Owen v. County of Franklin, Virginia
Filing
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MEMORANDUM OPINION. Signed by District Judge Glen E. Conrad on 12/14/2017. (ssm)
CLERK'S OFFICE U.S. DIST. COURT
AT ROANOKE VA
FILJ?O
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ROANOKE DIVISION
JENNIFER OWEN,
Plaintiff,
v.
COUNTY OF FRANKLIN, VIRGINIA,
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ROBERT ANDREW MORRIS
Defend~ts.
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Civil Action No. 7:17CV00205
MEMORANDUM OPINION
By: Hon. Glen E. Conrad
Senior United States District Judge
Plaintiff Jennifer Owen, a former county building inspector, filed a three-count
amended complaint against
defend~ts,
the County of Franklin, Virginia (the "County"),
~d
Robert Andrew Morris. Counts I ~d II allege claims against the County under Title VII of the
Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., for sexual harassment
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retaliation, respectively.
Count III alleges assault and battery under Virginia law against
Morris. The case is presently before the court on the County's motion to dismiss Count II
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pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons,
the motion will be denied.
Background
The following facts, taken from the plaintiff's amended complaint, are accepted as true
for purposes ofthe County's motion to dismiss. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Owen worked as a building inspector for
2013 to February 2016.
Fr~in
Am. Compl. -u-u 10, 30.
County, Virginia, from December
In November 2014, Morris became the
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County Building Official. Id.
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12. Owen alleges that within a few months of taking the
position, Morris began to make sexual comments to Owen and to pressure her about entering
into a sexual relationship with him. Id.
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14. On several occasions, Morris groped Owen's
breasts, forced her to touch his genitals, and grabbed her face in an attempt to force a kiss. Id.
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18, 24, 27.
The comments and behavior continued into the summer of 2015, when Morris placed
his hand on the plaintiffs genital area while she was driving. Id.
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25. In October 2015, he
stapped Owen's buttocks with a ruler in front of a coworker. Id. ~ 28. In approximately
November 2015, Morris grabbed Owen's breasts underneath her bra. Id.
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27.
Owen alleges that she rejected all of Morris' sexual advances and complained to him
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about those advances, but his behavior did not change. Id.
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20, 23. Morris "threatened
[Owen] and told her if she went 'across the hall' (where the office of human resources was
located) for any reason, then he would fire her no questions asked." Id.
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29. "[A]fter
rejecting [Morris] for months," Owen alleges that "he eventually terminated her employment
on February 10, 2016." Id.
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30.
Based on the foregoing allegations, Owen filed this lawsuit against the County under
Title VII and state law. She later amended the complaint to substitute Morris as the defendant
for the state law claim. In the amended complaint, Count II alleges retaliation under Title VII
against the County. The County has moved to dismiss Count II for failure to state a claim
upon which relief may be granted. The parties appeared before the court for a hearing on this
matter on November 16, 2017. The matter is now fully briefed and ripe for review.
Standard of Review
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a plaintiffs complaint, which
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must contain "a short and plain statement of the claim showing that the pleader is entitled to
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relief." Fed. R. Civ. P. 8(a); see also Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th
Cir. 2006). When deciding a motion to dismiss under this rule, the court must accept as true all
well-pleaded allegations and draw all reasonable factual inferences in the plaintiffs favor.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, to survive a motion to dismiss, a
complaint must "state a claim to relief that is plausible on its face" and that "permit[s] the court
to infer more than the mere possibility of misconduct." ld. at 678-79 (internal quotation marks
omitted).
The plaintiff must rely on "more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). A complaint's "[±]actual allegations must be enough to raise a right to
relief above the speculative level." Id.
Discussion
Title VII prohibits an employer from retaliating against an employee "because [the
employee] has opposed any practice made an unlawful employment practice by [Title VII]." 42
U.S.C. § 2000e-3(a). In the absence of direct evidence of retaliation, the plaintiff may proceed
under the burden-shifting framework from McDonnell Douglas Corporation v. Green, 411 U.S.
792 (1973). The plaintiff bears the initial burden of establishing a prima facie case of retaliation,
which has three elements: (1) the plaintiff engaged in a protected activity; (2) her employer took
a materially adverse action against her; and (3) "there was a causal connection between the
protected activity and the asserted adverse action." Hoyle v. Freightliner, LLC, 650 F.3d 321,
337 (4th Cir. 2011). If a plaintiff establishes a prima facie case, the burden then shifts to the
employer to identify a legitimate, non-retaliatory reason for its conduct. ld. If the employer
succeeds in making a showing of such a reason, the burden shifts back to the plaintiff to prove
that the employer's reason was a mere pretext for retaliation. Id.
The County has moved to dismiss Count II of Owen's amended complaint for failing to
plausibly allege causation.* Specifically, the County argues that a plaintiff must allege but-for
causation in order to survive a motion to dismiss a Title VII retaliation claim. In support of this
argument, the County cites Villa v. CavaMezze Grill, LLC, which held that, at the summary
judgment stage, a plaintiff must prove that '"the desire to retaliate was the but-for cause of the
challenged employment action."' 858 F.3d 896, 900 (4th Cir. 2017) (quoting Univ. of Tx. Sw.
Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013) (emphasis omitted)).
The County's emphasis on but-for causation->1s misplaced.
Under the McDonnell
Douglas framework, a plaintiff starts by making a prima facie case of retaliation, which does not
require proof of but-for causation. Foster v. Univ. ofMd.-E. Shore, 787 F.3d 243, 251 (4th Cir.
2015) (requiring a plaintiff to prove but-for causation only after the employer has shown that it
acted on the basis of a legitimate, non-retaliatory reason). "[T]o satisfy the[] ultimate burden of
persuasion," which includes but-for causation, the plaintiff can rely on evidence of pretext, id. &
n.13, which may not be available at the pleading stage.
In any event, a plaintiff need not "plead facts that constitute a prima facie case in order to
survive a motion to dismiss." Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th
Cir. 2010) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002) (recognizing that
the prima facie case is an evidentiary, and not a pleading, standard)). Nor must a plaintiff
formulaically recite the elements of a ~laim. Bell Atl. Corp., 550 U.S. at 555.
Although the County overstates the plaintiffs burden at the pleading stage, the court is
• Although the County has identified a circuit split over whether an employee who rejects a supervisor's sexual
advances has engaged in protected activity, the County only challenges the sufficiency of the amended complaint's
allegations of causation. This court will therefore not address the other elements of the prima facie case of Title VII
retaliation.
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convinced that the plaintiff has plausibly alleged a causal link between a protected activity and a
materially adverse action. Determining causation for purposes of a Title VII retaliation claim
'"is highly context-specific'" because it '"necessarily involves an inquiry into the motives of an
employer."' Reardon v. Herring, 201 F. Supp. 3d 782,787 (E.D. Va. 2016) (quoting Kachmar v.
SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997)). Accordingly, courts may infer
causation from the "temporal proximity between an employer's knowledge of protected activity
and an adverse employment action." Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001);
Reardon, 201 F. Supp. 3d at 787.
To rely on temporal proximity alone, however, the proximity must be "very close."
Clark Cty., 532 U.S. at 273 (internal quotation marks omitted). "[N]either the Supreme Court
nor the Fourth Circuit has adopted a bright line for how closely the adverse action must follow
the protected conduct." Reardon, 201 F. Supp. 3d at 785. The Fourth Circuit has recognized that
a two-and-a-half month period is too long to establish causation on the basis of temporal
proximity alone. Perry v. Kappos, 489 F. App'x 637, 643 (4th Cir. 2012) (citing Clark Cty., 532
,,
U.S. at 273-74). In measuring the time between a protected activity and a materially adverse
action, a court may use the date upon which the last protected activity occurred. See, e.g.,
Foster,
- - 787 F.3d at 253 & n.16 ("The [employer] argues that, 'in considering temporal proximity,
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we may only look to'' [the employee's] initial complaint of harassment and not her subsequent
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complaints of retaliation. This is plainly contrary to law."); Reardon, 201 F. Supp. 3d at 788.
In this case, Owen alleges that Morris' last sexual advance occurred in approximately
November 2015 when he grabbed her breasts underneath her bra. Am. Compl.
further alleges that she always rejected Morris' sexual advances. Id.
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27. Owen
20, 29. Thus, relying on
November 2015 as the date that Owen last engaged in a protected activity, approximately three
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months passed until Morris fired Owen on February 10, 2016.
Such a length of time is
insufficient to establish causation without additional evidence of a causal link. See ~' 489 F.
App'x at 643; see also Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) ("In cases where
temporal proximity between protected activity and allegedly retaliatory conduct is missing,
courts may look to the intervening period for other evidence of retaliatory animus.") (internal
quotation marks omitted)).
Accordingly, the court considers the context surrounding the termination of Owen's
employment. See Reardon, 201 F. Supp. 3d at 787 (citing Kachmar, 109 F.3d at 178). The
amended complaint alleges that, in the months preceding Owen's termination, Morris escalated
his conduct and warned Morris not to visit the human resources office.
Accepting these
allegations as true, it is plausible that Morris fired Owen after he realized that she would not
willingly enter into a sexual relationship with him or became concerned Owen would complain
to others. Although discovery may disprove those causal explanations, Owen is not required to
adduce evidence of causation at this juncture. Moreover, accepting the County's view of Owen's
allegations as mere temporal proximity would be to punish Owen for the time it took her alleged
harasser to accept her rejections and take an adverse action.
The County also ignores the
retaliatory animus evidenced in Morris' statement to Owen that he would fire her if she visited
the location of the human resources office. The court therefore finds that the context of Owen's
termination creates an inference of causation such that Count II withstands the County's motion
to dismiss.
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Conclusion
For the reasons stated, the County's motion to dismiss Count II will be denied. The Clerk
is directed to send copies of this memorandum opinion and the accompanying order to all
counsel of record.
DATED:
This/~ f;{,~ay ofDecember, 2017.
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