Parton v. Smoky Mountain Knife Works, Incorporated et al
Filing
12
MEMORANDUM AND OPINION as set forth in following order.Signed by District Judge Thomas A Varlan on 9/12/11. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JENNIFER LYNN PARTON,
)
)
Plaintiff,
)
)
v.
)
)
SMOKY MOUNTAIN KNIFE WORKS, INC. )
and CHASE PIPES, individually,
)
)
Defendants.
)
No.:
3:10-CV-436
(VARLAN/GUYTON)
MEMORANDUM OPINION
Invoking Title VII of the Civil Rights Act of 1964 and supplemental jurisdiction,
plaintiff Jennifer Lynn Parton filed the present civil action against defendants Smoky
Mountain Knife Works, Inc. (“SMKW”) and Chase Pipes (“Pipes”) (together, “defendants”),
alleging quid pro quo sexual harassment and retaliation as well as outrageous conduct [Doc.
1]. Defendants filed a motion to dismiss for failure to state a claim [Doc. 4]. After no
response from plaintiff, defendants filed a motion to grant defendants’ motion to dismiss
[Doc. 7]. Shortly thereafter, plaintiff filed a motion to amend the complaint and defendants
filed a response in opposition [Docs. 8, 9]. The Court has carefully considered the parties’
motions and supporting materials [Docs. 1, 4, 5, 7, 8, 9] in light of controlling law. For the
reasons set forth herein, the Court will grant in part and deny in part defendants’ motion to
dismiss [Doc. 4], deny as moot defendants’ motion to dismiss for plaintiff’s failure to
respond [Doc. 7], and grant in part and deny in part plaintiff’s motion to amend the complaint
[Doc. 8].1
I.
Background and Relevant Facts2
Plaintiff alleges she worked for SMKW for fifteen years before she was sexually
assaulted by Pipes, who is a shareholder and son of the founder of SMKW and has been
employed by SMKW in various capacities [Doc. 1 ¶¶ 6–7]. Plaintiff and Pipes allegedly
shared an office at SMKW, and in June 2008, Pipes began placing personal letters to plaintiff
on her desk, which disclosed his attestations of amorous intent [Id. at ¶ 8]. After receiving
the letters, plaintiff informed her direct supervisor, Doug Stone (“Stone”), about the letters
in accordance with company policy. Stone advised plaintiff “that it would be unwise to show
the letters to the owner of the company” and implied that “providing evidence against the
owner’s son would place her job in jeopardy” [Id. at ¶ 9].
Plaintiff asserts that Pipes’s unsolicited affection continued. According to plaintiff,
Pipes openly began fantasizing to plaintiff about getting a divorce in order to start a
relationship with her, but plaintiff advised Pipes that she was happily married and her
relationship with Pipes was strictly professional [Doc. 1 ¶ 11]. Around the same time,
plaintiff began fertility treatments to conceive a child with her husband, but this allegedly
1
Plaintiff requested oral argument with respect to her motion to amend. This Court considers
requests for oral argument on a case-by-case basis. After reviewing the pending motions, the Court
finds that oral argument is not necessary.
2
Because defendants have moved to dismiss for failure to state a claim, all facts and
inferences to be drawn therefrom must be construed in plaintiff’s favor. So construed, the relevant
facts are taken from the allegations in plaintiff’s complaint.
2
agitated Pipes and renewed his interest in wooing plaintiff. He indicated that if she would
leave her husband he would provide her with a “better life” [Id. at ¶ 12–14].
In August 2008, Pipes allegedly demanded that plaintiff meet him outside of work to
discuss his amorous intentions, but plaintiff refused and advised him that it would be
inappropriate because she was a newlywed and it would create undue strain on their working
relationship [Id. at ¶¶ 16–17]. Pipes responded by informing plaintiff that his father would
be retiring soon and if she would begin a relationship with him and bear his child instead of
her husband’s child, he could provide her with all the security she would ever need. He
insisted that “once his father retired, no one knew what would happen to her” [Id. at ¶¶
18–19]. Plaintiff’s refusal did not thwart Pipes’s affection, and at the end of August 2008,
Pipes allegedly approached plaintiff again about starting a romantic relationship, presenting
her with a Kindle and another love letter [Id. at ¶ 20]. Plaintiff told Pipes that she could no
longer work with him and informed Stone of the incidents that took place [Id. at ¶¶ 21–22].
Stone advised her that he would speak with Pipes about his actions [Id. at ¶ 22].
The following day, plaintiff asserts she received a call from Pipes while she was at
work. She later learned Pipes called her while he was in line at Wal-Mart, in close proximity
to plaintiff’s husband, with the intent to taunt her husband about the possibility of an
adulterous liaison [Id. at ¶¶ 23–24]. The following day, plaintiff again reported the incident
to Stone, who then took plaintiff to the company CFO. As a result, Pipes was required to
vacate their shared office and apologize [Id. at ¶¶ 25–26].
3
A few weeks later, plaintiff received a text message from Pipes’s wife with the word
“HOMEWRECKER!” in its body. The following day, plaintiff showed the text message to
Stone and informed him that Pipes’s behavior had to stop [Id. at ¶¶ 28–29]. Afterwards,
Pipes allegedly called plaintiff to apologize and requested that she remove the write-up from
his file. She advised him that he should not contact her and she would not remove the
write-up from his file [Id. at ¶ 30]. In the same conversation, Pipes allegedly told plaintiff
that “the company was losing money and that people were going to be laid off, and he was
not sure her job was safe since she was no longer his friend” [Id. at ¶ 31 (quotation marks
omitted)]. Plaintiff perceived this as a threat to her employment [Id.].
Plaintiff asserts Pipes began a campaign to pressure her to allow him to share her
office and repeatedly requested that she drop her complaint against him, assuring that, if she
did drop the complaint, things would return to normal. Pipes also would inquire into
plaintiff’s attempts to conceive with her husband [Id. at ¶¶ 32–33]. Plaintiff told Pipes that
she was happily married and asked if her continued employment depended upon her not
conceiving with her husband, to which Pipes allegedly responded, “no one is safe anymore”
[Id. at ¶ 34]. Plaintiff claims she again informed her supervisor of Pipes’s behavior.
Subsequently, Pipes stopped his harassing behavior and offered the use of his father’s
farm to stable plaintiff’s horses for the winter free of charge [Id. at ¶¶ 35–36]. On November
14, 2008, Pipes allegedly called plaintiff at work to discuss the use of his father’s farm, but
she initially refused his offer. In response, Pipes advised her that job cuts at SMKW would
occur in January. Plaintiff asserts she asked if he was threatening her job if she did not
4
accept his demands, but he said he was not and just wanted to help her with her horses [Id.
at ¶¶ 38–42]. Allegedly, he again warned her that employees were being fired, specifically
a particular female employee who refused to cooperate, which plaintiff understood as a threat
to her employment [Id. at ¶ 43]. The conversation returned to the use of the farm; plaintiff
wanted something in writing before she allowed her horses to stay at his father’s farm. Pipes
offered to take her to the manager of the farm, Martez, and she agreed because she personally
knew Martez [Id. at ¶¶ 46–47].
Plaintiff arrived at the farm and stood at the front door to meet with Martez. She
heard Pipes yell that she should come inside and look at his son’s room. Allegedly, as soon
as plaintiff walked in the house, Pipes grabbed her from behind and bound her arms with a
cloth or rope [Id. at ¶¶ 48–49]. Plaintiff protested and asked him to refrain, but Pipes
dragged her to his bedroom and forcibly began to kiss her neck. She fought back by biting
him. To subdue plaintiff, Pipes grabbed a shirt and placed it over her face. Allegedly, Pipes
then forcibly pulled down plaintiff’s pants and raped her without wearing a condom [Id. at
¶¶ 50–52]. Plaintiff then replaced her clothes and left the building. Pipes asked her if she
wanted to see the pasture, but she replied that he was crazy after what he had done to her and
she was going to be sick. Pipes said he knew of another woman that could do her job and
he had mentioned this to his father. He further stated that “times are tough, so it depends on
who needs the job worse” [Id. at ¶¶ 54–55].
5
Plaintiff returned to work and immediately called her physician, who advised her to
go to the Emergency Room. Plaintiff went to the Knoxville Rape Center where a rape kit
was performed [Id. at ¶¶ 56–57]. She did not return to work because she was afraid she
would be forced to work with her attacker. Subsequently, her supervisor, without knowing
of the attack, later claimed that she voluntarily quit as a grounds for denying her
unemployment claim [Id. at ¶¶ 58–59].
After the attack, plaintiff claims that SMKW began a smear campaign against her in
order to silence her complaint and prevent her from receiving suitable employment. As a
result of the incident on November 14, 2008, plaintiff’s marriage broke down [Id. at ¶¶
61–63]. Plaintiff was diagnosed with Post-Traumatic Stress Disorder by two separate
physicians, for which she continues to seek medical treatment [Id. at ¶ 60].
On April 12, 2009, plaintiff filed a charge of discrimination with the Tennessee
Human Rights Commission (“THRC”) and with the Equal Opportunity Commission
(“EEOC”) [Doc. 4-1]. Plaintiff was issued a right to sue letter by the EEOC on July 16, 2010
[Doc. 1-1].
On October 13, 2010, plaintiff commenced this action alleging claims of quid pro quo
sexual harassment, retaliation, and outrageous conduct [Doc. 1]. Defendants responded with
a Rule 12(b)(6) motion to dismiss for failure to state a claim [Docs. 4, 5]. After no response
from plaintiff, defendants filed a motion to grant defendants’ motion to dismiss due to
plaintiff’s failure to respond [Doc. 7]. Shortly thereafter, Plaintiff filed a motion to amend
the complaint and defendants filed a response in opposition [Docs. 8, 9].
6
II.
Standards of Review
A.
Federal Rule of Civil Procedure 12(b)(6)
A party may move to dismiss for failure to state a claim pursuant to Federal Rule of
Civil Procedure Rule 12(b)(6). In order to survive a Rule 12(b)(6) motion, a complaint must
contain allegations supporting all material elements of the claims. Bishop v. Lucent Techs.,
Inc., 520 F.3d 516, 519 (6th Cir. 2008). To satisfy this standard, a plaintiff need only offer
“‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in
order to ‘give the [opposing party] fair notice of what the . . . claim is and the grounds upon
which it rests.’” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)). In determining whether to grant a motion to dismiss, all
well-pleaded allegations must be taken as true and must be construed most favorably toward
the non-movant. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003).
Detailed factual allegations are not required, but a party’s “obligation to provide the
‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions.”
Twombly, 550 U.S. at 555. A formulaic recitation of the elements of a cause of action will
not do, neither will “‘naked assertion[s]’devoid of ‘further factual enhancement[,]’” nor an
unadorned, the-defendant-unlawfully harmed-me accusation. Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555, 557).
B.
Federal Rule of Civil Procedure 15
The Federal Rules of Civil Procedure provide that a plaintiff may amend the
complaint once as a matter of course within twenty-one days after serving it, or twenty-one
7
days after service of a responsive pleading or service of a motion under Rule 12(b), (e), or
(f), whichever is earlier. Fed. R. Civ. P. 15(a)(1). In all other cases, a plaintiff may amend
only with the opposing party’s consent or the Court’s leave. Fed. R. Civ. P. 15(a)(2).3
Under Rule 15(a)(2) a “court should freely give leave [to amend] when justice so
requires.” The Court, however, must balance the harm to the moving party if he or she is not
permitted to amend against the prejudice caused to the other party if leave to amend is
granted. Foman v. Davis, 371 U.S. 178, 182 (1962). “[A] motion to amend a complaint
should be denied if the amendment is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile.” Crawford v. Roane, 53
F.3d 750, 753 (6th Cir. 1995) (citations omitted); see also Marx v. Centran Corp., 747 F.2d
1536, 1550 (6th Cir. 1984); Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 633 (6th
Cir. 2009). “Amendment of a complaint is futile when the proposed amendment would not
permit the complaint to survive a motion to dismiss.” Miller v. Calhoun Cnty., 408 F.3d 803,
807 (6th Cir. 2005) (citing Neighborhood Dev. Corp. v. Advisory Council on Historic Pres.,
632 F.2d 21, 23 (6th Cir. 1980)).
III.
Defendants’ Motion to Dismiss
As a general matter, defendants move to dismiss plaintiff’s claims “because the claims
are either not cognizable as stated or are time-barred” [Doc. 5].
3
Rule 15(a)(2) governs here. Plaintiff filed her complaint on October 13, 2010, and
defendants filed a motion to dismiss pursuant to Rule 12(b)(6) on December 10, 2010. Plaintiff did
not file the motion to amend until January 31, 2010, which is more than twenty-one days after
defendants filed their motion to dismiss.
8
A.
Outrageous Conduct Claim
Plaintiff claims that Pipes’s conduct was willful, intentional, and reckless in nature
and so outrageous that it should not be tolerated by a civilized society [Doc. 1 ¶¶ 76–78].
Further, plaintiff claims that SMKW, both during and after the alleged rape, engaged in
conduct that was irresponsible and reckless in nature, and failed to terminate Pipes and
fostered a sexually charged atmosphere [Id. at ¶¶ 77, 79]. Plaintiff alleges to have suffered
irreparable physical, mental, and social harm [Id. at ¶ 80].
Defendants assert that the complaint fails to state a claim for outrageous conduct
because the state-law action is barred by the statute of limitations. According to Tennessee
law, a claim of outrageous conduct is equivalent to a claim for intentional infliction of
emotional distress. Bain v. Wells, 936 S.W.2d 618, 622 n.3 (Tenn. 1997) (citing Moorhead
v. J.C. Penny Co., Inc., 555 S.W.2d 713, 717 (Tenn. 1977)). Claims of intentional infliction
of emotional distress fall within the one-year statute of limitations. See Leach v. Taylor, 124
S.W.3d 87, 91 (Tenn. 2003) (citing Tenn. Code Ann. § 28-3-104 (2000)). Thus, the relevant
statute of limitations here is one year.
With respect to Pipes, plaintiff alleges Pipes sexually assaulted her on November 14,
2008, and that she never returned to work after that date. The complaint was filed on
October 13, 2010, which is almost to two years after the alleged sexual assault. Thus,
assuming the cause of action against Pipes accrued on November 14, 2008, which is the most
recent date of any alleged misconduct of Pipes, the claim is barred. See Barrett v. Whirlpool
Corp., 704 F. Supp. 2d 746, 753–54 (M.D. Tenn. 2010) (indicating that a cause of action for
9
outrageous conduct accrues when the last allegedly harassing act occurred). Because the
Court finds that plaintiff’s proposed amended complaint remedies this defect and is not futile
as discussed infra, however, the claim will not be dismissed.
With respect to SMKW, plaintiff alleges that SMKW and its employees “began a
smear campaign against [plaintiff] defaming her in the community to silence her complaint
and to prevent her from gaining suitable employment” [Doc. 1 ¶ 61]. The Sixth Circuit has
stated that a motion to dismiss on statute of limitations grounds “should be granted when the
statement of the claim affirmatively shows that the plaintiff can prove no set of facts that
would entitle him to relief.” New Eng. Health Care Emps. Pension Fund v. Ernst & Young,
LLP, 336 F.3d 495, 501 (6th Cir. 2003) (citations and quotations omitted), abrogated on
other grounds by Merck & Co. v. Reynolds, 130 S. Ct. 1784 (2010). “What that means in the
statute of limitations context is that dismissal is appropriate only if a complaint clearly shows
that the claim is out of time.” Searcy v. Cnty. of Oakland, 735 F. Supp. 2d 759, 763 (E.D.
Mich. 2010) (citation omitted).
In construing the complaint most favorably toward the non-moving party, the Court
finds that although plaintiff pleads no particular time period for the “smear campaign,” she
alleges it was after “her attack and constructive discharge from SMKW” [Doc. 1 ¶ 61]. Thus,
it is feasible that the actions of the alleged campaign accrued during the one-year statute of
limitations period. Further, defendants have failed to demonstrate that the complaint clearly
shows that any outrageous conduct claim against SMKW is out of time.
Defendants also
argue that the complaint’s allegations of outrageous conduct against SMKW are vague and
10
conclusory and insufficient to state a claim [See Doc. 5]. In order to state a claim for
outrageous conduct, a plaintiff must demonstrate that: “(1) the conduct complained of was
intentional or reckless; (2) the conduct was so outrageous that it is not tolerated by civilized
society; and (3) the conduct complained of resulted in serious mental injury.” Bain, 936
S.W.2d at 622 (citations omitted). Liability exists “only where the conduct has been so
outrageous in character, and so extreme in degree, as to go beyond all bounds of decency,
and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. at 623
(citations omitted). A successful case will be “one in which the recitation of the facts to an
average member of the community would arouse his resentment against the actor, and lead
him to exclaim, ‘Outrageous!’.” Id. (citations omitted).
Defendants do not address the elements necessary to state a claim of outrageous
conduct; they merely recite the standard enunciated by the Supreme Court in Twombly and
Iqbal and submit that plaintiff’s allegations are “cursory” [Doc. 5]. A review of the
complaint, however, demonstrates that plaintiff has pleaded sufficient facts pertaining to each
element required to state a claim for outrageous conduct.
First, plaintiff pleads that SMKW’s conduct was reckless [See Doc. 1 ¶ 77 (“The
conduct of SMKW during and after the events resulting in the plaintiff’s forcible rape by her
co-worker were irresponsible and reckless in nature.”)].
Second, with respect to outrageous conduct, the Court notes that the Tennessee
Supreme Court has recognized that the requirement “is a high standard which has
consistently been regarded as a significant limitation on recovery.” Doe 1 ex rel. Doe v.
11
Roman Catholic Diocese, 154 S.W.3d 22, 39 (Tenn. 2005). Despite this high standard, the
Court finds plaintiff alleges sufficient facts to withstand the motion to dismiss. Plaintiff
alleges that SMKW began a smear campaign against her, defaming her in the community and
preventing her from gaining employment.
Third, with respect to the requirement that the outrageous conduct result in “serious
mental injury,” the Court notes that serious mental injury is that in which “‘the distress is so
severe that no reasonable [person] could be expected to endure it.’” Levy v. Franks, 159
S.W.3d 66, 85 (Tenn. Ct. App. 2004). Plaintiff alleges that she has suffered mental harm and
specifically alleges that she has been diagnosed with Post-Traumatic Stress Disorder by two
physicians, for which she continues to seek medical attention. The Court therefore finds
plaintiff’s allegations sufficient.
In sum, and because of the Court’s findings with respect to plaintiff’s motion to
amend, the Court finds that plaintiff’s outrageous conduct claim should not be dismissed.
B.
Retaliation Claim
Plaintiff’s claim for retaliation asserts that defendants mislead the community about
the alleged rape of plaintiff [Doc. 1 ¶ 70]. Further, plaintiff alleges that defendants,
deliberately and with malicious intent, “sought to sway public opinion against the plaintiff
to undermine her legal and rightful claims against them” [Id. at ¶ 72]. She claims that, as a
result of their actions, she could not retain her employment with SMKW nor obtain gainful
employment in the local community [Id. at ¶¶ 73–74].
12
Defendants make numerous arguments as to why plaintiff’s claim of retaliation should
be dismissed. They assert: (1) plaintiff failed to exhaust her administrative remedies, (2)
individuals are not liable under Title VII, and (3) Tennessee’s one-year statute of limitations
bars any state-law claim for retaliation.4
1.
Failure to Exhaust Administrative Remedies
Defendants submit that it “is well settled that federal courts do not have subject matter
jurisdiction to hear Title VII claims unless the claimant explicitly files the claim in an EEOC
charge or the claim can be reasonably expected to grow out of the EEOC charge” [Doc. 5
(emphasis omitted)]. They further submit that plaintiff bases her retaliation claim on conduct
occurring before she filed her initial charge with the THRC, which was subsequently
cross-filed with the EEOC,5 but she failed to include any allegation or facts demonstrating
4
While the complaint is unclear as to whether plaintiff asserts a claim for retaliation under
the Tennessee Human Rights Act (“THRA”) in addition to Title VII, the Court construes the
complaint as asserting a claim for retaliation under both laws because plaintiff filed her charge of
discrimination with the THRC and because defendants treat the complaint as asserting a claim for
retaliation under the THRA.
5
The charge of discrimination was not filed with the complaint, but the charge of
discrimination is attached as an exhibit to defendants’ motion to dismiss [Doc. 4-1]. Even if the
exhibit is considered outside the pleadings, it does not convert the motion to dismiss into a motion
for summary judgment: “[T]he Sixth Circuit has made clear that, although the usual rule is that
matters outside the pleadings may not be considered in ruling on a motion to dismiss without
converting it into a motion for summary judgment, there are exceptions. Courts may consider . . .
public records, matters of which a court may take judicial notice, and letter decisions of
governmental agencies.” Trimble v. I.Q. Group, No. 1:10-CV-26, 2010 WL 3851398, at *1 (E.D.
Tenn. Sept. 27, 2010) (citing J.P. Silverton Indus. L. P. v. Sohm, 243 F. App’x. 82, 86–87 (6th Cir.
2007) (considering letters from EEOC on motion to dismiss). Therefore, the Court will treat the
motion presently before it as one to dismiss without converting the motion to one for summary
judgment.
13
retaliation by SMKW in the charge [Id.]. Thus, defendants claim plaintiff has failed to
exhaust her administrative remedies and that the claim for retaliation must be dismissed.
“It is well-settled that before a person who claims to have been discriminated against
in violation of Title VII may seek relief in federal court, the claimant must first
unsuccessfully present his or her claim to the EEOC (or the equivalent state entity that has
authority to grant or seek relief with respect to the alleged unlawful practice.)[.]” Wrobbel
v. Int’l Broth. of Elec Workers, Local 17, 638 F. Supp. 2d 780, 790 (E.D. Mich. 2009)
(citations omitted). The Sixth Circuit has explained the reason for requiring exhaustion of
administrative remedies: “The requirement that the plaintiff exhaust administrative remedies
prior to instituting suit is intended to ensure that the [Equal Employment Opportunity]
Commission will have been afforded an opportunity to attempt conciliation and voluntary
settlement, ‘the preferred means for resolving employment discrimination disputes.’”
Parsons v. Yellow Freight Sys., Inc., 741 F.2d 871, 873 (6th Cir. 1984) (alteration in original
and citation omitted).
As defendants indicate, the exhaustion requirement “requires that a plaintiff’s Title
VII complaint be limited to the scope of the EEOC charge or can reasonably be expected to
grow out of that charge.” Wrobbel, 368 F. Supp. 2d at 790 (citations omitted); see also
Spengler v. Worthington Cyclinders, 615 F.3d 481, 490 (6th Cir. 2010) (citation omitted)
(addressing an Age Discrimination in Employment Act claim). Although the Sixth Circuit
characterized this requirement as “jurisdictional” in the past, see Strouss v. Mich. Dep’t of
Corr., 250 F.3d 336, 342 (6th Cir. 2001), at least two panels of the Sixth Circuit more
14
recently, in light of Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), have stated that the failure
to include a claim in an EEOC charge is not jurisdictional. See Hill v. Nicholson, 383 F.
App’x 503, 508 (6th Cir. 2010); Allen v. Highlands Hosp. Corp., 545 F.3d 387, 401–02 (6th
Cir. 2008). Therefore, any argument that the Court lacks jurisdiction must fail.
The Court, nevertheless, considers whether plaintiff exhausted her administrative
remedies with respect to her claim for retaliation, a prerequisite to filing a lawsuit alleging
discrimination under Title VII of the Civil Rights Act of 1964. See Randolph v. Ohio Dep’t
of Youth Servs., 453 F.3d 724, 732 (6th Cir. 2006) (citation omitted). Although claims for
retaliation are often exempt from the exhaustion requirement because they arise after a
charge of discrimination is filed, retaliation claims based upon conduct occurring before a
charge is filed must be included in the charge. Spengler, 615 F.3d at 490 (citation omitted).
The exhaustion requirement is not “overly rigid, nor should it ‘result in the restriction of
subsequent complaints based upon procedural technicalities or the failure of the charges to
contain the exact wording which might be required in a judicial proceeding.’” Randolph, 453
F.3d at 732 (citation omitted).
Here, plaintiff checked the box on the charge of discrimination form indicating that
retaliation was one of her claims [Doc. 4-1]. Further, in the area allotted to explain the
discriminatory actions taken by the employer, plaintiff provided a summary, albeit brief, of
the allegations set forth in the complaint and wrote: “I believe that I have been discriminated
against based on my sex, female, and retaliation, all in violation of Title VII of the Civil
Rights Act of 1964, as amended” [Id. (emphasis added)]. The Court therefore disagrees with
15
defendants’ argument that plaintiff failed to exhaust her administrative remedies. Compare
Blume v. Potter, 289 F. App’x 99, 103 (6th Cir. 2008) (finding the district court was correct
to consider the merits of the plaintiff’s disability-discrimination claim because he checked
the box indicating that disability discrimination was one of his claims, described next to the
disability box that his disability was being mentally-psychiatric, and stated in his affidavit
that the defendant knew he was on medication that affected his reactions to confrontation and
was seeing a doctor for depression), and Rhea v. Dollar Tree Stores, Inc., 395 F. Supp. 2d
696, 703–04 (W.D. Tenn. Feb. 2, 2005) (finding the plaintiffs exhausted their administrative
remedies regarding their Title VII sex-stereotyping claim because, in the EEOC charge of
discrimination forms, they checked that they were discriminated on the basis of sex), with
Younis v. Pinnacle Airlines, Inc., 610 F.3d 359, 363 (6th Cir. 2010) (finding the plaintiff
failed to exhaust his administrative remedies on his Title VII retaliation claim because he
failed to check the box to indicate a charge of retaliation, did not indicate he was alleging
retaliation, and there was nothing in the narrative that could have been interpreted as
claiming retaliation).
2.
Liability for Individuals under Title VII6
Defendants assert plaintiff cannot state a claim against Pipes for retaliation under Title
VII because Title VII does not include liability for individuals [Doc. 5]. The Sixth Circuit
has held that “an individual employee/supervisor, who does not otherwise qualify as an
6
The Court notes that defendants have not argued that there is no individual liability under
the THRA.
16
‘employer,’ may not be held personally liable under Title VII.” Wathen v. Gen. Elec. Co.,
115 F.3d 400, 405 (6th Cir. 1997). Plaintiff has not filed a response or otherwise claimed
that Pipes alone qualifies as an employer. Accordingly, the Court finds plaintiff’s claim for
retaliation against Pipes under Title VII cannot stand as a matter of law and will be
dismissed.
3.
State-Law Claims for Retaliation
Defendants’ final argument addresses any retaliation claim plaintiff may assert under
Tennessee law. Defendants argue that, to the extent plaintiff’s claims are for retaliation
under state law, they are barred by the one-year statute of limitations.
In Weber v. Moses, the Tennessee Supreme Court held the governing statute of
limitations for a claim for retaliatory discharge is the general tort statute of limitations of one
year. 938 S.W.2d 387, 393 (Tenn. 1986) (citing Tenn. Code Ann. § 28-3-104 (1980 Repl.
And Supp. 1996)). Defendants correctly asserted that the statute of limitations for state law
claims, including claims under the THRA, are not tolled during the filing process with the
EEOC. Martin v. Boeing-Oak Ridge Co., 244 F. Supp. 2d 863, 872 (E.D. Tenn. 2002).
In construing the complaint most favorably toward plaintiff, plaintiff asserts that, after
her constructive discharge, Pipes and SMKW mislead the community about the alleged rape
and sought to sway public opinion against plaintiff so that she could not retain her
employment with SMKW nor obtain gainful employment in the local community. It is
feasible, as discussed supra, that these actions accrued during the one-year statute of
limitations period, and defendants have failed to persuade the Court that any state-law claim
17
for retaliation is clearly out of time. Accordingly, any state-law retaliation claim against
Pipes and SMKW will not be dismissed.
In sum, with respect to plaintiff’s retaliation claim, the motion to dismiss will be
granted as to plaintiff’s Title VII claim against Pipes and denied in all other respects.
C.
Quid Pro Quo Sexual Harassment Claim7
Although the Supreme Court has indicated that “the terms quid pro quo and hostile
work environment are helpful, perhaps, in making a rough demarcation between cases in
which threats are carried out and those where they are not or are absent altogether, but
beyond this are of limited utility,” the Court observes that the Sixth Circuit continues to
employ different tests for establishing quid pro quo and hostile work environment claims.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998); Sanford v. Main Street Baptist
Church Manor, Inc., 327 F. App’x 587, 595, 596–97 (6th Cir. 2009) (stating the different
elements required to establish a claim for hostile work environment sexual harassment and
quid pro quo sexual harassment). Plaintiff expressly alleges a quid pro quo sexual
harassment claim, and defendants argue only that plaintiff fails to state a claim for quid pro
quo sexual harassment. Accordingly, the Court limits its analysis to whether plaintiff has
stated a quid pro quo claim and does not address whether plaintiff has stated, or can state,
a hostile work environment claim.
7
The Court notes defendants have not made separate arguments regarding quid pro quo
claims under Title VII and the THRA. Even so, “[b]ecause the Tennessee legislature intended the
THRA ‘to be coextensive with federal law,’ claims under the [statute] follow the same analysis as
those under Title VII.” Howington v. Quality Rest. Concepts, LLC, 298 F. App’x 436, 437 n.1 (6th
Cir. 2008) (citation omitted).
18
Defendants argue that to succeed on a quid pro quo claim for sexual harassment, a
plaintiff must demonstrate “that she was (1) subjected to unwelcome sexual harassment; (2)
the harassment was based on her sex; (3) her refusal to submit to the unwelcome demands
resulted in an adverse employment action; (4) and liability may be imposed to the employer”
[Doc. 5 (citing Sanford, 327 F. App’x at 596–97]. They contend plaintiff’s complaint fails
to state facts sufficient to establish either the third or fourth element. More specifically, they
argue that plaintiff was not subjected to an adverse employment action because constructive
discharge is not an adverse employment action where it is not precipitated by some official
action of the company. Further, defendants submit that Pipes’s alleged acts were not official
acts of SMKW and that Pipes was neither a supervisory employee who had authority over
plaintiff, nor an agent of SMKW; rather, he was plaintiff’s co-worker and liability therefore
cannot be imposed upon SMKW.
To satisfy the third element,8 plaintiff “must establish: (1) a tangible employment
action or detriment; and (2) a causal relationship between the tangible employment action
and [defendants’] alleged actions.” Sanford, 327 F. App’x at 597 (citation omitted).
“Tangible employment actions are significant changes in employment status, ‘such as hiring,
firing, failing to promote, reassignment with significantly different responsibilities, a change
in benefits, or other factors unique to [her] particular situation.’” Id. (citation omitted). They
8
Courts use the terms “material adverse employment action” and “tangible job detriment”
interchangeably. Sanford, 327 F. App’x at 596 n.4.
19
are “the means by which the supervisor brings the official power of the enterprise to bear on
subordinates.” Id. (citation and internal quotation marks omitted).
The Supreme Court, in resolving “the disagreement among the Circuits on whether
a constructive discharge brought about by supervisor harassment ranks as a tangible
employment action and therefore precludes assertion of the affirmative defense articulated
in Ellerth and [Faragher v. Boca Raton, 524 U.S. 775 (1998)],” has stated that a constructive
discharge is not a “tangible employment action” in sexual harassment cases when the
discharge is not precipitated by an official act of the company. Penn. State Police v. Suders,
542 U.S. 129, 140–41, 148–49 (2004) (holding the Faragher/Ellerth defense remains
available to employers in constructive discharge cases “unless the plaintiff quit in reasonable
response to an adverse action officially changing her employment status or situation”); see
also Plautz v. Potter, 156 F. App’x 812, 819 (6th Cir. 2005) (stating that Suders held a
“constructive discharge, while a potential liability-incurring employment action for the
employer, is not a ‘tangible employment action’ in sexual harassment cases”).
Plaintiff alleges her constructive discharge was precipitated by the alleged rape [Doc.
1 ¶ 58]. Although defendants reject the contention that Pipes was plaintiff’s supervisor or
an agent of SMKW, assuming he was given the complaint’s allegations that Pipes had
authority by virtue of being a son of the founder of SMKW, the alleged rape involved no
official actions of SMKW. In Suders, the Supreme Court cited Reed v. MBNA Marketing
Systems, Inc., 333 F.3d 27 (1st Cir. 2003), a case where the plaintiff claimed a constructive
discharge based on her supervisor’s repeated sexual comments and an incident where he
20
sexually assaulted her. Suders, 542 U.S. at 149–50. The supervisors’s conduct, the Court
stated, involved no official actions and was “exactly the kind of wholly unauthorized conduct
for which the affirmative defense was designed.” Id. at 50 (contrasting the case where a
plaintiff is assigned to an extremely dangerous job to retaliate for spurned advances).
Accordingly, the Court finds plaintiff fails to state a claim for quid pro quo sexual
harassment because she has not claimed she suffered an adverse employment action. The
quid pro quo sexual harassment claim will be dismissed.
IV.
Plaintiff’s Motion to Amend the Complaint
A.
Plaintiff’s Claims for Outrageous Conduct, Retaliation, and Quid Pro Quo
Sexual Harassment
Defendants argue the proposed complaint alleges nothing to remedy the defects of the
original complaint and therefore would not survive a motion to dismiss for the reasons
provided in their memorandum in support of their motion to dismiss [Doc. 9]. The Court has
reviewed the proposed amended complaint and agrees with defendants that the only new
factual allegations contained in the proposed amended complaint are the following:
10. Mr. Stone indicated that due to the owner’s (Kevin Pipes) propensities for
hiring female employess [sic] for the purpose of using his position of authority
over them to extort a personal sexual favors, that it would not bode well for
Ms. Parton.
11. Kevin Pipes regularly and consistently used his company as a harem
whereby he provided himself and his son, Chase Pipes, with a conduit of
female subjects to fulfill their respective sexual needs.
12. The Pipes men had a history of using their position of authority to demand
sexual favors from female employees and regularly provided gifts of large
value to said employees to purchase their silence once they tired of them.
21
13. The Pipes men threatened to take away these gifts of cars and real
property if these female victims did not maintain their silence about the
relationships.
14. Sensing that Mr. Stone’s characterization of the company policy
encouraging silence as to the sexual harrasment [sic] of female employees by
the owner and his son . . . .
...
67. Subsequent to her constructive discharge, Kevin Pipes and Chase Pipes
have made concerted attempts to knowingly manipulate, intimidate, and
corruptly persuade their employees to keep silent or to look with disfavor upon
the Plaintiff by threatening their jobs, employment status and pay raises, in an
effort to hid or conceal their actions against her.
[Docs. 8, 9].
The Court has reviewed the entirety of plaintiff’s proposed amended complaint and
the allegations set forth therein do not remedy the deficiencies found with respect to the
following: plaintiff’s Title VII claim against Pipes for retaliation and plaintiff’s quid pro quo
sexual harassment claim. Therefore, the motion to amend will be denied to the extent it seeks
to assert these claims.
Plaintiff’s allegations, however, remedy the time-bar issue identified by defendants
with respect to plaintiff’s claim against Pipes for outrageous conduct.
Specifically,
paragraph 67 of the proposed amended complaint alleges conduct of Pipes occurring
subsequent to plaintiff’s constructive discharge; thus, there is no reason to believe her claim
for outrageous conduct against him is clearly out of time. Defendants claim plaintiff’s
allegations are vague and insufficient to state a claim, but the Court disagrees. A review of
the proposed amended complaint reveals that plaintiff’s allegations are not merely naked
22
assertions without any factual enhancement, but could support a claim for outrageous
conduct against Pipes. Accordingly, to the extent plaintiff’s proposed amended complaint
seeks to assert a claim against Pipes for outrageous conduct, plaintiff’s motion to amend is
not futile and will be granted.
B.
Plaintiff’s Proposed Witness Tampering Claim
The proposed amended complaint also states a cause of action under 18 U.S.C. § 1512
for tampering with a witness, victim, or an informant. The proposed claim states in part:
“[s]ubsequent to her constructive discharge, Kevin Pipes and Chase Pipes have made
concerted attempts to knowingly manipulate, intimidate, and corruptly persuade their
employees to keep silent or to look with disfavor upon plaintiff by threatening their jobs,
employment status and pay raises, in an effort to hide or conceal their actions against her”
[Doc. 8 ¶ 67]. Plaintiff claims that “[t]hrough a pattern of conduct, the Defendants
knowingly used intimidation, threats, or corruptly persuaded other persons, or attempted to
do so, or engaged in misleading conduct toward other persons, with intent”; “have caused or
attempted to cause their employees to withhold testimony for fear of losing their job”; and
“have sought to dissade [sic] their employees from testifying truthfully about the Defendant’s
own conduct as it pertains to the Plaintiff” [Id. at ¶¶ 74–76].
Even if the conduct relating to the proposed witness tampering claim is true, there is
no private cause of action for “tampering with a witness, victim, or an informant” pursuant
23
to 18 U.S.C. § 1512. Banks-Bey v. Acxiom, No. 1:09-CV-1249, 2010 WL 395221, at *3
(N.D. Ohio Jan. 27, 2010) (citations omitted) (dismissing claim under 18 U.S.C. § 1512
because the statute does not give rise to a private right of action); Shahin v. Darling, 606 F.
Supp. 2d 525, 538–39 (D. Del. 2009) (citations omitted); Drake v. Enyart, No.
3:06-CV-217-S, 2006 WL 3524109, at *5 (W.D. Ky. Dec. 4, 2006) (stating 18 U.S.C. § 1512
makes tampering with a witness, victim, or an informant a crime proscribing criminal fines
and imprisonment for violation). Therefore, to the extent plaintiff’s motion for leave to
amend requests leave to add a claim for tampering with a witness, victim, or an informant
pursuant to 18 U.S.C. § 1512, that request will be denied.
Accordingly, and in light of the Court’s disposition regarding defendant’s motion to
dismiss, plaintiff’s motion for leave to amend the complaint will be granted in part and
denied in part.
V.
Conclusion
For the reasons outlined above, defendants’ motion to dismiss [Doc. 5] will be
GRANTED in part and DENIED in part, and the claim for Title VII retaliation against
Pipes as well as the quid pro quo sexual harassment claim will be dismissed. Defendants’
motion to dismiss for plaintiff’s failure to respond [Doc. 7] will be DENIED as moot in light
of plaintiff’s motion to amend. Plaintiff’s motion to amend [Doc. 8] will be GRANTED in
part and DENIED in part. Plaintiff will have leave to amend the complaint in accordance
with the Court’s findings herein. If plaintiff chooses to file an amended complaint, plaintiff
24
will have twenty (20) days from the date of the order accompanying this memorandum
opinion to do so.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
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