Scarborough v. Brown Group, Inc.

• Decision Date: 25 September 1996
• Docket Number: No. 95-1150.,95-1150.
• Citation: 935 F. Supp. 954
• Parties: Linda A. SCARBOROUGH, Gracie Myrick, Charlotte Roberson, Cathy D. Walker, Tina J. Lowery, and Jo Ellen Spurgeon, Plaintiffs, v. BROWN GROUP, INC., d/b/a Brown Shoe Company; Billy Spellings and Nelson Siler, Defendants.
• Court: U.S. District Court — Western District of Tennessee

935 F. Supp. 954

Linda A. SCARBOROUGH, Gracie Myrick, Charlotte Roberson, Cathy D. Walker, Tina J. Lowery, and Jo Ellen Spurgeon, Plaintiffs, v. BROWN GROUP, INC., d/b/a Brown Shoe Company; Billy Spellings and Nelson Siler, Defendants.

No. 95-1150.

United States District Court, W.D. Tennessee, Eastern Division.

October 31, 1995.

As Amended September 25, 1996.

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Thomas Strawn, Jr., Dyersburg, TN, for plaintiffs.

Randy Chism, Union City, TN and James N. Foster, Jr., St. Louis, MO, for defendants.

ORDER PARTIALLY GRANTING DEFENDANT BROWN GROUP, INC.'S MOTION TO DISMISS, AND PARTIALLY GRANTING MOTION TO DISMISS ON BEHALF OF DEFENDANTS SPELLINGS AND SILER

TODD, District Judge.

This action involves claims of sexual harassment pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983. Plaintiffs Linda A. Scarborough, Gracie Myrick, Charlotte Roberson, Cathy D. Walker, Tina J. Lowery, and Jo Ellen Spurgeon, who are either present or former employees of Brown Group, Inc., d/b/a Brown Shoe Company in Dyer, Tennessee, filed suit against their employer, and also against Billy Spellings, a supervisor, and Nelson Siler, the general manager of the Dyer facility. Plaintiffs seek both compensatory and punitive damages, and also invoke the court's supplemental jurisdiction to hear various state law tort claims. Before the court is a motion to dismiss on behalf of Brown Group, Inc., and a motion to dismiss on behalf of Defendants Spellings and Siler. Plaintiffs have responded to the motions.

A motion to dismiss under Rule 12(b)(6) tests whether a claim has been adequately stated in the complaint. Rule 8(a) requires the pleader to set forth a short and plain statement of the claim showing an entitlement to relief. In evaluating a motion to dismiss under Rule 12(b)(6), all allegations in the complaint are taken as true and the complaint is construed liberally in favor of the party opposing the motion to dismiss. Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). In appraising the sufficiency of the complaint, the accepted rule is that "all a complaint need do is afford the defendant `fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957)). A motion to dismiss under Rule 12(b)(6) is appropriate only "if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. at 45-46, 78 S.Ct. at 101-02); Allard v. Weitzman (In re DeLorean Motor Co.), 991 F.2d 1236, 1240 (6th Cir.1993). A complaint should not be dismissed because it does not state all the elements giving rise to a legal basis of recovery or because plaintiff misconceived the proper theory or claim if plaintiff is entitled to relief under any theory. Myers v. United States, 636 F.2d 166 (6th Cir.1981); Thomas W. Garland, Inc. v. City of St. Louis, 596 F.2d 784 (8th Cir.1979), cert. denied, 444 U.S. 899, 100 S.Ct. 208, 62 L.Ed.2d 135 (1979). However, legal conclusions or unwarranted factual inferences need not be accepted as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987).

Title VII Claims Against Brown Group, Inc.

Defendant Brown Group, Inc., ("Brown") first contends that the claims of Plaintiffs Linda Scarborough, Gracie Myrick, and Jo Ellen Spurgeon must be dismissed either in whole or in part because of the failure to file timely charges of discrimination with the Equal Employment Opportunity Commission or the Tennessee Human Rights Commission.

Plaintiff Scarborough filed an administrative charge with the EEOC on March 3, 1995, alleging that she had been subjected to sexual harassment by Defendant Spellings from June, 1980, through June 20, 1994. Plaintiff Myrick also filed her charge on March 3, 1995, alleging harassment from 1970 through December 19, 1994. Defendant Brown contends that these Plaintiffs cannot recover for any incidents of harassment occurring before May 7, 1994, three hundred days prior to the filing of the administrative charges.

Generally, in order to recover for a discriminatory act, a plaintiff must make the act the basis of a timely administrative charge with the EEOC. See United Air Lines v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977); Equal Employment Opportunity Comm'n v. Ford Motor Credit Co., 26 F.3d 44, 46 (6th Cir. 1994). Pursuant to 42 U.S.C. § 2000e-5(e)(1), a charge of discrimination in Tennessee must be filed within three hundred days of the alleged discriminatory act. However, there are exceptions to this general rule.

One of the exceptions to the general rule is the continuing violation doctrine. Under this doctrine, "where a plaintiff, pursuant to Title VII, challenges not just one incident of conduct violative of the Act, but an unlawful practice that continues into the limitations period, the complaint is timely when it is filed within 300 days of the last asserted occurrence of that practice." Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 1125, 71 L.Ed.2d 214 (1982); Hull v. Cuyahoga Valley Bd. of Educ., 926 F.2d 505, 510-11 (6th Cir.1991); Held v. Gulf Oil Co., 684 F.2d 427, 430 (6th Cir.1982).

There are two categories of continuing violations. The first category arises "where there is some evidence of present discriminatory activity giving rise to a claim of a continuing violation." Haithcock v. Frank, 958 F.2d 671, 677-78 (6th Cir.1992) (quoting Dixon v. Anderson, 928 F.2d 212, 216-17 (6th Cir.1991)); see also Equal Employment Opportunity Comm'n v. Penton Indus. Pub. Co., 851 F.2d 835, 837-38 (6th Cir.1988). The second category of continuing violation arises "where there has been a longstanding and demonstrable policy of discrimination." Id. The Defendant contends that the Plaintiffs' allegations fail to state a claim for either type of continuing violation.

The court agrees that Plaintiffs have failed to allege a longstanding and demonstrable policy of discrimination, as this second category of continuing violation requires that some form of discrimination be "standard operating procedure" for the employer. Penton Indus., 851 F.2d at 838 (quoting Jewett v. ITT Corp., 653 F.2d 89, 91-92 (3d Cir.), cert. denied, 454 U.S. 969, 102 S.Ct. 515, 70 L.Ed.2d 386 (1981)). However, the court finds that the Plaintiffs have successfully alleged a continuing violation of the first type, the occurrence of "present" discriminatory activity.

Contrary to Defendant's assertions, this type of continuing violation does not require an allegation that the discriminatory activity has continued into the present time. "Present" or "current" means present within the applicable limitations period. See Haithcock, 958 F.2d at 678; Dixon, 928 F.2d at 216; Hull, 926 F.2d at 510-11; Penton Indus., 851 F.2d at 838; Held, 684 F.2d at 430. Thus, where there has been a continuous pattern of discriminatory acts, a Title VII claim is actionable in its entirety as long as at least one of the acts occurred within the limitations period. Id.

In this case, the EEOC charges¹ filed by Plaintiffs Scarborough and Myrick clearly allege a long pattern of sexual harassment by Defendant Spellings, continuing throughout their employment and into the 300-day limitations period. The harassment allegedly consisted of, inter alia, sexual remarks and jokes, requests for sexual favors and liaisons, and intimidation. This is not a case of "an unrelated isolated incident," as argued by the Defendant. The EEOC charges allege a continuing violation, and were timely filed. Thus, this court has jurisdiction over the Title VII claims of Plaintiffs Scarborough and Myrick in their entirety.

Plaintiff Spurgeon filed her administrative charge with the EEOC on February 23, 1995, alleging harassment by Spellings from December, 1987, through February 14, 1994. It is clear that under both the general rule of § 2000e-5(e)(1) and the continuing violation doctrine, these claims are untimely. However, the "single-filing rule" provides that in a multiple-plaintiff, non-class action suit, "if one plaintiff has filed a timely EEOC complaint as to that plaintiffs individual claim, then co-plaintiffs with individual claims arising out of similar discriminatory treatment in the same time frame need not have satisfied the filing requirement." Equal Employment Opportunity Comm'n v. Wilson Metal Casket Co., 24 F.3d 836, 839-40 (6th Cir.1994) (quoting Ezell v. Mobile Housing Bd., 709 F.2d 1376, 1381 (11th Cir.1983). The rationale for this rule is that it would be wasteful to require numerous employees with the same grievance to file separate, identical complaints with the EEOC. Id. at 840.

The harassment claims of Plaintiff Spurgeon are virtually identical to those of Plaintiffs Scarborough, Myrick, and Walker.² They involve a continuous pattern of harassment by Defendant Spellings, occurring within the same time frame. Therefore, her claims are substantially related to the timely filed claims, and under the "single-filing rule" Plaintiff Spurgeon need not have complied with the 300-day filing requirement.

Title VII Claims Against Defendants Spellings and Siler

Title VII provides that "it shall be an unlawful employment practice for an employer" to discriminate on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. A person aggrieved by such discrimination may bring a civil action against the "employer." 42 U.S.C. § 2000e-5(b). "Employer" is defined to mean "a person engaged in an industry affecting commerce who has fifteen or more employees ... and any agent of such person." 42 U.S.C. § 2000e(b). Defendants Spellings and Siler contend that Title VII does not allow employees or supervisors to be sued as...