Flores v. Va. Dep't of Corr., Civil Action No. 5:20-cv-00087

• Court: United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
• Decision Date: 22 February 2021
• Docket Number: Civil Action No. 5:20-cv-00087
• Parties: JOYCE FLORES, Plaintiff, v. VIRGINIA DEPARTMENT OF CORRECTIONS, Defendant.

JOYCE FLORES, Plaintiff,
v.
VIRGINIA DEPARTMENT OF CORRECTIONS, Defendant.

Civil Action No. 5:20-cv-00087

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA HARRISONBURG DIVISION

February 22, 2021

MEMORANDUM OPINION

By: Hon. Thomas T. Cullen United States District Judge

Plaintiff Joyce Flores worked as a dental hygienist at a Virginia correctional facility. Flores alleges that when she arrived at the facility after her lengthy commute on July 17, 2019, she had a fully saturated tampon in her vagina but nevertheless passed through the security body scanner without incident. Later that morning, after Flores had removed the tampon and placed toilet paper in her underwear as a temporary measure, a security officer asked her to go through the body scanner again. Unsurprisingly, the first and second images looked different. After being confronted about this discrepancy, Flores explained that she was on her period, showed a female correctional officer evidence that she was in fact menstruating, inserted another tampon, and went through the body scanners a third time. Despite explaining why the second image (sans tampon) looked different from the first and third images (with tampons), and after K9 searches allegedly did not locate any contraband, Defendant Virginia Department of Corrections ("VDOC") placed Flores on administrative leave and ultimately

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fired her approximately two weeks later. VDOC's purported reason for Flores's termination was "suspicion of contraband."

Flores filed this suit against VDOC bringing one claim for unlawful discrimination under Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act ("PDA"). VDOC filed the instant motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), seeking dismissal of the complaint in its entirety with prejudice. After the parties fully briefed the motion, the court heard argument on February 16, 2021. Because Flores has plausibly alleged that VDOC violated Title VII, but she failed to bring a proper disparate-impact claim, the court will grant in part and deny in part VDOC's motion to dismiss.

I. FACTUAL BACKGROUND

Flores's complaint alleges the following facts. In September 2018, VDOC issued a policy prohibiting women from using tampons or menstrual cups while visiting offenders incarcerated in VDOC facilities. (Compl. ¶¶ 8-9 [ECF No. 1].) At that time, the VDOC's cited concern was that tampons and menstrual cups may "appear" as possible contraband in a body scan. (Id. ¶ 9.) The policy garnered public criticism. (Id. ¶ 10.) Approximately one week later, the VDOC suspended the "ban on tampon use by visitors to VDOC prisons." (Id. ¶ 11.) In early 2019, however, Flores alleges that "it was made public that VDOC was still treating visitors that were wearing tampons or menstrual cups differently than other visitors to the prisons." (Id. ¶ 12.) In support of this assertion, Flores points to the testimony of VDOC's Corrections Operations Administrator, Margie Vargo, who expressed to the Virginia General Assembly that VDOC facilities could not tell via body scans whether objects inserted into

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women's vaginas were drugs or tampons. (Id. ¶ 12.) The VDOC did not bar its employees from wearing tampons or menstrual cups to work at VDOC facilities. (Id. ¶ 13.) Flores alleges, however, that the same "issue"—the inability to discern whether a female has contraband or a tampon inserted into her vagina—applies to employees as well as visitors because employees are required to pass through the same security technology at VDOC facilities. (Id.)

In March 2019, Flores started working as a Registered Dental Hygienist at VDOC's Augusta Correctional Center ("ACC"). (Id. ¶ 14.) Although Flores was hired through a staffing company, she was subject to VDOC rules and employment policies. (Id. ¶ 15.) Flores alleges that VDOC was therefore a "joint employer" under Title VII. (Id.)

On July 17, 2019, Flores had a heavy menstrual flow and was using a "super absorbent tampon." (Id. ¶ 17.) After her two-hour commute, her tampon was fully saturated when she arrived at ACC. (Id. ¶¶ 17-18.) Flores went through the "normal security protocol, . . . with the expanded, saturated tampon in her vagina, including passing through the body scanner, without incident." (Id. ¶ 18.) After clearing security, Flores proceeded to her dental office and prepared for her workday. (Id. ¶ 19.) She also went to the restroom and replaced her tampon. (Id.) When Flores went to use the restroom again later that morning, she realized that she needed to change her tampon for a second time, but she had not brought a new one into the restroom with her. (Id.) Because Flores had a dental patient waiting for her, she removed the tampon and replaced it with tissue paper in her underwear. (Id.)

Approximately two hours after Flores started working, a VDOC employee, Sergeant Benjamin Lokey, came into Flores's office and asked that she accompany him to the security checkpoint at the entrance of the facility. (Id. ¶ 20.) Sgt. Lokey instructed Flores to go through

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the body scanner, and she did. (Id. ¶ 21.) Sgt. Lokey then took Flores to a separate room where they were joined by a female VDOC security investigative officer. (Id. ¶ 22.) Sgt. Lokey "began to interrogate" Flores and advised her "that he believed her body[-]scan image from her arrival in the morning (2 hours earlier) contained a suspicious item in her vagina that was not present on the body[-]scan image taken moments earlier." (Id.) Flores explained that she had entered ACC with a saturated tampon following her commute but did not have a tampon in her vagina during the second scan because she had removed it in the restroom shortly prior. (Id. ¶ 23.) Flores offered to go into the restroom with the female VDOC security officer to demonstrate that she was menstruating. (Id.) Two female officers then went with Flores into the restroom and one officer accompanied her into the stall. (Id. ¶ 24.) Flores confirmed that she did not have a tampon in her vagina but showed the officer the tissue with menstrual blood on it. (Id.) Flores then offered to insert a new (third) tampon and go through the body scanner again. (Id. ¶ 25.) The officers agreed, and Flores went through the body scanner for a third time. (Id.)

But VDOC officials remained unsatisfied. After the third scan, Sgt. Lokey required Flores to return to the separate room where he "continued to interrogate [Flores] under suspicion of bringing contraband [in]to the facility." (Id. ¶ 26.) Flores "continued to vehemently deny [the accusations] and again explain[ed] that she had a tampon in when she arrived and further explained (again) why she did not have one in for the second scan." (Id.) The VDOC officers then brought Flores to Warden John Woodson's office, where he interrogated Flores. (Id. ¶ 27.) Flores provided her explanation, and she was shown the three body-scan images: "the first clearly showed the saturated tampon, the second when [Flores] had no tampon, and the third with [a] new tampon." (Id.) Flores "urged the Warden and

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VDOC to contact the body[-]scanner manufacturer so that they could get a better understanding of what they were seeing." (Id.) At the conclusion of the meeting, the Warden placed Flores on paid administrative leave for "suspicion of contraband." (Id. ¶ 28.)

VDOC security officers then brought Flores back into the separate room where she waited. (Id. ¶ 29.) She later learned that VDOC conducted a K9 search of the entire medical unit and dental area. (Id.) VDOC also requested Flores's permission to conduct a K9 search of her car in the parking lot; she consented to that search. (Id. ¶ 30.) VDOC did not find any contraband in either location. (Id.) After the K9 searches, Sgt. Lokey gave Flores a box containing her personal items, which had been searched through, and told Flores "to go home and wait for Warden Woodson to call her." (Id. ¶ 31.)

Approximately three days later, Warden Woodson called Flores and told her that he had checked with his supervisor, but he needed more time to make a decision about her termination. (Id. ¶ 32.) Flores alleges that she "again pleaded with him to seek subject[-]matter expertise and/or manufacturer input on VDOC's knowingly erroneous read of the body[-]scan images." (Id.) On July 31, 2019, when she had not heard anything further, Flores called Warden Woodson and requested to return to work. (Id. ¶ 33.) Warden Woodson responded that he was "leaning toward termination." (Id.) Flores asked him again if he had checked with the manufacturer or a subject-matter expert regarding the body-scan images. (Id.) Warden Woodson allegedly raised his voice and told Flores that he had "checked with [his] supervisor." (Id.) Warden Woodson then informed Flores that VDOC was terminating her employment due to "suspicion of contraband." (Id.) Flores alleges that she never brought, or attempted to bring, any contraband into ACC, and that the reason for her termination was pretext for sex

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discrimination. (Id. ¶ 34.) Flores further alleges that her employment "was terminated because she was a menstruating female utilizing a feminine hygiene product when she arrived to work on July 17, 2019." (Id.)

II. MOTION TO DISMISS STANDARD

Motions to dismiss under Rule 12(b)(6) test the legal sufficiency of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, the complaint "must contain sufficient factual matter, accepted as true, to 'state a claim for 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, 547 (2007)). A claim is facially plausible when the plaintiff's allegations "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. While a complaint does not need "detailed factual allegations," complaints...