Driver v. Big Daddy's on the Landing

Filing 14

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendants motion to dismiss [Doc. # 9 ] is denied. IT IS FURTHER ORDERED that defendants alternative motion for a more definite statement is denied. Signed by District Judge Carol E. Jackson on 4/22/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANITA DRIVER,
Plaintiff,
vs.
BIG DADDY’S ON THE LANDING, LLC,
Defendant.

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Case No. 4:13-CV-76 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion to dismiss plaintiff’s
complaint pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, for a more definite
statement pursuant to Fed.R.Civ.P. 12(e). Plaintiff has not responded, and the time
to do so has expired.
I.

Background

Plaintiff began working as a line cook at the defendant’s restaurant on April 20,
2010. Plaintiff claims that, from October 2010 until her employment was terminated
on September 27, 2011, she was sexually harassed by a coworker in the kitchen.
Plaintiff states that the coworker touched her breasts and buttocks, rubbed his body
against her, and made explicit sexual comments and demands for sexual favors. She
alleges that she spoke to two managers about the coworker’s inappropriate conduct,
and that other managers witnessed the harassment.

According to plaintiff, one

manager told her to “deal with it” and that she “should not come to work looking so
sexy.”
Plaintiff alleges that the harassment made her physically ill. She took a sick day
to avoid work on September 25, 2011. When she returned, she was told she needed

a doctor’s note to excuse her absence. Plaintiff submitted a doctor’s note, which
defendant claims was a forgery. Defendant then terminated plaintiff’s employment.
In the pro se complaint, plaintiff asserts claims of hostile work environment
sexual harassment and retaliation, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. and the Missouri Human Rights Act
(MHRA), Mo.Rev.Stat. §213 et seq.
II.

Discussion

A.

Motion for More Definite Statement

Defendant moves for a more definite statement, arguing that the grounds for
plaintiff’s claims are unclear. A motion under Rule 12(e) should be granted when a
pleading is “so vague or ambiguous that the [opposing] party cannot reasonably
prepare a response.” Fed.R.Civ.P. 12(e). Plaintiff’s pro se complaint is not vague, and,
liberally construed, states identifiable counts of hostile work environment sexual
harassment and retaliation under Title VII and the MHRA. Furthermore, a motion
under Rule 12(e) “must be made before filing a responsive pleading....” Id. On the
same day that defendant filed the instant motion, defendant also filed an answer to
plaintiff’s complaint. Therefore, defendant’s motion for a more definite statement will
be denied.
B.

Motion to Dismiss for Failure to State a Claim

The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure is to test the legal sufficiency of the complaint. The factual allegations
of a complaint are assumed true and construed in favor of the plaintiff, “even if it
strikes a savvy judge that actual proof of those facts is improbable.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 556 (2007) citing Swierkiewicz v. Sorema N.A., 534

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U.S.506, 508 n.1 (2002); Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule
12(b)(6) does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (a wellpleaded complaint may proceed even if it appears “that a recovery is very remote and
unlikely”). The issue is not whether the plaintiff will ultimately prevail, but whether the
plaintiff is entitled to present evidence in support of his claim. Id. A viable complaint
must include “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp., 550 U.S. at 570; see also id. at 562-63 (“no set of facts” language in
Conley v. Gibson, 355 U.S. 41, 45-46 (1957), “has earned its retirement.”). “Factual
allegations must be enough to raise a right to relief above the speculative level.” Id.
at 555.
1.

Hostile Work Environment

To state a prima facie case of hostile work environment sexual harassment
under Title VII, 42 U.S.C. 2000e-2, plaintiff must adequately allege:
(1) that she was a member of a protected group, (2) the occurrence of
unwelcome harassment, (3) a causal nexus between the harassment and
her membership in the protected group, (4) that the harassment affected
a term, condition, or privilege of employment, and (5) that the employer
knew or should have known of the harassment and failed to take prompt
and effective remedial action.
Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004) (citing Carter v.
Chrysler Corp., 173 F.3d 693, 700 (8th Cir. 1999). “Because the relevant provisions
of the Missouri Human Rights Act are patterned after federal law and interpreted with
federal precedent, [plaintiff’s] state claims need not be analyzed separately.” Carter,
173 F.3d at 700, n. 5.
Defendant argues that the conduct plaintiff complains of did not rise to the level
of unwelcome sexual harassment affecting a term, condition, or privilege of
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employment. “The type of conduct that may constitute sexual harassment includes
sexual advances, requests for sexual favors, and other verbal or physical conduct of
a sexual nature.” Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1377 (8th Cir. 1996).
This conduct must be unwelcome, and must affect a term, condition, or privilege of
employment, which means that “the workplace is permeated with ‘discriminatory
intimidation, ridicule and insult’ that is ‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.’”
Id. at 1378 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Courts
consider “all the circumstances, including the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work
performance.” Erenberg v. Methodist Hosp., 357 F.3d 787, 792 (8th Cir. 2004).
Plaintiff has described specific instances of her coworker’s physical and verbal
sexual advances and requests for sexual favors.

These advances were clearly

unwelcome, as plaintiff complained about the conduct to several managers and told
her coworker to “keep your hands off me.” The advances occurred repeatedly over the
course of a year; plaintiff states that she argued with the coworker about his conduct
“every day I went to work.” Defendant notes that plaintiff does not allege that the
advances were physically threatening or that the advances interfered with plaintiff’s
work performance. While such allegations are to be taken into consideration, their
absence does not necessarily render the complaint deficient. Giving a liberal reading
to the complaint, it appears that plaintiff found her coworker’s conduct, coupled with
his demands for sexual favors from plaintiff, subjectively threatening and humiliating.
Indeed, she alleges that the very thought of going to work and encountering the

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unwelcome advances made her physically ill. Also, the fact that plaintiff continued to
work under these circumstances does not conclusively establish that the harassment
did not unreasonably interfere with her work performance. In fact, plaintiff alleges that
the constant harassment made her physically ill and prompted her to take a sick day
to avoid her coworker’s advances. Plaintiff’s allegations are sufficient to suggest that
the conduct detracted from her job performance and her career advancement, and
created an abusive workplace environment.
Defendant also argues that plaintiff fails to allege facts demonstrating that
defendant knew or should have known of the harassment and failed to take proper and
effective remedial action. The Court disagrees. Plaintiff alleges that the harassment
occurred in plain view of management, and was so pervasive that other employees
commented to her about it. She complained to two different managers, and although
one manager told her that he would speak to her coworker, the harassment continued.
This suggests that, despite defendant’s knowledge of the harassment, defendant did
not take effective remedial action.
Because plaintiff’s allegations support a prima facie case of hostile work
environment sexual harassment, defendant’s motion to dismiss this claim will be
denied.
3.

Retaliation

“Title VII makes it unlawful for an employer to discriminate against an employee
because she has ‘opposed any practice made an unlawful employment practice,’ or has
made a charge or participated in an investigation or proceeding under the statute.”
Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d 410, 416 (8th Cir. 2010) (citing 42
U.S.C. § 2000e-3(a)).

“A plaintiff must show that the protected conduct was a

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determinative factor in the employer’s materially adverse employment action.” Id.
The MHRA applies this same analysis to retaliation claims. Evans v. Kansas City, Mo.
School Dist., 65 F.3d 98, 100 n. 3 (8th Cir. 1995).
Plaintiff alleges that she was fired because she reported the sexual harassment.
She reported the harassment (for a second time) to management, and shortly
afterwards her employment was terminated. She was told that she was terminated
because she submitted a fraudulent doctor’s note, but plaintiff does not admit that the
note was forged or was the true reason for her termination. Whether the note was,
in fact, a forgery, and whether this incident caused plaintiff’s termination, are questions
of fact, not to be decided at this early stage of litigation. The facts alleged in the
complaint are sufficient to support plaintiff’s claims of retaliation, and defendant’s
motion to dismiss this claim will be denied.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion to dismiss [Doc. # 9] is
denied.
IT IS FURTHER ORDERED that defendant’s alternative motion for a more
definite statement is denied.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of April, 2013.

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