Arnold v. Huntington Ingalls Industries

Filing 73

OPINION: Plaintiff's First Motion to Seal, ECF No. 55, is DENIED; Plaintiff's Second Motion to Seal ECF No. 62, is DENIED; Plaintiff's Motion to File Surreply, ECF No. 58, is GRANTED; Plaintiff's Motion to File Supplemental M emorandum, ECF No. 66, is DENIED; Defendant's Motion to Dismiss, ECF No. 53, is GRANTED in part and DENIED in part; Defendant is ORDERED to file an Answer as to these remaining claims within twenty-one days of the entry date of this Opinion; and Plaintiff's Motion to Expedite Proceedings, ECF No. 70, is DENIED. A copy of this Opinion sent to Plaintiff and counsel for Defendant as DIRECTED on 9.24.24. Signed by District Judge Rebecca Beach Smith and filed on 9/24/24. (epri, )

UNITED STATES DISTRICT

COURT

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

FALINE

ARNOLD,

Plaintiff,
ACTION NO.

V.

HUNTINGTON

INGALLS

2:22cv384

INCORPORATED,

Defendant.

OPINION

In this action, pro se Plaintiff Faline Arnold ("Plaintiff")
asserts

various

employment-related

claims

against

her

former

employer. Defendant Huntington Ingalls Incorporated ("Defendant").
See generally Third Am. Compl., ECF No. 52.

This matter is before

the court on the following motions:
(i)

Defendant's Motion to Dismiss,

(ii)

Plaintiff's Motion
Seal"), ECF No. 55;

(iii)

Plaintiff's Motion to File Surreply,

(iv)

Plaintiff's Motion to
Seal"), ECF No. 62;

(V)

Plaintiff's
Motion
to
Memorandum, ECF No. 66; and

(Vi)

to

Seal

Seal

ECF No.

("First

Motion

ECF No.

("Second

File

53;

Motion

58;
to

Supplemental

Plaintiff's Motion to Expedite Proceedings,
No.

to

ECF

70.

The court concludes that oral argument is unnecessary because

the

facts

and legal

arguments

are adequately presented

in the

parties'
First

Motion

Motion

For

briefs.

to

to

ECF

No.

reasons

ECF No.

ECF No.

Seal

Surreply,

Seal,

the

58,

set

55,

forth

below,

is DENIED;

62,

is DENIED;

is

GRANTED;

Plaintiff's

Plaintiff's

Second

Plaintiff'S Motion to File

Plaintiff's

Motion

to

File

Supplemental Memorandum, ECF No. 66, is DENIED; Defendant's Motion
to Dismiss,

ECF No.

53,

is GRANTED in part and DENIED in part,

as

detailed more fully herein; this action will proceed on Plaintiff's
Title

VII

sexual

harassment

FMLA interference claim,

Title

claim.

VII

retaliation

claim.

and constructive

FMLA retaliation claim,

discharge claim; Defendant is ORDERED to file an Answer as to these
remaining claims within twenty-one days of the entry date of this
and

Opinion;
No.

70,

Plaintiff's

Motion

to

Expedite

Relevant Procedural

Background

In an Order entered on January 23,

filing

Defendant

of
to

Order at 4,

Plaintiff's

file

ECF No.

2024,

Third Amended

51.

see

E.D.

Complaint

Reply.

Plaintiff

Opp'n,
filed

a

ordered

in accordance with Local Civil Rule 7(K)

Va.

Loc.

Civ.

R.

Mot.

ECF

No.

56;

First Motion

Reply,
to
2

Seal,

ECF

Dismiss

at

Plaintiff

7(K).

Opposition to Defendant's Motion to Dismiss,
a

and

Defendant timely filed a Motion to Dismiss

of her right to respond to the motion.
53;

the court authorized

a responsive pleading within twenty-one days.

and notified Plaintiff,

No.

ECF

is DENIED.
I.

the

Proceedings,

1-2,
filed

ECF
an

and Defendant filed

No.

57.

Thereafter

a Second Motion to Seal,

a

Motion

to

File

Surreply,

Motion

a

to

File

First Mot.

Memorandum, and a Motion to Expedite Proceedings.
ECF No.

No.

55;

58;

Second Mot.

Mot.

Proceedings,

File
ECF

Seal,

Suppl.

No.

70.

ECF No.

Mem.,
All

62;

ECF

pending

Mot.

No.

Supplemental
Seal,

File Surreply,

66;

motions

Mot.
are

ECF

Expedite

ripe

for

a

decision.

II.

Plaintiff^s Third Amended Complaint

A. Plaintiff's Harassment-Related Allegations

Plaintiff alleges that she is

In her Third Amended Complaint,
a

[m]ixed-race

female,

Defendant

as

a

Marine

Plaintiff

alleges

[m]inority,

//1

who

Third

Electrician.

that

Linwood

previously

Gatling,

Am.

a

worked

Compl.

Specifically,

Gatling

Plaintiff's wrists.
into his.

rr

and

u

alleges

tried

to

kiss

Plaintiff.

Mr.

//

Id.

^ Plaintiff
at

4,

American,

ECF No.

and

Puerto

states
Rican

52.
3

grabbed
body

further

his sexual fantasies

Plaintiff advised Mr.

specifically

Plaintiff

5.

Gatling talked explicitly to

conduct was inappropriate and asked him to stop.

African

at

[Plaintiff's]

Id.

express[ed]

Plaintiff about her anatomy and
[Plaintiff] .

Mr.

tried to forcefully pull

alleges that in April of 2020,

about

that

4.

began

Id.

2020.

Plaintiff

at

co-worker

sexually harassing her in February or March of

for

that

she

descent,

Gatling that his
Id.

is

of

Third

Caucasian,

Am.

Compl.

[s]ometime during 2020,

Plaintiff alleges that
continued

to

comment

on

Plaintiff's

slid

anatomy,

Plaintiff's thigh, grabbed Plaintiff's buttocks.

inwardly
face

near

[Plaintiff's]

"aggressively,

II

and

private

tried

to

Mr. Gatling accused Plaintiff of
Plaintiff
at

«

area,

kiss

Mr.

n

his

Id.

at

5-6.

hard to get" and asked

stop making it hard for him to love

to

up

Plaintiff's

Plaintiff.

play[ing]

hand

tried to go more

grabbed

n

Gatling

[her] .

Id.

6.

Plaintiff alleges that in May and June of 2020,
worker,
Mr.

that

Kevin Cressman,

Cressman

sent

referenced
Id.

condoms.

ld.

began to sexually harass her.

Plaintiff

inappropriate

Plaintiff's

Mr.

another co¬

Cressman

anatomy
also

and

messages

included

invited Plaintiff

on

at

10.

Facebook

pictures

of

to his

house.

Mr.

Gatling

Id.

Plaintiff
\\

alleges

that

in

August

of

2020,

expressed his sexual attraction to [Plaintiff's] race and color.

invited

Plaintiff

to

Fort

Monroe

take tequila shots with him.

Mr.

Gatling's advances,

Plaintiff.

at

6 .

and

asked

Plaintiff

When Plaintiff

to

rejected

Gatling made work more difficult for

Id.

Plaintiff
also

Mr.

Id.

Beach,

;/

alleges

continued

to

that during this

sexually

harass

timeframe.

Plaintiff.

Id.

Mr.

at

Cressman

10.

Mr.

Cressman asked Plaintiff about her preferred sexual practices and

explained in

explicit detail []

//

the sexual

4

acts

that Mr.

Cressman

Id.

wanted to perform with Plaintiff.
Mr,

Cressman's

nightmare.

Id.

u

apologized

advances,

for

at

Mr.

Cressman

In

11.

his behavior;

however,

alleges

complained to her foreman,
Id.

at

15.

Despite

partnered with

[her]

the

complaints.

space on the same boat.

and

rejected

2020,

Mr.

Cressman

Cressman continued

the

months

2020,

with

\\

continued

them

in

to

the

about

Plaintiff's

rumors
sexual

be

same

Id.

//

Gatling "continued his unwanted [,] sexually offensive remarks
spreading

she

//

about the harassment.^

Plaintiff

worked

of

Plaintiff alleges that in November and December of 2020,

started

to

Id.

Wesley Harris,

abusers"

of

Mr.

[t]hrough

that

Plaintiff

made life at work a living

September

send Plaintiff messages about sex.
Plaintiff

w

When

with another co-worker,
orientation.

Id.

at

It

Mr.

and

Regina Arline,

7.

Plaintiff alleges that while she was working with Mr. Gatling
on

a cable

job

extremely close
Id.

at

Gatling

8.

in February of

2021,

to

to press

[Plaintiff]

Plaintiff asked Mr.

Mr.

Gatling to

"sat back down" and made

"rude[,]

Gatling

his

tried

body near

not

do

that.

to

get

[hers] .
//

and

Mr.

inappropriate comments

2 Plaintiff specifically alleges that she complained to Mr.
Harris about the harassment in August, November, and December of
Third Am. Compl.
2020, and in February, March, and April of 2021.
Plaintiff
also
alleges
that
she
at
7,
16-18,
ECF
No.
52.

complained to a Human Resources representative, Elizabeth Bridges,
in March and April of 2021, and to another foreman, Andrew Sidney,
in April and July of 2021.

Id.

at 17-19,
5

21.

about

[Plaintiff]

with

tt

other

Id.

co-workers.

The

following

month, while Plaintiff was working on other jobs with another male
co-worker,

Mr.

[Plaintiff].

c[o]me

Gatling would

to

the

jobs"

and

"stare at

Id.

//

Plaintiff alleges that in April of 2021, while Plaintiff was

working alone on a job,
documents

that

[Plaintiff]
into

Mr.

had

she bent over to pick up drawings

fallen

on

the

buttocks

area.

Id.

//

Gatling asked Plaintiff why she

and

\\

While doing this.

felt a man's private part area touching and pressing

[Plaintiff's]

get"

Id.

floor.

and

grabbed

Plaintiff

\\

It was Mr.

continue[d]

"closer to

Plaintiff "broke free from his grip.

his
Id.

//

Id.

to play hard to

body.

at

Gatling.

Id.

//

at

8-9.

9.

Plaintiff alleges that shortly after this incident, Plaintiff
and Mr.

Gatling ended up in the same elevator at work.

Gatling

pushed

Plaintiff

Plaintiff's arms up,

yelled at Mr.

a

Gatling to stop.

video

of

thinks about

having

him

[Plaintiff].

//

in

April

or

May

of

pinned

wall,
Id.

Plaintiff

2021,

Mr.

sex with his

Gatling showed

wife.

Id.

Mr.

when he is having sex with [his wife] ,
//

Id.

Plaintiff alleges that she was
team

elevator

Mr.

Id.

that in May of

Gatling told Plaintiff that
he

the

and tried to kiss Plaintiff.

Plaintiff alleges
Plaintiff

against

Id.

2 021,

moved back to

and

attempted to "explicitly talk about sex.
6

that
ft

Id.

Mr.
at

[Mr.]

Cressman's

Cressman
12.

still

In June

of

2021, Mr. Cressman spoke "very badly about [Plaintiff]
Id.

employee.
Cressman

Mr.

\\

assume

Cressman

leer []

at

n

\\

The employee defended Plaintiff,

which made Mr.

that

employee.

made

Plaintiff

was

[Plaintiff's]

Plaintiff,

Cressman also

continued

"dating"

feel

pressure[]

to

the

life very hard at work

making her

(about sex and other things).

Id.

uncomfortable.

[Plaintiff]

at

"massive

[Plaintiff]
August of

2021,

Mr.

Cressman],

//

but

Plaintiff

the

Plaintiff

explained

by calling

w

[she]

conversation.

lunch

names,

tt

It

Ms.
such

Arline
as

w

Id.

didn't
that

Id.

//

further alleges that

[her]

//

Mr.

to talk to him

Cressman refused

team.
table"

at

The

sleep

she

w

did

he

assumed

//

Id.

and

\\

In

told

Id.

Plaintiff

male

with

[Mr.

not

feel

[f]requently in 2020 and on-

verbally abused

Dumb Bit**"

claims

other

14.

that

Ms.

[Plaintiff]

and "light skinned

and telling other co-workers that Plaintiff

with.

Id.

II

because

[the]

refused.

and

going into most of 2021,

sleep

to

"why

Plaintiff

n

came

Plaintiff

n

Mr.

Plaintiff

asked

comfortable with the

Bit** [] ,

u

Cressman

and would

tt

employees how he tried to get sexually involved

[Plaintiff] ,

employees

with

n

was dating another employee on

the other male
with

cable job

Id.

13.

Plaintiff alleges that in July of 2021,
to work a

to another

It

was easy to

Arline's

conduct

constituted harassment on the basis of Plaintiff's color and sexual
orientation.

Id.

7

B. Plaintiff's FMLA-Related Allegations

Plaintiff alleges that in March of 2021, she
//

Plaintiff

to

suffered

\\

her

wanted

take

living

leave

care

for

Plaintiff

that

It

management

Id.

abilities.

her

who

mother,

Additionally,

time away from the abuse

Id.

work.

take

First,
had

heart failure and a life-threatening situation that was

affecting
to

to

tried to request

Third Am. Compl. at 16.

FMLA forms for two major reasons.
wanted

u

submitted

explained

her

[she]

"medical

mother's

Plaintiff

was receiving at

documentation[]

health

//

to

Id.

issues.

Plaintiff's foreman, Mr. Harris, agreed "to obtain the FMLA forms
and Plaintiff received the FMLA forms

for Plaintiff,
2021.

Id.

at

17-18.

Plaintiff alleges that she had "dilemmas
Id.

at 19

with

\\

not

//

(referring to difficulties with a

locating her doctor").

management

other

for

receive

in April of

Id.

with the

FMLA forms.

[flax machine"

and

Plaintiff alleges that she asked

solutions

to help

in

the

matter.

but

u

did

Id.

assistance.

Plaintiff alleges that she mentioned her need for FMLA leave
again

in June

of

needed a signature
take

a

leave

of

information for
and his
of

Id.

from an

absence

[her]

"management

absence.

Id.

2021.

FMLA"

team

In

to

n

//

at

20.

out

of

Plaintiff alleges

that

she

doctor,

asked

"to

state

allow her

paperwork.

to

//

u

obtain

Id.

and
the

Plaintiff's

denied Plaintiff's request

June,

July,
8

last

and August of

needed
foreman

for a leave

2021,

Plaintiff

spoke

to

her

her

representative,

union

foreman,
it

[m]anagement" about her need for FMLA leave; however,

appear that Plaintiff's FMLA issues were resolved.
C. The

End

of

Plaintiff's

Plaintiff's

Plaintiff

2021,

alleges

Charge,

with

the

the

20-21.

Filing

Id.

D. Plaintiff's

was

a

constructively discharged
Id.

2021.

Charge

the

\\

boxes

of

at

December

Discrimination

ECF No.

to

On

21.

In

54-1.

indicate

that

against
the

asserts

color discrimination.
at

1.

counts

Third

Defendant.

was

or

sexual

orientation

1-3.

Lawsuit

ECF No.

eight

EEOC

she

Plaintiff initiated the instant action on September 12,
IFP Appl. ,

of

Plaintiff's EEOC Charge made no mention of

1.

race discrimination,
discrimination.

and

at

not

sex discrimination and retaliation against

of

at

she

EEOC Charge,

checked

asserting claims
Id.

filed

EEOC.

Plaintiff

Defendant.

that

in August of

Plaintiff

Defendant

Id.

does

EEOC Charge

from her employment

12,

Employment

and/or

Am.

Plaintiff

In her Third Amended Complaint,

employment-related

of
Compl.

at

23-30.

In

claims

Count

I,

2022.

against
Plaintiff

asserts a Title VII claim against Defendant for harassment/hosti le
work environment based on Plaintiff's sex.
orientation.

Id.

at

23-24.

race,

color,

and sexual

In Count II, Plaintiff asserts a Title

VII claim against Defendant for quid pro quo sexual harassment.
Id.

at

24.

In Count III, Plaintiff asserts a Title VII retaliation

9

claim against

Id.

Defendant.

at

In

24-27.

Count

IV,

Plaintiff

asserts a claim against Defendant pursuant to Title I of the Civil
Rights Act of 1991.^
a
at

claim

against

Id.

at

Defendant

In Count V,

27-28.

pursuant

to

Plaintiff asserts

Id.

Defendant.

at

In

28-29.

Count

VIII,

Plaintiff
Id.

constructive discharge claim against Defendant.
III.

Plaintiff's

Motions

Id.

certain

documents

attached

Defendant's

Motion

violations.

Policies,

from

Amina

management.

text

[Plaintiff],
at

1,

and
ECF

to

Position
to

messages

No.

55.

In

including:

30.

management.

between

Opposition

Defendant's

Statement,

[Defendant's]

at

a

Seal

Plaintiff's

to

Dismiss,

Cooper

to

asserts

Plaintiff asks the court to seal

In her First Motion to Seal,

Seal

1981a.4

In Counts VI and VII, Plaintiff asserts FMLA claims against

28.

email

§

42 U.S.C.

Injury

union

Foreman

information

Wesley

Second

Motion

to

from

Harris

tf

yard
[an]

report.

FMLA Record Keeping.

her

w

to

and

First

Mot.

Plaintiff

Seal,

asks the court to seal documents attached to Plaintiff's proposed

Surreply,

including:
Personal

Plaintiff's

2 Count

IV

is

\\

the Certification of Health Care
Leave

of Absence

mistakenly

titled.

Form,

n

Title

Provider,

an

email

[sic]

of

\\

from

the

ff

the

Civil

Rights Act of 1991"; however, on page one of the Third Amended
Complaint, Plaintiff states that she intends to assert a claim
against Defendant pursuant to Title I of the Civil Rights Act of
Third Am.

1991.
VI.B.5

^

for

See

Compl.

discussion

infra

Part

of

at

1,

Title

VI.B.6

27,

ECF No.

52.

See

infra

Part

I.

for

discussion
10

of

42

U.S.C.

§

1981a.

EEOC,"

correspondence

and

requesting

an

amendment

[Plaintiff's]

claim.

and

the

that

to

the

addition

Second Mot.

n

Plaintiff argues

directed

Seal

at

EEOC

of

1,

investigator

new

charges

ECF No.

to

62.

the above-referenced documents should

be sealed to protect the privacy interests of Defendant and/or the
EEOC.

First

Mot.

Seal

at

2/

Second

Mot.

Seal

at

Defendant

2.

opposes Plaintiff's sealing requests and asks the court to maintain
Opp'n at 1,

the documents on the public record.
u

Motions

discouraged.

to

file

documents

Plaintiff's

complied

with

court's Local

the

E.D. Va.
the

motions.

the

in

First

Second Motion

to

IV.

court

Loc.

and has

question
Motion

are

Seal,

disfavored

62,

that

(C).

and

be
ECF

are

Upon review

Plaintiff

set

not otherwise

Seal,

ECF No.

5(A),

procedures

should

to

R.

finds

sealing-related

Civil Rules

materials

Plaintiff's

seal

63.

and require compliance with the procedures set forth

n

in the Local Civil Rules.

of

under

ECF No.

55,

not

in

the

forth

established

that

Accordingly,

sealed.
No.

has

and

Plaintiff's

DENIED.

Plaintiff's Motion to File

Surreply

Shortly after the briefing closed on Defendant's Motion to
Dismiss,

Plaintiff

File Surreply,

filed

ECF No.

proposed Surreply.

a Motion

58.

Surreply,

to

File

Surreply.

Twelve days later.
ECF No.

Mot.

Leave

Plaintiff filed a

61.

Pursuant to Local Civil Rule 7(F) (1) , after a non-moving party

files a brief in opposition to an opposing party's motion and the
11

[n]o further briefs or written

moving party files a reply brief,
communications

may

E.D.

[c]ourt.

be

Va.

filed
Loc.

without

Civ.

R.

first

obtaining

7(F)(1).

In

leave

of

deference

to

Plaintiff's pro se status, the court will allow Plaintiff to file
Accordingly,

her Surreply.
ECF

No.

58,

is

GRANTED.

Plaintiff's Motion to File Surreply,
The

court

will

consider

Plaintiff's

Surreply in its analysis of Defendant's Motion to Dismiss.
Plaintiff's Motion to File Supplemental Memorandum

V.

On

April

Defendant

15,

2024,

explained

that

Defendant
its

filed

Motion

to

a

Notice,

Dismiss was

in

ready

adjudication

and requested a decision without a hearing.

at

64.

1,

ECF No.

In its Notice,

ECF No.

to Defendant's Notice,

65.

Four days later,

File Supplemental Memorandum.
In her motion.
necessary
to

\\

Notice

Id.

Plaintiff

filed

legal memorandum ("Response to Defendant's Notice").
Notice,

for

Defendant also addressed certain

aspects of Plaintiff's proposed Surreply.

In response

which

Mot.

another

Resp. Def.'s

Plaintiff filed a Motion to

File Suppl.

Mem.,

ECF No.

66.

Plaintiff states that a supplemental memorandum is

to correct errors and to add new information pertinent
[P]laintiff's

Notice/Motion.

Id.

at

arguments

against

the

[D]efendant's

1.

Defendant's Motion to Dismiss is fully briefed.

As explained

above, the court has authorized the filing of Plaintiff's Surreply;
however, the court finds that no further briefing or legal argument
12

is

See E.D.

warranted.

Va.

Loc.

Civ.

R.

Thus,

7(F)(1).

the

court

will not consider the legal arguments raised in Defendant's Notice

or Plaintiff's Response to Defendant's Notice.
is

no

need

66,

A. Legal

of

the

the

court to dismiss this

Federal

A motion to

1.

Rules

544,

sufficiency

memorandum.

of

570

a

Civil

(2007) .

A

complaint

action pursuant to

Procedure.
12(b)(6)

Mot.

should be

allege facts to state a claim to

relief that is plausible on its face.
U.S.

of

dismiss under Rule

granted if a complaint fails to

550

supplemental

Standard

12(b)(6)
at

a

Defendant's Motion to Dismiss^

Defendant asks

Dismiss

file

is DENIED.

VI.

Rule

to

there

Plaintiff's Motion to File Supplemental Memorandum,

Accordingly,
ECF No.

Plaintiff

for

As a result,

Bell Atl. Corp. v. Twombly,

u

Rule

12(b)(6)
'does

and

not

motion
resolve

tests

the

contests

5 The court notes that Plaintiff claims in her Opposition that
Dismiss
Motion
to
is procedurally improper and
Opp' n
this
court
has already denied.
reiterates arguments that
Defendant filed a prior
at 2, ECF No. 56.
Plaintiff is mistaken.
Defendant's

//

w

Plaintiff's
Second Amended Complaint, which previously served as the operative
complaint in this action.
See Second Am. Compl., ECF No. 9; Mot.
Dismiss, ECF No. 15.
In an Order entered on January 23, 2024, the
Motion

to

Dismiss

court
authorized
Order
Complaint.

that

requested

the

filing

at

4,

ECF

the

dismissal

of

Plaintiff's
Third
Amended
Because Plaintiff's Third
51.

of

No.

Amended Complaint would serve as the new operative complaint, the
dismissed Defendant's prior dismissal motion as moot,
without reaching its merits, and ordered Defendant to respond to
Id.
Plaintiff's Third Amended Complaint within twenty-one days.
at
5 .
Defendant timely and properly filed the instant Motion to
Dismiss, pursuant to the court's instructions.
court

13

surrounding the facts, the merits of a claim, or the applicability
of

defenses.

/

Johnson

//

F. Supp. 2d 560,
N.C.

V. Martin,

v.

Portfolio

567 (E.D. Va. 2009)
980 F.2d 943,

952

Recovery Assocs.,

LLC,

682

(quoting Republican Party of

(4th Cir.

As

1992)).

such,

the

court must accept all factual allegations contained in Plaintiff's

Third Amended Complaint as true and draw all reasonable inferences
in

favor of

Plaintiff.

Id.

In cases where the plaintiff appears pro se,

courts do not

expect the pro se plaintiff to frame legal issues with the clarity
and precision expected from lawyers.

Supp.

3d 458,

461

(E.D.

Va.

Suggs V.

tt

2017).

In

such

M&T Bank,
cases,

required to construe the operative complaint liberally.

230

courts

F.
are

Id.

B. Analysis

1. Count

I:

Title

VII

Sexual

Harassment/Hostile

Work

Environment

Plaintiff claims

In Count I of the Third Amended Complaint,

that Defendant

subjected her

environment

the

on

sexual orientation.

basis

of

Third Am.

to harassment
Plaintiff's

Compl.

at

a. Plaintiff's Race, Color,
Related Allegations

and

sex,

a hostile work

race,

color,

and

23-24.

and Sexual Orientation-

Defendant argues that Plaintiff's race, color, and/or sexual
orientation

cannot

harassment/hostile

serve

work

as

the

environment

basis

for

her

claim because

Title

Plaintiff

VII

did

not mention any of these protected categories in her EEOC Charge.
14

Mem.
at

Supp.

1-3.

Mot.

Dismiss

at

ECF

15-17,

No.

54;

see

EEOC

Charge

The court agrees.

Before filing a Title VII claim in federal district court,

a

plaintiff must first file an administrative charge with the EEOC
Chacko

and exhaust the plaintiff's administrative remedies.
Patuxent

429

Inst.,

administrative

charge

F.3d

505,

508

filed

with

the

(4th

Cir.

2005).

plays

EEOC

role in focusing the formal litigation it precedes.

Only those discrimination claims stated in the
those

related

reasonably

to

the

original

a

V.
The

substantial
Id.

//

at

509.

initial charge
[of

complaint

discrimination in the charge],

and those developed by reasonable

investigation of

the original

complaint may be maintained in a

subsequent

Title

VII

Serv.

80 F.3d 954,

Co.,

at 509

if
and

[she]

963

(4th Cir.

v.

Techs.

1996);

Applications

see Chacko,

&

429 F.3d

plaintiff's claim generally will be barred

(noting that a

[her]

Evans

lawsuit.

charge alleges discrimination on one basis—such as raceintroduces another basis

in formal

litigation—such as

sex") .

Upon review,
focused

solely

retaliation.
sexual

the

and

on

finds

allegations

made

orientation.

court

no

mention

of
of

EEOC Charge at

finds that the allegations of race,
discrimination,

as

asserted

in

the
15

that

Plaintiff's
sexual

Plaintiff's

1-3.

color,

EEOC Charge

harassment

race,

Additionally,

and

color,

the

or

court

and sexual orientation

Third Amended

Complaint,

are

not

"reasonably

Charge.

See

the

court

administrative

Plaintiff's race,
Defendant's

Count I that

429

Chacko,

the

Therefore,

to

related

the

F.3d

remedies

Motion

to

seeks

at

concludes

color,

allegations of
509;

that

on

any

Evans,

Plaintiff

Title

Plaintiff's

EEOC

80

963.

F.3d

failed

VII

to assert

is

GRANTED

as

to

claims

to

exhaust

involving

Accordingly,

and/or sexual orientation.

Dismiss

at

the

portion

of

a Title VII harassment/hostile work

environment claim based on Plaintiff's

race,

color,

and/or sexual

orientation.

b. Plaintiff's

Sexual

In its Motion to Dismiss,

of Count I,

i.e.,

Harassment

Claim

Defendant argues that the remainder

Plaintiff's sexual harassment claim based on a

hostile work environment

theory,

should be

dismissed because

it

fails to allege facts sufficient to state a plausible claim for
Mem.

relief.

Supp.
i.

Mot.

Dismiss at 13-25.

Timeliness

To support its request for dismissal.

Defendant argues that

many of the alleged facts upon which Plaintiff's Title VII sexual
harassment claim is based are untimely and should not be considered
by

the

court.

Id.

at

The

17-19.

court

is

not

persuaded

by

Defendant's timeliness argument.

In Virginia, an individual must file an administrative charge
with

the

EEOC

discrimination.

within

300

days

from

the

last

Edwards v. Murphy-Brown, L.L.C.,
16

date

of

760 F.

alleged
Supp.

2d

607,

619

sexual

(E.D.

Va.

harassment

However,

2011).
claim

is

based

courts recognize that when a

on

a

hostile

environment

work

a court is not necessarily constrained in its analysis to

theory,

only consider actions that occurred within 300 days of filing the
EEOC

Id.

Charge.

at

Unlike

620.

discrimination, a hostile work environment
of

separate

that

acts

employment practice.
F.3d 208,

221

Fourth

theory as
w

In

//

Guessous V.

(4th Cir. 2016}

claims may be
The

/

collectively

subject

Circuit

\\

discrete

constitute

Fairview Prop.

continuing

summarized

the

act

of

is composed of a series

(citation omitted).

to a

has

a

one

'unlawful

Invs.,

LLC,

Therefore,

violation"

theory.

continuing

828
such
Id.

violation

follows:

determining

whether

an

actionable

hostile

we
look
to
environment
claim
exists,
and
circumstances,
[p]rovided
that
/

the

an

act

\\

//

work

'all

contributing to the claim occurs within the filing
period
of
the
hostile
period,
the
entire
time
environment may be considered by a court for the purposes
of determining liability." In other words, even if most
of the harassing conduct on which a plaintiff relies to
establish

her

hostile

work

environment

claim

occurred
will

outside
the
statutory period,
the
claim
considered timely if at least one act continuing
violation

occurred

within

the

statutory

be

the

period.

Furthermore,
the plaintiff may recover for all of
harm resulting from the hostile work environment,

the
not

just those contributing acts that occurred during the
statutory period.
Id.
at

at

222

(citations

omitted);

620.

17

see

Edwards,

760

F.

Supp.

2d

Plaintiff

Here,

and

many

the

of

occurred more
EEOC Charge,
see

Third

Plaintiff's

than

300

allegations

days prior to the

of

sexual

filing

Compl.

has

at

However,

1-24.

adequately

the

that

alleged

2021,

harassment

Plaintiff's

of

EEOC Charge at 1-3;

i.e., prior to February 15, 2021.

Am.

Plaintiff

filed her EEOC Charge on December 12,

court

several

finds

that

acts

that

contributed to the hostile work environment took place within the
See Third Am.

statutory time period.

this

stage

of

Plaintiff
doctrine.

the

has
See

id.

at

court

the

invoked

1-24.

finds

regarding

February

2021,

Supp.

2d at

sexual

will

pro

se

continuing

violation

still

harassment
be

occurring

considered

u

prior

to

timely and part
// 6

of

Edwards,

625.

Severity and Pervasiveness

11,

Defendant

at

that

one unitary hostile work environment at this juncture.
760 F.

Thus,

Therefore, the court finds that the Plaintiff's

allegations
15,

the

proceedings.

adequately

Compl.

also

argues

that

Plaintiff's

sexual

claim should be dismissed pursuant to Rule 12(b)(6)

harassment

because the

allegations of harassment do not rise to the level of severity and

6

As

discovery

courts

may

entitlement
Murphy-Brown,

Thus,

developed
during
a plaintiff's
to strengthen or undermine
Edwards
v.
continuing violation theory.

have

tend

to

the

is

evidence

//

L.L.C. ,

Defendant

explained,

760 F.

free

to

Supp.
raise

2d 607,
its

625

(E.D. Va.

timeliness

future dispositive motion, with an expanded record.
18

argument

2011).
in

a

claim

pervasiveness necessary to state a plausible
Mem.

Supp. Mot.

for

Dismiss at 19-25.
Plaintiff

To state a sexual harassment claim under Title VII,

must

adequately

allege
the

(ii)

harassment;

harassment

was

conditions

of

relief.

harassment

sufficiently
Plaintiff's

she

(i)

that

was

severe

experienced

based

or

on

and

(iii)

the

alter

the

sex;
to

pervasive

employment

unwelcome

create

an

abusive

atmosphere; and (iv) there is some basis for imposing liability on
Harris v. Forklift Sys.,

Defendant.

Bass V.

E.I.

Inc.,

DuPont de Nemours & Co.,

324

510 U.S.

17,

21

765

F.3d 761,

(1993);

(4th Cir.

2003).

In
severe

determining
or

assessment

Supp.

3d 622,

tf

alleged

courts

tt

pervasive

obj ective

16 F.

whether

of

630

the

will

a

harassment.

2014).

sufficiently

are

conduct

claimed

(E.D. Va.

actions

The

subjective
Jones

V.

harassment

and
HCA,

must

be

perceived by the victim as hostile or abusive, and that perception
must

be

reasonable.

harassment
'the

Id.

H

When

frequency

of

the

discriminatory

conduct;

the

courts

its

is physically threatening or humiliating,

offensive utterance;

and whether it unreasonably

an employee's work performance.
at 23); see Jones v. Tyson Foods,
Va.

whether

is objectively severe or pervasive.

whether it

(E.D.

analyzing

t

tt

Id■

Inc.,

2004) .
19

consider

severity;
or

a

mere

interferes with

(citing Harris,
378 F.

alleged

510

Supp. 2d 705,

U.S.

712-13

Upon review,

the

Amended Complaint,

court finds that pro se

Plaintiff's

Third

alleges facts sufficient

liberally construed,

to satisfy all of the requirements for a sexual harassment claim,
See Third

including the "severe or pervasive" conduct requirement.
Am.

Compl.
For

at 1-22;

all

of

see also Jones v.

these

HCA,

16 F.

Defendant's

reasons.

Supp.

Motion

to

3d at 630.
Dismiss

is

DENIED as to the portion of Count I that asserts a Title VII sexual
harassment claim against Defendant.
2. Count II:

Title VII Quid Pro Quo Sexual Harassment

In Count II of the Third Amended Complaint,

Plaintiff asserts

a quid pro quo sexual harassment claim against Defendant.
Am.

Compl.

at

To support this claim,

24.

Plaintiff alleges that

between February of 2020 and August of 2021,
unwelcome sexual advances,
and unwelcome[]

touching.

the

employees

offending

Plaintiff,

injuries.

she was subjected to

unwelcome requests for sexual favors,
and that

would

Id.

if

she

stop

which caused Plaintiff

work-related

Third

\\

resisted

on

working

strain"

Defendant

and

argues

such

jobs

resulted

that

conduct,

in

with
"more

Plaintiff's

quid pro quo sexual harassment claim must be dismissed because
such claims

are

only actionable

complainant's supervisor.

Mem.

if the alleged harasser is the

Supp. Mot.

Dismiss at 13.

As the United States Court of Appeals for the Fourth Circuit

has explained,
sexual

the elements necessary to establish a quid pro quo

harassment

claim

differ

from
20

the

elements

necessary

to

establish

Moser

v.

MCC

To

2007).

hostile

a

work

Outdoor,

environment

L.L.C.,

state a claim

256

F.

sexual
App'x

for quid pro quo

harassment
642

634,

claim.

(4th

Cir.

sexual harassment,

a

plaintiff must allege "that a tangible employment action resulted
from a refusal to submit to a supervisor's sexual demands.
(citation omitted);
339

(4th Cir.
Here,

see Ecklund v.

Fuisz Tech.,

905 F.

Supp.

Id.

335,

1995).

the

court

that

finds

Plaintiff's

Complaint does not adequately show that

(i)

Third

Amended

Plaintiff's alleged

harassers held any type of supervisory authority over Plaintiff;
or

(ii)

the

harassers'

consequences

advances

See Third Am.
Ecklund,

the

905

court

Compl.

of

resulted

Plaintiff's
in

a

denial

tangible

at 1-32; see also Moser,

F.

Supp.

finds

that

at

of

the

alleged

employment action."
256 F.

App'X at 642;

Without such factual allegations,

33 9.

Plaintiff's quid pro quo

sexual harassment

claim cannot withstand Defendant's challenge under Rule 12(b)(6).
See Atkins
(E.D.

Va.

v.

Computer Scis.

2003) .

Corp.,

Accordingly,

264

F.

Supp.

2d 404,

411-412

Defendant's Motion to Dismiss is

GRANTED as to the quid pro quo sexual harassment claim asserted in
Count II of the Third Amended Complaint.
3. Count VIII:

In

Count

VIII

Constructive Discharge

of

the

Third

Amended

Complaint,

Plaintiff

asserts a constructive discharge claim against Defendant.
Am.

Compl.

at 30.

Third

To state a claim for constructive discharge,
21

a

plaintiff

must

adequately

against by h[er]
in h[er]

that

she

\\

\

was

discriminated

employer to the point where a reasonable person
and

that

F.3d

183,

position would have felt compelled to resign'

she actually resigned.
193

allege

{4th Cir.

2019)

Defendant

Evans

//

V.

Int'l

Paper

936

Co.,

(citation omitted).
that

argues

Plaintiff's

constructive

discharge

claim fails because Plaintiff does not allege facts sufficient to

plausibly

that

show

Defendant's

conduct

Mem. Supp. Mot. Dismiss at 26-27.

intolerable.

objectively

was

While

the ultimate

viability of Plaintiff's constructive discharge claim is unclear,
the

court

liberally

finds

that

construed,

pro

are

se

sufficient

challenge under Rule 12(b)(6).
Dismiss

is

DENIED

as

Plaintiff's

to

to

factual

allegations,

withstand

Defendant's

Accordingly, Defendant's Motion to

Defendant's

request

to

dismiss

the

constructive discharge claim asserted in Count VIII of the Third
Amended Complaint.
4. Count
Plaintiff

III:

Title VII Retaliation Claim

asserts

a

Title

VII

retaliation

claim

Defendant in Count III of the Third Amended Complaint.
Compl.

at 24-27 .

against

Third Am.

To state a prima facie claim of retaliation under

Title VII, a plaintiff must adequately allege that: (i) she engaged
in

protected

activity;

11

she

was

subjected

to

an

adverse

employment action; and (iii) there was a causal connection between
the protected activity and the adverse employment action.
22

Laber

V .

Harvey,

438 F.3d 404,

328 F.3d 145,

150-51

Defendant

does

432

(4th Cir.

(4th Cir.
not

2006);

King v.

Rumsfeld,

2003).
to

appear

that

dispute

Plaintiff

adequately alleged that she engaged in protected activity under
Title VII.

Mem. Supp. Mot. Dismiss at 27-28; see Third Am. Compl.

at

(identifying

14-22

several

instances

whereby

Plaintiff

complained to supervisors about the alleged workplace harassment).

Defendant argues that Plaintiff's Title VII retaliation

However,

claim fails because Plaintiff has not alleged facts sufficient to

show that she was subjected to an adverse employment action because
of her protected activity.
Based on a

liberal

Supp. Mot. Dismiss at 27-28.

Mem.

construction of

pro

se

Plaintiff's

Third

the court finds that Plaintiff has adequately

Amended Complaint,

alleged that she suffered an adverse employment action, i.e., she
was

constructively

activity.

See Third Am.

Salvation Army,
" [a]

discharged,

as

Compl.

a

result

at 26-27;

of

her

protected

see also McKinley v.

685 F. App'x 227, 228 (4th Cir. 2017)

(noting that

constructive discharge can constitute an adverse employment

action

for purposes of a Title VII retaliation claim); Bailey v.

Va. Pep't of Alcoholic Bev. Control, No. 2:18cv392, 2019 U.S. Dist.

LEXIS 108051,
unclear

at *16-17

whether

(E.D.

Plaintiff

will

Va.

Apr.

25,

2019)

ultimately be

able

(same).

It is

to prove

the

elements necessary to establish a constructive discharge; however,
at

this

stage,

the

[c]ourt

only
23

considers

whether

the

claim

would permit a reasonable

alleges sufficient facts which, if true
fact

finder

LEXIS

to

108051,

find
at

Defendant

liable.

2019

Bailey,

//

U.S.

Dist.

The court finds that pro se Plaintiff has

*18.

adequately alleged such facts.
Accordingly,

Defendant's

Defendant's

Motion

request to dismiss

to

Dismiss

is

DENIED

as

to

the Title VII retaliation claim

asserted in Count III of the Amended Complaint.
5.

Count

Title I of the Civil Rights Act of 1991

IV:

In Count IV of the Third Amended Complaint, Plaintiff asserts

a claim against Defendant pursuant to Title I of the Civil Rights
Act

of

Third Am.

1991.

Compl.

Defendant argues that Count

at 27.

IV must be dismissed because Title I does not provide for a private
cause

of

Mem.

action.

Supp. Mot. Dismiss at 12.

Defendant's argument comports with the
Title

explained.

provides

I

a

law.

prevailing

As

courts

plaintiff

have

in

an

intentional employment discrimination case the ability to recover
compensatory
statute

cause
No.

6,

action.

2018)

18-11765,

2019)

from

damages

the

defendant.

tt

but

the

does not create a new substantive right or an independent

3:18cvl02,

Dec.

No.

of

and punitive

2018

Wilkins

U.S.

(citation
2019 U.S.

Tenn.

V.

Dist.

LEXIS

omitted);

Dist.

Dep't of

206227,

see

Cross

LEXIS 73191,

Children's

Servs.,

at

*9

v.

Massachusetts,

at *6

(D.

(M.D.

Mass.

Tenn.

May 1,

(noting that Title I expands "the relief available to victims

of employment discrimination

but

24

does not create an independent

cause of

Accordingly, Defendant's Motion to Dismiss is

action").

GRANTED as

to the Title

IV of

I claim asserted in Count

the Third

Amended Complaint.
6 . Count

Plaintiff's

V;

Claim Under 42

U.S.C.

§

1981a

In Count V of the Third Amended Complaint, Plaintiff purports
to assert a cause of action against Defendant pursuant to 42 U.S.C.
§

Third Am.

1981a.

notes

that

Title

VII

of

§

Lee

147333,
this

/

//

V.

at *34-35

reason

alone,

at 28.

As an initial matter,

the court

simply 'addresses remedies and procedures in

1981a

actions

action.

Compl.

and does not provide for an independent cause
McDonough,

No.

22-319,

(D.D.C. Aug.

19,

2024)

the

court

finds

that

2024

U.S.

Dist.

LEXIS

(citation omitted).
Count

V

is

subject

For

to

dismissal.

In its Motion to Dismiss,

Defendant presumes that Plaintiff

intended to assert a claim pursuant to 42 U.S.C.

§ 1981,

and argues

that such claim is also subject to dismissal under Rule 12(b)(6).
Mem.

Supp.

Mot.

Dismiss at 13-21.

Section 1981 provides,

in relevant part:

All persons within the jurisdiction of the United States
shall have the same right in every State and Territory
to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws

and proceedings for the security of persons and property
as is enjoyed by white citizens, and shall be subject to
like punishment, pains, penalties, taxes, licenses, and
exactions of every kind,

and to no other.

25

42

U.S.C.

No.
5,

§

1981(a);

2:17cv635,
2018)

see

Spellman

2018 U.S. Dist.

v.

Sch.

LEXIS 73709,

Bd.

at *40

Assuming

Plaintiff

LEXIS 72960
intended

Defendant pursuant to § 1981,
review

of

the

Third

asserted therein,

(E.D.

to

Va.

assert

Complaint,

liberally construed,

a

claim

the

allegations

state

a plausible
See

claim of race or ethnicity discrimination under § 1981.

Am.

Compl. at 1-32;

2018

U.S.

Motion

to

Dist.

s^ 42 U.S.C.

LEXIS

Dismiss

is

73709,

at

GRANTED as

Third

see also Spellman,

§ 1981(a);

Accordingly,

*40.

against

after a thorough

that

do not

30, 2018).

Apr,

the court finds,

Amended

(E.D. Va. Apr.

(emphasis removed)),

of race and ethnicity, or lack of citizenship"
Dist.

Chesapeake,

bars discrimination on the basis

(explaining that § 1981

adopted by 2018 U.S.

of

to Count V of

Defendant's

Third Amended

the

Complaint.
7, Counts

VI

and

VII:

Plaintiff's

FMLA

Claims

Plaintiff asserts FMLA claims against Defendant in Counts VI
Third Am.

and VII of the Third Amended Complaint.

Compl. at 28-29.

Counts VI and VII are inartfully drafted; however, it appears that
Plaintiff

seeks

to

assert

an FMLA

interference claim and an FMLA

retaliation claim against Defendant.

Id.

Defendant

argues

that

Plaintiff fails to allege facts sufficient to state any plausible
claim

for

To

rights,

relief

under the

establish a prima

Mem. Supp. Mot. Dismiss at 6-12.

FMLA.

facie

case

a plaintiff must show that
26

of
(1)

interference
[s]he

is

with FMLA

entitled

to

an

FMLA benefit;

(2)

that benefit;

and

Bd.

of

Governors

Cir.

2021).

show

that

To

employer interfered with the provision of

[her]
(3)

of

that

the

interference

Univ.

of

858 F. App'x 622,

N.C.,

state an FMLA retaliation claim,

she

(1)

engaged

in

a

Boone

caused harm.

protected

624

{4th

a plaintiff must
(2)

activity.

her

employer took an adverse employment action against her, and (3)
adverse

employment

action

plaintiff's protected activity.

Bd., 851 F. Supp. 2d 963,

976

Casino Co.,

446

Harrah's

N.C.

Plaintiff's
could

from

Ainsworth v.

//

F.3d

541

551

allegations,

further

development;

to

connected

the
the

Loudon County Sch.

(E.D. Va. 2012)

FMLA-related

benefit

causally

was

v.

(citing Yashenko v.

(4th Cir.

as

2006)).

summarized

however.

above.

liberally

construing the allegations, as the court must for pro se litigants.
that they are minimally sufficient to withstand

the court finds

Defendant's challenge under Rule 12(b)(6).
Third Am.

Compl.

Ainsworth,

851

Motion

to

claim and

at
F.

Dismiss

FMLA

1-29;
Supp,

is

see
2d

DENIED

also Boone,

at
as

976.
to

See

858

supra

F.

App'x

Accordingly,

Plaintiff's

Part

FMLA

at

II.B;

624;

Defendant's
interference

retaliation claim.

8, Summary

Based on the court's findings above, this action will proceed
on the

following claims:

claim in Count I;

III;

Plaintiff's

Plaintiff's

Title

VII

sexual

harassment

Plaintiff's Title VII retaliation claim in Count

FMLA

interference
27

claim

and

FMLA

retaliation

claim in Counts VI and VII; and Plaintiff's constructive discharge
claim

in

Defendant

Count VIII.

is ORDERED to

file an Answer as to

these remaining claims within twenty-one days of the entry date of
this Opinion.
Plaintiff's Motion to Expedite Proceedings

VII.

Plaintiff asks
matter.

Mot.

//

the

\\

court to

expedite the proceedings in this

Expedite Proceedings at 1,

Id.

//

at

2.

70.

To support

is currently facing urgent

her request, Plaintiff states that she
family health issues.

ECF No.

Specifically,

Plaintiff states

that her mother is suffering from various medical conditions and
lacks

Id.

stable housing.

at

4-5.

For

these

reasons.

Plaintiff

asks the court to expedite these proceedings and provide
resolution

of

n

While

Plaintiff's

the

court

her requested relief
its

is

normal

70,

ECF No.

For the

No.

reasons

ECF No.

58,

2.

Plaintiff's

to

family

62,
is

Memorandum,

55,

set

this

case will proceed

is DENIED.

GRANTED;

66,

Conclusion

forth above.

is DENIED;

is DENIED;

ECF No.

Thus,

Accordingly, Plaintiff's Motion to Expedite

VIII.

ECF No.

at

sympathetic

is warranted.

course.

Proceedings,

Seal,

Id.

the court finds that Plaintiff has not established that

situation.

in

claims.

a prompt

Plaintiff's

Plaintiff's

First

Motion

to

Second Motion to Seal

Plaintiff's Motion to File
Plaintiff's

Motion

to

File

Surreply,

ECF

Supplemental

is DENIED; Defendant's Motion to Dismiss,
28

herein;

this action will proceed on Plaintiff's Title VII sexual

claim,

GRANTED

claim.

Title

in part

VII

and DENIED

in part,

detailed

53,

harassment

is

as

ECF No.

retaliation claim,

FMLA retaliation claim,

FMLA

interference

and constructive discharge claim;

Defendant is ORDERED to file an Answer as to these remaining claims

within

twenty-one days

of

the

entry date

of

this

Opinion;

Plaintiff's Motion to Expedite Proceedings, ECF No. 70,
The

Clerk

Plaintiff
IT

IS

and

is

DIRECTED

counsel

SO

for

to

send

a

copy

of

this

is DENIED.

Opinion

Defendant.

ORDERED.

bL

September

,

Rebecca Beach Smith

Senior United States District Judge

2024

29

and

to