Jones v. Kroger Ltd. P'ship I

Decision Date02 January 2015
Docket NumberCivil Action No. 7:14–CV–00401.
Citation80 F.Supp.3d 709
PartiesMarketia JONES, Plaintiff, v. KROGER LIMITED PARTNERSHIP I, et al., Defendants.
CourtU.S. District Court — Western District of Virginia

Patrick Michael McGraw, McGraw Law, P.C., Roanoke, VA, for Plaintiff.

Charles Connor Crook, III, The Law Office of C. Connor Crook, Charlottesville, VA, Christopher S. Griesmeyer, Mack H. Reed, Greiman Rome & Griesmeyer, LLC, Chicago, IL, for Defendants.

MEMORANDUM OPINION

GLEN E. CONRAD, Chief Judge.

This case arises from harassment that Plaintiff Marketia Jones allegedly experienced while employed at a Kroger store in Franklin County, Virginia. The case is presently before the court on a motion to dismiss filed by Defendants Kroger Limited Partnership I (Kroger) and Jim Townsend (“Townsend”) (collectively, “the defendants). For the following reasons, that motion will be granted in part and denied in part.

Factual and Procedural Background

The following facts, taken from Jones's complaint, are accepted as true at this stage in the proceedings. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ; see also Katyle v. Penn Nat'l Gaming, Inc., 637 F.3d 462, 466 (4th Cir.2011).

Jones began working for Kroger as a cashier in September 2012, when she was sixteen years old. Compl. ¶ 5, Notice of Removal Ex. A, Docket No. 1–1. Townsend was employed as the general manager of the Kroger location where Jones worked. Id. at ¶ 15. Jones alleges that while employed there, she was sexually harassed by another Kroger employee, Trevor Gammon. Gammon was “verbally vulgar, offensive, and sexually suggestive and demanding” toward Jones and other female Kroger employees. Id. at ¶ 7. Jones contends that Gammon “would insist on being [her] bagger,” and would then “continuously harass[ ][her] while she was performing her legitimate employment duties as a cashier.” Id. at ¶ 9. Gammon's verbal harassment was accompanied by “constant unwelcome touching ... in a sexual manner, including [touching Jones's] lower back and buttocks area, and on her sides above and onto her upper hips.” Id. at ¶ 12. Jones specifically alleges that Gammon assaulted her on September 18, 2012 by “repeatedly caus[ing] his body to come into contact with [hers] in a sexual manner, intending to create or simulate sexual contact or acts.” Id. at ¶ 6.

Jones submitted formal written complaints about Gammon's behavior to Kroger, consistent with its sexual harassment policies. Id. at ¶ 13. Jones and her parents also “had numerous meetings with [Kroger] representatives concerning [Gammon's] actions and [her] formal complaints.” Id. at ¶ 15. Kroger “acknowledge[d] that all of [her] complaints were ‘at least in part substantiated,’ and that it had received “no less than [seven] different statements from different women’ about Gammon's harassment; they nonetheless told Jones that their “hands were tied” and they “weren't sure” whether anything could be done to stop the harassment. Id. at ¶ 16. Gammon remained employed by Kroger, and Jones and Gammon continued to work the same shifts. Id. at ¶ 17.

Jones filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) on October 26, 2012. Id. at ¶ 18. Kroger then began to retaliate against her by singling her out for “less desirable duties” and “continuously verbally reprimand[ing] her.” Id. at ¶ 19, 23. For example, Jones “was forced to sweep and scrub floors, clean the break room, [perform] ‘trash duty,’ and ... work the ‘parking lot’ late at night, alone, despite her repeated complaints to [d]efendants ... that such ... duty ... caused her to reasonably fear for her safety.” Id. On March 30, 2013, Jones told a Kroger employee that parking lot duty made her fearful. That employee summoned Townsend, who

then assaulted [Jones] by yelling at [her] within inches of her face, ... while repeatedly ‘bumping’ his chest against [Jones] in a threatening ... way ... scream[ing] loudly: “the situation with Trevor [Gammon] is over!” and “You don't work for your parents, you work for me and if someone tells you what to do you will do it or you will lose your job!”

Id. at ¶ 21.

On April 29, 2013, Jones's shift supervisor demanded that she produce a doctor's note to justify a previous absence. Id. at ¶ 25. When Jones was unable to do so, the supervisor “summarily dismissed [her] [from the shift] without further explanation or reason.” Id. On May 1, 2013, Jones and her parents went to the store to discuss these ongoing problems. Id. at ¶ 27. They spoke with an assistant manager, who told them that he would relay their concerns to Townsend. Id. On May 3, 2013, however, Jones's father was instead served with a “no trespassing” notice issued by Townsend, which “falsely alleg[ed] that [he] had been ‘disruptive and/or damaging’ to Kroger business.” Id. Jones ultimately resigned as a result of this hostile work environment. Id. at ¶ 26.

Jones filed this action in Franklin County Circuit Court on July 1, 2014, asserting claims of negligence, sexual harassment, retaliation, and assault and battery. She seeks $1,000,000 in compensatory damages and $1,000,000 in punitive damages. The defendants removed the case to this court on August 1, 2014. On September 5, 2014, the defendants moved to dismiss portions of the complaint under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. The court held a hearing on the motion on October 14, 2014. Following the hearing, both parties submitted additional briefs, which the court has reviewed. The motion is now ripe for decision.

Standards of Review

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the plaintiff's complaint, which must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a) ; see Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.2006). When considering a motion to dismiss, the court must accept the well-pled facts in the complaint as true and make all reasonable inferences in the plaintiff's favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The court, however, is “not so bound by the plaintiff's legal conclusions.” Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). To survive a motion to dismiss, the complaint must contain “sufficient factual matter ... to ‘state a claim ... that is plausible on its face.’ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “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. at 663, 129 S.Ct. 1937.

Rule 12(b)(1) provides for dismissal of claims over which the court lacks subject matter jurisdiction. The plaintiff bears the burden of showing that the court has jurisdiction over her claim. See Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 371 (4th Cir.2012). In this case, the defendants have “attack[ed] the ... complaint on its face, asserting that the complaint fails to state a claim upon which subject matter jurisdiction can lie.” Lucas v. Henrico County Sch. Bd., 822 F.Supp.2d 589, 599 (E.D.Va.2011) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982) ). “In such a challenge, a court assumes the truth of the facts alleged by [the] plaintiff, thereby functionally affording the plaintiff the same procedural protection ... she would receive under Rule 12(b)(6) consideration.” Id.

Discussion

The defendants have moved to dismiss each of Jones's claims, either in whole or in part. The court will consider each claim, and the defendants' corresponding arguments for dismissal, in turn.

I. Count I: Negligence

In Count I, Jones asserts a state law negligence claim, contending that the defendants breached various duties owed to her, including the duty to “protect and ensure [her] health, safety, and well-being while on their work premises”; the duty to [e]nsure that the work environment ... did not expose [her] to unwholesome influences, offensive or criminal conduct or mistreatment”; and the duty to [t]ake swift and firm necessary corrective action immediately when advised of offensive or criminal conduct against one of its employees at the hands of another employee.” Compl. ¶¶ 30–31. At bottom, this negligence claim seeks to hold the defendants liable for failing to properly supervise Gammon, which allowed him to harass Jones. The defendants argue that this claim must be dismissed, because Virginia does not recognize negligent supervision as a viable cause of action.1 The court agrees.

It is axiomatic that [t]here can be no actionable negligence unless there is a legal duty, a violation of that duty, and a consequent injury.” Chesapeake & Potomac Tel. Co. of Va. v. Dowdy, 235 Va. 55, 365 S.E.2d 751, 754 (1988). In Dowdy, the Supreme Court of Virginia held that an employer has no duty to supervise its employees to prevent the excessive criticism of one employee by another. Id. The vast majority of courts have “interpreted Dowdy as foreclosing any cause of action for negligent supervision in Virginia.”2 Gilbertson v. Purdham,

78 Va.Cir. 295, 2009 WL 7339865 (Roanoke 2009) ; see Elrod v. Busch Ent. Corp., Nos. 4:09–CV–164, 4:09–CV–165, 4:09–CV–166, 2010 WL 5620918, at *6–7 (E.D.Va. Dec. 14, 2010) (collecting cases). This court cannot create a duty to supervise where Virginia courts have not. Thus, to the extent that Jones's negligence claim is based on the defendants' negligent supervision of Gammon, that claim must be dismissed for failure to state a claim.

Jones argues that her claim should survive because it is premised in part on the defendants' negligent hiring and retention of Gammon and Townsend. See Pl.'s Br. in Opp. to Def.'s Mot. Dismiss at 1, Docket No. 17. Virginia law recognizes the independent torts of negligent hiring and negligent retention. See Southeast Apts. Mgmt., Inc....

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