Lindsey v. Ricoh, USA, Inc. et al

Filing 19

MEMORANDUM OPINION AND ORDER granting in part and denying in part 12 Motion to Dismiss for Failure to State a Claim. Counts One, Two and Three are DISMISSED WITH PREJUDICE. Counts Five and Six are DISMISSED WITHOUT PREJUDICE, and Plaintiff may amend these claims within 30 days. See Order for Details. Signed by District Judge Robert G. Doumar on 4/24/18. (bpet)

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

PATRICIA LINDSEY,
Plaintiff,
V.

CIVIL NO. 2:17-cv-464

RICOH USA, INC., et al.,
Defendants.

MEMORANDUM OPINION AND ORDER

This matter comes before the Court on a Motion to Dismiss the Amended Complaint

("Motion to Dismiss") filed by defendants Ricoh USA, Inc. and Robert Staton (collectively,
"Defendants"). ECF No. 12. For the reasons stated herein. Defendants' Motion to Dismiss is
GRANTED IN PART and DENIED IN PART.

I.

PROCEDURAL BACKGROUND

Patricia Lindsey ("Plaintiff) filed the Amended Complaint against defendants Ricoh

USA, Inc. ("Ricoh") and Robert Staton ("Mr, Staton") onAugust 30, 2017.' ECF No. 3. Counts
I-IV of the Amended Complaint allege sex and racial discrimination by Defendants in violation
of Title VII of the Civil Rights Act, 42. U.S.C. § 2000e, ^ s^., specifically, hostile work
environment sex harassment (Count I); quid pro quo sex discrimination (Count II); hostile work
environment racial harassment (Count III); and retaliation (Count IV). Id Plaintiff also asserts

common law claims of negligent hiring and negligent retention against Ricoh (Count V) and
intentional infliction of emotional distress against both Defendants (Count VI). Id

' Plaintiff attempted to file her complaint on August 29, 2017, but the submission was defective for lack
of signature. ECF No. 1. Plaintiff fixed the error and filed the corrected document as the "Amended
Complaint" on August 30, 2017. ECF No. 3.
1

On December 1, 2017, Defendants filed the instant Motion to Dismiss pursuant to Rule
12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, ECF No. 12, which was
accompanied by a supporting memorandum ("Def Mem."), ECF No. 13. On December 14,

2017, Plaintiff filed a response in opposition to Defendants' Motion to Dismiss ("Resp."). ECF
No. 15. On December 20, 2017, Defendants filed a reply brief ("Reply"). ECF No. 16. At the

request of the Defendants, the parties appeared before the Court on February 21, 2018, for a
hearing on Defendants' Motion to Dismiss. ECF No. 18. Such motion is now before the Court.
II.

FACTUAL BACKGROUND

The following is a summary of the facts alleged in Plaintiffs Amended Complaint ("Am.
Compl."). Plaintiff is a female Native American citizen of the United States and a resident of

Norfolk, Virginia. Am. Compl., ECF No. 3, H 3. She was an employee of Ricoh within the
meaning of 42 U.S.C. § 2000e(f) from June, 2008, until she was terminated on November 1,

2016. Id H4. From 2008 to 2014, she held the position of Site Manager II, and from 2014 until
her termination, she held the position of Service Delivery Manager. Id. Ricoh is an employer
within the meaning of U.S.C. § 2000e(b) and does business in Norfolk, Virginia. Id

5-7.

Mr. Staton is a citizen of the United States and resident of Richmond, Virginia. Id. H 8. At all

times relevant to this action, Mr. Staton was employed by Ricoh as an Area Manager in Norfolk,
Virginia, and was Plaintiffs supervisor. Id.
Allegations of Sexual Discrimination

In June, 2009, Plaintiff began reporting directly to Mr. Staton. Id. ^ 23. Beginning at

that time, and persisting through Plaintiffs employment with Ricoh, Mr. Staton frequently
implied that he wanted Plaintiff to perform sexual favors for him in exchange for employment
benefits. Id. ^ 28. On one occasion in August, 2009, Plaintiff complained to Mr. Staton after he
made a series of comments to her about being inferior because she was female. Id %34. In

response, Mr. Staton told Plaintiff that "if she wanted him to reconsider promoting her and to

stop verbally abusing her that she could provide him with oral sex." Id He further stated that "if
[Plaintiff] provided him with oral sex then all the trouble he was causing her would go away."
Id. Plaintiff further alleges that, on October 9, 2014, Mr. Staton asked Plaintiff to have drinks
with him at his hotel, which she refused.

Id. H 52. After she refused, Mr. Staton's hostile

treatment toward Plaintiff intensified. Id. "From this time until [Plaintiffs] termination, each

and every time Mr. Staton spoke to [Plaintiff] he treated her with hostility." Id
Also beginning in the summer of 2009, and persisting through Plaintiffs employment

with Ricoh, Mr. Staton made frequent sex-based comments to Plaintiff that were "derogatory,

abusive, and demeaning." Id ^ 29. For example, Mr. Staton told Plaintiff that he disliked
working with women, that women were too emotional, and that they were a "pain in his ass." Id

H37. He also told Plaintiff that he preferred female managers to wear low-cut tops in order to
show cleavage. Id He also repeatedly told Plaintiff that she was stupid and fat," including one
occasion when he asked, "How can you walk in high heels when you are so fat?" Id
On two occasions in June, 2009, Plaintiff complained to Mr. Staton about his verbal

abuse toward her. Id ^^1 30, 32. On the first occasion, Mr. Staton responded with expletives and
warned that Plaintiff should "never talk to a man like that" because she "was only a woman." Id

H30. On the second occasion, Mr. Staton indicated to Plaintiff that, so long as she was under his

supervision, she would not be promoted as expected nor advance in the company. Id ^ 32.
In August, 2009, and November, 2010, Mr. Staton indicated to Plaintiff in harsh language

that she was stupid, weak, and/or incompetent at her job because she was female. Id

34, 41.

Moreover, on several occasions between 2012 and 2015, Mr. Staton told Plaintiff that he disliked

working with her and/or disapproved of her work performance because she was female and

hinted that her job was at risk. Id

46, 47, 49, 51, 53. Plaintiff alleges that she reported this

verbal harassment to human resources on at least five occasions during this time period, but each

time Ricoh failed to take any corrective action. Id HI 31, 33, 35,48, 50. In addition, throughout
2016 until Plaintiff was terminated, Mr. Staton continued to make many degrading and
misogynistic comments to Plaintiff about her weight, appearance, and intelligence because she
was a woman. Id. ^ 65.
Plaintiff also alleges that in December, 2010, and October, 2011, Mr. Staton unjustifiably
denied Plaintiff earned vacation time. Id

42, 44.

On both occasions. Plaintiff reported the

conduct to human resources, and both times Ricoh failed to take any corrective action. Id

43,

45.

Allegations of Racial Discrimination

On September 30, 2015, Mr. Staton informed Plaintiff that he was restructuring and that

Plaintiff would start reporting to a new supervisor, Pamela Vanover, who would in turn report to

Mr. Staton. Id H55. Plaintiff claims that Mr. Staton "instructed Ms. Vanover to treat [Plaintiff]
harshly in an effort to see [Plaintiff] resign," and that "Ms. Vanover did in fact subject Plaintiff
to constant hostility." Id ^ 56. On July 14, 2016, Ms. Vanover told Plaintiff that she was a
"joke as a manager" and threatened Plaintiffs job. Id ^ 59. When Plaintiff called Mr. Staton
attempting to report this incident, Mr. Staton hung up on her. Id ^ 60.

In addition, Ms. Vanover frequently "taunted" Plaintiff because of her American Indian
heritage. Id U61. Specifically, Ms. Vanover left a bottle of hair removal on Plaintiffs desk; she
told Plaintiff "the reason why the Indians lost to the Cowboys is because you were stupid;" and
told Plaintiff that American Indian status does not matter at Ricoh. Id

Furthermore, on August 15, 2016, Ms. Vanover instructed Plaintiff to participate in a

"pagan ritual" at work, which included burning sage in order to "get[] rid of demons" from the

office. Id U 62. Plaintiff refiised and said she did not believe in pagan ceremonies. Id In
response, Ms. Vanover said, "Aren't you American Indian?" Id Later that day, Ms. Vanover
pointed a bundle of sage in Plaintiffs face saying, "I am exercising [sic] demons," implying that
Plaintiff was a demon. Id Ms. Vanover then stated that Plaintiff should assist with the exorcism

ritual because she is American Indian and therefore is accustomed to performing rituals. Id
Plaintiff again resisted. Id When Plaintiff reported this incident to Mr. Staton the next day, he

responded that Ms, Vanover was probably kidding and told Plaintiff not to report it to human
resources, saying that "she would be sorry" if she did. Id H 63. Plaintiff feared she would be
fired if she reported the incident to human resources. Id

On September 15, 2016, Ms. Vanover called Plaintiff on her personal cell phone to tell

her that Ms. Vanover was changing worksites within Ricoh. Id ^ 66. She implied that this

transfer was due to Plaintiffs complaints by stating, "the Indians did not win against the white
man years ago, but you did today." Id Ms. Vanover also warned Plaintiff that Mr. Staton
wanted to fire Plaintiff, that her "days were numbered," and that "the reasons why Indians lost
were because they were dumb." Id Plaintiff immediately reported this conversation to Mr.
Staton who told Plaintiff to forget the conversation. Id T| 67.
Plaintifrs Termination from Ricoh

On October 5, 2016, Plaintiff learned from human resources personnel that Ms. Vanover

submitted a "false and defamatory report" regarding Plaintiff to human resources. Id H 68. In
response, Plaintiff told human resources that she felt that the false report was made in retaliation,

that she feared that she would lose her job, and that she therefore felt uncomfortable participating
in any further investigation involving Ms. Vanover or Ms. Staton. Id She also communicated

the same in writing to human resources via email Id

On November 1, 2016, Mr. Staton terminated Plaintiff. Id. ^ 69. Mr. Staton and Ricoh

stated that she was terminated for cause because she had failed to report an incident involving
employee Sharon Whitfield making a threat on October 4, 2016. Id, According to Plaintiff,
however, this stated cause was "entirely pretextual." Id She claims that the real reason she was
terminated was in retaliation for her refusal to consent to Mr. Staton's sexual advances as well as

for making numerous reports to human resources regarding the hostile workplace to which she
had been subjected. Id

Plaintiff further alleges that, immediately upon being terminated, she began to have

difficulty breathing. Id ^ 70. When she arrived home, her husband took her to the emergency
room, where she was admitted for two days. Id Plaintiffs medical providers told her that she
could not work for three months. Id Plaintiff further alleges that, prior to her termination, she

had been receiving medical treatment for more than two years for work-related stress. Id
Plaintifrs EEOC Proceedings

On March 6, 2017, approximatelyfour months after her termination from Ricoh, Plaintiff
filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity
Commission ("EEOC"). See Charge No. 437-2017-00501, Exhibit 1 to Am. Compl., ECF No.
3-1 at 1. On June 2, 2017, the EEOC issued a Dismissal and Notice of Rights form ("Notice") to

Plaintiff regarding Plaintiffs Charge. S^ Exhibit 2 to Am. Compl., ECF No. 3-2, at 1. The
Notice indicates that a copy of same was forwarded to defense counsel in this case. Id On
August 30, 2017, Plaintiff timely filed the instant lawsuit. ECF No. 3.
III.

DEFENDANTS' RULE 12(B)(1) MOTION TO DISMISS COUNTS I-IV

Defendants first argue that all of Plaintiffs Title VII claims (Counts I-IV of the
Amended Complaint) should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of

Civil Procedure for lack of subject jurisdiction because Plaintiffs EEOC Charge is not
reasonably related to such claims and therefore Plaintiff did not exhaust her administrative

remedies as required under 42 U.S.C. § 2000e-5(b). ECF No. 13 at 6-7. Defendants' Rule

12(b)(1) motion shall be granted in part and denied in part, as set forth below.
A.

The Exhaustion Requirement

A plaintiff is required to file a charge with the EEOC and exhaust her administrative

remedies before filing suit under Title VII. Brvant v. Bell Atlantic Maryland. Inc.. 288 F.3d 124,
132 (4th Cir. 2002); see also 42 U.S.C. § 2000e-5(f)(l). The "failure by [a] plaintiff to exhaust
[such] administrative remedies concerning a Title VII claim deprives the federal courts of subject
matter jurisdiction over the claim." Jones v. Calvert Group. Ltd.. 551 F.3d 297, 300 (4th Cir.

2009). However, the filing of an EEOC charge "is not simply a formality to be rushed through

so that an individual can quickly file his subsequent lawsuit." Chacko v. Patuxent Inst.. 429 F.3d
505, 510 (4th Cir. 2005). "Rather, the charge itself serves a vital function in the process of

remedying an unlawful employment practice." Balas v. Huntineton Inealls Indus.. Inc.. 711 F.3d
401,407 (4th Cir. 2013).

To file a charge with the EEOC concerning a Title VII violation, an aggrieved
complainant must first submit to the EEOC information supporting the allegation, usually in the

form of an intake questionnaire. 29 C.F.R. § 1601.6.^ After receiving this information, the
EEOC typically assists the complainant with filing a charge, including by drafting the charge
itself, as was the case here.

Balas. 711 F.3d at 407 (citation omitted). A charge is deemed

sufficient if it is "a written statement sufficiently precise to identify the parties, and to describe

^The federal regulations set forth in 29 C.F.R. § 1601, ^ seg., were established by the EEOC to govern
its administration and enforcement of Title VII of the Civil Rights Act of 1964, the Americans with
Disabilities Act ("ADA") of 1990, and the Genetic Information Nondiscrimination Act ("GINA") of
2008. 29 C.F.R. § 1601.1.

generally the action or practices complained of." 29 C.F.R. § 1606.12(b). It must also be signed
and verified. Id § 1601.9.

Within ten days after the charge is filed, the EEOC sends a notice and a copy of the
charge to the respondent-employer. 29 C.F.R. § 1601.14. With this notice, the employer has the
chance to "conduct its own investigation and attempt to resolve any discriminatory actions
internally." Balas. 711 F.3d at 407 (citation omitted). The filing of the charge also triggers the

EEOC's own investigation into the allegations and deployment of its "agency-monitored
settlement" efforts. Id The EEOC then may conclude its investigation in one of many ways,

including (i) trying to resolve the matter through conciliation, (ii) filing suit, or (iii) permitting

the complainant to file suit by issuing a notice of right to sue. 29 C.F.R. §§ 1601.24, 1601.28.

Any notice of right to sue must include a copy of the charge. Id § 1601.28(e)(3). Upon receipt
of a notice of right to sue, the complainant has ninety days to file a lawsuit based on the charge.
42 U.S.C. § 2000e-5(f)(l).

As evidenced by these regulations, the "primary purpose" of Title VII's exhaustion
requirement is "notice and conciliation." Chacko. 429 F.3d at 510. Therefore, the EEOC charge

is not only a prerequisite to filing a Title VII suit; it also defines the scope of the formal litigation
that follows once administrative remedies have been exhausted.

Id at 509.

"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." Jones. 551 F.3d at 300 (quoting Evans v. Techs.

Applications & Serv. Co.. 80 F.3d 954, 963 (4th Cir. 1996)). Specifically, if the charge
references "different time frame, actors, and discriminatory conduct" than those alleged in the
formal lawsuit, such claim is procedurallybarred. Chacko. 429 F.3d at 506.

B.

Determining The Scope of Plaintiff's Charge

Plaintiff argues that Defendants' Rule 12(b)(1) motion should be denied because she has
exhausted her administrative remedies with respect to each of her Title VII claims. In support,

she makes two altemative arguments. First, she claims that, pursuant to the Supreme Court's
decision in Federal Express Corp. v. Holowecki. 552 U.S. 389 (2008), this Court may look to her
EEOC intake questionnaire in addition to her formal Charge to determine the permissible scope
of her Title VII claims. ECF No. 15 at 1-2. Plaintiffs intake questionnaire, which is attached as

an exhibit to Plaintiffs response, was filed with the EEOC on March 2, 2017, four days before
her Charge was filed. ECF No. 15-1. It contains detailed allegations regarding Defendants'

hostile and discriminatory treatment of Plaintiff in the workplace, which are not contained in
Plaintiffs Charge. Id Plaintiff argues that her Charge and her intake questionnaire, when

considered together, satisfy the exhaustion requirement. ECF No. 15 at 5-7. Alternatively,
Plaintiff claims that, even without the intake questionnaire, her Charge is sufficiently related to

her Title VII claims to satisfy the exhaustion requirement. Id at 11. Defendants dispute both
claims.

Therefore, a threshold issue before the Court is whether, pursuant to Holowecki,

Plaintiffs intake questionnaire may be considered as part of her Charge for exhaustion purposes.
1.

Holowecki and Its Progeny

In Holowecki. fourteen current and former FedEx couriers sued FedEx for violations of

the Age Discrimination in Employment Act ("ADEA"). 552 U.S. at 394. FedEx moved to
dismiss the action as to one of the plaintiffs, Ms. Kennedy, on the grounds that she had not filed

her EEOC charge at least sixty days before filing suit. Id The issue before the Supreme Court

was whether Ms. Kennedy had filed a valid "charge" under the ADEA by submitting EEOC
Form 283 (an intake questionnaire), to which she attached a signed affidavit detailing FedEx's

alleged discriminatory employment practices. Id at 394-95. The Supreme Court concluded that
9

she had. Id at 404. The Court held that, for a filing to be deemed a charge under the ADEA,
"[i]n addition to the information required by the regulations,... it must be reasonably construed
as a request for the agency to take remedial action to protect the employee's rights or otherwise

settle a dispute between the employer and the employee" (hereinafter, the "request-to-act"
requirement).

Id at 402.

In so holding, the Court deferred to the EEOC's reasonable

interpretation of its own regulations pertaining to the requirements for a "charge" under the

ADEA enforcement scheme.^ Id at 397 (citing Auer v. Robbins. 519 U.S. 452 (1997)).
Even though Holowecki considered EEOC charges under the ADEA, not Title VII,

Plaintiff argues that it applies to her case. However, this Court has been inconsistent in its
application of Holowecki to Title VII cases.

In Graves v. Industrial Power Generating

Corporation, the Court refused to expand the scope of plaintiffs charge to include her intake
questionnaire for purposes of exhausting her Title VII claims. No. 3:09cv717, 2011 WL 63696,

at *8 (E.D. Va. Jan. 5, 2011) (noting that such questionnaire was "a private, unswom document
between [the plaintiff] and the EEOC" and notice of same was not provided to the respondent),
affd. 438 F. App'x 174 (4th Cir. 2011). In a footnote, the Court explained that Holowecki "does

not affect the analysis" because Holowecki requires a questionnaire to be sworn or accompanied
by an affidavit before it can be deemed a charge, and in Graves, the questionnaire was unswom.
Id at *8 n.l9.

In another line of cases, this Court has held that, under Holowecki. an EEOC intake

questionnaire can be deemed a charge for purposes of a satisfying Title VII's 300-day filing
limit.

Bland v. Fairfax Countv. 799 F. Supp. 2d 609, 616 (E.D. Va. 2011) (Cacheris, J.)

^ Specifically, the EEOC's position was that the applicable ADEA enforcement regulations do not
identify all necessary components of a charge, and that a charge must do more than meet the requirements
of 29 C.F.R. § 1626.6. Holowecki. 552 U.S. at 397. The Supreme Court deferred to this position and
then determined that a charge must also have a request-to-act component. Id at 397,402.
10

(adopting Tavlor v. Oce Imadstics. Inc.. No. 3:07cv792, 2008 WL 2148557 (E.D. Va. 2008)
(Spencer, J.) (intake questionnaire containing Title VII and ADEA claims deemed a timely-filed
charge under Hobwe^)); Thorington v. Sallv Beauty Supply. LLC. No. I:16cy626, 2017 WL

1954539 (E.D. Va. May 10, 2017) (O'Grady, J.). In each case, the plaintiff failed to file an
EEOC charge at least 300 days before filing suit but had filed an EEOC intake questionnaire
within that time period.

Bland. 799 F. Supp. 2d at 614; Taylor. 2008 WL 2148557, at *1;

Thorington. 2017 WL 1954539, at *2.

In each case, the Court found that the plaintiffs

questionnaire contained sufficient request-to-act language to be deemed a "charge" under

Holowecki. Bland. 799 F. Supp. 2d at 615; Taylor. 2008 WL 2148557, at *3; Thorineton. 2017
WL 1954539, at *5. In so holding, both the Bland Court and the Thorineton Court departed
from Graves by concluding that Holowecki does not require a questionnaire to be sworn for it to
be deemed a charge. Bland. 799 F. Supp. 2d at 616; Thorineton. 2017 WL 1954539, at *5.
2.

Holowecki Does Not Apply Here.

The Court finds that Holowecki is inapplicable to Plaintiffs case for two reasons. First,
as discussed above, this Court has limited the holding of Holowecki to situations where a

plaintiff seeks to have an EEOC filing other than the plaintiffs formal charge be considered the
"charge" for purposes of defeating a Title VII time-bar defense. Such is not the case here.
Rather, Plaintiff asks the Court to treat her intake questionnaire as part of her formal Charge for
exhaustion purposes even though such Charge was timely filed and was treated as the operative

charge of discrimination throughout her EEOC proceedings. But Plaintiff has not identified any

case in which Holowecki was applied for this purpose. In fact, other federal courts have declined
to expand Holowecki in this way. See, e.e.. Green v. JP Morgan Chase Bank Nat. Ass'n. 501 F.
App'x 727, 731 (10th Cir. 2012) (Holowecki does not permit plaintiffs to use an intake

questionnaire to supplement claims in a timely-filed charge for exhaustion purposes); Ahuia v.
11

Detica Inc.. 873 F. Supp. 2d 221, 230 (D.D.C. 2012) (same); Brown v. Target. Inc.. No. 1400950, 2015 WL 2452617, at *6 (D. Md. May 20, 2015) (same). This Court agrees and finds
Plaintiffs reliance on Holowecki to be misplaced.

Second, even if the holding of Holowecki were so expanded, Plaintiffs intake
questionnaire would not constitute a "charge" because it does not satisfy the applicable
regulatory requirements for charges under Title VII. Such requirements are different and more

detailed than those pertaining to the ADEA."* For this reason, the Supreme Court in Holowecki
expressly warned against applying regulatory rules across different enforcement schemes:
[T]he EEOC enforcement mechanisms and statutory waiting periods for ADEA
claims differ in some respects from those pertaining to other statutes the EEOC
enforces, such as [Title VII], 42 U.S.C. § 2000e et seq.. and the [ADA], 42 U.S.C.

§ 12101 et seq. \\^ile there may be areas ofcommon definition, employees and
their counsel must be carefiil not to apply rules applicable under one statute to a
different statute without carefiil and critical examination.

Holowecki. 552 U.S. at 393. Therefore, any application of Holowecki to Title VII cases must
account for the EEOC regulations applicable to such cases.

Pursuant to Title VII regulations. Plaintiffs intake questionnaire cannot be deemed a
"charge" because it is not verified as required under 29 C.F.R. § 1601.9. See also 42 U.S.C.
§ 2000e-5(b) ("Charges shall be in writing under oath or affirmation and shall contain such

information and be in such form as the Commission requires.") This rule is not a mere formality.
The Fourth Circuit has held that "failure to comply with [the verification requirement] is fatal to
an action seeking relief under Title VII." Balazs v. Liebenthal. 32 F.3d 151, 156 (4th Cir. 1994).

Nevertheless, during the hearing on Defendants' motion. Plaintiff relied on Bland and

Thorington to argue that verification is not required under the Holowecki standard.

S^

As noted above, 29 C.F.R. §§ 1601 et seq. contains the regulatory procedures established by the EEOC
for the administration and enforcement of Title VII, see supra n.3, while regulations pertaining to the
ADEA are contained in a completely separate part of the Code of the Federal Regulations, Id § 1626.1.
12

discussion supra Part III.B.l. However, Plaintiffs' cases are not persuasive on this point because
they fail to account for the fact that the ADEA regulations, which were at issue in Holowecki. do

not include a verification requirement.

29 C.F.R. § 1626.6.

Because verification is

mandatory under Title VII, Plaintiffs intake questionnaire does not satisfy the EEOC's

regulatory requirements for a charge and thus Holowecki does not apply here.
In her response, Plaintiff also relies on the Supreme Court's directive that "[d]ocuments
filed by an employee with the EEOC should be construed, to the extent consistent with
permissible rules of interpretation, to protect the employee's rights and statutory remedies."

Holowecki. 552 U.S. at 406. But Plaintiffs proposed expansion of her Charge goes too far. The

Fourth Circuit has held that intake questionnaires and other submissions to the EEOC "cannot be
read as part of [the] formal discrimination charge without contravening the purposes of Title
VII." Balas. 711 F.3d at 408. In so holding, the Fourth Circuit reasoned that to read into a

charge allegations it does not contain undermines the statutory goals of "putting [the] employer
on notice [and] encouraging conciliation." Id. (citing Sloop v. Mem'l Mission Hosp.. Inc.. 198
F.3d 147,149 (4th Cir. 1999)).

The same is true here. A copy of Plaintiffs intake questionnaire was never furnished to
the respondent as required under 29 C.F.R. § 1601.14. In fact, Defendants did not receive a copy
of the intake questionnaire until it was attached to Plaintiffs briefing on the instant Motion to
Dismiss. S^ Resp., ECF No. 15, at Exhibit 1. Furthermore, the EEOC at all times treated

Plaintiffs formal Charge as the operative charge document, and such document is the only

"charge" referenced in Plaintiffs Amended Complaint.

Compl. H 15. Therefore, to allow

Plaintiff to expand the contents of her Charge as she requests would run afoul of Balas and
undermine the primary goals of exhaustion under Title VII.

13

For these reasons, the Court finds that it may only look to Plaintiffs formal Charge to

determine if Plaintiff has exhausted her administrative remedies as required under Title VII.
C.

Plaintiff's Charge is Not Reasonably Related to Counts I, II, or III

Having determined the proper scope of Plaintiffs Charge, the next issue before the Court
is whether Plaintiff has exhausted her remedies as to each of her Title VII claims. This analysis
necessarily begins with a review of Plaintiffs Charge.
1 to Am. Compl., ECF No. 3-1 at 1.

Charge No. 437-2017-00501, Exhibit

In the Charge, the "particulars" of the alleged

discrimination are described as follows:

I began employment with the above named employer May 23, 1994. I was
discharged from my position of Service Delivery Manager on October 31, 2016.
The reason Robert Staton, Area Manager gave for my discharge was not reporting
a threat against the managers to Human Resources (even though it had already
been reported).

I believe I was discharged because of my race, American Indian; sex, female; and
in retaliation for participating in an investigation about a practice of witchcraft
(Pagan religion). I also believe I was discharged because of my age, 53 in
violation of the Age Discrimination Employment Act.
Id, Furthermore, the boxes next to "race," "sex," "retaliation," and "age" are checked as the

bases of the alleged discrimination.

Id

The Charge also indicates that the latest date

discrimination took place was on "10-31-2016." Id There is no earliest date of discrimination
listed, and the box next to "continuing action" is not checked. Id In sum. Plaintiffs Charge
identifies three discrete acts of discrimination relevant to Title VII - discharged because of race,

discharged because of sex, and discharged in retaliation for being part of an investigation - all of
which occurred on one day, the day of Plaintiffs discharge. It also identifies one discrete actor:
Mr. Staton.

1.

Count I (Hostile Work Environment Sexual Harassment)

Defendants argue that these discrete acts of discrimination, all involving Plaintiffs
14

termination from Ricoh, are not reasonably related to Plaintiffs hostile work environment sex
harassment claim (Count I) sufficient to meet the exhaustion requirement. The Court agrees.

Count I is based on a wide range of harassing conductby Mr. Staton that allegedly occurred over
a seven-year span, including, for example, requests for sexual favors, frequent misogynistic

comments, verbally abusive and demeaning reprimands, and insults regarding Plaintiff s weight,

appearance, and intelligence. Plaintiffs Charge, by contrast, does not mention any harassing
conduct or comments by Mr. Staton or by anyone else for that matter. Nor does it check the box
for "CONTINUING ACTION" or mention any acts of discrimination occurring before October 31,
2016. Therefore, Plaintiffs Charge did not reasonably notify Defendants of the "broader pattem
of misconduct" on which Count I is based.

Chacko. 429 F.3d at 509. Nor is it reasonable to

expect that an investigation into the allegations of Plaintiffs Charge would have imcovered
evidence of such a pattem if one existed.

id.

Moreover, this Court routinely finds no exhaustion where one form of sex discrimination

is alleged in the Charge (here: disparate treatment) and a different form of sex discrimination is
alleged in the complaint (here: hostile work environment). See, e.g., Logan v. Colonial
Williamsburg Hotel Properties. Inc.. 941 F. Supp. 60, 62 (E.D. Va. 1996), affd. 155 F.3d 559
(4th Cir. 1998); Baiden-Adams v. Forsvthe Transp.. Inc.. 969 F. Supp. 2d 422, 429 (E.D. Va.

2013). For these reasons. Count I of the Amended Complaint is not reasonably related to the
Plaintiffs Charge and must be dismissed for lack of subject matterjiuisdiction.
2.

Count II (Quid Pro Quo Discrimination)

Defendants also move to dismiss Plaintiffs quid pro quo sexual harassment claim (Count

II) on exhaustion grounds. They argue that Plaintiffs Charge does not allege or even imply that
Plaintiffreceived unwanted sexual advances or any quid-pro-quo offer of any kind, and thus the

Charge is not reasonably related to the quid pro quo claim made in the Amended Complaint.
15

The Court agrees. Similar to Count I, the disparate treatment alleged in Plaintiffs Charge is a
completely different form of discrimination than the quid pro quo sexual harassment alleged in
Count II such that Defendants had no reasonable notice of the claim.

Logan. 941 F. Supp. at

62; Baiden-Adams. 969 F. Supp. 2d at 429. Furthermore, an investigation into Plaintiffs Charge
would not have uncovered evidence of this claim given that Plaintiffs Charge lacks any factual

allegations even remotely related to Plaintiffs quid pro quo allegations such as promotion or
vacation issues. See Bolt v. Norfolk S. Corp.. 22 F. Supp. 2d 512, 517 (E.D. Va. 1997) (factual

statement in charge alleging sexual harassment was not reasonably related to quid pro quo claim
where it contained no allegations of pay or promotions issues). Here, where sexual harassment is
not even alleged in Plaintiffs Charge, a claim for quid pro quo sexual harassment is certainly
beyond its scope. S^ id; Porch v. Am. K-9 Interdiction. LLC. No. 2:12cv690, 2013 WL

4804285, at *7 (E.D. Va. Sept, 6, 2013) (citation omitted). Therefore, Count II must also be
dismissed for lack of subject matter jurisdiction.

3.

Count in (Hostile Work Environment Racial Harassment)

Defendants also move to dismiss Plaintiffs hostile work environment racial harassment

claim (Count III) on largely the same grounds as Count I. They argue that Plaintiffs Charge

only relates to her termination from Ricoh and is not reasonably related to the broad pattern of
misconduct alleged as the basis of her hostile work environment racial harassment claim (Count
III). The Court agrees.

In her Amended Complaint, Plaintiff alleges that beginning in September, 2015, when
Ms. Vanover became her supervisor, and through October, 2016, Ms. Vanover frequently
taunted Plaintiff and made insulting comments with respect to her American Indian heritage.
Plaintiff also alleges that, in August, 2016, Ms. Vanover tried to involve Plaintiff in a pagan
ritual at work because of Plaintiffs American Indian heritage even though Plaintiff resisted and
16

communicated her discomfort with the ritual. Plaintiffs Charge, by contrast, mentions race only

in the context of her alleged discriminatory discharge, and mentions the pagan ritual only in the
context of her alleged retaliatory discharge. Furthermore, the Charge does not mention (i) Ms.
Vanover, (ii) any incidents of harassment, or (iii) any wrongful conduct occurring prior to
October 31, 2016. Nor does it check the box for "continuing action." Therefore, Count III is

based on "different time frame, actors, and discriminatory conduct" than those alleged in

Plaintiffs Charge and therefore is procedurally barred. Chacko. 429 F.3d at 506. For this
reason. Count III of the Amended Complaint must be dismissed for lack of subject matter
jurisdiction.
4.

Count IV (Retaliation)

Lastly, Defendants argue that Plaintiff has not exhausted her remedies with respect to
Count IV because the basis of the retaliation alleged in Count IV (i.e.. being terminated for
making complaints of sexual and racial harassment, hostile work environment, and/or quid pro

quo discrimination) is different from the basis of the retaliation alleged in Plaintiffs Charge (i^,

being terminated for participating in an investigation of a pagan ritual/witchcraft). In support.
Defendants rely on this Court's decision in Baiden-Adams in which the plaintiffs retaliatory
discharge claim was dismissed because it was based on plaintiffs alleged efforts to protect co-

workers from sexual harassment whereas the retaliatory discharge alleged in her EEOC charge
was based on her complaints about pay. 969 F. Supp. 2d at 431-32. The Court reasoned that the
plaintiffs retaliation claim was not reasonably related to her charge because it did not "grow out
of the allegations" contained therein. Id at 432.
As applied here, the Court agrees that Plaintiff has not exhausted her administrative

remedies with respect to the full scope of Count IV as alleged in the Amended Complaint.
However, the Court finds that Plaintiff has exhausted her remedies to the extent Count IV alleges
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retaliatory discharge for complaining to Ricoh, through its managers, of racial harassment
beginning and in connection with the alleged pagan ritual incident occurring on or about August

15, 2016. As set forth below, such claim is reasonably related to Plaintiffs Charge and, in any
event, would "grow out" of a reasonable investigation into the allegations contained therein.

First, unlike the charge in Baiden-Adams. the Charge here explicitly alleges retaliatory
discharge in the factual statement and checks the box for "retaliation" as a basis for
discrimination.

id at 431. While the protected activity identified in the Charge appears, on

its face, to be unrelated to making complaints about Title VII discrimination at the workplace,
the allegations of the Amended Complaint show that Plaintiffs alleged investigation into the

pagan ritual incident is reasonably related to Plaintiffs complaints to Ricoh about racial
harassment as alleged in the Amended Complaint.

For example, according to the Amended Complaint, the pagan ritual incident occurred on
August 15, 2016, approximately two and a half months before Plaintiff was terminated from
Ricoh. Plaintiff claims that Ms. Vanover used the ritual to taunt her about her American Indian

heritage. Plaintiff further claims that she reported such "race-based harassmenf to Mr. Staton

the next day, who instructed her not to report the incident to human resources or "she would be
sorry." Compl. ^ 63. The Amended Complaint goes on to describe a series of events connected
to this incident: the transfer of Ms. Vanover to another division on September 15, 2016; Ms.

Vanover's additional race-based comments and threats to Plaintiffs job based on Ms. Vanover's
belief that Plaintiff caused her transfer; Ms. Vanover's subsequent complaint to human resources
about Plaintiff, which Plaintiff discovered on October 5, 2016; and Plaintiffs termination on

November 1, 2016.

id.

66-69. These allegations are reasonably related to Plaintiffs

claim in her Charge that she was terminated "in retaliation for participating in an investigation

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about a practice of witchcraft (Pagan religion)." Therefore, to the extent Count IV is based on
such allegations, the Court has jurisdiction over the claim.
However, as indicated above. Plaintiff has not exhausted her administrative remedies

with respect to the remaining allegations in Count IV. First, Plaintiffs claim that she was
terminated "after reporting discrimination in violation of Title VII to the EEOC" is clearly

beyond the scope of her Charge.

Compl. H 106. Plaintiffs Charge was filed several months

after Plaintiff was terminated, and it does not reference any prior report of discrimination to the

EEOC. Nor does Plaintiff allege elsewhere in the Amended Complaint that she made any prior
report of discrimination to the EEOC.

Therefore, it does not appear that a reasonable

investigation into her Charge would reveal the same.
Second, to the extent Count IV is based on some adverse employment action other than

Plaintiffs termination, such claim is beyond the scope of Plaintiffs Charge. Id

107. As noted

above. Plaintiffs Charge is limited to several discrete acts of discrimination, all of which are
based on Plaintiffs termination. Therefore, no reasonable investigation into the Charge would

lead to the discovery of other adverse employment actions.
Third, to the extent Count IV is based on Plaintiff making complaints of hostile work

environment sexual harassment and/or quid pro quo discrimination, id, such claim is also
beyond the scope of her Charge. It is true that a reasonable investigation into Plaintiffs Charge
would review the causes of Plaintiffs termination and therefore lead to the discovery of certain

incidents surrounding her termination, including any complaints made by Plaintiff to human
resources or to her supervisors. But incidents too remote in time would be outside the scope of a

reasonable investigation. Here, the earliest relevant incident alleged in the Charge is the pagan
ritual incident, which allegedly occurred in August, 2016.

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According to the Amended

Complaint, Plaintiffs most recent complaint of sex discrimination to Ricoh personnel occurred
on May 26, 2016, nearly three months earlier.

Compl. ^ 58. This is too remote from the

allegations contained in Plaintiffs Charge for exhaustion purposes. For this reason, Plaintiff has
not exhausted her remedies with respect to Count IV to the extent it is based on Plaintiffs
alleged complaints of sexual harassment or other forms of sex discrimination.
In sum, Plaintiff has exhausted her remedies with respect to Count IV only as to her

claim that was terminated from Ricoh in retaliation for her complaints of racial harassment in

connection and beginning with the alleged pagan ritual incident occurring on or about August 15,

2016. Therefore, this Court has jurisdiction over such claim, and Defendants' motion to dismiss
Count IV for lack of subject matter jurisdiction is hereby denied with respect to same.
IV.

DEFENDANTS' RULE 12(B)(6) MOTION TO DISMISS COUNTS V & VI

In the second part of Defendants' Motion to Dismiss, they move to dismiss Plaintiffs
state law claims of negligent hiring and retention (Count V) and intentional infliction of
emotional distress (Count VI) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
("Rule 12(b)(6)") for failure to state a claim.
A.

Standard of Review

A Rule 12(b)(6) motion should be granted if the complaint does not allege "enough facts
to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twomblv. 550 U.S.
544, 570 (2007). The purpose of such a motion is to test the sufficiency of a complaint and

"does not resolve contests surrounding the facts, the merits of a claim, or the applicability of

defenses." Republican Partv of N.C. v. Martin. 980 F.2d 943, 952 (4th Cir. 1992). Accordingly,
a court should "assume the truth of all facts alleged in the complaint and the existence of any fact
that can be proved, consistent with the complaint's allegations." Eastern Shore Markets. Inc. v.
J.D. Assocs. Ltd. P'ship. 213 F.3d 175, 180 (4th Cir. 2000). Although the truth of the facts
20

alleged is assumed, courts are not bound by the "legal conclusions drawn from the facts" and

"need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id
B.

Choice of Law

When deciding state law claims under supplemental jurisdiction, a federal court must
apply the choice-of-law rules of the jurisdiction in which it sits. Klaxon Co. v. Stentor Elec.
Mfg. Co.. 313 U.S. 487, 496-97 (1941). This Court sits in Virginia, and Virginia's choice-oflaw rule for tort claims is the doctrine of

delicti, or the law of the place of the wrong.

McFarland v. Virginia Ret. Servs. of Chesterfield. L.L.C.. 477 F, Supp, 2d 727, 732 (E.D. Va.
2007) (citing Dreher v. Budget Rent-A-Car Svs.. Inc.. 272 Va. 390 (2006) (citations omitted)).

Because all of Defendants' alleged wrongs occurred in Virginia, Virginia law applies to
Plaintiffs tort claims. Plaintiff does not dispute this.
C.

Negligent Hiring and Retention (Count V)

In Count V of the Amended Complaint, Plaintiff alleges that Defendant Ricoh was
negligent in its hiring and retention of Mr. Staton as an employee and that such negligence

foreseeably caused harm to Plaintiff. Compl. HH 115-16. As Defendants rightly point out in

their Motion to Dismiss, negligent hiring and negligent retention are two independent torts under
Virginia law. Sqq Se. Apartments Mgmt.. Inc. v. Jackman. 257 Va. 256, 260 (1999). Pursuant to
Rule 12(b)(6), Defendants argue that Plaintiff has failed to state a claim for either tort, raising
several different grounds for dismissal. One such ground is that Plaintiff fails to allege physical

injury or a threat of such injury, which is a necessary element of both negligent hiring and

negligent retention. For the reasons below, the Court agrees.
To state a claim for negligent hiring under Virginia law, a "plaintiff must allege that [1]

the employee had a known propensity of being a danger to others in the past, [2] the employer
knew or should have known through reasonable discovery about these acts, and [3] the employer
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hired an unfit employee and placed him in a situation where he could create an unreasonable risk
of harm to others," Clements v. MCV Associated Physicians. 61 Va. Cir. 673 (2002) (citing
Interim Pers. of Cent. Virginia. Inc. v. Messer. 263 Va. 435, 441 (2002)).

"[T]he Virginia

Supreme Court has determined that the 'unreasonable risk of harm' element requires the threat of

serious and significant physical injury." Parker v. Geneva Enterprises. Inc.. 997 F. Supp. 706,
713 (E.D. Va. 1997) (collecting cases).

The tort of negligent retention is "similar though distinct" from the tort of negligent
hiring. Ingleson v. Burlington Medical Supplies. Inc.. 141 F. Supp. 3d 579, 585 (E.D. Va. 2015)

(citation omitted). This tort imposes liability on an employer for "harm resulting from the
employer's negligence in retaining a dangerous employee who the employer knew or should
have known was dangerous and likely to harm [others]."

Se. Apartments Mgmt. Inc. v.

Jackman. 257 Va. 256, 260-61 (1999). As this Court has recognized in the past, the Virginia
Supreme Court has not definitively stated that physical injury is a necessary element of this tort,
but several courts in this circuit have construed Virginia law as requiring allegations of "serious

and significant physical injury" to state a claim for negligent retention. Ingleson. 141 F. Supp.
3d at 585 (collecting cases). This comports with the Virginia Supreme Court's other holdings

which consistently bar recovery to plaintiffs for emotional injuries resulting from a defendant's
negligence "without proof of contemporaneous physical injury." Elrod v. Busch Entm't Corp..
479 Fed. App'x 550, 551 (4th Cir. 2012).
Based on the above, it is clear that Plaintiff has failed to allege sufficient physical injury

or risk thereof to state a claim for either negligent hiring or negligent retention under Virginia

law.

In the Amended Complaint, Plaintiff claims that she received "unwelcome sexual

advances" and other sexual harassment in the form of "verbal and physical conduct" as the result

22

of Ricoh's negligence. Compl. H 113. But sexual harassment, absent allegations of serious
physical injury, cannot sustain a claim for negligent hiring or retention. Parker. 997 F. Supp. at
713-14; cf J. V. Victory Tabernacle Baptist Church. 236 Va. 206, 211 (1988) (allegations of

repeated rape and sexual assault by employee sufficient to state a claim of negligent hiring). By

way of "injury," Plaintiff alleges in the Amended Complaint that she suffered from work-related

stress and that, directly after hertermination, she had difficulty breathing and was admitted to the
hospital for two days (with no physical diagnosis). Compl. ^ 70. But "this sort of run-of-themill emotional distress language" also falls short of alleging requisite physical injury to sustain
Plaintiffs negligence claims. Griffith v. Wal-Mart Stores E.. L.P.. No. 6:12cv00011, 2012 WL
5465501, at *11 (W.D. Va. Aug. 24,2012).

For this reason, the Court FINDS that Count V fails to state a claim for either negligent

hiring or negligent retention under Virginia law.^ Accordingly, the Court hereby DISMISSES
same WITHOUT PREJUDICE, and Plaintiff shall have thirty days to amend such claims if she
so desires. Because Plaintiff has failed to state a claim for relief in Count V, the Court declines

to reach Defendants' alternative grounds for dismissing Count V at this time.
D.

Intentional Infliction of Emotional Distress (Count VI)

Defendants also move to dismiss Count VI of the Amended Complaint for failure to state

a claim. Count VI alleges intentional infliction of emotional distress against both Defendants.

Compl. ^ 120. To state a claim for intentional infliction of emotional distress under Virginia
law, a plaintiff must allege that: (1) the defendant acted intentionally or recklessly; (2) the
behavior was outrageous or intolerable; (3) a causal connection exists between the behavior and

^Notably, Plaintiff failed to defend against these deficiencies in herresponse brief, which only states in a
conclusory fashion that "Plaintiff has adequately pled factual allegations . . . sufficient to state such a
claim." ECF No. 15 at 14. Furthermore, when the Court provided Plaintiffs counsel an opportunity to
expound on that positionduring the hearing, he declined.
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the emotional distress; and (4) the resuhing emotional distress was severe. Harris v. Kreutzer.

271 Va. 188, 203 (Va. 2006) (citation omitted). With respect to the secondelement, the conduct
must be "so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community." Id at 204 (quoting Russo v. White. 241 Va. 23, 27 (1991)).

Defendants' first purported ground for dismissal of Count VI is that Plaintiffhas failed to
allege sufficiently outrageous or intolerable behavior by the Defendants. In support, they argue

that "courts applying the Virginia rule have uniformly indicated that in the great majority of
cases, employment discrimination will not meet this demanding standard." ECF No. 13 (quoting
Burke v. AT&T Technical Serv. Co.. 55 F. Supp. 2d 432, 441 (E.D. Va. 1999). Defendants cite

to a myriad of cases in which various forms of sexual or racial harassment in the workplace were
found to be insufficiently outrageous, including (i) repeated ridicule based on religion, gender,
and disability, Webb v. Baxter Healthcare Corp.. 57 F.3d 1067, at *6 (4th Cir. 1995)
(unpublished); (ii) making sexual comments and delivering pomography to plaintiffs mailbox,
Dwver v. Smith. 867 F.2d 184, 194-95 (4th Cir. 1989); (iii) racial slurs and race-based

termination from employment. White v. Ocean Duchess Inc.. No. 2:07cv300, 2007 WL 4874709,
at *5 (E.D. Va. Nov. 7, 2007); and (iv) using racially abusive language and symbols and refusing
to promote plaintiff, Coles v. Carilion Clinic. 894 F. Supp. 2d 783, 796-97 (W.D. Va. 2012).

In response. Plaintiff argues that her case is "distinct from *the great majority' of
employment cases Defendant references precisely because of the outrageous conduct described

in [Plaintiffs] Amended Complaint." Resp., ECF No. 15, at 14. However, upon reviewing the
Amended Complaint, even the most serious and offensive conduct alleged therein does not
qualify as outrageous when compared to the types of harassing conduct routinely found to be

24

insufficient to state a claim for intentional infliction of emotional distress under Virginia law.

For example. Plaintiff alleges that Mr. Staton propositioned her by asking for oral sex in
exchange for certain benefits at work. Compl. H34. But this type of sexual harassment, without

more egregious conduct (e.g., groping and assault) is not enough.

Dwver. 867 F.2d at 194-

95; ^ Speight v. Albano Cleaners, hic.. 21 F. Supp. 2d 560 (E.D. Va. 1998) (putting hand under

employee's skirt and attempting to grab her buttocks and separate attempt to grab her breast was
sufficiently outrageous conduct). Plaintiff also alleges that Mr. Staton frequently berated her

using expletives, misogynistic themes, and sexually debasing language. S^ generally Compl.
But such conduct, though reprehensible, 'Hinmannered [and] uncouth," does not rise to level of
outrage required. Shiflett v. GE Fanuc Automation Corp.. No. 95-0073-C, 1996 WL 481082, at

*3 (W.D. Va. July 23, 1996) (insults about an employees' deafness, public screaming and
cursing, and demeaning comments not sufficiently outrageous).
For this reason, the Court FINDS that Count VI fails to state a claim for intentional

infliction of emotional distress under Virginia law. Accordingly, the Court hereby DISMISSES
same WITHOUT PREJUDICE, and Plaintiff shall have thirty days to amend such claim if she
so desires. Because Plaintiff has failed to state a claim for relief in Count VI, the Court declines

to reach Defendants' alternative grounds for dismissing Count VI at this time.
V.

CONCLUSION

For the reasons stated herein, upon Defendants' Motion to Dismiss the Amended
Complaint, ECF No. 12, the Court hereby ORDERS as follows:

1. With respect to Counts I, II, and III of the Amended Complaint, Defendants'
Motion to Dismiss for lack of subject matter jurisdiction is hereby GRANTED, and such claims
are hereby DISMISSED WITH PREJUDICE.

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2. With respect to Count IV of the Amended Complaint, Defendant's Motion to
Dismiss for lack of subject matter jurisdiction is DENIED with respect to Plaintiffs claim that
she was terminated in retaliation for making complaints to Defendant Ricoh of racial harassment

beginning on or about August 15, 2016, but such motion is GRANTED with respect to all other
claims in Count FV, consistent with this Opinion and Order.

3. With respect to Counts V and VI of the Amended Complaint, Defendants' Motion
to Dismiss for failure to state a claim is hereby GRANTED and such claims are DISMISSED
WITHOUT PREJUDICE at this time. Should Plaintiff wish to amend these claims, she may

do so within THIRTY (30) DAYS of the date hereof.
The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.
IT IS SO ORDERED.
Robert

Semd

UNITED STAT^ DISTRICT JUDGE
Norfolk, VA

April ^,2018

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