Young v. Sheetz, Inc.

• Decision Date: 21 November 1997
• Docket Number: No. CIV. A. 96-0016-H.,CIV. A. 96-0016-H.
• Citation: 987 F.Supp. 496
• Parties: Nancy L. YOUNG, Plaintiff, v. SHEETZ, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

987 F.Supp. 496

Nancy L. YOUNG, Plaintiff, v. SHEETZ, INC., et al., Defendants.

No. CIV. A. 96-0016-H.

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

November 21, 1997.

MEMORANDUM OPINION

MICHAEL, Senior District Judge.

I. Background

Plaintiff Nancy Young is employed as a clerk at defendant Sheetz, Inc. and Fox Mountain, Inc.'s store. Plaintiff was supervised by defendant Rinker, who in turn was supervised by defendant Campbell, the district manager. Plaintiff makes a host of allegations against the individual defendants, including that (1) she was repeatedly the recipient of unwelcome physical touching by defendants Rinker and Campbell; (2) Campbell suggested that he could be her "honey;" (3) Rinker would stand by the pornographic magazine rack, stimulate himself, go into the men's room and masturbate, before forcing plaintiff to clean up the mess; (4) defendants would make inappropriate comments about plaintiff's physical appearance; (5) Rinker would force plaintiff to rewrap pornographic magazines that he had opened and would make comments about the magazines; (6) Rinker would comment on the physical appearance of women customers; and (7) Rinker would look at pornographic magazines and "take great pride in displaying his erection as he paraded about the store." Despite plaintiff's protests, these incidents continued.

On September 28, 1995, plaintiff filed an EEOC charge and received a Right to Sue letter. Plaintiff brought suit in this court alleging: quid pro quo sexual harassment (Count I), hostile work environment created by sexual harassment (Count II), Assault and Battery (Count III), Breach of Contract (Count IV), and Intentional Infliction of Emotional Distress (Count V). Pursuant to a hearing regarding defendants' motions to dismiss, this court dismissed plaintiff's Title VII and breach of contract claims as asserted against defendants Rinker and Campbell. Defendants Rinker, Sheetz, Fox Mountain, and Campbell then filed motions for summary judgment. Defendant Rinker in his separate motion for summary judgment argues that the court should grant him summary judgment on Counts III (Assault and Battery) and V (Intentional Infliction of Emotional Distress).¹ Defendants Sheetz and Fox Mountain argue that the court should grant them summary judgment because: (1) plaintiff's quid pro quo claim fails because plaintiff cannot show a "bargained-for exchange," (2) her hostile work environment claim fails because the misconduct of Rinker could not be imputed to Campbell, Sheetz, or Fox Mountain, (3) plaintiff's breach of contract claim fails because she does not offer any evidence of the elements of a contract; and (4) plaintiff's intentional infliction of emotional distress claim fails because Campbell's acts were not outrageous, plaintiff's distress was not severe, and the companies cannot be liable for the personal acts of their supervisors.

Magistrate Judge Crigler conducted a hearing on the motions on July 24, 1997 and issued a Report and Recommendation on August 21, 1997. This court has carefully considered the Report and Recommendation, the oral arguments of the parties before this court on October 10, 1997, and the numerous pleadings in this case.² The court now denies Defendants' October 24, 1997 motion to dismiss plaintiff's complaint for untimeliness. As to the objections to the Report and Recommendation of the magistrate judge, this court sustains the objections of the defendants in part and overrules them in part. The court adopts the magistrate judge's recommendation to deny the motion to dismiss as to the Assault and Battery claim (Count III) against defendant Rinker and Campbell, the Intentional Infliction of Emotional Distress Claim (Count V) against all defendants, and the hostile work environment claim (Count II) against defendants Sheetz and Fox Mountain. The court further adopts the recommendation of the magistrate judge to grant the motion to dismiss as to the Breach of Contract claim (Count IV) against Sheetz and Fox Mountain. The court rejects the recommendation of the magistrate judge and grants the motion to dismiss the quid pro quo claim (Count I) against defendants Sheetz and Fox Mountain, and denies the motion to dismiss the Assault and Battery claim (Count III) against defendants Sheetz and Fox Mountain. The court's actions may be summarized as follows:

                Summary Judgment
                Defendants Cause of Action Magistrate Court
                Rinker                              Assault and Battery                            Denied            Denied
                                                    Intentional Infliction of Emotional Distress   Denied            Denied
                Campbell                            Assault and Battery                            Denied            Denied
                Sheetz & Fox Mountain               Quid Pro Quo                                   Denied            Granted
                                                    Hostile Work Environment                       Denied            Denied
                                                    Breach of contract                             Granted           Granted
                                                    Assault and battery                            Granted           Denied
                Sheetz, Fox Mountain, & Campbell:   Intentional Infliction of Emotional Distress   Denied            Denied
                Motion to Dismiss
                Sheetz, Fox Mountain, & Campbell    Untimeliness                                   Not reached       Denied
                

II. Standard of Review

This court must undertake a de novo review of the entire case after the magistrate judge has issued the report and recommendation. Orpiano v. Johnson, 687 F.2d 44, 48 (4th Cir.1982). The parties, in their objections, have, for the most part, simply reiterated their original arguments. Therefore, for ease of organization, this court addresses the issues in proper order, rather than the objections.

III Discussion

A. Statute of Limitations

Defendants Sheetz, Fox Mountain, and Campbell argue that plaintiff's claim was not timely. Under 42 U.S.C. § 2000e-5(e)(1), an EEOC charge is timely filed if filed within 180 of the date of the alleged unlawful employment practice if the state human rights agency is not a deferral agency.³ The Virginia courts have held that the Virginia Council on Human Rights is not a deferral agency. Tokuta v. James Madison University, 977 F.Supp. 763 (W.D.Va.1997); McGuire v. Commonwealth, 988 F.Supp. 980 (W.D.Va.1997). Dorsey v. Duff's Motel, Inc., 878 F.Supp. 869, 870 (W.D.Va.1995); Foster v. Geopure Systems & Services, Inc., 1995 WL 852074, at *2 (E.D.Va.1995). Therefore, in order for her charge to be timely, Ms. Young must have filed within 180 days of the alleged discriminatory practice.

Plaintiff alleges that the last discriminatory act occurred on April 4, 1995. She filed on September 28, 1995,⁴ 177 days after the occurrence of the last discriminatory act. Defendants assert that she had left employment due to back injuries. However, in their own pleadings the defendants admit that plaintiff "has worked as a deli clerk at Sheetz, Inc. ("Sheetz") Store 186 since April 12, 1993". Sheetz, Inc.'s, Fox Mountain, Inc.'s, and Robert Campbell's Objections to the Report and Recommendation Issued by the Magistrate Judge 4 (Sep. 5, 1997). Thus, the court finds no merit in the defendants' contention that plaintiff was no longer employed by the defendants on April 4, 1995.

Moreover, defendant Rinker was employed with Sheetz and Fox Mountain at the time of the alleged discriminatory act. Defendant Rinker states in his answer that he worked in the store only until April 1, 1995. Answer of Defendant Michael Rinker 3 (Jun. 14, 1996). However, Sheetz, Fox Mountain, and Campbell state in their answer that Mr. Rinker worked in the store until April 6, 1995, Answer of Sheetz, Inc., Fox Mountain, Inc., and Robert Campbell 2 (Jun. 17, 1996), and both Mr. Rinker's resignation letter and his Termination Form indicate that April 6, 1995 was indeed the last day on which defendant Rinker worked for defendants Sheetz and Fox Mountain. Letter from Michael Rinker to Robert Campbell, District Manager, and Dave Woodley, Sheetz Inc. (March 24, 1995); Sheetz, Inc. Human Resource Department Termination Form, authorized by Robert Campbell, District Manager, Sheetz Inc. (April 12, 1995). Thus, the facts indicate that, despite Mr. Rinker's Answer to the Complaint, he was still employed by Sheetz, Inc. and Fox Mountain, Inc. on April 4, 1995.

The courts have explained that when a series of Title VII violations occur, "the 180-day day filing deadline is measured from the last relevant act." Brown v. Waynesboro Nurseries, Inc., 1994 WL 470473, *3, (W.D.Va.), citing, Taylor v. Home Insurance Co., 777 F.2d 849, 856 (4th Cir.1985); White v. Federal Express Corp., 729 F.Supp. 1536 (D.Va. 1990); Held v. Gulf Oil Co., 684 F.2d 427 (6th Cir.1982) (citing, inter alia, Woodard v. Virginia Board of Bar Examiners, 420 F.Supp. 211 (E.D.Va.1976), aff'd, 598 F.2d 1345 (4th Cir.1979)); Weide v. Mass Transit Adm., 628 F.Supp. 247 (D.Md.1985). The last relevant act in the case before the court is the alleged touching or rubbing of the plaintiff's thigh by defendant Rinker on April 4, 1995. Therefore, that act was sufficient to bring the matter within the statutory filing limit. Moreover, "if at least one of a series of separate acts falls within the statutory period, `the effect ... is to sweep within the limitations period the earlier alleged acts of discrimination.'" NAACP Labor Committee of Front Royal, Virginia v. Laborers' Int'l Union of North America, 902 F.Supp. 688, 706 (W.D.Va.1993) (ruling on time limits under Title VII), quoting, Bradley v. Carydale Enterprises, 707 F.Supp. 217, 222 (E.D.Va. 1989) (ruling on time limits under 42 U.S.C. § 1981). The defendants Sheetz, Fox Mountain, and Campbell argue that the touching of plaintiff's thigh was insufficient to bring the matter within the 180-day deadline. However, the cases to which defendants cite are...