However, Plaintiff does assert "protected group" status under Title VII in Count I. (Compl.¶ 21.)

Section 703(a) of Title VII forbids "an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Moreover, the United States Supreme Court held in Meritor Savings Bank v. Vinson, 477 U.S. 57, 73, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), that "hostile work environment" sex discrimination is actionable under Title VII. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (June 26, 1998); see also Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (June 26, 1998). Additionally, "an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee." Faragher, 118 S.Ct. at 2278-79. Plaintiff's Complaint illustrates numerous allegations of unwanted and unprovoked sexual comments and physical contact by her supervisor. (Compl.¶¶ 9-18.) As Defendant does not make any substantive argument as to the validity Plaintiff's Title VII sexual harassment claim, it would be improper to dismiss Count I. To the extent that any assertion based on 42 U.S.C. § 1981 is made in Count I, it is dismissed.

B. Count II (Constructive Discharge)

It should first be noted that the Defendant moves to have Counts II, III and IV dismissed under Florida's doctrine of "respondeat superior." The Court finds this doctrine inapplicable to Count II as Plaintiff bases jurisdiction on federal law, not Florida law. In paragraph 27 of the Complaint, Plaintiff "realleges Paragraphs One (1) through Twenty-Two (22)," which asserts Title VII protected group status in Paragraph twenty-one. (Compl.¶¶ 21,27.) No request for relief under Florida law is found in the Complaint. However, Plaintiff has plead jurisdiction in very general terms in all five Counts, with the exception of Count I. In light of this, it is proper for the Court to dismiss any pendant state claim as to constructive discharge that may be implied in Count II of the Complaint. See DeMarco v. Publix Super Markets, Inc., 384 So.2d 1253 (Fla.1980)(stating that Florida is an "at will" state for purposes of non-contractual employment). As such, the Court moves to Defendant's argument that "constructive discharge" is part and parcel of the Title VII sexual harassment claim.

Defendant states that Plaintiff's charge of constructive discharge should be dismissed because it has no separate, stand alone basis for relief. Rather, it is simply a factor in the amount of damages, if any, that the Plaintiff may be entitled to. Defendant cites Knabe v. Boury Corp., 114 F.3d 407, 408, n. 1 (3d Cir.1997), which states in its first footnote that "[the] constructive discharge claim, as presented here, is not a separate ground for relief, but rather would factor into the damages (e.g., backpay) available [had the Plaintiff prevailed on the sexual harassment claim]." However, the Court does not know how the constructive discharge claim was presented in Knabe, nor does the Defendant extrapolate on how this argument relates to the case at hand. Further, other courts have held Title VII sexual harassment and constructive discharge to be separate issues. See Ernest C. Hadley & George M. Chuzi, Sexual Harassment: Federal Law Ch.3.I.A.8 (1997 ed.)(citing Ebert v. Lamar Truck Plaza, 715 F.Supp. 1496, 1500 (D.Colo.1987)). Moreover, the Court in Ebert found that, as a matter of law, a constructive discharge claim does not always fail when the related claim for sexual...