Cooper v. The Smithfield Packing Company, Inc.

Filing 33

ORDER granting in part and denying in part 29 Motion to Dismiss for Failure to State a Claim. The plaintiff is DIRECTED to file a new complaint with only allegations or allegation portions removed as listed in this order. The Clerk of Court is DIRECTED to continue management of this case. Signed by Senior Judge James C. Fox on 8/14/2015. (Edwards, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:13-CV-00145-F
LISA COOPER,
Plaintiff,
v.
THE SMITHFIELD PACKING COMPANY,
INC., I
Defendant.

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ORDER

This matter is before the court on Defendant's Motion to Dismiss Plaintiffs Third
Amended Complaint [DE-29]. The issues have been fully briefed and are now ripe for ruling.
For the reasons set forth below, the motion is ALLOWED IN PART and DENIED IN PART.

I.

PROCEDURAL HISTORY

On July 11, 2013, the plaintiff filed her Complaint [DE-l], asserting claims based on
workplace sexual harassment. Since that time, the defendant has filed various motions to dismiss,
including the present motion to dismiss, and a motion to strike. See Defendant's Motion to
Dismiss Plaintiffs Complaint [DE-7]; Defendant's Motion to Dismiss Plaintiffs Amended
Complaint [DE-14]; Defendant's Motion to Strike Plaintiffs Second Amended Complaint [DE22]; Def. 's Mot. Dismiss Pl.'s Third Am. Compl. [DE-29]. Those motions have been allowed in
varying degrees, leading to the plaintiffs Third Amended Complaint [DE-28], which the
defendant now moves to dismiss.

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The court recognizes the defendant's statement that its name has changed to the Smithfield
Farmland Corp.

II.

FACTUAL ALLEGATIONS

The allegations of the Third Amended Complaint ("TAC"), which the court must accept
as true for purposes of this motion, show a pervasive pattern of the plaintiff's supervisor, Tommy
Lowery, sexually harassing the plaintiff. See TAC [DE-28]

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9-22, 24. As a result of this pattern

of sexual harassment, the plaintiff attempted to transfer to another department, but "was told that
there were no vacancies to facilitate the transfer." Id.

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23. The plaintiff further alleges that she

provided her human resources department with details of the sexual harassment, names of
witnesses, and a written complaint, but that no investigation was conducted and that her
witnesses were not contacted. Id.

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24. Eventually, the plaintiff felt she had no choice but to end

her employment with the defendant so as to "escape the harassment and address her mental
health." Id.

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26.

The court notes several allegations2 that will be particularly relevant to the present
motion to dismiss:
12.
The Plaintiff contends that during this period of time Lowery asked her on
a regular basis, at least once per week, to have sexual intercourse with him. Each
time the plaintiff rejected Lowery's advances, Lowery stated that he would kill
the plaintiff for refusing to have sexual intercourse with him.
13.
. .. Lowery told [the plaintiff] on a daily basis that he was watching her at
all times, having sexual fantasies about engaging in sexual intercourse with her.
The plaintiff further contends that Lowery asked her if he could come to her
house for the purpose of engaging in sexual intercourse on a regular, almost daily
basis.
14.
The Plaintiff further contends that Lowery asked one ofthe plaintiff's
male co-workers if he had engaged in sexual intercourse with her, and he also
asked whether the male co-worker knew if the plaintiff had sexual intercourse
with any men other than her husband.
16.
The Plaintiff contends that in 2011 Lowery would ask her to describe to
him the manner in which she engaged in sexual intercourse with her husband ....

2

These allegations are numbered with their paragraph numbers from the TAC.

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17.
The Plaintiff contends that in approximately January 2011, Lowery began
relentlessly pursuing her for an intimate relationship, and either explicitly or
implicitly implied that her submission to his demands was a condition of
continued employment with the defendant company.
18.
The Plaintiff contends that Lowery told her in 2011 that if she did not have
sexual intercourse with him, he would fire her and he would kill her.
19.
The Plaintiff contends that in approximately March 2011, Lowery berated
the Plaintiffs spouse to the Plaintiff on a regular basis.
26.
. .. The Plaintiff further contends that Lowery threatened to kill her if she
continued to report him to upper management. ...
Those particular allegations show multiple instances of Lowery (1) inquiring about the plaintiffs
husband and her intimate relationship with her husband; and (2) requiring quid-pro-quo from the
plaintiff; i.e., threatening the plaintiffs life or job security if she were to refuse sexual
intercourse with him.
The court will later evaluate the aforementioned allegations in light of the plaintiffs
Charge of Discrimination [DE-30-1] (the "Charge"). In the Charge, the plaintiff states the she
was the victim of "constant sexual harassment" from Lowery while employed by the defendant.

Id at 1. She further states that Lowery "would frequently tell [her] that he wanted to be with
[her] and that he loved [her];" that he would "brush up against [her] sexually;" and that he had
"power over [her] in that he ran the office and would do as he pleased." Id Additionally, she
states the she believed she was "the victim of retaliation because [she] reported the sexual
harassment and therefore [was] not allowed to transfer out of [the] department." Id

III.

DISCUSSION

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of
the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v.
City of Goldsboro, 178 F .3d 231, 243-44 (4th Cir. 1999). In considering a motion to dismiss, the

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court assumes the truth of all facts alleged in the complaint and the existence of any fact that can
be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94
(2007); E. Shore Mkts., Inc. v. JD. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
However, the " ' [f] actual allegations must be enough to raise a right to relief above the
speculative level' and have 'enough facts to state a claim to relief that is plausible on its face."'
Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009) (alteration in
original) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007)). "[A] plaintiffs
obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly,
550 U.S. at 555 (second alteration in original). Moreover, a court "need not accept the legal
conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable
conclusions, or arguments." E. Shore Mkts., 213 F.3d at 180.

A.

Certain portions of the plaintiff's TAC fall outside the EEOC charge and must be
stricken from the TAC.
Before filing suit for discrimination claims under Title VII, a plaintiff must first exhaust

his or her administrative remedies. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir.
2009). Exhausting those administrative remedies requires that the plaintiff first file a
discrimination charge with the Equal Employment Opportunity Commission ("EEOC"). See id.
If the charge meets the necessary requirements and the "EEOC finds reasonable cause to believe
the allegations are true," then the EEOC will attempt to resolve the discriminatory situation. See
Chacko v. Patuxent Inst., 429 F.3d 505, 508-09 (4th Cir. 2005). When a resolution cannot be
reached through this process, the plaintiff is then allowed to bring suit. See id. at 509.
The charge remains relevant even after the plaintiff has brought suit: any Title VII claims
that exceed the scope ofthe charge are procedurally barred. Dennis v. Cnty. of Fairfax, 55 F.3d

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151, 156 (4th Cir. 1995). That is, the allegations of the charge act to limit the scope of a
subsequent complaint. See Chacko, 429 F.3d at 509. "At the same time, however, lawyers do not
typically complete the administrative charges, and so courts construe them liberally." Id. Thus,
the court must look to the plaintiffs Charge and determine which of the TAC's allegations, if
any, fall outside the scope of the Charge. Any such allegations must be stricken from the TAC.
In the Charge, the plaintiff states the she was the victim of "constant sexual harassment"
from Lowery while employed by the defendant. [DE-30-1] at 1. She further states that Lowery
"would frequently tell [her] that he wanted to be with [her] and that he loved [her];" that he
would "brush up against [her] sexually;" and that he had "power over [her] in that he ran the
office and would do as he pleased." Id. Additionally, she states the she believed she was "the
victim of retaliation because [she] reported the sexual harassment and therefore [was] not
allowed to transfer out of [the] department." Id. These allegations provide the scope within
which the Complaint's allegations must fall. See Chacko, 429 F.3d at 509.
Nowhere in the Charge does the plaintiff allege anything remotely indicating that Lowery
threatened to kill her should she not acquiesce to his sexual demands. The plaintiffs allegation
that Lowery "had power over [her] in that he ran the office and would do as he pleased," is
insufficient, even when construed broadly, to support an allegation of a mortal quid-pro-quo
requirement. Charge [DE-30-1] at 1. The plaintiffs allegations that Lowery had power over her
in the office would at most implicate the possibility of her job being at risk. However, nowhere
in the Charge or the TAC does she allege that she acquiesced to Lowery's threats, which would
be a requirement of a quid-pro-quo arrangement. Any allegations that Lowery threatened her
life, that he was watching her on a daily basis, or that he threatened her employment must be
stricken from the TAC because they fall outside the scope of the Charge.

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While the Charge does not allege anything regarding Lowery's comments about the
plaintiffs husband, the court liberally construes the Charge's allegations of"constant sexual
harassment" to include such comments. This does not include, however, comments made
exclusively about the plaintiffs husband separate and apart from the sexual harassment. See
TAC [DE-28]

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19.

The court has reviewed the T AC and holds that the following allegations or portions of
allegations must be stricken from the TAC:
12.
. .. Each time the plaintiff rejected Lowery's advances, Lowery stated
that he would kill the plaintiff for refusing to have sexual intercourse with him.
13.
. .. Lowery told [the plaintiff] on a daily basis that he was watching her at
all times ....
17.
The Plaintiff contends that in approximately January 2011, Lowery began
relentlessly pursuing her for an intimate relationship, and either explicitly or
implicitly implied that her submission to his demands was a condition of
continued employment with the defendant company.
18.
The Plaintiff contends. that Lowery told her in 2011 that if she did not have
sexual intercourse with him, he would fire her and he would kill her.
19.
The Plaintiff contends that in approximately March 2011, Lowery berated
the Plaintiffs spouse to the Plaintiff on a regular basis.
26.
. .. The Plaintiff further contends that Lowery threatened to kill her if she
continued to report him to upper management. ...
The court will consider the Defendant's Motion to Dismiss the Plaintiffs TAC [DE-29] without
considering those portions of the TAC. The plaintiff is DIRECTED to file a new complaint with
those portions omitted from the new complaint.

B.

The remaining portions of the plaintiff's TAC are sufficient to support her claim of
sexual harassment based on a hostile work environment.
In Count Two, the plaintiff has alleged sexual harassment, including a hostile work

environment, in violation of Title VII. Under Title VII, it is unlawful for an employer "to

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discriminate against any individual with respect to [her] ... terms, conditions, or privileges of
employment, because of such individual's ... sex." 42 U.S. C. § 2000e-2(a)(l). Title VII is
violated" [w]hen the workplace is permeated with discriminatory [sex-based] 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." Ocheltree v. Scollon Prods., Inc., 335
F.3d 325, 331 (4th Cir. 2003) (alterations in original) (internal quotation marks omitted) (quoting
Harris v. Forklift Sys. Inc., 510 U.S. 17,21 (1993)). In order to prove a claim for hostile work
environment due to sexual harassment, the plaintiff must show that: "( 1) the conduct was
unwelcome; (2) it was based on the plaintiffs sex; (3) it was sufficiently severe or pervasive to
alter the plaintiffs conditions of employment and to create an abusive work environment; and
(4) it was imputable on some factual basis to the employer." Crockett v. Mission Hosp., Inc., 717
F.3d 348, 354 (4th Cir. 2013).
In this case, even omitting the allegations described above, the court finds that TAC is
sufficient to state a claim for sexual harassment, including a hostile work environment. The TAC
now contains sufficient detail to support the alleged sexual harassment. The court had previous
concerns about the plaintiffs Amended Complaint, notably that the alleged sexual harassment
mostly consisted of "sexually explicit comments" without further elaboration. However, those
concerns have been resolved. The TAC sufficiently alleges (1) that Lowery's "conduct was
unwelcome;" (2) that it was based on the plaintiffs gender; (3) that Lowery's comments and
actions were "sufficiently sever or pervasive to alter the plaintiffs conditions of employment and
to create an abusive work environment;" and (4) that the defendant employer was aware of
Lowery's actions and did little, if anything, to investigate and nothing to remedy the situation.
See Crockett, 717 F.3d at 354.

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III.

CONCLUSION

For the foregoing reasons, Defendant's Motion to Dismiss the Plaintiffs TAC [DE-29] is
ALLOWED IN PART and DENIED IN PART. The plaintiff is DIRECTED to file a new
complaint with only the following allegations or allegation portions removed:
12.
. .. Each time the plaintiff rejected Lowery's advances, Lowery stated
that he would kill the plaintiff for refusing to have sexual intercourse with him.
13.
. .. Lowery told [the plaintiff] on a daily basis that he was watching her at
all times ....
17.
The Plaintiff contends that in approximately January 2011, Lowery began
relentlessly pursuing her for an intimate relationship, and either explicitly or
implicitly implied that her submission to his demands was a condition of
continued employment with the defendant company.
18.
The Plaintiff contends that Lowery told her in 2011 that if she did not have
sexual intercourse with him, he would fire her and he would kill her.
19.
The Plaintiff contends that in approximately March 2011, Lowery berated
the Plaintiffs spouse to the Plaintiff on a regular basis.
26.
. .. The Plaintiff further contends that Lowery threatened to kill her if she
continued to report him to upper management. ...
In all other respects, the Defendant's Motion to Dismiss Plaintiffs TAC [DE-29] is DENIED.
The Clerk of Court is DIRECTED to continue management ofthis case.
SO ORDERED.
tl.

This, the Lt._ day of August, 2015.

nior United States District Judge

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