KEENER v. THE UNIVERSAL COMPANIES, INC. F/K/A UNIVERSAL FOREST PRODUCTS, INC. et al
Filing
36
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 09/01/2015; that Defendants' Renewed Partial Motion to Dismiss (Doc. 18 ) is GRANTED IN PART and DENIED IN PART. Plaintiff's Fifth Claim for Relie f based on Intentional Infliction of Emotional Distress is DISMISSED and the court will not allow Plaintiff to proceed on the theories of sexual harassment/hostile work environment, failure to promote, or pay discrimination in her First Clai m for Relief under Title VII. All other requested forms of relief within Defendants' Renewed Partial Motion to Dismiss are DENIED. FURTHER ORDERED that Plaintiff's Motion to Strike Defendants' Reply (Doc. 32 ) is DENIED. FURTHER ORDERED that Defendants' request to modify the case caption is DENIED WITHOUT PREJUDICE. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DONNA A. KEENER,
Plaintiff,
v.
THE UNIVERSAL COMPANIES, INC.,
F/K/A UNIVERSAL FOREST
PRODUCTS, INC., UFP EASTERN
DIVISION, INC., F/K/A
UNIVERSAL FOREST PRODUCTS
EASTERN COMPANY, INC., UFP
SALISBURY, LLC, and UNIVERSAL
FOREST PRODUCTS, INC.,
Defendants.
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1:14CV982
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is Defendants’ Renewed Partial
Motion to Dismiss, asserting defenses for lack of subject matter
jurisdiction, lack of personal jurisdiction, and failure to
state a claim upon which relief may be granted.
(Doc. 18.)
Defendants indicate that they seek dismissal of all claims
against all Defendants, except for “one single claim of
retaliatory discharge under Title VII of the Civil Rights Act of
1964, as amended (‘Title VII’), as to one Defendant: UFP
Salisbury, LLC.”
(Id. at 1.)
Plaintiff has responded (Doc.
25), and Defendants filed a reply (Doc. 31).
This matter is now
ripe for adjudication.
The parties agree that Defendants’ motion to dismiss should
be granted on several points, (see Defs.’ Reply (Doc. 31) at
1-2; Pl.’s Resp. (Doc. 25) at 6, 16, 24), and this court finds
it appropriate to grant Defendants’ motion as to those issues.
However, this court finds that several issues require further
factual findings that cannot be made at this stage of the
proceedings.
Accordingly, for the reasons stated herein, this
court will grant Defendants’ partial motion to dismiss in part
and deny the motion in part.
I.
BACKGROUND
Plaintiff Donna A. Keener (“Plaintiff”) initiated this
lawsuit asserting a cause of action under Title VII of the Civil
Rights Act, codified as amended at 42 U.S.C. § 2000e, et. seq.
(“Title VII”), the Equal Pay Act of 1963, codified as amended at
29 U.S.C. § 206, et seq. (“EPA”), and several causes of action
based on state law.
15).)
(Amended Complaint (“Am. Compl.”) (Doc.
Plaintiff named four interrelated entities within her
complaint: (1) The Universal Companies, Inc., f/k/a Universal
Forest Products, Inc.; (2) Universal Forest Products, Inc.
(“UFPI”); (3) UFP Eastern Division, Inc. f/k/a Universal Forest
-2-
Products Eastern Company, Inc. (“UFP Eastern”); and (4) UFP
Salisbury, LLC (“UFP Salisbury”).1
Each Defendant is organized
under the laws of the State of Michigan.
(Id. ¶¶ 5-10.)
Plaintiff attempts to proceed on several different theories
under Title VII, including wrongful termination, sexual
harassment, and retaliation.
As the general basis for her Title
VII claims based on wrongful termination along with her state
law claim of wrongful termination in violation of public policy,
Plaintiff contends that she was terminated from her position as
a shipping and receiving clerk on March 28, 2013, based on her
sex and “under a pretext of poor work performance.”
15, 93.)
(Id. ¶¶ 14-
Plaintiff contends that she “consistently excelled in
her work with the Defendants” and that she “received good
performance evaluations every year and several evaluations that
1
This court cannot resolve at this point whether The
Universal Companies, Inc. continues to exist or whether, as
Defendants contend, it became UFPI in 1993. In her Response,
Plaintiff refers only to UFPI, acknowledging that Defendants
allege that The Universal Companies, Inc. and UFPI are the same
company. This court will follow suit and construe all
references to “Universal Forest Products” within Plaintiff’s
Amended Complaint to be referencing Defendant UFPI. Defendants
contend that this court should dismiss The Universal Companies,
Inc. from these proceedings. (See Defs.’ Mem. (Doc. 19) at 8
n.2.) However, because Plaintiff has not fully conceded this
point or consented to a dismissal, (see Pl.’s Resp. (Doc. 25) at
6 n.2 (not contesting that The Universal Companies, Inc. and
UFPI are the same company)), this court will not dismiss this
party at this point.
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she was exceeding expectations in her employment.”
(Id. ¶ 16.)
She claims that Phillip Hightower, plant manager for UFP
Salisbury, along with Kim Hildebrand who works in the human
resources department at UFPI, make the hiring and firing
decisions for UFP Salisbury, and as referenced below, Hightower
made derogatory comments based on Plaintiff’s sex.
(See id.
¶¶ 56-63.)
As the basis for her Title VII claim based on sexual
harassment and her state law claims of negligent hiring,
retention, and supervision and negligent infliction of emotional
distress, Plaintiff alleges that she was subjected to abusive
treatment by a co-worker, John Corriher, who threw heavy objects
such as paper weights in Plaintiff’s direction, “spit pieces of
chewed up pills” in Plaintiff’s face, and was “otherwise
offensive.”
(Id. ¶¶ 40-43.)
Additionally, Phillip Hightower,
plant manager for UFP Salisbury, allegedly told Plaintiff that
“a woman’s place should be barefoot and pregnant,” when
Plaintiff asked to be considered for the shipping and receiving
supervisor position.
(Id. ¶¶ 56-59.)
Additionally, Hightower
“cussed the Plaintiff out over the telephone,” “harass[ed] the
Plaintiff at any opportunity,” “picked up a chair and threw it
across the room and started cussing,” addressed Plaintiff in “a
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disapproving manner,” stared a Plaintiff in “a demeaning way,”
“sa[id] things like: ‘it’s time to clean the shack out, out with
the old and in with the new’ or . . . ‘we need some young blood
in here’ referring to the Plaintiff working in the shipping and
receiving department,” and forced Plaintiff to stop attending
the morning production meetings due to this alleged abusive
behavior.
(Id. ¶¶ 70-75.)
Despite the fact that Plaintiff reported these incidents
along with other incidents involving the harassing individuals,
Plaintiff claims that no investigation was done and no remedial
steps were taken.
(Id. ¶¶ 47-48, 59-65, 77.)
Based on these
workplace conditions, Plaintiff contends that she “began
developing severe anxiety and depression and sought treatment
with medical professionals.”
(Id. ¶ 66.)
As the basis for her EPA claims, Plaintiff claims she was
“paid [a lower hourly wage] than any of her male counterparts in
the shipping and receiving department, and was paid lower than
even those male employees operating the forklift or loading the
trucks” and that this “disparity in pay was due to Plaintiff’s
gender as a female.”
(Id. ¶ 23.)
Plaintiff contends that,
despite her job title, she was expected to perform the work
required of the shipping and receiving supervisor, namely,
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“run[ning] truck load reports based on number of man hours,
run[ning] bonus reports, attend[ing] safety meetings, order[ing]
the manifests to ensure loads were sent out on proper priority,
and otherwise manag[ing] employees in the shipping and receiving
department,” but that she was not paid the appropriate amount
for this position.
(Id. ¶¶ 17, 20, 28.)
Plaintiff alleges
that, from October 7, 2012, until her termination in March 2013,
she was paid $14.57 per hour.
(See id. ¶ 18.)
Plaintiff names several comparators in support of her EPA
claim.
First, Plaintiff puts forward John Clark, who was a
shipping and receiving clerk but worked on the second shift.
(Id. ¶ 21.)
Based on information and belief, along with her
knowledge gained from “often [running] bonus reports,” Plaintiff
alleges that Clark was receiving between $17.00 and $18.00 an
hour.
(Id. ¶¶ 21-22.)
Second, John Corriher, who was a
shipping and receiving clerk with Plaintiff on the first shift,
and who was less experienced than Plaintiff, allegedly received
$16.00 per hour.
(Id. ¶¶ 40, 52-53.)
Third, Richard Helms was
hired as the shipping and receiving supervisor, and was paid
$18.00 per hour.
(Id. ¶ 67-68.)
Again, Plaintiff did not hold
the title of shipping and receiving supervisor, but she contends
that she performed the duties without receiving the same pay.
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Plaintiff claims she was “wrongfully terminated on the
basis of her gender and in retaliation for reporting and
opposing discrimination and harassment in the workplace.”
¶ 78.)
(Id.
After her termination, Plaintiff said she contacted a
representative with the human resources department at UFPI and
informed this representative of all incidents, including the
harassment from Hightower and her termination.
(Id. ¶ 77.)
Plaintiff filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC Charge”) on May 10,
2013.
(Id. ¶ 12; id., Ex. B, EEOC Charge (Doc. 15-2).)
The
EEOC then issued a right to sue letter.
As mentioned above, there are several undisputed facts that
allow for this court to dismiss certain aspects of Plaintiff’s
case.
First, Plaintiff concedes that this court can dismiss
Plaintiff’s Fifth Claim for Relief based on Intentional
Infliction of Emotional Distress.
24.)
(See Pl.’s Resp. (Doc. 25) at
Second, Plaintiff also concedes that she will not proceed
on a theory of failure to promote or pay discrimination in her
First Claim for Relief under Title VII.
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(See id. at 16.)
II.
MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION
Defendants claim that this court does not have personal
jurisdiction over UFPI.
However, based on the facts presently
before this court, this court finds that Plaintiff has made a
prima facie showing that this court has specific subject matter
jurisdiction over UFPI.2
Plaintiff ultimately bears the burden of proving the
existence of personal jurisdiction by a preponderance of the
evidence, but where the court relies on the pleadings,
affidavits, and other papers to determine whether personal
jurisdiction exists in the early stages of a matter, plaintiff
must only make a prima facie showing of jurisdiction.
New
Wellington Fin. Corp. v. Flagship Resort Dev. Corp., 416 F.3d
290, 294 (4th Cir. 2005); In re Celotex Corp., 124 F.3d 619, 628
(4th Cir. 1997).
In adjudicating the motion, this court is to
construe all disputed facts and draw all reasonable inferences
from the proof in favor of jurisdiction.
Carefirst of Md., Inc.
v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.
2003).
“[F]or a district court to assert personal jurisdiction
over a nonresident defendant, two conditions must be satisfied:
2
The parties do not dispute that this court has personal
jurisdiction over Defendants UFP Eastern or UFP Salisbury.
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(1) the exercise of jurisdiction must be authorized under the
state's long-arm statute; and (2) the exercise of jurisdiction
must comport with the due process requirements of the Fourteenth
Amendment.”
Id.
Yet, “[b]ecause North Carolina's long-arm
statute is construed to extend jurisdiction to the full extent
permitted by the Due Process Clause,” this court “need only
inquire into whether ‘defendant has such minimal contacts with
the forum state [of North Carolina] that maintenance of the suit
does not offend traditional notions of fair play and substantial
justice.’”
Manley v. Air Canada, 753 F. Supp. 2d 551, 556
(E.D.N.C. 2010) (alteration in original) (quoting Christian Sci.
Bd. of Dirs. v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001)).
There are two different types of personal jurisdiction,
each with a different scope and with different standards that
are required.
General jurisdiction allows for a defendant to be
sued in a state for any reason, regardless of where the relevant
conduct occurred, but the plaintiff must show that the defendant
has “continuous and systematic” contacts with the forum state.
See CFA Inst. v. Inst. of Chartered Fin. Analysis of India, 551
F.3d 285, 292 n.15 (4th Cir. 2009).
Specific jurisdiction, on
the other hand, “requires only that the relevant conduct have
such a connection with the forum state that it is fair for the
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defendant to defend itself in that state.”
Id.
Plaintiff does
not allege “continuous and systemic” contacts with the forum
state sufficient to justify general jurisdiction over UFPI.3
See
Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408,
416 (1984); see also Daimler AG v. Bauman, 571 U.S. ___, ___,
134 S. Ct. 746, 758-59 (2014) (reversing a finding of general
jurisdiction over a foreign parent corporation based solely on
an in-state subsidiary’s contacts with the forum state).
Instead, Plaintiff argues and this court assesses whether it has
specific jurisdiction over UFPI in relation to the particular
claims in this case.
“Specific jurisdiction . . . depends on an affiliation
between the forum and the underlying controversy, principally,
3
To show that UFPI is not subject to the general jurisdiction
of this court, Defendants point out that:
UFP[I] does not own any real property in North
Carolina, does not operate a place of business in
North Carolina, does not have a telephone number in
North Carolina, does not market or sell products in
North Carolina, does not manufacture or distribute
products in North Carolina. UFPI is merely a holding
and asset management company incorporated in Michigan
with its only place of business in Michigan.
(Defs.’ Mem. (Doc. 19) at 9-10 (citing Aff. of Scott T. Bravata
(“Bravata Aff.”) (Doc. 18-1) ¶¶ 3-9).) This court also notes
that there are no allegations that Defendants have not complied
with corporate formalities, so as to make UFP Salisbury the
alter ego of UFPI for purposes of imputing UFP Salisbury’s
contacts to UFPI.
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activity or an occurrence that takes place in the forum State
and is therefore subject to the State’s regulation.” Goodyear
Dunlop Tires Operations, S.A. v. Brown, 564 U.S. ___, ___, 131
S. Ct. 2846, 2851 (2011) (internal citations omitted).
Plaintiff contends UFPI’s “contacts are certainly more than
isolated or casual contacts” and UFPI employees had “direct
contact with the Plaintiff in North Carolina and did so over an
extended period of time,” such that Defendants “availed
themselves of this forum so that Plaintiff’s claims now arise
out of these contacts and it would be constitutionally
reasonable to assert personal jurisdiction over these
Defendants.”
(Pl.’s Resp. (Doc. 25) at 10.)
As referenced
above, UFPI does not have sufficient contacts with North
Carolina to render it subject to the general jurisdiction of
this court.
However, the minimum contacts analysis regarding
specific jurisdiction does not require the same level of
contacts.
The questions instead are (1) whether the foreign
corporation has purposefully availed itself of the privilege of
conducting business in North Carolina, (2) whether the
plaintiff’s claims arise out of those activities directed toward
the state, and (3) whether the exercise of specific jurisdiction
would be constitutionally reasonable.
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ALS Scan, Inc. v. Digital
Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir. 2002).
This court considers each of these questions in turn.
First, this court must determine whether UFPI has
purposefully availed itself of the privilege of doing business
in North Carolina.
In an attempt to show that it has not
purposefully availed itself, UFPI asserts that it does not make
its subsidiaries’ personnel decisions or employee discipline
decisions or direct their day-to-day operations, and it explains
that it does not own real property in North Carolina or sell or
manufacture products in North Carolina.
(See Defs.’ Mem. (Doc.
19) at 5-6; Bravata Aff. (Doc. 18-1) at 3-4.)4
Instead, UFPI
claims that it only “provides limited administrative services”
to UFP Eastern and UFP Salisbury and only does so through
“intercompany agreements.”
(See Defs.’ Mem. (Doc. 19) at 6;
Bravata Aff. (Doc. 18-1) at 5.)
To show that UFPI has purposefully availed itself,
Plaintiff alleges that UFPI administered “all human relations
matters” for UFP Salisbury during this period.
(Doc. 15) ¶ 6.)
(Am. Compl.
Specifically, Plaintiff claims that UFPI
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
4
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“handles and controls all human resources matters including
employee complaints, employee relations, training, compensation,
recruiting and management of all employees at the Salisbury
plant.”
(Pl.’s Resp. (Doc. 25) at 5.)
In support of this
claim, Plaintiff attaches a disciplinary report issued against
her, and “Universal Forest Products, Inc.” is stamped at the
bottom of the page, (see id., Ex. C, Disciplinary Report (Doc.
25-3)), along with an email from staff counsel for UFPI,
suggesting that UFPI was engaging in or at least had some role
in the EEOC conciliation process with Plaintiff. (See id., Ex.
A, Email from Brian Pearson (Doc. 25-1).)
Plaintiff also alleges that UFPI sent officers and agents
to visit UFP Salisbury’s plant at least twice a year, including
Mike Glenn, who was then CEO; Kim Hildebrand, Director of Human
Resources; Matthew Missad, CEO; and Chris Joseph, Regional
Manager. (Pl.’s Resp. (Doc. 25) at 5 (citing Am. Compl. (Doc.
15) ¶¶ 7, 32, 64)).
During these visits, Plaintiff reports UFPI
employees “would inspect the plant, give out service awards and
awards of recognition to employees, and employee of the year
awards.”
(Id.)
Therefore, based on these allegations and
accepting them as true, Plaintiff has shown that UFPI provides
services to UFP Salisbury within the state of North Carolina,
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that UFPI has directed its activities at North Carolina in more
than a random, fortuitous, or attenuated way, that UFPI should
have been able to anticipate being sued in North Carolina, and
that UFPI has purposefully availed itself of the privilege of
conducting business in North Carolina.
See Mitrano v. Hawes,
377 F.3d 402, 407 (4th Cir. 2004).5
Having found that UFPI has purposefully availed itself of
conducting business in North Carolina, this court must determine
whether Plaintiff’s claims arise out of these services.
Defendants do not offer a specific argument as to this prong of
specific jurisdiction, relying solely on their minimal contacts
with North Carolina.
(See Defs.’ Mem. (Doc. 19) at 11-12.)
Plaintiff’s claims all relate to employment discrimination by
employees of UFP Salisbury.
These allegations alone would not
be sufficient to show that Plaintiff’s claims arise out of
UFPI’s contacts with the state.
However, in both her federal
and state law claims, Plaintiff contends that Defendants allowed
harassment and other forms of discrimination to continue,
despite the fact that Plaintiff claims she complained directly
Because it appears that there are disputed facts at least,
this court will deny the motion without prejudice, allowing
Defendants to raise their issue again following discovery,
should additional facts suggest that this court’s finding as to
a prima facie case of jurisdiction is not supported by
resolution of factual disputes.
5
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to Chris Joseph, Regional Manager for UFPI, and Kim Hildebrand,
Director of Human Resources Services for UFPI, about sex
discrimination within the plant and about being overlooked for
multiple positions.
(Id. ¶¶ 31, 62-63.)
Plaintiff has alleged
that UFPI provides human resource services to UFP Salisbury and
UFP Eastern and manages the grievance and discipline processes,
and because Plaintiff has made claims based on her employment,
the conditions of her employment, and her ultimate discharge,
this court finds that her claims arise out of Defendant UFPI’s
contacts with North Carolina.
Finally, having found UFPI purposefully availed itself of
the privilege of conducting activities in North Carolina such
that the minimum contacts requirement is met, and that the
instant claims arise out of those activities, this court must
consider whether it would be constitutionally reasonable to
exercise personal jurisdiction over UFPI.
The constitutional
reasonableness inquiry permits a defendant “who purposefully has
directed his activities at forum residents” to defeat
jurisdiction, if he can “present a compelling case that the
presence of some other considerations would render jurisdiction
unconstitutional.”
462, 47 (1985).
Burger King Corp. v. Rudzewicz, 471 U.S.
UFPI, a Michigan-based corporation, will face
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some inconvenience in litigating a case in North Carolina.
Nonetheless, this inconvenience alone does not create a
“compelling case” that exercising jurisdiction over UFPI would
be constitutionally unreasonable.
Accordingly, this court finds that Plaintiff has made a
prima facie showing that this court can exercise specific
jurisdiction over UFPI.
Plaintiff will ultimately be required
to prove that this court can exercise jurisdiction by a
preponderance of the evidence, but at this point, this court
finds that it must deny Defendant’s motion to dismiss for lack
of personal jurisdiction.
III. MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
Defendants assert that this court does not have subject
matter jurisdiction to hear several of Plaintiff’s claims under
Title VII because Plaintiff did not provide sufficient
information in her Charge of Discrimination filed with the Equal
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Employment Opportunity Commission.6
Specifically, Defendants
contend that (1) Plaintiff has not exhausted her administrative
remedies for a hostile work environment claim, and (2) all
parties, except for Defendant UFP Salisbury, were not put on
notice of the EEOC Charge because they were not explicitly
listed in Plaintiff’s EEOC Charge.
This court finds that
Defendants were all given adequate notice, giving this court
subject matter jurisdiction over Plaintiff’s Title VII claims of
6
Defendants in their Reply seem to add on an additional
basis for dismissal based on lack of subject matter
jurisdiction. Defendants claim that Plaintiff’s claims based on
her employer’s negligence are within the exclusive jurisdiction
of the North Carolina Workers’ Compensation Act, N.C. Gen. Stat.
§ 97-1, et seq. (Defs.’ Reply (Doc. 31) at 11-13.) North
Carolina courts as well as courts in this district have held
that “[discrimination] is not a risk to which an employee is
exposed because of the nature of the employment, but is a risk
to which the employee could be equally exposed outside the
employment. Therefore, [the plaintiff's claim] is neither
covered nor barred by the [WCA].” Hogan v. Forsyth Cnty.
Country Club Co., 79 N.C. App. 483, 496, 340 S.E.2d 116, 124
(N.C. App. 1986) (citations omitted); see also Thomas v. N.
Telecom, Inc., 157 F. Supp. 2d 627, 637 (M.D.N.C. 2000)
(“Although Plaintiff's emotional distress may result from
incidents that occurred at work, her claim for negligent
infliction is not barred by the Act's exclusivity provision.”);
Ridenhour v. Concord Screen Printers, Inc., 40 F. Supp. 2d 744
(M.D.N.C. 1999) (holding that exclusivity provision does not bar
a claim of negligent infliction of emotional distress based on
sexual harassment). This court finds these cases persuasive to
these facts and will not dismiss Plaintiff’s claims based on
this theory. Plaintiff seeks to strike this argument because
Defendants raised this for the first time in their Reply. (Pl.’s
Mot. to Strike (Doc. 32).) However, because this court is
dismissing this argument on the merits, this court will deny the
motion to strike.
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wrongful discharge and retaliation, but this court also finds
that Plaintiff has not exhausted her hostile work environment
claim and will not be allowed to recover on that theory.
A.
Exhausting Administrative Remedies
Defendants claim that Plaintiff cannot proceed on her Title
VII claim under the theory of a hostile work environment because
Plaintiff has not exhausted this claim.
This court agrees.
Defendants are correct that “a failure by the plaintiff to
exhaust administrative remedies concerning a Title VII claim
deprives the federal courts of subject matter jurisdiction over
the claim.”
Jones v. Calvert Grp, Ltd., 551 F.3d 297, 300 (4th
Cir. 2009).
“Only those discrimination claims stated in the
initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of
the original complaint may be maintained in a subsequent Title
VII lawsuit.”
Evans v. Techs. Applications & Serv. Co., 80 F.3d
954, 963 (4th Cir. 1996).
“Thus, a claim in formal litigation
will generally be barred if the EEOC charge alleges
discrimination on one basis, such as race, and the formal
litigation claim alleges discrimination on a separate basis,
such as sex.”
Jones, 551 F.3d at 300.
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A charge is sufficient “if it is ‘sufficiently precise to
identify the parties, and to describe generally the action or
practices complained of.’” Chacko v. Patuxent Inst., 429 F.3d
505, 508 (4th Cir. 2005) (quoting 29 C.F.R. § 1601.12(b)).
However, a claimant fails to exhaust if the “administrative
charge[] reference[s] different time frames, actors, and
discriminatory conduct than the central factual allegations in
his formal suit.”
Id. at 506.
In her EEOC Charge, Plaintiff checked the boxes of
discrimination based on sex and retaliation.
Ex. B, EEOC Charge (Doc. 15-2).)
(See Am. Compl.,
The parties do not dispute
that Plaintiff has exhausted a claim for discriminatory and
retaliatory discharge, and this court agrees that Plaintiff has
exhausted that claim.
In her EEOC Charge, Plaintiff lists her
termination date, March 28, 2013, under the section entitled
“Date(s) Discrimination Took Place.”
(See id.)
She also
specifically lists her termination in the “Particulars” section
of the EEOC Charge, seems to claim that she was fired under the
pretext of poor performance, represents she was replaced by a
male employee, and asserts she was “discriminated against
because of [her] sex (F) and subjected to retaliation due to
[her] protected activities.”
(See id.)
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This court finds these
allegations are sufficient to exhaust her claims for
discriminatory and retaliatory discharge.
However, in addition to claiming discriminatory and
retaliatory discharge, Plaintiff claims she was the victim of a
hostile work environment based on her sex in violation of Title
VII.
Plaintiff asserts in her Amended Complaint, as part of her
one Title VII claim, that she “formally complain[ed] of . . .
harassment to multiple members of management and human
resources,” that “Defendants failed to conduct any sort of
reasonable investigation or take any appropriate or corrective
action with respect to the Plaintiff’s complaints,” and that
“Plaintiff continued to experience harassment and a hostile
working environment.”
(Am. Compl. (Doc. 15) ¶¶ 90-92.)
Defendants contend that these allegations were not exhausted in
Plaintiff’s EEOC Charge.
Apart from the allegations in the EEOC Charge concerning
Plaintiff’s termination, Plaintiff’s EEOC Charge states, in its
entirety: “I am a female. I began working for Respondent on or
about October 7, 2004. I worked as a Shipping/Receiving Clerk.
During my employment, I was discriminated against due to my sex
(female). I complained about the discrimination but Respondent
took no action.”
(EEOC Charge (Doc. 15-2).)
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Aside from the
reference to Respondent and its lack of action, Plaintiff’s EEOC
Charge does not specify how she was discriminated against during
her employment or who committed the discriminatory acts.
The
question, then, is whether this is sufficient to
administratively exhaust Plaintiff’s claim of hostile work
environment.
This court, using the factors provided in Chacko,
finds that these allegations were insufficient for exhausting
the hostile work environment claim Plaintiff brings in this
court.
Looking to the relevant time frames within the EEOC Charge
and the Amended Complaint, this court finds it is a close issue
as to whether Plaintiff’s EEOC Charge reflects the continuing
nature of the action alleged in the Amended Complaint.
Plaintiff did not check the “Continuing Action” box within her
EEOC Charge and, as referenced above, lists only the date of her
termination as the “Date(s) Discrimination Took Place.”
id.)
(See
Plaintiff’s Amended Complaint now asserts that she was the
victim of a continuing violation of her rights under Title VII.
(See Am. Compl. (Doc. 15) ¶ 89.)
Moreover, she alleges
discriminatory actions taken by employees in June 2012, almost
two years before the date alleged in the EEOC Charge.
¶ 71.)
(See id.
Despite these disparities between the EEOC Charge and
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the Amended Complaint, Plaintiff’s EEOC Charge does specify that
she was discriminated against based on her sex “[d]uring [her]
employment.”
(See EEOC Charge (15-2).)
This allegation, while
not specific, did put the EEOC and Defendants on notice that
Plaintiff was complaining of a period besides the date she was
terminated.
Although the relevant time frame is a close issue, this
court finds that Plaintiff’s EEOC Charge and her Amended
Complaint do not allege the same actors.
The only “actor”
alleged in Plaintiff’s EEOC Charge is “Respondent,” identified
in other parts of the EEOC Charge as “Universal Forest
Products.”
(Id.)
The Amended Complaint sets out a pattern of
harassment by two individual employees - Phillip Hightower,
plant manager, and John Corriher, one of Plaintiff’s co-workers.
(See, e.g., Am. Compl. (Doc. 15) ¶¶ 40-43, 59-77.)
This court
finds that the EEOC would not have been aware of harassing
behavior committed by Corriher, a co-worker, without some
reference to Corriher in the EEOC Charge.
As a result,
Plaintiff has not exhausted a hostile work environment claim
based on any actions committed by Corriher.
On the other hand,
as Hightower was plant manager and “ma[de] hiring and firing
decisions for the Salisbury plant” (see id. ¶ 57), the EEOC
-22-
would have had more reason to examine his actions during
Plaintiff’s employment.
Although Hightower’s discriminatory actions, as plant
manager, may have been the subject of a reasonable investigation
based on the contents of the EEOC Charge, this court finds that
Plaintiff’s EEOC Charge and her Amended Complaint allege
unrelated actions, rendering Plaintiff’s hostile work
environment claim unexhausted.
The EEOC Charge does not mention
sexual harassment or hostile work environment, not does it cite
any actions that would be indicative of sexual harassment or
hostile work environment.
(EEOC Charge (Doc. 15-2).)
Instead,
the EEOC Charge merely says that Plaintiff was “discriminated
against due to [her] sex.”
(Id.)
As other district courts
within this circuit have found, “a reasonable investigation of
Plaintiff's statement that she had been discriminated against on
the basis of sex would not have ‘uncovered the factual
allegations’ giving rise to Plaintiff's claim of sexual
harassment.”
See, e.g., Baiden-Adams v. Forsythe Transp., Inc.,
969 F. Supp. 2d 422, 430 (E.D. Va. 2013) (quoting Chacko, 429
F.3d at 512); see also DeLeon v. Enter. Leasing Co.-Se., No.
5:97-CV-972-H 2, 1998 WL 469900, at *3 (E.D.N.C. May 22, 1998)
(noting sexual harassment and a sexually hostile work
-23-
environment are “distinct from other forms of sex
discrimination” and dismissing hostile work environment claim
for failure to exhaust); Bryant v. Better Bus. Bureau of Greater
Md., Inc., 923 F. Supp. 720, 746 (D. Md. 1996) (noting “it is
unreasonable to assume that the mere mention of ‘sex’ in the
administrative charge will invoke an investigation into all
possible basis of discrimination based on sex by the employer”);
Logan v. Colonial Williamsburg Hotel Props., 941 F. Supp. 60, 62
(E.D. Va. 1996) (finding “the facts alleging sexual harassment
could not be inferred from the allegations in the EEOC charge
and would not have been uncovered absent specific allegations in
the charge”).
Because Plaintiff alleges different kinds of
prohibited action in the EEOC Charge and in her Amended
Complaint, this case is distinguishable from Sydnor, a case
where an ADA plaintiff was allowed to claim her employer refused
to provide full duty work in a wheelchair during formal
litigation, even though her EEOC Charge alleged that the
employer refused to allow her to perform light duty.
See Sydnor
v. Fairfax Cnty., Va., 681 F.3d 591, 595-96 (4th Cir. 2012).
Where in Sydnor, the Fourth Circuit recognized that the “type of
prohibited action alleged . . . remained consistent throughout,”
-24-
see id. at 595, here, the allegations are not reasonably
related.
Ultimately, this court observes that the EEOC Charge
focuses on Plaintiff’s discharge and makes only a conclusory
statement that “[d]uring [her] employment, [she] was
discriminated against due to [her] sex.”
15-2).)
(See EEOC Charge (Doc.
As such, these allegations were not reasonably related
to the claims of ongoing hostile work environment created by
supervisor and co-worker actions and statements.
429 F.3d at 512-13.
See Chacko,
While the Fourth Circuit has long
recognized that EEOC charges “must be construed with utmost
liberality,” see Alvarado v. Bd. of Trs. of Montgomery Cmty.
Coll., 848 F.2d 457, 460 (4th Cir. 1988), the Fourth Circuit has
also cautioned that this court is “not at liberty to read into
administrative charges allegations they do not contain.”
See
Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 408 (4th
Cir. 2013).
Even a liberal reading of Plaintiff’s EEOC Charge
provides no indication that Plaintiff was the victim of ongoing
hostile work environment based on her sex.
As a result, that
claim has not been exhausted and Plaintiff may not proceed on
that theory.
-25-
Although this court has found that Plaintiff has not
exhausted her hostile work environment claim, these allegations
could nonetheless possibly serve as evidence to support her
properly asserted sex discrimination claim.
See Evans, 80 F.3d
at 963 (citing United Air Lines v. Evans, 431 U.S. 553, 558
(1977)); cf. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002) (explaining that Title VII does not “bar an employee
from using the prior [untimely] acts as background evidence in
support of a timely claim”).
B.
Naming All Defendants
Defendants also contend that UFPI and UFP Eastern were not
given adequate notice of Plaintiff’s claims of discrimination
based on who Plaintiff claimed was her employer in her EEOC
Charge, and as a result, Defendants claim this court does not
have subject matter jurisdiction over these entities for any of
Plaintiff’s Title VII claims.
Again, this court disagrees.
The applicable regulation states that a charge “should
contain . . . (2) [t]he full name and address of the person
against whom the charge is made, if known,” 29 C.F.R.
§ 1601.12(a)(2), but that “a charge is sufficient when the
Commission receives from the person making the charge a written
statement sufficiently precise to identify the parties.”
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Id.
§ 1601.12(b).
“The naming requirement serves two purposes, and
is not a mere technicality: ‘First, it notifies the charged
party of the asserted violation.
Secondly, it brings the
charged party before the EEOC and permits effectuation of the
Act’s primary goal, the securing of voluntary compliance with
the law.’”
Alvarado, 848 F.2d at 458–59 (quoting Bowe v.
Colgate–Palmolive Co., 416 F.2d 711, 719 (7th Cir. 1969)).
Nonetheless, courts are sympathetic to the difficulties of
mastering the organizational structure of an employer and naming
all corporate entities that may have been involved in the
discriminatory conduct.
See id. at 460.
Moreover, “district courts throughout the Fourth Circuit
have recognized a ‘substantial identity’ exception to Title
VII's naming requirement where unnamed defendants are
substantially identical, though not necessarily outright
identical, to the named defendant.”
Alexander v. Diversified
Ace Servs. II, AJV, No. 1:11CV725, 2014 WL 502496, at *8-9
(M.D.N.C. Feb. 7, 2014) (citing, inter alia, Mayes v. Moore, 419
F. Supp. 2d 775, 782–83 (M.D.N.C. 2006); Mayo v. Questech, Inc.,
727 F. Supp. 1007, 1010–12 (E.D. Va. 1989)).
Under the
substantial identity exception, courts generally consider four
factors:
-27-
1) whether the role of the unnamed party could through
reasonable effort by the complainant be ascertained at
the time of the filing of the EEOC complaint; 2)
whether, under the circumstances, the interests of a
named [party] are so similar as the unnamed party's
that for the purpose of obtaining voluntary
conciliation and compliance it would be unnecessary to
include the unnamed party in the EEOC proceedings; 3)
whether its absence from the EEOC proceedings resulted
in actual prejudice to the interests of the unnamed
party; and 4) whether the unnamed party has in some
way represented to the complainant that its
relationship with the complainant is to be through the
named party.
See Mayes, 419 F. Supp. 2d at 783 (citing Glus v. G.C. Murphy
Co., 562 F.2d 880, 888 (3d Cir. 1977)); Mayo, 727 F. Supp. at
1011 (citing Glus, 562 F.2d at 888).
Courts have often
emphasized the second and third factors as “the most
important[,] as they are most reflective of the two-fold purpose
of the naming requirement,” that is, providing notice and an
opportunity for voluntary conciliation.
See Alexander, 2014 WL
502496, at *9.
In her EEOC Charge, Plaintiff listed “Universal Forest
Product” as the respondent in her EEOC Charge.
(Doc. 15-2).)
Respondent.
(EEOC Charge
Plaintiff then gave a Salisbury address for the
(See id.)
Defendants contend that UFPI and UFP
Eastern did not receive notice of the EEOC Charge because only
UFP Salisbury was listed as a respondent.
-28-
(Defs.’ Mem. (Doc.
19) at 14-15.)
However, this court does not find this argument
persuasive.
There is a threshold question of whether UFPI and UFP
Eastern were identified in Plaintiff’s EEOC charge by her
reference to “Universal Forest Products” as her employer.
The
full names of the UFPI and UFP Eastern are “Universal Forest
Products, Inc.” and “Universal Forest Products Eastern Division,
Inc.”
The fact that Plaintiff gave the physical address where
she works as the address for her employer does not change the
fact that Plaintiff could have been referring to UFPI and UFP
Eastern by stating that she was employed by “Universal Forest
Products.”
Thus, by identifying “Universal Forest Products” as
her employer, Plaintiff sufficiently identified the parties so
as to give this court subject matter jurisdiction.
Moreover, even assuming UFPI and UFP Eastern were not
sufficiently named in the EEOC Charge, application of the
substantial identity test shows that naming UFP Salisbury in her
EEOC Charge satisfied the statutory requirements, such that this
court can exercise subject matter jurisdiction over Plaintiff’s
Title VII claims against UFPI and UFP Eastern.
As to the second
factor of the substantial identity test, the interests of UFP
Salisbury - an entity that all parties agree is named in the
-29-
EEOC Charge - are so similar to the interests of UFPI and UFP
Eastern, based on Plaintiff's allegations, to have rendered UFPI
and UFP Eastern’s inclusion in the EEOC proceedings unnecessary.
Moreover, this court has not identified any source of prejudice
to UFPI or UFP Eastern because they were arguably not mentioned
in Plaintiff’s EEOC Charge.
Moreover, despite an allegation by Defendants’ counsel that
UFPI did not engage in the conciliation process on its own
behalf and did not know Plaintiff’s allegations were being
levied against UFPI until Plaintiff filed her complaint in
November 2014, (see Bravata Aff. (Doc. 18-1) ¶ 21), it appears
that Plaintiff had some knowledge of the conciliation process as
it was taking place.
Plaintiff has submitted June 17, 2013 and
July 1, 2013 emails from one of UFPI’s staff counsel to an EEOC
official during the conciliation process, in which counsel
provided a position statement and supporting documentation in
response to Plaintiff’s allegation.
Pearson (Doc. 25-1).
(See Email from Brian M.
But see Defs.’ Reply, Ex. E, Defendants’
Communication with EEOC (Doc. 31-6) at 6-7 (identifying Brian
Pearson as staff counsel for UFP Salisbury).)
This evidence
does not definitively prove that UFPI was given notice and an
opportunity to engage in the conciliation process, but this
-30-
court finds at this point that Plaintiff has stated sufficient
facts to plausibly assert that she exhausted the applicable
administrative procedures, such that this court has subject
matter jurisdiction over her Title VII claims against UFPI.
Similarly, this court finds that this court has subject
matter jurisdiction over Plaintiff’s Title VII claims against
UFP Eastern.
Defendants have submitted Plaintiff’s redacted
W-2s, and these W-2s list UFP Eastern as Plaintiff’s employer
from 2004 to 2010.
(See Defs.’ Reply, Ex. A, Plaintiff’s
Redacted W-2s (Doc. 31-2) at 2-8.)
UFP Salisbury is then listed
as Plaintiff’s employer from 2012 to 2013.
(See id. at 10-11.)
Given that Plaintiff performed the same job throughout this time
period, these W-2s suggest some sort of relationship between UFP
Salisbury and UFP Eastern, and based on this relationship, their
interests are “likely similar enough that, for purposes of
obtaining voluntary conciliation and compliance, it would be
unnecessary to include [both] in the proceedings.” See
Alexander, 2014 WL 502496, at *10.
Therefore, it would take an
unduly narrow reading of the statute for this court to find that
Plaintiff has not exhausted its claims against UFP Eastern
because it gave the physical address of the UFP plant where she
works.
-31-
Accordingly, this court will deny Defendants’ motion based
on lack of subject matter jurisdiction.
However, if after
discovery the evidence shows that UFPI and UFP Eastern did not
have notice or were not substantially identical to UFP
Salisbury, then this claim would be subject to dismissal against
those Defendants.
IV.
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM
In addition to making jurisdictional arguments, Defendants
contend that Plaintiff has failed to state a claim upon which
relief may be granted on all of her claims, except for one claim
of sex discrimination against UFP Salisbury.7
Defendants argue that several of Plaintiff’s state law
claims can be dismissed as a matter of law.
First, Defendants
claim that Plaintiff’s claim of wrongful discharge in violation
of North Carolina public policy should be dismissed.
Mem. (Doc. 19) at 22-23.)
(Defs.’
The policy statement provided in
Section 143-422.2 of the North Carolina Statutes - which says it
is against the public policy of North Carolina to discriminate
against an employee based on sex - applies to common law
wrongful discharge claims.
See McLean v. Patten Cmtys., Inc.,
7
Both parties agree that Plaintiff’s claim for intentional
infliction of emotional distress can be dismissed. Accordingly,
this court will grant Defendants’ Partial Motion to Dismiss as
to this claim.
-32-
332 F.3d 714, 720 (4th Cir. 2003).
Thus, when Plaintiff states
in her complaint that she was “discriminat[ed] against . . .
based on her sex and terminat[ed] . . . through discriminatory
practices,” (see Am. Compl. (Doc. 15) ¶ 115), she has
sufficiently stated a claim for sexually-discriminatory
discharge in violation of North Carolina public policy.
Nonetheless, this court does agree with Defendants’
argument that Plaintiff does not have a valid claim for
retaliatory discharge in violation of North Carolina public
policy.
As a court in this district has previously explained,
[A]lthough the state legislature has enacted statutes
prohibiting retaliation against employees [see N.C.
Gen. Stat. § 95-241], the protection afforded by these
statutes is limited to the areas of law set forth
therein. . . . [E]xtension of the public policy
exception to include protection against retaliation
for participation in other activities should come, if
at all, from the North Carolina courts.
Mullis v. Mechs. & Farmers Bank, 994 F. Supp. 680, 688 (M.D.N.C.
1997).
Therefore, Plaintiff’s wrongful discharge claim will
proceed, but it may not be based on her allegations of
retaliation, unless Plaintiff can plausibly allege that she is
-33-
proceeding under the Retaliatory Employment Discrimination Act,
codified at N.C. Gen. Stat. § 95-241.8
Second, Defendants argue that Plaintiff’s negligent
supervision and retention claim should be dismissed as a matter
of law.
(Defs.’ Mem. (Doc. 19) at 23-26.)
Plaintiff has used
the allegations of sexual harassment, retaliation,
discriminatory discharge, and the assaultive conduct committed
by Defendants’ employees as a basis for her negligent retention
and supervision claim.
(See Am. Compl. (Doc. 15) ¶ 123.)
To
state a claim for negligent retention and supervision, Plaintiff
must allege that an employee committed a “specific tortious
act.”
Johnston v. Leith, Inc., No. 5:10-CV-547-FL, 2011 WL
1770434, at *6 (E.D.N.C. May 9, 2011).
As a result, the Fourth
Circuit has held that negligent retention or supervision claims
cannot be based on “harassment or retaliation on account of race
or sex,” because “neither harassment [n]or retaliation [are]
common law torts in North Carolina.”
See McLean, 332 F.3d at
719. Based on this precedent, Plaintiff will not be able to rely
8
Plaintiff cites N.C. Gen. Stat. § 92-151, but this court
could not find a corresponding statute. If Plaintiff intended
to cite N.C. Gen. Stat. § 95-151, which prohibits discrimination
based on sex, race, and religious affiliation against any
“employer, employee, or any other person related to the
administration” of the Occupational Safety and Health Act of
North Carolina, this court is unsure how this statutory
prohibition on discrimination is relevant here.
-34-
on her complaints of harassment and retaliation as a basis for
her negligent retention and supervision claim.
However,
Plaintiff has based her negligent retention and supervision
claim on common law torts that were allegedly committed against
her, including the “assault” that John Corriher and Phillip
Hightower allegedly committed against Plaintiff.
Compl. (Doc. 15) ¶ 123.)
(See Am.
Because Plaintiff alleges that
Defendants’ employees committed a common law tort, this court
finds that Plaintiff has stated a claim of negligent retention
and supervision.
Third, Defendants claim that Plaintiff’s state law claims
are preempted by Title VII.
(Defs.’ Mem. (Doc. 19) at 25-26.)
Defendants cite several district court cases in support of this
argument.
However, those cases do not suggest that dismissal is
proper at this stage of the proceeding.
For instance, one case
cited by Defendants noted that the plaintiff asserted that the
duty to provide a workplace free of discrimination arose from
Title VII and that the court would not allow the plaintiff to
proceed on a duplicative cause of action based in negligence.
See Mwabira-Simera v. Thompson Hosp. Servs., LLP, Civil Action
No. WMN-11-2989, 2012 WL 959383, at *5 (D. Md. Mar. 20, 2012).
Yet, in this case - although there appears to be overlap between
-35-
Plaintiff’s negligent supervision and retention and negligent
infliction of emotional distress claims and her Title VII and
EPA claims - there are allegations, such as the alleged
physically assaultive behavior of John Corriher that could
provide for a cause of action under state law that would not
fall within the purview of Title VII.
Additionally, some of the
cases cited by Defendants had much more substantial factual
records than this court currently has, and these facts helped
those courts determine that the causes of action were preempted.
See Rhodes v. Johnson, No. 3:13-cv-00109-MOC-DSC, 2014 WL
2531594, at *9 (W.D.N.C. June 5, 2014).
Accordingly, this court
does not find Plaintiff’s claims are preempted by Title VII at
this juncture.
Defendants also argue that Plaintiff has not stated a
plausible claim on her remaining causes of action. Specifically,
Defendants contend (1) that Plaintiff makes only conclusory
allegations that all Defendants are an integrated enterprise and
thus all potentially liable under Title VII, (2) that Plaintiff
has not asserted male comparators in positions of equal skill,
effort, and responsibility to state a plausible EPA claim, (3)
that some of the bases for Plaintiff’s EPA claim are barred by
the statute of limitations, (4) that Plaintiff, in her claims of
-36-
negligent hiring, retention, and supervision has made only
conclusory allegations as to what Defendants should have known
about Corriher’s purported criminal record, and (5) that
Plaintiff has set forth only intentional acts, undercutting her
claim of negligent infliction of emotional distress.
(Defs.’
Mem. (Doc. 19) at 16-25, 28-29.)
All of the issues cited by Defendants as to the merits of
Plaintiff’s remaining claims will all require resolution of
factual matters, and this court is not to resolve such factual
disputes at this stage.
This court has reviewed all of
Plaintiff’s claims and finds that none of the claims are clearly
defective based on the face of Plaintiff’s Amended Complaint.
Therefore, this court will deny Defendants’ motion to dismiss as
to these claims.
V.
CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Renewed Partial
Motion to Dismiss (Doc. 18) is GRANTED IN PART and DENIED IN
PART.
Plaintiff’s Fifth Claim for Relief based on Intentional
Infliction of Emotional Distress is DISMISSED and the court will
not allow Plaintiff to proceed on the theories of sexual
harassment/hostile work environment, failure to promote, or pay
discrimination in her First Claim for Relief under Title VII.
-37-
All other requested forms of relief within Defendants’ Renewed
Partial Motion to Dismiss are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike
Defendants’ Reply (Doc. 32) is DENIED.
IT IS FURTHER ORDERED that Defendants’ request to modify
the case caption is DENIED WITHOUT PREJUDICE.
This the 1st day of September, 2015.
_______________________________________
United States District Judge
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