VanBuren v. Va. Highlands Orthopaedic Spine Ctr., LLC

• Decision Date: 23 September 2010
• Docket Number: Civil Action No. 7:10CV00132
• Parties: Angela VANBUREN, Plaintiff, v. VIRGINIA HIGHLANDS ORTHOPAEDIC SPINE CENTER, LLC, and Stephen A. Grubb, M.D., Defendants.
• Court: U.S. District Court — Western District of Virginia

728 F.Supp.2d 791

Angela VANBUREN, Plaintiff,

v. VIRGINIA HIGHLANDS ORTHOPAEDIC SPINE CENTER, LLC,andStephen A. Grubb, M.D., Defendants.

Civil Action No. 7:10CV00132.

United States District Court,

W.D. Virginia,

Roanoke Division.

July 28, 2010.

Opinion Granting Certification Sept. 23, 2010.

Michael F. Gibson, Gibson Lefler & Associates, Princeton, WV, Paul Granger Klockenbrink, Gentry Locke Rakes & Moore, Roanoke, VA, for Plaintiff.

Melvin E. Williams, Terry Neill Grimes, Grimes & Williams PC, Roanoke, VA, for Defendant.

MEMORANDUM OPINION

JAMES C. TURK, Senior District Judge.

This matter is presently before the Court on the Defendants' Motion to Dismiss (Dkt. No. 6) and the Plaintiff's Motion to Strike Defendants' Affirmative Defense (Dkt. No. 15). The Plaintiff filed a memorandum in opposition to Defendants' Motion to Dismiss (Dkt. No. 13) and theDefendants replied (Dkt. No. 16). The Defendants also filed a memorandum in opposition to Plaintiff's Motion to Strike (Dkt. No. 17). The Court heard oral argument on both of these motions on July 8, 2010. For the following reasons, the Defendants' Motion to Dismiss is GRANTED in part and DENIED in part, and the Plaintiff's Motion to Strike is DENIED.

I. Procedural History and Factual Allegations

The Plaintiff, Ms. Angela VanBuren (hereinafter "Ms. VanBuren"), began employment with Defendant Virginia Highlands Orthopaedic Spine Center, LLC, (hereinafter "Virginia Highlands") on December 1, 2003. She was fired on March 25, 2008. Following her termination, she filed a charge of gender discrimination with the EEOC and received a "Notice of Right to Sue." On March 25, 2010, within 90 days of receipt of the "Notice of Right to Sue" letter, Ms. VanBuren filed her complaint in this Court.

Ms. VanBuren alleges in her complaint that within 10 days of beginning her employment at Virginia Highlands she began to be sexually harassed by her supervisor, Defendant Stephen A. Grubb, M.D. (hereinafter "Dr. Grubb"). Ms. VanBuren alleges that Dr. Grubb and Virginia Highlands permitted a work environment to exist that was sexually charged, hostile, intimidating and offensive to Ms. VanBuren. Specifically, Ms. VanBuren alleges that Dr. Grubb would hug her, rub her back, waist, breasts and other inappropriate areas, and attempt to kiss her and fondle her. She also alleges that he sent her love poems and, on one occasion, forced his way into her hotel room, attempted to grope and fondle her, and professed his love to her. Ms. VanBuren alleges that when she complained to Dr. Grubb, her supervisor, about the sexual harassment and hostile work environment at Virginia Highlands she was fired in retaliation. Ms. VanBuren asserts that all of these acts were in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). Ms. VanBuren also alleges that her termination at Virginia Highlands constituted a wrongful discharge in violation of Virginia public policy, and thus a violation of Virginia common law. See Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985).

II. Jurisdiction and Venue

This Court possesses federal question subject matter jurisdiction over Ms. VanBuren's Title VII claims pursuant to 28 U.S.C. § 1331 because these claims arise under 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). Moreover, Ms. VanBuren has complied with the procedural and administrative requirements set forth in Section 706 of Title VII, 42 U.S.C. § 2000e-5. The Court has supplemental jurisdiction over Ms. VanBuren's Virginia common law claim for wrongful discharge pursuant to 28 U.S.C. § 1367 because this claim is so closely related to her Title VII claims that "they form part of the same case or controversy." 28 U.S.C. § 1367(a). Venue is proper in the United States District Court for the Western District of Virginia under 28 U.S.C. § 1391(b)(2) because a substantial part of the events giving rise to these claims occurred in this district.

III. Motion to Dismiss Analysis

A. Standard of Review

Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Pro. 8(a)(2). And when evaluating a complaint under Rule 12(b)(6), courts must "accept the allegations in the complaint as true, and draw all reasonable factual inferences in favor ofthe plaintiff." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Notwithstanding Federal Rule of Civil Procedure 8(a)(2), the Supreme Court has specified that pleadings which merely offer "labels and conclusions," "a formulaic recitation of the elements of a cause of action," or "naked assertions devoid of further factual enhancement" are not sufficient. Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, while "detailed factual allegations" are not required, "to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Id.

B. Wrongful Discharge Claim Against Dr. Grubb

Plaintiff has asserted claims under both Title VII and Virginia common law against Virginia Highlands, but only claims under Virginia common law against Dr. Grubb individually. Rightfully so; it is immediately apparent that any Title VII claim against Dr. Grubb would be dismissed because Title VII does not apply to Dr. Grubb individually. Lissau v. S. Food Serv., Inc., 159 F.3d 177, 178 (4th Cir.1998) ("Supervisors are not liable in their individual capacities for Title VII violations."). Defendant has argued that the Virginia common law wrongful termination claim is constrained the same way Title VII is: applicable only to employers and not to individual supervisors. Plaintiff disputes the Defendants' interpretation of Virginia common law, and stresses that the relevant Virginia precedent permits plaintiffs to pursue wrongful discharge claims against individuals. Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797 (1985). There is no dispute between the parties, however, as to the respective positions of the defendants: Virginia Highlands was the employer of Ms. VanBuren while Dr. Grubb was her supervisor. See Am. Comp. ¶¶ 11, 13.

Bowman stands as the foundation of Virginia's wrongful discharge precedent. Bowman created an exception to Virginia's common law doctrine of at-will employment that applies when an employee claims to have been discharged in violation of established public policy. Nevertheless, this Court does not believe that Bowman necessarily stands for the proposition that supervisors can be held individually liable in wrongful discharge suits. The individuals held liable by the Bowman Court were not sued in their role as supervisors; instead, they were all "members of the Bank's nine-person Board of Directors." Bowman, 229 Va. at 536, 331 S.E.2d at 799. The Bowman Court relied on this characterization of the individual defendants as Board members because the public policy implicated in Bowman revolved around the status of the employees as shareholders. "The Bank and the named Board members, by actions which violated securities and corporation laws, sought to influence the exercise of protected shareholder rights by bringing pressure to bear on the vulnerable employee relationship." Id., 229 Va. at 539, 331 S.E.2d at 800. Accordingly, when the Virginia Supreme Court "appl[ied] a narrow exception to the employment-at-will rule" and concluded that the plaintiffs had stated a cause of action in tort, the cause of action was specifically "against the Bank and the named directors." Id., 229 Va. at 540, 331 S.E.2d at 801. Moreover, the Bowman Court specifically emphasized the trade-off between protecting public policy and preserving employment-at-will by referring to how the employer is constrained by this new exception: "the employer may not lawfully use the threat of discharge of an at-will employee as a device to control the otherwise unfettered discretion of a shareholderto vote freely his or her stock in the corporation." Id. (emphasis added).

A more recent precedent addressed precisely the same allegations as the instant case, but, unfortunately, it did not resolve the question of supervisor liability. In Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000), the Virginia Supreme Court permitted a wrongful discharge claim to proceed against a named individual. In Mitchem, the Virginia Supreme Court found that an employee who alleged that she was terminated for refusing to violate laws against fornication and lewd and lascivious behavior had stated a claim for wrongful discharge in violation of public policy. But although the named defendant in Mitchem was the individual who had engaged in the sexual harassment, the defendant was simultaneously, and more importantly, the employer. And it appears that the Virginia Supreme Court understood the individual to have been sued in his capacity as an employer, not a supervisor or co-employee. See Mitchem, 259 Va. at 183 n. 1, 523 S.E.2d at 248 n. 1 ("Her former employer Durwood Counts ... was an insurance agent who at all times pertinent to this action, employed no more than five persons."); see also id., 259 Va. at 184, 523 S.E.2d at 249 ("In response, Counts (the employer) argues that ...") (parenthetical in original). Notwithstanding the fact that the result in Mitchem was a wrongful discharge claim proceeding against a specific individual, the Mitchem Court's discussion of the Bowman doctrine supports the conclusion that Counts was sued as an employer-and employers are the only parties that may be held liable. For example, Mitchem stresses that the employment-at-will doctrine is not meant to "serve as a shield for employers who seek to force their employees, under the threat of discharge, to engage in criminal activity." Id., 259 Va. at...