Edwards v. Murphy–brown

Decision Date04 January 2011
Docket NumberCivil Action No. 2:10cv165.
CourtU.S. District Court — Eastern District of Virginia
PartiesBridgett EDWARDS, Plaintiffv.MURPHY–BROWN, L.L.C., Defendant.

OPINION TEXT STARTS HERE

Frederick Hope Marsh, Esq., Henry Evans Howell, III, Esq., Henry Levander Marsh, III, Esq., for Plaintiff.Matthew Westcott Smith, Esq., John M. Bredehoft, Esq., Mark Edward Warmbier, Esq., for Defendant.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on Defendant Murphy–Brown L.L.C.'s (Defendant) Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. After examining the motion, associated briefs, and the Complaint, the Court finds that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. R. 7(J). Therefore, the matter is now ripe for decision and, for the reasons set forth below, Defendant's Motion to Dismiss is DENIED IN PART and GRANTED IN PART.

I. FACTS AND PROCEDURAL HISTORY 1

Defendant owns and operates a hog breeding and farrowing facility, known as Farm 8508 (“Farm 8”), in Wakefield, Virginia. Bridgett Edwards (Plaintiff) began working for Defendant at Farm 8 on or about April 8, 1996. During her employment with Defendant, Plaintiff has worked solely in the farrowing department of Farm 8. In the past, she has received good job performance evaluations, resulting in her promotion(s) from her starting position to “herds person four.” Compl. ¶ 10.

Beginning in 2003 and continuing until at least 2008, the defendant began hiring a number of Hispanic males to work on the hog farms.” Compl. ¶ 11. Among these Hispanic male employees were Umberto Santiago, Miguel Vazquez, Salvador Hernandez,2 Jose Rodriguez, Ignacio Rosario, Miguel Navarro, and Leonardo (Talon) Rodriguez. During this same 20032008 timeframe, Plaintiff alleges that these “Hispanic co-workers” began to engage in harassing behavior targeted at Plaintiff and her co-worker, Felicia Tennessee, who was working with the Plaintiff by 2006. Compl. ¶ 12–13. This behavior included “touching Plaintiff on the shoulders,” “rubbing Plaintiff's leg and foot,” “subjecting Plaintiff to extraordinary scrutiny,” “making disparaging remarks about Plaintiff's race,” and “smirking, laughing, and gesturing towards Plaintiff.” Compl. ¶ 12. Much of this behavior was reported to Defendant's management, but management failed to take disciplinary action against the male employees.

Plaintiff also complains of three separate incidents that all took place at some point between 2003 and 2007, though she never provides specific dates. In the first incident, Plaintiff learned that one of the male co-workers had been caught masturbating in a pair of woman's underwear on a nearby farm. Several of the male co-workers openly talked about this incident in the Plaintiff's presence. Once again, management took no disciplinary action. In yet another incident, the Plaintiff found a graphic sexual picture depicting male and female sex organs in the room where she was working. The picture came from a breeding area where Miguel Navarro and Leonardo Talon worked, but Plaintiff does not allege that she knows who drew the picture. Once again, the Plaintiff claims that management took no disciplinary action. In the last incident, although Plaintiff only speaks scant Spanish, she believes her Hispanic co-workers were describing female body parts among themselves, while pointing to Plaintiff and her co-worker.

Plaintiff further alleges that in December 2007, Miguel Navarro brought a digital camera to work and took Plaintiff's picture against her wishes. Additionally, the male co-workers continued the practice of grouping together and talking among themselves, while pointing and gesturing towards Plaintiff and her female co-worker. The Plaintiff informed management of this conduct, but management failed to take remedial action.

Finally, in January 2008, the harassment of which Plaintiff complains reached its pinnacle. As part of the Defendant's Farm 8 sanitation procedures, Plaintiff and her female co-worker were required to shower in the morning before putting on their uniforms and entering the farrowing room. They also typically showered again at the end of the day, but showering at that time was apparently not required. On January 24, 2008, Plaintiff and Ms. Tennessee entered the woman's shower room at the end of the day. However, on that day they decided merely to disrobe and change to their street clothes, rather than shower. When Ms. Tennessee opened the door to exit the shower area and proceed to where the sinks are located, she encountered Salvador Hernandez kneeling against the door that divides the two areas. When the door opened, Salvador fell into the woman's shower room, jumped up and ran out of the area. Examination of the door revealed three drill holes, with two at the level of the doorknob and one at eye level. These holes could only be detected with the lights off. At the time the incident occurred, Plaintiff, Salvador and Ms. Tennessee were the only employees on the farm.

The next day, the Plaintiff reported this incident to her supervisor. Management then patched the holes, but did not replace the door. According to the Plaintiff, management informed her that they would not be taking any disciplinary action against Salvador or investigating to determine how many other male employees might be involved in the incident, because firing male employees would leave the farm short handed. When Plaintiff called Laura Brooks, the assistant manager in Defendant's human resources department, she discovered that her complaints had not reached that department and discipline would not be taken against any employees. The Plaintiff eventually reported the shower incident to the police and Salvador was later arrested, fined, sentenced, and terminated by the Defendant.

After the incident, the Plaintiff continued to complain to management, describing her humiliation stemming from the incidents and fear of working among male employees. In response, management decided to transfer the Plaintiff and her female co-worker to another farm—telling her to report on February 1, 2008. However, the Plaintiff was under the impression that the male employees at the new farm behaved in the same harassing way as the employees at Farm 8.

In response to the incidents mentioned above, on May 15, 2008, the Plaintiff filed a “Charge of Discrimination” (“EEOC Charge”) with the United States Equal Employment Opportunity Commission (“EEOC”). Def.'s Br. Mot. Dismiss Ex. 1. This EEOC Charge complains of discrimination based on race, color, and sex, and includes a retaliation claim. Id. Plaintiff received her Notice of Right to Sue from the EEOC within ninety days of filing this action. Johnson v. Portfolio Recovery Assocs., L.L.C., 682 F.Supp.2d 560, 569 (E.D.Va.2009) (“For any number of reasons, the EEOC may also issue a notice to a claimant of their right to bring a private civil action,” rather than pursuing the action on behalf of the claimant.)

On April 12, 2010, the Plaintiff filed a Complaint in this Court, alleging two counts. In Count I, the Plaintiff accuses the Defendant of sexual harassment in violation of Title VII of the Civil Rights Act of 1964. However, this Count refers both to violations of Title VII and violations of 42 U.S.C. § 1981. In Count II, the Plaintiff alleges that the Defendant wrongfully retaliated against her in response to her complaints of sexual harassment. On July 7, 2010, the Defendant filed the motion to dismiss currently pending before this Court under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

II. STANDARD OF REVIEW

This case presents interesting issues with respect to the standard of review to be applied by the Court. Although Defendant's motion to dismiss only cites Rule 12(b)(6), Defendant's briefs note that this motion to dismiss is brought pursuant to both 12(b)(1) and 12(b)(6). As a threshold matter, many of the issues raised in Defendant's motion to dismiss are typical of a 12(b)(6) motion, and thus the Court will deal with those pursuant to 12(b)(6). However, the standard of review applicable to two of the Defendant's grounds for dismissal warrants further discussion.

The first ground warranting discussion will be referred to as the “untimeliness” ground. According to the Defendant, several of the incidents, of which Plaintiff complains, are untimely and thus barred because Plaintiff did not file an EEOC charge about such incidents within the time frame prescribed by statute. This is to be compared to the second ground warranting discussion, which shall be referred to as a “failure to exhaust.” In that vein, Defendant argues that the Complaint exceeds the scope of the EEOC charge because the EEOC charge contains an “earliest” date of discrimination, and Plaintiff attempts to include in the Complaint incidents preceding that date. As a result, Defendant asserts that the Plaintiff has failed to exhaust administrative remedies with respect to incidents preceding that date, and that this Court therefore has no subject matter jurisdiction to address those incidents. See Jones v. Calvert Gro., Ltd., 551 F.3d 297, 300 (4th Cir.2009) ([A] failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.”)

A “failure to exhaust” argument is different than an “untimeliness” argument. The scope of an EEOC charge defines the parameters of a Plaintiff's right to later proceed in federal court. If a Plaintiff fails to include a certain claim in an EEOC Charge, that Plaintiff has failed to exhaust administrative remedies with respect to that claim. Failure to exhaust administrative remedies precludes a federal court from exercising subject matter jurisdiction in...

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