McGuire v. Com. of Va.

• Citation: 988 F.Supp. 980
• Decision Date: 25 August 1997
• Docket Number: No. Civ.A. 96-0761-R.,Civ.A. 96-0761-R.
• Parties: Donna M. MCGUIRE, Plaintiff, v. COMMONWEALTH OF VIRGINIA, Defendant.
• Court: U.S. District Court — Western District of Virginia

988 F.Supp. 980

Donna M. MCGUIRE, Plaintiff, v. COMMONWEALTH OF VIRGINIA, Defendant.

No. Civ.A. 96-0761-R.

United States District Court, W.D. Virginia, Roanoke Division.

August 25, 1997.

COPYRIGHT MATERIAL OMITTED

Terry Neill Grimes, King, Fulghum, Snead, Nixon and Grimes, P.C, Roanke, VA, for Plaintiff.

James S. Gilmore, III, William Gatling Atkinson, Neil Anthony Gordon McPhie, Catherine Currin Hammond, Office of Atty. Gen., Richmond, VA, Jack Rhoades, Cake & Rhoades, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

KISER, Senior District Judge.

Donna M. McGuire is an employee of the Virginia Veterans Care Center Board of Trustees. In Count I of her amended complaint, she alleges sexual harassment in violation of Title VII of the United States Code, and she seeks relief for assault and battery pursuant to Virginia common law. In Count II of her amended complaint, she seeks relief for retaliation in violation of Title VII of the United States Code.

Before me is defendant Commonwealth of Virginia's motion for summary judgment. The parties have fully briefed the issues involved, and they have submitted the issues to the court on the briefs, in lieu of oral argument. The motion is therefore ripe for disposition. For the reasons contained herein, defendant's motion shall be GRANTED with respect to the allegation of assault and battery in Count I. Regarding the Title VII sexual harassment allegation in Count I, the motion is DENIED. The motion is GRANTED with respect to the retaliation allegation in Count II.

I. FACTS

As noted above, plaintiff, Donna McGuire, works for the Board of Trustees ("Board") of the Virginia Veterans Care Center ("VVCC"). Ms. McGuire began work as an Executive Secretary Senior for the VVCC Board on September 1, 1993. The VVCC is an agency of the Commonwealth created by the Virginia General Assembly and under the supervision of the Secretary of Administration. Its enabling statutes can be found at Virginia Code §§ 2.1-744.1-744.6. The Governor appoints a Board of Trustees to manage the VVCC. In turn, the Board hires an Executive Director to run the day-to-day operations of the VVCC. Thus, the Executive Director reports to the Board of Directors, and the Chairman of the Board of Trustees reports to the Commonwealth's Secretary of Administration, the Honorable Michael E. Thomas. At all times during her employment, the plaintiff, Ms. McGuire, has been paid by the Commonwealth of Virginia.

Mr. Walter Sanford, Jr. was the Chairman of the VVCC Board of Trustees when Ms. McGuire was hired. Mr. Sanford is no longer on the VVCC Board. Mr. Sanford occasionally brought his adult incompetent son, Sandy, to the VVCC. Ms. McGuire alleges that Mr. Sanford brought Sandy to the VVCC about once a month. According to Ms. McGuire, Mr. Sanford left Sandy in her office whenever he brought Sandy to the VVCC. McGuire Dep. at 54-55.

Ms. McGuire asserts that Sandy began making sexually suggestive and offensive comments to her shortly after she began working for the VVCC. According to Ms. McGuire, Sandy made comments such as "I love you;" "I want to marry you;" "Dad says you have nice legs;" and "Dad says you should wear your skirts shorter." She asserts that Sandy made such comments "all the time." McGuire Dep. at 55-56. She also contends that Sandy followed closely behind her wherever she went in the office and touched her in inappropriate ways. Affidavit of Donna M. McGuire at ¶ 8. On one occasion in April of 1994, Sandy allegedly tried to grab and kiss Ms. McGuire. In the same incident, he also allegedly tried throw her on the floor and told her he wanted to "make her pregnant." McGuire Dep. at 57-61. According to Ms. McGuire, the inappropriate comments and touching increased in August of 1994. She said that she began to feel nervous and "ill" whenever Sandy was around and that she altered her conduct so that she was never in a room alone with Sandy. According to Ms. McGuire, she "dreaded the thought of having to keep away from Sandy while he was in the facility." Affidavit of Donna M. McGuire at ¶ 12.

In August of 1994, Ms. McGuire reported Sandy's behavior to the Executive Director of the VVCC, Mr. John Plichta. On April 10, 1995, Plichta notified Mr. Michael Fries, then a member of the VVCC Board of Trustees, of the complaints. Mr. Fries then notified the Secretary of the Administration, Michael E. Thomas. Subsequently, Michael Thomas informed Walter Sanford by letter dated April 14, 1995, that his son, Sandy, was no longer permitted on the VVCC's property.

Ms. McGuire claims that Walter Sanford and other members of the Board retaliated against her in violation of Title VII after receiving the letter from Thomas. First, she alleges that a promotion the Board previously had granted was revoked following her complaint. In January 1995, Ms. McGuire's job title was changed from Executive Secretary Senior to Assistant Administrator for the Board of Trustees. The change in title did not result in a change in salary. The Board of Trustees reassigned Ms. McGuire the title of Executive Secretary Senior on June 29, 1995.

The Commonwealth claims that the change in job title was merely to accommodate the Board's perceived need for Ms. McGuire to be in an administrative capacity to view medical files. Ms. McGuire had been viewing medical files as part of her job as Executive Secretary Senior. However, an incorrect legal opinion indicated that Ms. McGuire had to be in management, rather than a secretary, to do so in compliance with the Virginia Code. As it turned out, Ms. McGuire legally could not access the files no matter her title was. According to the Commonwealth, since the legal opinion was in error, Ms. McGuire was restored to her original job title, again without any change in salary.

Second, McGuire alleges that the duties of acting Executive Director were stripped from her in retaliation for her complaint. McGuire Dep. at 84-85. On December 2, 1994, Mr. Plichta resigned as Executive Director of the VVCC. Mr. Plichta left the VVCC on April 3, 1995. Thereafter, Ms. McGuire assumed the duties of Executive Director, pending the hiring of a new Executive Director. Ms. McGuire contends that these duties were taken away in retaliation for her claims against Sandy Sanford.

Third, McGuire alleges that Mr. Sanford retaliated against her by assigning her additional duties intended to harass and intimidate her. Specifically, she contends that Mr. Sanford began to request that she perform additional tasks at work, thereby limiting her ability to complete her assigned duties. McGuire alleges that Sanford would call her up to ten times a day and send her memoranda requesting her to perform varying tasks. McGuire Dep. at 85. She also asserts that he requested that she research the management contract, Affidavit of Donna M. McGuire at ¶ 16, and conduct an inventory of the facility, Affidavit of Donna M. McGuire at ¶ 20. McGuire had never performed either of these functions before.

Finally, McGuire alleges that members of the Board began to make her "life miserable" after her complaint. She asserts that they criticized her for taking the matters "out of house" and to the Secretary of Administration. She also claims that they became withdrawn from her and treated her abruptly. McGuire Dep. at 74-76.

Ms. McGuire filed this action on August 22, 1996. She amended her complaint on February 26, 1997. In Count I of her amended complaint, she alleges sexual harassment under Title VII, and she seeks relief for assault and battery under Virginia common law. In Count II of her complaint, she seeks relief for retaliation in violation of Title VII. Ms. McGuire initially brought this complaint against Mr. Sanford as well as the Commonwealth, but this court granted Mr. Sanford's motion to dismiss on June 23, 1997.

II. DISCUSSION

A. Summary Judgment Standard

Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial and summary judgment is appropriate. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). In considering a motion for summary judgment, "the court is required to view the facts and draw reasonable inferences in a light most favorable to the nonmoving party. The plaintiff is entitled to have the credibility of all his evidence presumed." Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.) (citations omitted), cert. denied, 513 U.S. 814, 115 S.Ct. 68, 130 L.Ed.2d 24 (1994). There is a genuine issue of fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Where a nonmoving party fails to establish an essential element of its case, all other facts are rendered immaterial, and entry of summary judgment is required as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

B. Assault and Battery

The state law claim of assault and battery is barred by the doctrine of sovereign immunity. The Eleventh Amendment protects Virginia from being sued for tort recovery by private parties in federal court. There are two manners by which a plaintiff can overcome the state's Eleventh Amendment immunity. First, Congress may expressly abrogate the immunity. There is no allegation on the part of the plaintiff that Congress authorized this suit. Second, and more germane to this matter, the Commonwealth may expressly authorize the claim, thus waiving its immunity. McConnell v. Adams, 829 F.2d 1319, 1328-29 (4th Cir.1987), cert. denied sub nom. Kilgore v. Virginia ex rel State Bd. of Elections, 486 U.S. 1006, 108 S.Ct. 1731, ...