Tennessee v. Murphy-Brown, L.L.C.

Filing 36

OPINION AND ORDER that Defendant's Motion to Dismiss is DENIED. The Court concludes that Plaintiff properly filed the Amended Complaint on January 20,2011, within the fifteen day window. Signed by District Judge Mark S. Davis on 7/13/2011 and filed on 7/14/2011. (rsim) Modified on 7/15/2011 to change title of order(rsim).

IN THE UNITED STATES

DISTRICT COURT

FOR THE EASTERN DISTRICT OP VIRGINIA

Norfolk Division

FELICIA D.

TENNESSEE

Plaintiff

Civil Action No.

2:10cvl67

v.

MURPHY-BROWN,

L.L.C.

Defendant

OPINION AND ORDER

This

matter

L.L.C.'s

Amended

before

("Murphy-Brown")

Complaint

("Plaintiff"),
Civil

is

Court

Motion

by

to

on

For the

Defendant

Dismiss

Plaintiff

pursuant to Rule 12(b)(6)

Procedure.

to Dismiss

filed

the

Murphy-Brown

Count

Felicia

II

D.

of

the

Tennessee

of the Federal Rules of

following reasons,

Defendant's Motion

is DENIED.

I.

A more

complete

FACTS AND PROCEDURAL HISTORY1

recitation

of

the

facts

was

set

forth

in

The facts recited here are drawn from the Plaintiff's Amended
Complaint and are assumed true for the purpose of deciding the
motion currently before
the Court.
They are not
to be
considered
factual
findings
for
any
purpose
other
than
consideration of the pending motion to dismiss.
See Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250] 2~55~
(4th Cir. 2008)
(«[I]n evaluating a Rule 12(b)(6) motion to
dismiss,
a court
accepts
all well-pled facts
as
true and
construes

these

facts

in

the

light

most

favorable

to

the

plaintiff in weighing the legal sufficiency of the complaint.").

this

Court's

22.

earlier

Therefore,

Opinion and Order.

only

those

facts

Op.

that

Order

are

2-7,

ECF No.

relevant

to

the

retaliation claim are recounted here.

Plaintiff

sexually

while

alleges

that,

working

Plaintiff

at

After

behavior

to

was

under

13,

15,

event,

immediate

the direction of
16,

21.

she

began

L.L.C.

Am.

over

Plaintiff

Compl.

reported

Honor

Lewis

to

the

ffl

the

("Epps").

According

workers"

Lee

Amended

Flournoy,
Am.

crowning

January 24,

2008.

her co-worker,
work

at

because

the

of

showering,
opened

Am.

Compl.

Complaint,

5

cold

of

the

outdoor

19.

discrimination
On

this

("Edwards"),
work

day,

day,

door

of

Id^

the

(a.k.a.

altered

temperature.

room

to

shower room."

Id.

no

on

Plaintiff and

their

Id^

exit,

Leonardo Talon)

53

Id.

occurred

Id.
she

routine

Instead

of

As Plaintiff
"encountered

kneeling against the

"Surprised by the door opening,

the women's

Allegedly,
Brown
under

shower

who

who often shower at

Plaintiff merely washed her hands.

shower door."

Rodriguez.

alleged

Compl.

conclusion

the

the

into

of

Bridgett Edwards

Salvador Hernandez2

fell

event

six

offending

disciplinary action was taken in response to the reports.
The

11-12.

approximately

supervisor,
Epps

experiencing

Mexican migrant

incidents

several

each

her

"male

Murphy-Brown

experienced

years.

2002,

from

offensive behavior

in

the Mexican

Discovering Hernandez

this man had been hired several times at Murphydifferent
names
such
as
Leonardo
"Talon"
or

Am.

Compl.

fl

19.

there

led

to

an

examination

three drilled peep-holes.

That

evening,

Flournoy,

By

the

to

both

in

cover

the

shower

the men's

emerge,

Plaintiff

to

also

Rodriguez

"in

the

to

Then,

Tuesday

on

the

Amended

observed

pointing

the

Ms.

hallway

location
of

the

of

Epps

week

that

...

"it

was

a drill

Plaintiff

became

upset

the

would

there

never

trap

the

at

this

be

a

week

Ms.

Flournoy

that

the

incident

and

after

Am.

she

catch

the

fear

of

inspect

the

few minutes

a

few

in

saw Epps

speaking

the

longer

others

shower
Am.

f

since

Ms.

f

22.

in

Flournoy

the

act,

towel."

Id.

believed

that

Flournoy

had

Id.

Plaintiff
take

and

Plaintiff

Ms.

in the
she

Jose

room

Compl.

23.

because

later,

with

incident,

caught

news,

days

the Mexicans

incident,

could no

to

and Edwards

Compl.

successful

the

Flournoy had

women's

already spoken to and warned Jose Rodriguez.

About

Ms.

a

peep-holes."

bit would get

21.

Id.

following

to

g[

although they were

spending

Plaintiff

Ms.

Compl.

arrived

Flournoy

the

of

Am.

with paper,

outside

discovery

supervisor,

that

Complaint,

towel hung on the door.

explained

because

action

After

room,

her

incident.

Id.

Id.

the

20.

laughing at what had happened.

According

found a

only

the peep-holes

and women's

5

and

called
door

the

afternoon.

door

Compl.

filled with putty.

the

the

Plaintiff

report

to

eventually

holes

Am.

following morning,

taken was

of

the

complained

stress

watching

her

to

caused by

while

she

showered.
to

Am.

Human

to

department
were

twenty
head.

met

Epps,

while accusing

he

their

a

harassment

of

management,

Id.

According

workers

and

the

to

see

Mary

instead

Ms.

the

demeanor.

and

if

to

the

sexual

they

harassment

failure

to

condoned such action.

take

these

female

described

the

like

that

the

work

Plaintiff

to

in

to

Epps

her

this

Id.

nearby

Complaint.

In

Farm

First,

experienced many incidents
both

under

Epps'

clear

from

the

farm under

could

quit."

for

Mexican

years

migrant

female workers"

situation

and

response,

7,

a

panic
Epps

place

further

Am.

Compl.

Plaintiff

had

management,
4

and

she

5

25.

of

6 and 8,

therefore

to

Plaintiff
The

allegations

heard

of harassment at Farms

stemming

decided

where

for this belief can be gleaned from several

Amended

it

had

male

stress

believed the harassment would continue.

were

Epps

that

themselves,

any

they

Brooks.

alleges

"made

at

the

Williams,

employees

it,

Complaint,

action

environment.

reassign

the

also

workers

waited

Ms.

drilling the holes

go

Id.

Plaintiff

basis

Complaint

Epps

to

Williams,

assistant,

Amended

did not

Amended

women

seeing Ms.

Id.

protecting

decided

the

Beth

of

William's

the women of

be

Resources,

had perpetrated against African-American

the

from

Human

and Edwards

the male Mexican migrant

his

"condoned

and

meeting,

joking

would not

At

However,

Epps

During

maintained

Plaintiff

minutes

Id.

by

24.

Id.

Id.

that

91

Resources.

fifteen

they

Compl.

in

and/or

which

concluded

that

similar

behavior

management.

"male

work

Am.

Mexican

with

occurred

Compl.

migrant

Farm

8

workers,

similarly.

sought

help

24-25.

workers"

harassment previously,
acted

f9[

Farm
Also,

from

who

."

Am.

Compl.

St

message

nest

of

alleges

rather

fl

than

"Mexican

encouraged

the

degrading

Am.

that

this

"deny access

have

her

contends

around

to

him"

the

acts

of

"made

it

clear

[Plaintiff]

rode

the

to

sexual

of workers

when

Plaintiff

he

was

in

right back into

decision

the

situation

that

harassment
fl

26.

he

of

to

transfer

was

an

the

along with Epps'

enforced,"

quit

with

her

job.

her

chain of reporting.

the

Amended

Compl.

Complaint

ploy

35.

id.
and

attempted
1 26,

35.

to

to

encourage

The

Plaintiff

Thus,

above

"going

Plaintiff

reassignment
go

to

[Plaintiff]

in direct response to her

demeanor

Compl.

SL

female

concerted effort

designed

complaints.

women

Am.

a

Am.

conduct was

belittling

that

was

thereby

African-American

Further,

the

implicit

"condoned and

to anyone in the company who might help

Epps'

fact

7

Epps'

laborers"

transfer,

that Epps'

attributes
to

Compl.

rights

Plaintiff

that

Farm

Lastly,

Epps'

frustrated male Mexican workers

remedy

the

states

observed

and

12.

Epps

that

to

employees."

under

35.

Plaintiff

Plaintiff

6

also

perpetrated

had

Compl.

management,

[sic]

-

she

Farm

charge and that he was going to send
the hornets

7

and concluded that both groups

Am.

from

at

him

decision
in

the

On

April

in

this

to

Dismiss

matter,

Opinion
and

12,

the

and

her

Count

to

filed

two

Complaint

Court,

sua

the

2011.

Amended

February

7,

pursuant

2011

to

and

Rule

Count

is

the

of

Count

II

Count

pending

the

on

leave

to

for

January

II

I

Plaintiff
20,

followed

before

Federal

Count

opportunity

retaliation.

an

Complaint.

an

Dismiss

of

dismiss

of

Motion

issued

provide

to

currently

12(b)(6)

Court

a

Plaintiff

expanding
to

filed

to

II

Complaint

granted

facie case

Motion

original

This

motion

sponte,

Complaint,

Complaint

Defendant's

2010.

dismiss

fully plead a prima
an

7,

her

Defendant

Defendant's
to

of

filed

counts.

July

motion

the

II

on

denying

the

Nevertheless,

Plaintiff

alleging

Order

granting

amend

2010,

this

Rules

on

court

of

Civil

Procedure.

II.
Federal

defendant
state
P.

a

to

Rule

of

upon
A

which

motion

should be granted if
to

state

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a

Corp.

claim

be

claim
v.

Civil

Procedure

seek dismissal based on

claim

12 (b) (6).

STANDARD OP REVIEW3

to

to

the

does

can

dismiss

complaint

relief

Twombly,

plausible

relief

that

12(b){6)

be

for

does

granted. "
failure

U.S.

544,

not

impose

a

to

570

R.

Civ.

state

a

claim

"enough

facts

face."

Bell

its

(2007) .

probability

to

Fed.

not allege
on

a

"failure

the plaintiff's

is plausible

550

permits

Requiring

requirement

a

at

3 The following description of the appropriate standard of review
is
Op.

taken
Order

directly
11-14,

from

ECF No.

this
22.

Court's

original

Opinion

and

Order.

the

pleading

than

a

stage.

"sheer

unlawfully."

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claim

factual

Id.

v.

facial

content

inference

However,
that

Iqbal,

allows

the

"does

a

not

claim,

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a

12(b)(6)

v.

does

ask

defendant

S.

Ct.

when

court

and

consistent

2000).

are

the

the
to

for more

has

1937,

acted

1949

(2009).

plaintiff

draw

the

facts"

and

the

the

pleads

reasonable

by

not

A motion
in

Rule

8 (a) (2)

claim showing
Civ.

to dismiss

conjunction

P.

with

requires

that

8 (a) (2),

of

the

as

Rule

"a

the pleader
so

as

the

that

F.3d

facts

to

to

short

is

"give

alleged

E.

175,

be

is

drawn

the

proved,

Shore

180

alleged

in

Mkts.

(4th

Cir.

assumed,
from

the

inferences,

Id.

12 (b) (6)

Civil

and

to

must be read

Procedure

plain

entitled
the

of

Accordingly,

unwarranted

Rule

of

and

the merits

can

conclusions

true

complaint

1992).

fact

213

misconduct

Republican Party of

allegations."

pursuant

only

a

facts

or arguments."

Federal

of

all

any

"legal

accept

unreasonable conclusions,

of

the

facts,

(4th Cir.

P'ship,

truth

the

defenses."

truth

of

for

sufficiency

952

complaint's

bound

"need

the

Ltd.

liable

surrounding

existence

Assocs.

not

the

F.2d 943,

"assume

Although

courts

contests

980

with

J.D.

tests

is

applicability of

should

complaint

v.

the

Martin,

court

Inc.

motion

resolve

or

defendant

it

Id.

A

the

a

129

plausibility

that

that

alleged."

556.

possibility

Ashcroft

has

at

8(a)(2).

statement

relief, "

defendant

fair

of

the

Fed.

R.

notice

of

what the
■

.

.

•"

Bell

Gibson,

.

355

claim is and the grounds upon which it rests

Atl.

Corp.,

U.S.

41,

550

47

U.S.

(1957)).

at

555

{quoting

Fair notice

is

Conley

v.

provided by

setting forth enough facts for the complaint to be "plausible on

its

face"

level

and

on

"raise

the

assumption

complaint are true

555

a right

(internal

all

.

complaint's

factual allegations."

Williams,

the

omitted).

countenance

v.

.

that

above

"Rule

490

U.S.

319,

327

Id.

at

.

416 U.S.

232,

236

.

556

in

. ■•

12(b)(6)

(1989)).

does

at

not

disbelief of a

{quoting Neitzke

A

id.

the

id.

complaint

"even if it appears

a recovery is very remote and unlikely.•»
Rhodes,

.

dismissals based on a judge's

therefore survive a motion to dismiss

v.

the speculative

allegations

(even if doubtful in fact)

citations
.

to relief

may
'that

{quoting Scheuer

(1974)).

Where a motion to dismiss is filed with respect to a civil

rights claim,

the Court "must be 'especially solicitous1 of the

wrongs alleged."
appears

to

"must not dismiss the complaint

to a certainty that

relief

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Serv^,

It

840

omitted).

under
by

the

any

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F.2d 1149,

the plaintiff would not be entitled

theory

alleged.'"

1152

'unless it

(4th Cir.

which

might

Harrison

1988)

v.

plausibly
U.S.

(internal

be

Postal

citation

III.

A.

Timeliness of the Amended Complaint

Defendant

Complaint

argues

was

DISCUSSION

not

in

timely

its

Motion

filed

Court's

previous

Opinion

sponte,

granted

"[p]laintiff

fifteen

(15)

Order

58,

days

ECF

No.

on January 4,
not

enter

of

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22.

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notice

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at
and

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entered

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*3

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the

Amended

Retaliation

In its Motion to Dismiss Count II of

Count Two of

31.

timely.

B.

Defendant

pg.

filing

document

5,

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is begun,

that

Plaintiff's

Mem.

allegations

in

the

Amended

"do not cure the insufficiency the Court found in

the initial Complaint"
in

the Amended Complaint,

violation
Supp.

of

Title

Def.'s Mot.

11

and do not state a claim for
VII

on

to Dismiss

which

relief

Count Two Am.

can

be

Compl.

3.

To

address

requirements

be

an

of

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order

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Holland

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F.3d

argues

a

it

facie

there

220,

Inc.,

that

January

4,

the

229
487

an

was

has
by

testified,

investigation,
42

U.S.C.

to

§

retaliate

the

a

{4th

Title

VII,

that

"(1)

showing

employer

causal

asserted

F.3d

he

to

under Title VII.

case
(2)

"[i]t

practice

claim under

2008)
218

claim

acted

connection

adverse

Cir.
208,

Plaintiff's

addresses

2011

because

unlawful

activity;

and

.

that

charge,

in

Mem. Supp. Def.'s Mot.

The Court

the

employer

subchapter."

retaliation

(3)

.

an

employment

manner

a prima

and

Homes,

examines

states

for
.

made

makes

activity

547

Defendant

Compl.

has

this

protected

second requirement.5
Am.

under

1964

for asserting her rights

a

Wash.

of

practice

any

provision

Mineta,

v.

Act

unlawful

he

in

establish

against

the

2007)).

in

Court

employees

an

because

succeed

must

engaged

adversely

to

his

made

hearing

against an employee

an

of

participated

2000e-3(a).

In

Rights

employment

any

the

retaliation claim.

Civil

unlawful

discriminate

this

contention,

of a Title VII

Title VII
shall

this

action."

{citing

(4th

fails

Cir.

on

the

to Dismiss Count Two

these requirements below.

Opinion

and

Order

found

that

Plaintiff's
original
Complaint
failed
to
plead
an
adverse
employment action sufficient to make out a prima facie case of
Title VII retaliation.
Op. Order 56,
ECF No.
22.
Because of
12

In
Motion

Plaintiff's
to

Dismiss

the

Court's

VII

retaliation

that

Memorandum

the

previous

Amended

Opinion

claims

was

in

Opposition

Complaint,

and

Order,

unclear

or

to

Plaintiff

with

Defendant's
argues

respect

legally

to

that

Title

erroneous.

In

finding,
the
Court
indicated
it
need
"not
address
second contention that Plaintiff did not engage in a

Defendant's
'protected

employment

activity.'"

Id.

{internal

citations

omitted) .
For that reason,
the Court will in this
footnote
briefly address the "protected employment activity" contention.
The
first
requirement
for a retaliation claim is
that an
employee has
engaged in an activity protected by Title VII.
Ziskie,
574 F.3d at 229,
Specifically,
a reporting employee
"must have an objectively reasonable belief that a violation is
actually
occurring
based
on
circumstances
that
the
employee
observes
Corp.,

and

458

reasonably

F.3d

332,

believes."

341

(4th

Jordan

Cir.

v.

2006).

Alternative

Res.

Circumstances

of

discrimination
that
are
protected
by
Title
VII
include
"maintaining a ... hostile work environment."
Id. at 339.
Therefore, based on the facts alleged in the Amended Complaint,
the
Court
must
assess
whether
the
situation
warranted
an
objectively reasonable belief that circumstances at Farm 8 were
egregious enough to alter the terms of employment or create a
hostile work environment such that the protection of Title VII
applied.

Id.

Plaintiff
alleges
a
series
of
harassing
events
that
culminated in finding Hernandez in the doorway of the women's
bathroom and three holes in the door.
While Defendant argued in

its original motion to dismiss that "neither the 2007 picturetaking allegations nor the 2008 pinhole discovery would lead a
reasonable

person

to

conclude

Title

VII

Def.'s Reply Mem.
Supp.
Mot.
to Dismiss
these circumstances could plausibly lead a

had

been

violated,"

Original Compl.
12,
reasonable person to

conclude that "a violation is actually occurring."
Jordan, 458
F.3d at 341.
This conclusion is consistent with the Court's
holding
in
its
earlier
Opinion
and
Order
that
Plaintiff's
allegations of a hostile work environment were plausible enough
to withstand a motion to dismiss.
Op. Order 57, ECF No. 22.
As
a

result,

because

a

reasonable

person

could have

concluded

that

the
work
conditions
at
Farm
8
were
unlawful
and
that
any
complaints would be protected by the antiretaliation provision
of Title VII, Plaintiff has alleged facts sufficient to satisfy
the

first element of

the prima

facie case.

13

light of this argument,

the Court finds it necessary to briefly

review the recent case law on such retaliation claims.
A

plead

plaintiff

facts

alleging

that

a

retaliation

plausibly

show

an

claim

adverse

is

required

action

taken

to

by

defendant in response to her asserting rights protected by Title
VII.

U.S.

In

53

Burlington Northern

(2006),

regarding

had

the

taken

proper

test

adverse

in

an

the

The

employment."
omitted).

circuits
likely

effect

have

supporting

at

the
60

Ry.

Co.

v.

White,

charge

of

noted

that

action be
of

terms,

548

a

of

reasonable

a

employer

Title

some

employment"

the

the

an

VII

circuits

"materially adverse

Supreme

*resul[t]

benefits

and

of

citations

Court,

other

actions

employer's
worker

or

or

quotations

to

that

a

conditions,

(internal

required

whether

context

Court

according

dissuaded

a

the

conditions

on

Whereas,

only

in

Supreme

and

id.

had

Fe

determining

employment

terms

adverse

for

action

required the adverse
in

Santa

the Supreme Court was faced with a circuit split

retaliation claim.

change

&

"would

from

discrimination."

making

Id.

or

(internal

quotations and citations omitted).

After
purposes
Title

a
of

VII

Court
against

careful
the

and

the

concluded
a

comparison

substantive
title's

that

broader

between

array

language

antidiscrimination

antiretaliation

the

the

antiretaliation
of
14

employer

provision

section,

the

provision
conduct

and
of

Supreme

protects
than

the

antidiscrimination provision of Title VII.
Supreme

Court

also

antiretaliation

concluded

provision

that

extends

Id_^ at

"[t]he

beyond

scope

of

the

antiretaliation

employment."

Title

Id.

VII's

showing

that

response

to

in this
worker

the

Id^ at 67.

or

As a

at

64.

an

employee

68

(internal

Edwards

v.

Murphy-Brown,

conduct

at

that

violation,

terms

and conditions

or

*65
of

from

the adverse

provision

took

to

of

action component

can

"materially

be

satisfied

adverse"

in a protect

supporting

quotations

by

action,

activity,

Va.

"material

merely

employer

a

charge

of

in

"which

discrimination."

and

citations

No.

2:10cvl65,

L.L.C.,

(E.D.

was

the

limited

it well might have dissuaded a reasonable

at

in terms

affect

engaging

making

spoke

not

Instead,

employer

context means

4088,

"is

antiretaliation

the

LEXIS

provision

that

from

Id.

of

the Supreme Court held that the adverse action component

discriminatory actions

of

The

workplace-related

employment-related retaliatory acts and harm."
result,

67-68.

Jan.

4,

2011).

adversity"

trivial,

conduct

accord

2011 U.S.

The

Dist.

Supreme

Court

to differentiate employer

and

thus

that

and therefore implicated Title VII.

omitted);

was

of

not

a

Title

greater

Burlington Ne.,

VII

gravity,

548 U.S.

at

68.

In

case,

the context

the

reassignment

Supreme
is

of

job

Court

not

reassignment

has

stated

automatically
15

allegations,

that,

as

in

this

although

a

job

actionable,

it

may

be

"materially

adverse

particular case,
reasonable

the

depend[ing]

person

in

the

the

plaintiff's

Id^

citations omitted).
of

of

a

is

circumstances

plaintiff's

claim.

unlike

the

quotations

and

the terms,

employment

"all

See

{internal
to

all

are

id^ at

64

("[T]he

employment.");

see also Darveau v.

Detecon,

341,

Cir.

that

2008)

affect

(holding

claim involving a lawsuit

factors

to

or
be

the lack of

on the adverse action component

substantive provision,
that

conditions,

the circumstances,"

actions

(4th

the

considering

discriminatory

343

of

position,

71

not dispositive

retaliation

provision,

at

While changes

considered when evaluating
such changes

the

and should be judged from the perspective of a

circumstances."

benefits

upon

the

antiretaliation

is

terms

not

and

Inc.,

limited

to

conditions

of

515

plaintiff's

F.3d 334,

retaliation

filed against him by his past employer

with malicious intent was enough of an adverse action to survive
a

motion

left

to

the

dismiss,

employment

Lettieri

v.

(noting that

broadened

Equant

despite

six
Inc.,

the

months
478

before

F.3d

the Supreme Court's

the

Fourth

fact

Circuit's

640,

that

the

plaintiff

the

lawsuit

650

n.2

was

had

filed);

(4th Cir.

2007)

decision in Burlington Northern

standard

beyond

the

terms

and

conditions of employment for the second element of a prima facie
case
that

of
an

retaliation).
action

was

Therefore,
harmful

and

employee should be considered.
16

all

circumstances

materially

indicating

adverse

to

the

In

the

Defendant

present

altered

case,

the

Plaintiff

terms,

benefits,

employment

by

reassigning

her

Farm

If

there

no

7.

Plaintiff's

were

transfer

does

to

a

or

besides

a

mere

claim

conditions

similar

additional

not

position

allegations

lateral

that

of

at

her

nearby

concerning

reassignment,

such

allegations alone would not likely rise to the level of material
adversity.
729-30

See Lucero v.

(7th

judgment,
grade

Cir.

that

without

Nettle Creek Sch.
(holding,

2009)

Corp.,
appeal

reassignment
a

not materially

change

adverse

to

in

in

teach

an

7th

compensation

such

that

grade
or

566 F.3d 720,
from

summary

instead

school

of

12th

location

it would dissuade a

was

reasonable

person from making a claim of discrimination even though the new

position was

"less

No.

l:09cv586,

19,

2009)

courts

2009

(noting,

have

prestigious");
U.S.

in the

addressed

retaliation

Northern,

an adverse

employment

(E.D.

of

have
such

similarly

Rivera v.

l:09cv341,

2009

Va.

July

22,

(dismissing

transfer

to

a

school
that

and

and

the

stating

grade

transfer

" [a]

level
had a

U.S.

Dist.

a

transfer

that

Ms.

17

transfer

did

even

not

Geren,

Va.

that

held,

Nov.

"[w]hen

in

the

after

constitute

Prince William Cnty.
LEXIS

63647,

retaliation
to

Rivera

significant

(E.D.

context,

involuntary

No.

a

*20

reassignment

action.");

2009)

Sturdivant v.

109953,

Bd.,

on

mean

issue

they
that

LEXIS

summary judgment

the

context,

Burlington

Sch.

Dist.

see also

Dumfries

*20-21

claim based
as

opposed

preferred does

detrimental

effect

not
.

.

because Ms.
her

Rivera does not allege

that

the

transfer required

to take a reduction in pay or that it otherwise reduced her

future job opportunities.").
Plaintiff

describes

However,

with

greater

in the Amended Complaint,
detail

the

circumstances

surrounding her reassignment to Farm 7.

Plaintiff
demeanor

as

reassign

the

ascribes

he

refused

Plaintiff

Plaintiff

expected to

7,

on

based

were
Epps'
keep

under

to

her

Epps

to

to

aid

a

a

the

women,

farm where

find the same

Human

of

conduct

at

of

Epps.

Plaintiff

sexual

harassment

reassignment was

an

by

reassignment

implicit

Plaintiff

Epps.
was

a

Farms

her

designed

to

at Farm

8,

which

describes
and

to

management

at

that

the harassment

co-worker

get

and

implies

for

Plaintiff

existed.

also

reaching

encouragement

and

6

to

complaints

deter

Plaintiff

Moreover,
ploy

to

from

Additionally,

because

protected

claims

instead

conditions

management

the

belittling

discrimination

awareness

Resources.

continue

and

deciding

or worse

calculated power play designed
the

flippant

would

alleges

Plaintiff

not
that

to

quit

the
to

be
the
her

job.

While

such

allegations

must

Plaintiff

to ultimately prevail

dismiss

stage,

materially
person

her

adverse

Amended

conduct

from raising a

on

this

proven

issue,

Complaint

that

claim of

be

would

at

order

the motion

plausibly

dissuade

discrimination.
18

in

a

Thus,

for

to

alleges

reasonable
Plaintiff

has

alleged

facts

sufficient

retaliation upon which relief
VI.

For

the

Plaintiff

2011,
to

properly

within

the

reasons

facts

that

the

claim

Order

Clerk

to all

IT

Amended

day

IS

is

the

window.

may

Motion to Dismiss
The

above,

the

allege
be

is

a

the

facie

pursued

Court

case

concludes

Complaint

on

Furthermore,

Court

prima

of

holds

facie

case

further.

that
of

January

with

20,

regard

Plaintiff

retaliation

Therefore,

that

has
such

Defendant's

DENIED.

DIRECTED

counsel

prima

CONCLUSION

forth

claim,

a

could be granted.

fifteen

the

that

state

filed

retaliation

pled

set

to

of

to

send

a

copy

of

this

Opinion

and

record.

SO ORDERED.

/s/j

Mark S.
UNITED

Norfolk,

Virginia

July 13 . 2011

19

STATES

Davis

DISTRICT

JUDGE