Samuels v. Two Farms, Inc.

Filing 30

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 1/27/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
CLIVELLA D. SAMUELS
:
v.

:

Civil Action No. DKC 10-2480

:
TWO FARMS, INC.
:
MEMORANDUM OPINION
Presently
employment

pending

and

discrimination

ready

action

for
is

a

judgment filed by Defendant Two Farms, Inc.

resolution
motion

for

in

this

summary

(ECF No. 23).1

The

issues have been fully briefed, and the court now rules pursuant
to Local Rule 105.6, no hearing being deemed necessary.

For the

reasons that follow, Defendant’s motion will be granted in part
and denied in part.
I.

Background
A.

Factual Background

The

following

facts

are

presented

in

the

light

most

favorable to Plaintiff Clivella D. Samuels, the nonmoving party.
Plaintiff, a Maryland resident, began working full-time at
Defendant’s Fleet Street store in Baltimore, Maryland in October

1

Defendant trades under the name “Royal Farms Stores,” and
Plaintiff references Defendant by that name repeatedly in her
papers.

2005.

(ECF No. 28-4, Samuels Dep., at 8; ECF No. 28-5, Samuels

Decl., ¶ 1; ECF No. 28-8, Pl.’s Answers to Interrogs., at 2).2
Plaintiff worked the store’s “second shift,” which lasted from
2:00 p.m. until 10:00 p.m., and her position involved working at
the store’s cash register and its deli, as well as stocking
shelves and other non-managerial tasks.
ECF No. 28-5 ¶ 11).

(ECF No. 28-4, at 19;

Plaintiff received a copy of Defendant’s

employee handbook, which discussed its sexual harassment policy
and procedures, and Plaintiff acknowledged in writing that she
had received the handbook.

(ECF 28-5 ¶¶ 4-5).

Defendant did

not, however, require Plaintiff to read the handbook nor did it
provide training related to sexual harassment at any time during
Plaintiff’s

employment

at

the

store.

(Id.

¶¶

6-8).

From

October 2005 until early July 2007, Plaintiff reported to Tony
Corleone, the store’s manager, who repeatedly told her that she
“could work [her] way up to being a manager.”
19).

(ECF No. 28-4, at

Shawn Stevenson reiterated this sentiment when he replaced

Tony Corleone as store manager in early July 2007.

(Id. at 19-

20).

2

Plaintiff’s answers to Defendant’s interrogatories do not
contain page numbers.
Certain of the answers provided in that
document are relevant to the resolution of the pending motion
and span several pages.
For that reason, and for easy
reference, the citations in this memorandum opinion to those
answers will list the page number(s), as provided by the CM/ECF
system, on which the relevant answer was given.
2

Stevenson generally worked from 6:00 a.m. until at least
4:00 p.m. because the store did not employ an assistant manager
to supervise its second shift employees.
28-7, Stevenson Dep., at 86-88).

(Id. at 21; ECF No.

On or about July 10, 2007,

Stevenson began making “unwanted” comments to Plaintiff about
the way that her clothing fit over her breasts and her buttocks.
(ECF

No.

23-3,

Samuels

Dep.,

at

35;

ECF

No.

Plaintiff asked Stevenson to leave her alone.
6).

Shortly

thereafter,

Stevenson

Plaintiff’s body and touching her.

28-8,

at

6).

(ECF No. 28-8, at

started

“glar[ing”

(Id. at 8-9).

at

Stevenson

first touched Plaintiff by grabbing her hand and leading her to
a particular area of the store and by leaning in close to her
and moving her hair.

(ECF No. 28-4, at 33).

Although Plaintiff

“didn’t really think [this interaction] was anything . . . at
first,” the second time Stevenson touched her, Plaintiff asked
him why he continued to do so.

(ECF No. 23-3, at 34).

Around

this time, Stevenson “drastically” reduced Plaintiff’s working
hours

at

the

store.

(ECF

No.

28-4,

at

37).

In

order

to

continue supporting both herself and her son, Plaintiff began
working “once every other week” as an exotic dancer to offset
the income that she lost as a result of her reduced schedule at
the store.

(Id. at 37-39).

3

In August 2007, Stevenson changed Plaintiff’s work hours
again and placed her on the schedule “four or five days a week.”
(Id. at 44).

Stevenson continued making “rude sexual comments”

about Plaintiff’s breasts and buttocks and glaring at her body
on a daily basis.
store

employee

(ECF No. 28-8, at 6).
who

was

having

a

When Stephanie Muir, a

sexual

relationship

with

Stevenson, told him that Plaintiff had obtained a part-time job
as an exotic dancer, Stevenson’s comments became “more frequent
and more aggressive.”

(Id.; ECF No. 28-5 ¶ 27).

In addition to

continuing comments about her breasts and buttocks, Stevenson
asked about Plaintiff’s vagina, sex toys, masturbation, and oral
sex

when

talking

about

her

work

as

an

exotic

dancer

and

generally referred to women as “ghetto trash” and “bitches.”
(ECF No. 28-8, at 7-8; ECF No. 28-5 ¶ 30).3

He also repeatedly

asked if he would “have a good time” if he visited Plaintiff at
the club where she danced.

(ECF No. 28-8, at 7).

3

Plaintiff

Stevenson once asked Plaintiff about recruiting another
store employee, Ann Thomas, to become an exotic dancer so that
Stevenson could come to the dance club and “throw some money at
her.”
(Id.).
Stevenson repeatedly “acted and spoke in a way
that conveyed to everyone that he wanted to have sex” with
Thomas, and, in October 2007, Thomas wrote a letter to the
company’s management about Stevenson’s inappropriate behavior.
(ECF No. 28-10, Thomas Decl., ¶¶ 18, 25, 31, 44). According to
Thomas, Stevenson fired her shortly before she wrote this letter
because he feared that “he would get in trouble for sexually
harassing [Plaintiff] and Thomas.” (Id. ¶ 44).
4

became increasingly “forceful” in demanding that Stevenson cease
making

such

comments

comments,

continued,

but

as

to

did

physically with Plaintiff.

no

avail.

Stevenson’s

(Id.

at

attempts

6).

to

The

interact

Stevenson used the store’s video

cameras to watch Plaintiff while she worked in the store, and he
repeatedly touched her arms, shoulders, neck, and face – often
after first isolating Plaintiff in the store’s large walk-in
refrigerator.

(Id. at 8-9).

During one of these encounters,

Stevenson tried to kiss Plaintiff.

(Id. at 9).4

Plaintiff once

again asked Stevenson to leave her alone (id. at 6), but “the
more upset that [Plaintiff] got” in responding to Stevenson’s
advances,

“the

more

forcefully

and

flagrantly

[he]

harassed

[her]” (ECF No. 28-5 ¶ 42).
In

late

performance

August

review

2007,

that

Stevenson

prevented

her

gave
from

Plaintiff

a

bad

receiving

a

pay

raise, and Plaintiff “didn’t want to talk to [Stevenson] as a
result.”

(ECF No. 23-3, at 54; ECF No. 28-8, at 9).

Stevenson

nonetheless cornered Plaintiff in the walk-in refrigerator and
“g[ot] really close” to her in an “intimate” manner.

4

(ECF No.

Stevenson would also respond “in a jealous” way when
Plaintiff assisted male customers at the store.
(Id. at 8-9).
For instance, he would routinely approach male customers who
spoke with Plaintiff and inform them that they could not talk to
her. (ECF No. 23-3, at 58-59).
5

23-3, at 54, 75).

He then told her that she “need[ed] to stop

being mean to [him]” and that he would give her a positive
review if she would “stop being so mean to [him].”

(Id. at 75).

Plaintiff once again demanded that Stevenson leave her alone,
telling him to “[g]et out of [her] face.”

(Id. at 55).

this

Wanga,

encounter,

Plaintiff

called

Nick

After

Defendant’s

district manager, and left a message requesting to speak with
Wanga about Stevenson’s behavior at the store.
at 9-10).

(ECF No. 28-8,

Wanga came to the store and arranged a meeting to

discuss the situation with Plaintiff, but he “never showed up”
for that meeting.
Stevenson

(Id. at 10).

subsequently

“started

getting

real

mean”

with

Plaintiff (ECF No. 23-3, at 55), although he continued to treat
Stephanie

Muir

well

because

“she

was

more

receptive

sexual comments” (ECF No. 28-8, at 5, 10-11).5

to

his

For example,

Defendant’s employee handbook included a policy against the use
of cell phones during work hours (ECF No. 29-1, at 14), but
Stevenson allowed his store employees to use cell phones for
emergency purposes (ECF No. 23-3, at 55).

On September 27,

2007, Plaintiff’s mother called the store and asked to speak

5

Plaintiff contends that Stevenson learned of her
complaints to management around this time because he altered his
work hours such that his shift no longer had significant overlap
with her own. (ECF No. 23-3, at 69).
6

with her about a case of bronchitis that Plaintiff’s two-yearold son had contracted; Stevenson answered the phone and hung up
on Plaintiff’s mother.

(Id.).

Plaintiff’s mother then twice

called Plaintiff’s cell phone, but Plaintiff did not answer.
(Id. at 56).
time,

When Plaintiff’s mother called her for the third

Plaintiff

answered

the

phone,

fearing

for

her

son’s

health, and learned that her son had to go to the emergency
room.

(Id.).

Stevenson approached Plaintiff and told her that

she could not be on the phone.

When Plaintiff attempted to

explain the context of the phone call, Stevenson wrote her up
and suspended her for one week.

(Id.; ECF No. 28-5 ¶ 36).

Plaintiff and other store employees, including Stephanie Muir,
had previously been permitted to take such calls, and Stevenson
had

never

previously

disciplined

any

employee

for

doing

so.

(ECF No. 23-3, at 56; ECF No. 28-8, at 10-11).
Plaintiff took the bus home after Stevenson suspended her
and, during the bus ride, she called Wanga and left a message
about the suspension.
Kitty

Fields,

(ECF No. 28-8, at 11).

Defendant’s

Director

of

Human

She then called
Resources,

reported that Stevenson had “sexually harass[ed]” her.

and

(Id.).

When Fields asked Plaintiff to provide details about the alleged
harassment, Plaintiff became hesitant and only described “some
of

the

sexual

harassment”

to

which
7

she

had

been

subjected.

(Id.).

Fields told Plaintiff that she would investigate her

claim; she then asked if Plaintiff would like to speak with
Wanga directly about Stevenson’s behavior and Plaintiff told her
“yes.”

(Id. at 11-12).

Plaintiff returned to work on October

3, 2007, and met with Wanga to discuss her allegations against
Stevenson.

(Id.

at

12).

When

she

mentioned

that

she

had

obtained an attorney, however, Wanga terminated the meeting and
instructed Plaintiff to contact Defendant’s attorney directly
regarding her allegations.
During

the

week

(Id.).

of

October

3,

2007,

Stevenson

wrote

Plaintiff up based on a customer complaint and instructed her to
lift boxes so heavy that she injured her back and had to miss
the next three days of work.
8, at 13).6

(ECF No. 23-3, at 67; ECF No. 28-

Stevenson had never previously written up employees

based on customer complaints and had never assigned Plaintiff to
perform such heavy lifting.
Plaintiff
meeting,

and

arrived
Stevenson

following the meeting.

at

(ECF No. 28-8, at 13).
work

asked

on
to

October
speak

16,

with

2007,
her

for

a

privately

He showed Plaintiff a video in which she

had removed money from the cash register, then stated “[a]nd

6

According to Plaintiff, the customer complained after
Plaintiff had ordered him to leave the store for trying to
conduct a scam involving cigarettes and for cursing at her.
(ECF No. 23-3, at 63).
8

that’s why you’re fired” before laughing at her.
at 99).

(ECF No. 23-3,

Plaintiff told Stevenson that she was merely making

change for the weekend manager for a work-related purpose, which
employees were permitted to do, and urged Stevenson to contact
the weekend manager to verify her story.

(Id.).

Stevenson then

told Plaintiff to “[h]old on” while he looked through additional
video

camera

footage

before

stopping

Plaintiff closing the store early.

on

footage

(Id.).

that

showed

Stevenson asked

Plaintiff if she had closed the store, and she stated that she
had done so for only 10-15 minutes and only for safety reasons.
(Id.

at

100).

Despite

this

explanation,

Stevenson

told

Plaintiff that he was firing her for closing the store, and he
again began to laugh at her.

(Id.).

Plaintiff maintains that

there was no company policy preventing store closures in such
circumstances.

(Id.).

Stevenson then had two police officers

escort Plaintiff from the store.

(ECF No. 23-3, at 101).7

As

she was being escorted out, Plaintiff turned to Stevenson and
asked loudly, “Oh, because I’m not willing to have sex with you
like Stephanie, I’m going to get fired?”
not respond.

7

(Id.).

Stevenson did

(Id.).

On the same day, Stevenson suspended Takeyia Singletary,
another store employee, for purportedly telling someone that he
was engaging in a sexual relationship with Stephanie Muir. (ECF
No. 28-18).
9

The
office

following
to

report

termination.
employee

day,

Plaintiff

Stevenson’s

went

behavior

(ECF No. 28-4, at 104).

asked

Plaintiff

whether

she

to

Defendant’s

and

her

main

subsequent

At this meeting, an

would

accept

a

similar

position at another of Defendant’s stores, and she unequivocally
answered in the affirmative.

(Id.).

[her] after that” conversation.

“Nobody []ever called

(Id.).

To make up for the

income that she lost as a result of her termination, Plaintiff
began working more frequently as an exotic dancer.

(ECF No. 28-

8, at 21-22).
B.

Procedural Background

Plaintiff

filed

an

intake

questionnaire

with

the

Equal

Employment Opportunity Commission (“EEOC”) on January 23, 2008.
(ECF No. 28-11).

In that questionnaire, Plaintiff alleged that

she had suffered discrimination on the basis of sex due to the
“sexual
(Id.).

harassment”

to

which

Stevenson

She also alleged retaliation.

Plaintiff

completed

this

had

(Id.).

questionnaire,

subjected

her.

At the time that

the

EEOC

counselor

informed her that she “did not have to do anything until [she]
heard further from the EEOC and that the Intake form would be
enough
Farms.”

to

preserve

[her]

discrimination

(ECF No. 28-5 ¶ 44).

claim

against

Royal

The EEOC subsequently contacted

Plaintiff in early October 2008, and Plaintiff filed her formal
10

charge of discrimination on or about October 8, 2008.
48).

The

October

9,

EEOC

sent

2008

notice

(id.),

of

and

this

issued

charge
Plaintiff

to
a

(Id. ¶

Defendant

on

right-to-sue

letter on February 23, 2010 (ECF No. 28-12).
Plaintiff commenced the present action in the Circuit Court
for Prince George’s County on May 20, 2010, alleging sexual
harassment in violation of federal law and related state law
claims

for

infliction

assault,
of

battery,

emotional

false

distress,

retention, and supervision.

imprisonment,
and

(ECF No. 2).8

negligent

intentional
training,

Defendant removed the

case to federal court and answered Plaintiff’s complaint.
Nos. 1, 5).

(ECF

Plaintiff subsequently moved to remand the case to

state court (ECF No. 10), and this motion was denied on October
18, 2010 (ECF No. 15).
same day.

A scheduling order was issued on the

(ECF No. 16).

Following the close of discovery,

Defendant moved for summary judgment on all counts.
23).

(ECF No.

Plaintiff opposed this motion on September 1, 2011, and

Defendant filed a reply on September 19, 2011.
II.

Standard of Review
A court may enter summary judgment only if there is no

genuine issue as to any material fact and the moving party is

8

Although Plaintiff alleged retaliation in her charge of
discrimination with the EEOC, she does not appear to raise this
claim in her complaint.
11

entitled
56(a);

to

judgment

Celotex

as
v.

Corp.

a

matter

of

Catrett,

477

law.

See

U.S.

Fed.R.Civ.P.

317,

322

(1986);

Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).

Summary

judgment is inappropriate if any material factual issue “may
reasonably be resolved in favor of either party.”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co.
LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]

pleadings,’

but

rather

must

‘set

forth

specific

showing that there is a genuine issue for trial.’”

facts

Bouchat v.

Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof

.

.

.

will

not

suffice

to

prevent

“A mere scintilla of
summary

judgment.”

Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).

“If the

evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249-50

(citations omitted).

construe

the

favorable

to

facts
the

that

party

Liberty Lobby, 477 U.S. at

At the same time, the court must

are

presented

opposing

the

in

motion.

the

light

See

Scott

Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.

12

most
v.

III. Analysis
Defendant presents the following arguments in its motion
for summary judgment:

(1) that Plaintiff’s sexual harassment

claim must fail because Defendant did not receive timely notice
about the filing of the intake questionnaire or, alternatively,
because Plaintiff cannot set forth a prima facie case; (2) that
Plaintiff’s

state

law

claims

for

assault,

battery,

false

imprisonment, and intentional infliction of emotional distress
must fail because Stevenson was not acting in the scope of his
employment when those claims arose; (3) that Plaintiff’s claims
for intentional infliction of emotional distress and negligent
training, retention, and supervision must fail because they do
not state claims for which relief could be granted; and (4) that
Plaintiff’s negligence claims are preempted by Title VII.

These

arguments will be addressed in turn.
A.

Summary Judgment in Defendant’s Favor Is Not Warranted
on Plaintiff’s Sexual Harassment Claim

Plaintiff’s complaint asserts a claim for sexual harassment
under

both

theories.

the

quid

pro

quo

and

hostile

work

environment

Defendant begins by arguing that this claim is barred

because Defendant did not receive timely notice of the intake
questionnaire that Plaintiff filed with the EEOC.
that

this

argument

that

Plaintiff

is

cannot

unsuccessful,
set

forth
13

a

Defendant
prima

To the extent
further

facie

case

argues
because

Stevenson’s

“unwanted”

conduct

did

not

occur

based

on

Plaintiff’s gender.
1.

Timely Notice of EEOC Intake Questionnaire

Defendant concedes that the intake questionnaire Plaintiff
filed with the EEOC on January 23, 2008, constitutes a charge of
discrimination.

(ECF No. 29, at 2).9

Because it did not receive

notice of this filing from the EEOC until approximately October
9,

2008,

however,

Defendant

contends

harassment claim cannot proceed.10
settled

law

in

this

circuit

and

that

Plaintiff’s

sexual

This argument ignores longmisconstrues

the

language

contained in Plaintiff’s intake questionnaire, and it must fail
as a result.
Defendant cites two subsections of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.,
when contending that Plaintiff is responsible for the lack of

9

In the memorandum accompanying its motion for summary
judgment, Defendant initially argued that this questionnaire may
not constitute a charge of discrimination, thus rendering
Plaintiff’s claim untimely because she did not file her formal
charge of discrimination with the EEOC until more than 300 days
after Stevenson terminated her.
(ECF No. 23-2, at 14).
Defendant, however, abandoned this argument in its reply,
stating that “there is no disagreement” regarding whether the
intake questionnaire constitutes a charge of discrimination.
(ECF No. 29, at 2).
10

Nowhere does Defendant contend that it suffered prejudice
as a result of not receiving this notice until approximately
October 9, 2008.
14

timely notice to Defendant regarding the filing of its intake
questionnaire.

Those subsections provide as follows:

(b) Whenever a charge is filed by or on
behalf of a person claiming to be aggrieved,
. . . the Commission shall serve a notice of
the charge (including the date, place and
circumstances
of
the
alleged
unlawful
employment practice) on such employer . . .
within
ten
days,
and
shall
make
an
investigation thereof. . . .
(e)(1) A charge under this section shall be
filed within one hundred and eighty days
after
the
alleged
unlawful
employment
practice occurred and notice of the charge
(including the date, place and circumstances
of the alleged unlawful employment practice)
shall be served upon the person against whom
such
charge
is
made
within
ten
days
thereafter.
42 U.S.C. § 2000e-5(b), (e)(1) (emphases added).11
States

Court

construed

of

this

Appeals

for

statutory

the

language

Fourth
to

Circuit

indicate

The United
has

long

that

“the

plaintiff is not responsible for [the] EEOC’s failure to notify
[an

employer]

period].”

of

the

charges

within

[the

requisite

time

Waiters v. Robert Bosch Corp., 683 F.2d 89, 92 (4th

Cir. 1982); see also Edelman v. Lynchburg Coll., 300 F.3d 400,
404 (4th Cir. 2002) (“Once a valid charge has been filed, a
simple

11

failure

by

the

EEOC

to

fulfill

its

statutory

duties

A later portion of 42 U.S.C. § 2000e-5(e)(1) extends the
time period for filing the charge of discrimination to 300 days
under certain circumstances and in certain jurisdictions, such
as Maryland.
15

regarding the charge does not preclude a plaintiff’s Title VII
claim.” (citing Waiters, 683 at 92)).12
Although

Defendant

cites

that

language

from

Edelman

verbatim in its memorandum, it ignores this principle entirely.
Defendant instead focuses on the facts of Edelman in an attempt
to

demonstrate

that

the

intake

questionnaire

placed

an

affirmative duty on Plaintiff to follow up with the EEOC – and
that

her

failure

to

do

so

renders

her

responsible

for

the

purported lack of timely notice to Defendant about her claim.
In Edelman, the EEOC had written to the plaintiff on December 3,
1997, informing him that the initial information that he had
submitted was insufficient for the EEOC to investigate his claim
and requesting that he arrange an interview.

12

300 F.3d at 403.

It is not certain that the EEOC’s failure to send
Defendant notice of the intake questionnaire actually violated
these statutory duties at all.
See Valderrama v. Honeywell
Tech. Solutions, Inc., 473 F.Supp.2d 658, 663 (D.Md. 2007)
(suggesting that the intake questionnaire, which serves to
provide “‘pre-charge filing counseling,’” may not trigger the
EEOC’s statutory duty to notify an employer about the
complainant’s potential claims because the questionnaire itself
does not constitute a charge of discrimination), aff’d, 267
F.App’x 256 (4th Cir. 2008), cert. denied, 555 U.S. 979 (2008).
Here,
however,
Defendant
has
conceded
that
the
intake
questionnaire constitutes a charge of discrimination, contending
only that Plaintiff’s sexual harassment claim should be barred
because the EEOC did not provide it with notice of her claim
until October 2008.
The parties agree that the delayed notice
was a violation of the statutory duties imposed on the EEOC, and
for purposes of resolving the pending motion, the court will
accept this unchallenged assumption.
16

In its letter, the EEOC expressly warned the plaintiff that it
would

assume

that

he

did

not

intend

to

file

a

charge

of

discrimination if the plaintiff did not respond within thirty
days.

The

plaintiff

contacted

the

EEOC

“‘[s]oon

after’

receiving its letter, but ‘[d]ue to the EEOC’s delays,’” an
interview was not conducted until March 3, 1998.”

Id.

The

Fourth Circuit rejected the argument that the plaintiff’s claim
should

be

dismissed

due

to

this

delay,

reasoning

that

the

deficiencies in Edelman were instead “failures of the EEOC to
carry out its responsibilities under Title VII.”

Id. at 405.

Defendant attempts both to analogize the EEOC letter in
Edelman to language in the intake questionnaire, which would
have required Plaintiff to follow up with the EEOC to preserve
her rights, and to distinguish the outcome in Edelman because
Plaintiff did not do so.
intake

questionnaire

following statement:

This effort is not persuasive.

completed

by

Plaintiff

contained

The
the

“If you have not heard from an EEOC office

within 30 days of mailing this form, please call [the] toll-free
number shown on the letter accompanying this form.”

(ECF No.

28-11, at 4).

Contrary to Defendant’s assertion and unlike in

Edelman,

the

where

EEOC’s

letter

unambiguously

required

the

plaintiff to act in order to preserve his rights, the statement
here is most plausibly construed as one providing complainants
17

with an optional, rather than mandatory, avenue to follow up
about

the

status

of

their

complaints.

This

conclusion

is

bolstered by the EEOC counselor’s verbal statement to Plaintiff
at

the

time

expressly

noted

additional

submitted
that

action

contacted her.
contact

she

the

to

intake

questionnaire,

Plaintiff

did

not

need

preserve

her

rights

to

which

take

until

the

any
EEOC

Therefore, Plaintiff had no affirmative duty to
EEOC

questionnaire.

her

within

thirty

days

of

submitting

this

The fact that Defendant did not receive notice

of her administrative complaint until approximately October 9,
2008 is, at most, a failure by the EEOC to fulfill its statutory
duties, and this alleged failure does not, by itself, preclude
Plaintiff from proceeding with her sexual harassment claim.
2.

Failure to Set Forth a Prima Facie Case for Sexual
Harassment

Defendant

next

argues

that

Plaintiff

cannot

succeed

in

presenting a prima facie case of sexual harassment, under either
the

quid pro quo

Stevenson’s

or the hostile environment theory, because

“alleged

conduct

was

predicated

[not]

gender,” but upon her employment as an exotic dancer.
23-2, at 18).

upon

her

(ECF No.

This argument, particularly when viewing the

facts in the light most favorable to Plaintiff, the nonmoving
party, is easily dismissed.

18

Both theories of sexual harassment require the plaintiff to
demonstrate that the harassing conduct resulted because of her
sex.

Compare Spencer v. Gen. Elec., 894 F.2d 651, 658 (4th Cir.

1990)

(noting

that

a

plaintiff

must

establish

the

following

elements to set forth a prima facie case for quid pro quo sexual
harassment:

(1) she belongs to a protected group; (2) she was

subject

unwelcome

to

complained

of

was

harassment

affected

sexual

based

harassment;

upon

tangible

sex;

(4)

aspects

of

(3)
her

the

harassment

reaction

to

compensation,

the

terms,

conditions, or privileges of employment; and (5) the employer
knew

or

should

have

known

of

the

harassment

and

took

no

effective remedial action), overruled on other grounds by Farrar
v. Hobby, 506 U.S. 103 (1992), with Smith v. First Union Nat’l
Bank, 202 F.3d 234, 241-42 (4th Cir. 2000) (explaining that a
plaintiff bringing a sexual harassment suit under the hostile
environment theory must demonstrate that:

(1) she was subjected

to unwelcome conduct; (2) the unwelcome conduct was based on
sex; (3) the conduct was sufficiently pervasive or severe to
alter the conditions of employment and create a hostile work
environment; and (4) some basis exists for imputing liability to
the

employer).

To

support

its

argument

that

Stevenson’s

comments occurred because of Plaintiff’s part-time employment as
an

exotic

dancer,

rather

than
19

because

of

sex,

Defendant

repeatedly asserts that Stevenson’s “unwanted” conduct did not
begin until after Plaintiff had started working as an exotic
dancer.
the

In resolving a motion for summary judgment, however,

facts

Plaintiff,

must
the

be

viewed

nonmoving

in

party,

the

light

and

most

Plaintiff

favorable
has

to

presented

evidence that Stevenson’s offensive conduct began weeks before
Plaintiff started that job.

Therefore, the question is whether,

when viewing the facts in this light, a reasonable jury could
find that Plaintiff suffered harassment because of her sex.
“An employee is harassed or otherwise discriminated against
because of . . . her gender if, but for the employee’s gender,
. . . she would not have been the victim of the discrimination.”
Hoyle v. Freightliner, LLC, 650 F.3d 321, 331 (4th Cir. 2011)
(internal quotation marks omitted).

To make this showing, a

plaintiff may demonstrate that she faced sexual advances and
propositions, whether overt or implicit.

See Lewis v. Forest

Pharms., Inc., 217 F.Supp.2d 638, 647 (D.Md. 2002) (explaining
that “[s]exual advances need not explicitly request sex” and
concluding
plaintiff

that
and

a

male

touching

supervisor’s
of

her

thigh,

leering

at

the

while

making

female

sexually-

charged comments, constituted an implicit sexual proposition).
In addition, a female plaintiff may show that the harassing
party employed such “sex-specific and derogatory terms” as to
20

make clear that he intended to demean women.

EEOC v. Fairbrook

Med. Clinic, P.A., 609 F.3d 320, 327 (4th Cir. 2010) (quoting
Oncale

v.

(1998)).

Sundowner
Where

Offshore

male

Servs.,

employees

Inc.,

have

523

U.S.

referred

to

75,

80

women

in

degrading language, openly commented on female body parts, and
questioned
experiences,

a

female

the

employee’s

Fourth

Circuit

sexual
has

activities

frequently

found

and
that

unwelcome conduct occurred “because of [the plaintiff’s] sex.”
Id. (finding that a female plaintiff had demonstrated that she
faced unwelcome conduct based on sex where her male supervisor
used the term “slut” to refer to women, talked about female body
parts in graphic terms, asked if the plaintiff “had a better
libido” after giving birth, and “opined that she was probably a
‘wild thing’ in bed”); see also EEOC v. Cent. Wholesalers, Inc.,
573 F.3d 167, 175 (4th Cir. 2009) (concluding that a reasonable
jury

could

find

that

the

female

plaintiff

had

suffered

harassment on the basis of sex after male co-workers repeatedly
used the word “bitch” when referring to women);

Jennings v.

Univ. of N.C., 482 F.3d 686, 691, 695-96 (4th Cir. 2007) (holding
that

a

male

soccer

coach’s

frequent

comments

about

players’

bodies, such as references to their “breasts ‘bouncing,’” along
with crude questions about their sex lives demonstrated that the
remarks

occurred

“because

[the
21

players]

were

women”),

cert.

denied, 552 U.S. 887 (2007)13; EEOC v. R&R Ventures, 244 F.3d
334, 338-39 (4th Cir. 2001) (rejecting the argument that a male
supervisor did not harass young, female employees on the basis
of sex where the supervisor leered at the women’s bodies and
inquired about the size of their pants, breasts, and buttocks).
These

cases

make

clear

that

Stevenson’s

alleged

conduct

toward Plaintiff likely occurred “because of [her] sex,” and
Defendant’s argument to the contrary strains credulity.
initial

matter,

Stevenson

made

overt

and

implicit

As an
sexual

advances toward Plaintiff - leering at her breasts and buttocks,
frequently

touching

her

in

unnecessary

ways

when

“offensive” comments, and even once trying to kiss her.

making
He also

asked her, in Defendant’s own words, whether “she would perform
sexual favors for him and his friends” if he visited her at the
club.

(ECF No. 29, at 5).

Additionally, Stevenson’s comments

to Plaintiff beginning in early July 2007 are replete with “sexspecific and derogatory terms” indicating that he intended to
demean women.

First, Plaintiff alleges that Stevenson regularly

13

Although Jennings involved a sexual harassment claim
brought under Title IX of the Educational Amendments of 1972, 20
U.S.C. §§ 1681 et seq., such a claim requires a showing that the
harassment was based on sex, and the Fourth Circuit looked
expressly to case law interpreting Title VII “for guidance in
evaluating [the plaintiff’s] claim.” Id. at 695.

22

talked about women in degrading language, referring to them as
“ghetto trash” and “bitches.”

Second, Stevenson’s remarks to

Plaintiff included overt comments about female body parts, with
Stevenson

repeatedly

discussing

the

way

that

Plaintiff’s

clothing fit over her breasts and buttocks, and asking about
whether

she

exposed

exotic dancer.
Plaintiff’s

her

vagina

during

her

employment

as

an

Third, Stevenson asked vulgar questions about

sexual

activity,

including

masturbation

and

oral

sex, both at and away from the club where she worked as an
exotic dancer.

From these facts, taken as a whole, a reasonable

jury could well find that Stevenson’s harassment of Plaintiff
occurred because Plaintiff is a woman.14
Defendant presents no other argument when contending that
Plaintiff

cannot

set

forth

a

prima

facie

case

for

sexual

harassment, and its motion for summary judgment on this ground
will therefore be denied.15

14

Indeed, when viewing the totality of Stevenson’s alleged
conduct, it is unlikely that Defendant could obtain summary
judgment on this issue even if Plaintiff had worked as an exotic
dancer before the unwelcome conduct began.
Cf. Dreshman v.
Henry Clay Villa, 733 F.Supp.2d 597, 612 (W.D.Pa. 2010)
(concluding that a reasonable jury could find that a male nurse
had suffered harassment on the basis of sex when his female coworkers repeatedly commented on his former employment as a
stripper and his physical appearance, in addition to stating
that “men should not be nurses”).
23

B.

Summary Judgment in Defendant’s Favor Is Warranted on
Plaintiff’s
Claims
for
Assault,
Battery,
False
Imprisonment, and Intentional Infliction of Emotional
Distress Because Stevenson Was Not Acting in the Scope
of Employment When Those Claims Arose

Stemming from the sexual harassment that she purportedly
suffered due to Stevenson’s conduct, Plaintiff brings claims for
assault, battery, false imprisonment, and intentional infliction
of emotional distress against Defendant.

Defendant maintains

that these claims cannot proceed because, as a matter of law,
Stevenson was not acting in the scope of his employment when he
engaged

15

in

the

conduct

giving

rise

to

these

claims.

For

In its reply, Defendant attempts to analogize to
Baskerville v. Culligan Int’l Co., 50 F.3d 428 (7th Cir. 1995)
(Posner, J.), to support its argument that Stevenson’s conduct
did not occur because of Plaintiff’s sex. In Baskerville, Judge
Posner concluded that a handful of statements made by a male
supervisor to a female employee over a seven-month period did
not establish a claim for sexual harassment.
Defendant cites
these comments, which described the plaintiff as a “pretty girl”
and
“hot,”
and
the
supervisor’s
singular
reference
to
masturbation as support for its argument that the facts of the
present action do not show that Plaintiff faced unwelcome
conduct on the basis of sex.
This analogy is unpersuasive for
two reasons. First, the nature of the supervisor’s comments in
Baskerville differs dramatically from those at issue in the
present action. While the Baskerville supervisor made isolated
and general references to the plaintiff’s appearance, Stevenson
allegedly commented on Plaintiff’s private body parts on a daily
basis.
Second, the Baskerville holding rested, in important
part, on the infrequency of the supervisor’s offensive comments,
an issue which goes to the severity and pervasiveness of the
harassment and is not presented for resolution in Defendant’s
motion for summary judgment.
24

purposes of resolving the pending motion, the parties agree that
no material facts are in dispute.
The Court of Appeals of Maryland has described the issue of
scope of employment as follows:
To be within the scope of the employment the
conduct must be of the kind the servant is
employed to perform and must [be] . . .
actuated at least in part by a purpose to
serve
the
master.
.
.
.
[W]here
an
employee’s actions are personal, or where
they represent a departure from the purpose
of furthering the employer’s business, or
where the employee is acting to protect his
own interests, even if during normal duty
hours and at an authorized locality, the
employee’s actions are outside the scope of
his employment.
Sawyer v. Humphries, 322 Md. 247, 255-57 (1991).

The Court of

Special Appeals of Maryland applied these principles in Tall ex
rel. Tall v. Bd. of Sch. Comm’rs of Balt. Cnty., 120 Md.App.
236, 254 (1998), a case in which parents brought suit against a
school board for injuries that their mentally handicapped son
had suffered when his special education teacher beat his arms
and legs with a ruler after the child urinated in his pants.
The parents contended that the teacher had acted within the
scope of employment because some physical interaction between
the child and the teacher, including “disciplining [the child]
if [he] misbehaved or failed to listen,” “was foreseeable” due
to the child’s disability.

Tall, 120 Md.App. at 248.
25

The Tall

court

rejected

cases

from

this

several

argument.
other

Reviewing

jurisdictions,

factually
the

court

analogous
found

two

considerations persuasive when concluding that the teacher had
not acted in the scope of employment when beating the child.
Id. at 258-60.

First, the school board had a written policy

prohibiting corporal punishment in any form.

Second, although

legitimate physical interactions between a teacher and mentally
handicapped student may “be appropriate in certain situations,
[those legitimate interactions] in no way constitute[] implied
authority for a teacher to beat a mentally disabled child” in
order to discipline him.

Id. at 259.

Indeed, the Tall court

could identify no manner in which the act of beating a mentally
disabled child could further the school board’s objective of
educating children, and it thereby refused to hold the school
board vicariously liable for the teacher’s actions.

Id. at 260.

Judges in this district have since applied the Tall court’s
reasoning in numerous actions involving sexual harassment in the
workplace.

Those

cases

have

repeatedly

held

that,

under

Maryland law, an employer is not vicariously liable for torts
arising from sexual harassment by another employee because those
torts arose outside of the scope of employment.

See, e.g.,

Davidson-Nadwodny v. Wal-Mart Assocs., Inc., No. CCB-07-2595,
2010

WL

1328572,

at

*9

(D.Md.
26

Mar.

26,

2010)

(declining

to

permit

the

employer

plaintiff’s

“[g]iven

battery

that

claim

[the

to

female

proceed

against

supervisor’s]

her

alleged

harassment and assault of the plaintiff . . . were outside the
scope of her employment”); Perry v. FTData, Inc., 198 F.Supp.2d
699, 709, (D.Md. 2002) (refusing to hold an employer vicariously
liable

for

assault

and

false

imprisonment

where

those

torts

stemmed from a male supervisor’s sexual harassment of a female
employee);

Thomas

v.

Bet

Sound-Stage

Rest./BrettCo,

Inc.,

61

F.Supp.2d 448, 454-55 (D.Md. 1999) (concluding that a plaintiff
could not hold an employer vicariously liable for assault and
battery

where

those

claims

arose

from

a

male

supervisor’s

purported sexual harassment of the female plaintiff).

Notably,

in reaching this conclusion, these cases have emphasized that an
employee does not act in the scope of employment when he engages
in

conduct

furthering

for
the

personal

reasons

employer’s

and

business.

without
See,

any

purpose

e.g.,

Perry,

of
198

F.Supp.2d at 708-09.
Here,
served

as

Plaintiff
her

makes

supervisor

much
and

of

the

allegedly

fact

that

harassed

Stevenson

her

during

business hours while performing company-authorized supervisory
functions, but this contention misunderstands the test for scope
of employment.

In order to hold Defendant vicariously liable

for

purportedly

Stevenson’s

tortious
27

conduct,

Plaintiff

must

demonstrate that those tortious actions occurred, at least in
part, to further Defendant’s business purposes.
Plaintiff make such an allegation.

Nowhere does

Indeed, Defendant’s written

policy prohibiting sexual harassment in the workplace strongly
supports the conclusion that the harassment Plaintiff allegedly
suffered did not further any of Defendant’s business purposes.
Therefore,

while

certain

workplace

interactions

between

Stevenson and Plaintiff “may [have been] appropriate,” and thus
within the scope of employment, those interactions “in no way
constitute[d]

implied

Plaintiff sexually.
Plaintiff’s

authority”

for

Stevenson

Tall, 120 Md.App. at 260.

attempt

to

hold

Defendant

to

harass

Accordingly,

vicariously

liable

for

these various torts must fail, and summary judgment will be
granted in Defendant’s favor on these counts.
C.

Summary Judgment in Defendant’s Favor is Warranted on
Plaintiff’s Claim for Negligent Training, Retention,
and Supervision Because This Claim Is Preempted by
Title VII

Plaintiff’s final claim against Defendant is for negligent
training, retention, and supervision, and Defendant’s arguments
as to this claim can be easily resolved.
two

arguments

as

to

why

warranted on this claim:

summary

Defendant sets forth

judgment

in

its

favor

is

(1) the claim is preempted by Title

VII to the extent it arises from Defendant’s failure to prevent
and

address

the

sexual

harassment
28

that

Plaintiff

allegedly

experienced;

and,

(2)

Plaintiff

has

not

presented

support a negligence claim on any other basis.16

facts

to

The former

argument is dispositive in this case.
In her complaint, Plaintiff expressly bases the claim for
negligent
Defendant’s

training,
purported

retention,

supervision

solely

“to

failure

and

effectively

train

on
all

employees to report instances of sexual harassment . . . in the
workplace,”

“to

take

action

to

affirmatively

discover

the

occurrence of sexual harassment in the workplace,” and “to take
corrective action against Stevenson to reasonabl[y] assure that
he did not sexually harass other employees again.”
50).

(ECF No. 1 ¶

It is well-established that Title VII preempts negligent

training, retention, and supervision claims when they arise from
allegations of sexual harassment.

See Perry, 198 F.Supp.2d at

707-08 (“The rationale for this preemption is that [Title VII
is] meant to provide remedial measures for violations of the
public

policy

condemning

sexual

harassment.”);

Crosten

v.

Kamauf, 932 F.Supp. 676, 684 (D.Md. 1996) (“If [the negligence
counts] do no more than attempt to impose liability on [the
defendant] for its alleged failure to conform to the dictates of
Title VII in its efforts to prevent sexual harassment, or to

16

Plaintiff
opposition.

did

not

respond
29

to

either

argument

in

her

properly

respond

to

a

report

of

sexual

harassment,

[those

counts] merely restate the claim brought under Title VII.”).
Because

Plaintiff

bases

this

negligence

claim

solely

on

Defendant’s failure to prevent Stevenson’s harassing conduct and
to respond adequately thereto, it is preempted by Title VII and
cannot proceed.

Summary judgment will be granted in Defendant’s

favor on this count.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion for summary

judgment will be granted in part and denied in part.

A separate

Order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

30