Opinion
Civil Action 2:21-1367-BHH-MHC
08-31-2021
Angela Fuenffinger, Plaintiff, v. Ecigcharleston, LLC, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
In this employment discrimination action, Plaintiff asserts four causes of action in her Amended Complaint: (1) a claim for religious discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), et seq. (First Cause of Action); (2) a claim for racial discrimination in violation of Title VII (Second Cause of Action); (3) a claim for retaliation in violation of Title VII (Third Cause of Action); and (4) a claim for hostile work environment in violation of Title VII (Fourth Cause of Action). See Am. Complaint, ECF No. 11.
On June 1, 2021, Defendant filed a Motion to Dismiss Plaintiff's initial Complaint or, in the alternative, a Motion for a More Definitive Statement. ECF No. 7. In her Response in opposition to that motion, Plaintiff requested leave to amend her Complaint. ECF No. 9. The Court granted Plaintiff's request for leave to amend the Complaint, ECF No. 10, and Plaintiff filed her Amended Complaint on July 1, 2021. ECF No. 11.
On July 16, 2021, Defendant filed a “Motion to Dismiss Pursuant to Fed. R. Civ[.] Pro. 12(b)(1) and Partial Motion to Dismiss Pursuant to Fed. R. Civ[.] Pro. 12(b)(6).” ECF No. 14. Plaintiff filed a Response in Opposition to Defendant's Motion on July 30, 2021, ECF No. 16, and Defendant filed a Reply on August 6, 2021, ECF No. 17. Defendant's Motion is now before the Court for disposition. For the reasons set forth below, the undersigned recommends that Defendant's Motion be granted, in part, and denied, in part.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. As Defendant's Motion is dispositive, this Report and Recommendation is entered for review by the District Judge.
BACKGROUND
Accepting the truth of the allegations in Plaintiff's Amended Complaint and viewing all inferences in the light most favorable to Plaintiff, see E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011), the facts are as follows. Plaintiff, who is bisexual, began working for Defendant on or about April 21, 2018, as a manager in training. ECF No. 11 at 2 ¶¶ 10-11. In or about October 2019, Plaintiff began seeing an African-American male, and Plaintiff's coworker Jayme “became extremely vocal and began making negative religious and homophobic comments.” Id. at 2 ¶ 11. Jayme made “negative comments about homosexuals” and “offensive remarks about Plaintiff being in an interracial relationship, ” such as “I can't believe you are bisexual” and “it is sinful to be in an interracial relationship.” Id. at 2 ¶¶ 12-13. Jayme also “made remarks that Plaintiff was sinful and would be going to hell.” Id. at 2 ¶ 12. Jayme made these types of comments to Plaintiff every time they worked together. Id.
According to Plaintiff, Jayme “holds extreme religious beliefs” and “continued to harass Plaintiff for her beliefs.” Id. at 2 ¶ 14. Jayme began to make comments to patrons and other workers about Plaintiff's interracial boyfriend and sexuality. Id. at 2 ¶ 15. Plaintiff was concerned about these incidents and found Jayme overbearing, so Plaintiff reported the incidents to her supervisor, Jen Bishop. Id. Bishop “failed to do anything about Plaintiff's complaints, ” and Jayme's behavior “got worse.” Id. Jayme “continued to constantly make racial and homophobic comments about Plaintiff, other gay employees, and African American customers.” Id.
After no action was taken on Plaintiff's first complaint, Plaintiff “again complained that the comments were being made in front of customers in addition to being made directly to Plaintiff.” Id. at 2 ¶ 16. Shortly thereafter, on or about January 17, 2020, Plaintiff was terminated for an alleged customer complaint. Id. at 2 ¶ 17. Plaintiff believes that the customer complaint was not the true reason for her termination, as “Plaintiff had provided the customer with what she wanted.” Id. at 2 ¶¶ 17-18. Plaintiff believes that she was terminated for reporting Jayme's wrongdoing. Id. at 2 ¶ 18. Jayme was not terminated. Id.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(1) represents a challenge to the Court's subject matter jurisdiction. Arbaugh v. Y & H Corp., 546 U.S. 500, 507 (2006). “When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff.” Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In deciding such a motion, “the district court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 333 (4th Cir. 2014) (internal quotation marks omitted). “The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id.
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Williams v. Preiss-Wal Pat III, LLC, 17 F.Supp.3d 528, 531 (D.S.C. 2014) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)); see Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of [affirmative] defenses.”). Pursuant to Rule 8 of the Federal Rules of Civil Procedure, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant will have “fair notice of what the claim is and the grounds upon which it rests, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). “[T]he facts alleged ‘must be enough to raise a right to relief above the speculative level' and must provide ‘enough facts to state a claim to relief that is plausible on its face.'” Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 555, 570). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
When considering a Rule 12(b)(6) motion, the court is required to accept the allegations in the pleading as true and draw all reasonable factual inferences in favor of the party opposing the motion. Kolon Indus., Inc., 637 F.3d at 440. Moreover, the court must evaluate “the complaint in its entirety, as well as documents attached or incorporated into the complaint.” Id. at 448. The court may consider a document not attached to the complaint, so long as the document “was integral to and explicitly relied on in the complaint, ” and there is no authenticity challenge. Id. (quoting Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)). “A complaint should not be dismissed as long as it provides sufficient detail about the claim to show that the plaintiff has a more-than-conceivable chance of success on the merits.” Goldfarb v. Mayor & City Council of Balt., 791 F.3d 500, 511 (4th Cir. 2015) (internal quotation marks and brackets omitted).
DISCUSSION
In its Motion to Dismiss the Amended Complaint, Defendant first asserts that the Court lacks subject matter jurisdiction over any discrimination claim alleging violations before December 2019. Defendant also seeks dismissal, pursuant to Rule 12(b)(6), of Plaintiff's First, Second, and Fourth Causes of Action, arguing that Plaintiff failed to state any plausible claim for discrimination or hostile work environment under Title VII. However, Defendant concedes that Plaintiff has stated a claim for retaliation under Title VII in her Third Cause of Action. See ECF No. 14 at 5-6 (“[T]he only cause of action in which Plaintiff can be plausibly entitled to any relief is her Title VII retaliation claim, which Defendant strongly denies.”).
In her Response, Plaintiff contends that she alleged sufficient facts to state race and religion disparate treatment claims and a hostile work environment claim under Title VII. ECF No. 16 at 4. She also maintains that the Court has subject matter jurisdiction over those claims. Id. at 3.
I. The Court Has Subject Matter Jurisdiction Over Plaintiff's Claims.
As a preliminary matter, Defendant asserts that this Court “lacks subject matter jurisdiction over any claim of discrimination that occurred prior to December of 2019.” ECF No. 14 at 3. According to Defendant, Plaintiff's Amended Complaint is impermissibly broader than her EEOC Charge because while the Charge asserts that the discrimination began on December 1, 2019, the Amended Complaint alleges that the discrimination began in October 2019. Id.; compare ECF No. 14-1 with ECF No. 11 at 2 ¶¶ 11, 13. While Defendant concedes that Plaintiff “is free to provide a fuller factual story in [her] complaint, ” it also contends that any discrimination alleged beyond the time frame set forth in the charging document is barred and must be dismissed. ECF No. 14 at 3. The undersigned is unpersuaded.
Although the administrative charge of discrimination “defines the scope of the plaintiff's right to institute a civil suit, ” the charge “does not strictly limit a Title VII suit which may follow.” Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002) (citing Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000); Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981)). Rather, “the scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination.” Id. Thus, “plaintiffs may bring Title VII claims for the first time before a district court, so long as they are like or reasonably related to charges in the original administrative complaint, and if they reasonably could have developed from the agency's investigation of the original complaint.” Stewart v. Iancu, 912 F.3d 693, 706 (4th Cir. 2019) (citing Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005); Hill v. W. Elec. Co., Inc., 672 F.2d 381, 390 n.6 (4th Cir. 1982)).
Typically, a claim will be barred if the plaintiff's administrative “charge alleges discrimination on one basis-such as race-and he introduces another basis in formal litigation- such as sex.” Chacko, 429 F.3d at 509; see also Bryant, 288 F.3d at 132-33 (finding that where the plaintiff's administrative charge alleged only discrimination on the basis of race but the plaintiff's complaint alleged discrimination on the basis of race and color and sex, in addition to retaliation, plaintiff failed to exhaust administrative remedies with respect to the claims of retaliation and color and sex discrimination). However, the Fourth Circuit has cautioned that “the exhaustion requirement should not become a tripwire for hapless plaintiffs, ” particularly given that Title VII “sets up a remedial scheme in which laypersons, rather than lawyers, are expected to initiate the process.” Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 594 (4th Cir. 2012) (citing Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)). Thus, “documents 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.” Id. (quoting Holowecki, 552 U.S. at 406). Accordingly, the Fourth Circuit has “found exhaustion where both the administrative complaint and formal litigation concerned discrimination in promotions but complaint included claims of retaliation by the same actor[] but involved different retaliatory conduct.” Id. (citing Smith, 202 F.3d at 248; Chisolm, 665 F.2d at 491).
In this case, no one disputes that Plaintiff timely filed an administrative charge with the EEOC on February 26, 2020, or that her charge would still have been timely had she listed October 2019 as the earliest date of discrimination. See 42 U.S.C. § 2000e-5(e)(1). Moreover, it is clear that her charge alleges what her suit now claims-that she was discriminated against and harassed by Jayme because of her religion, sex, and race. The two-month variation of the date in which Plaintiff estimates this conduct began does not mean that Plaintiff failed to exhaust her administrative remedies, as the October 2019 start date “reasonably could have developed from the agency's investigation of the original complaint.” Stewart, 912 F.3d at 706. “The touchstone for exhaustion is whether plaintiff's administrative and judicial claims are reasonably related, not precisely the same, and there are sufficient similarities between the two to find this requirement satisfied here.” Sydnor, 681 F.3d at 595. Accordingly, the undersigned recommends denying Defendant's motion to dismiss for lack of subject matter jurisdiction.
In her EEOC Charge, as in her Amended Complaint, Plaintiff asserts that her coworker Jayme began making religious, homophobic and offensive remarks about Plaintiff's interracial relationship, including that Plaintiff “was sinful and going to hell” and that “it is sinful to be in an interracial relationship.” ECF No. 14-1. Plaintiff reported these comments to her supervisor, Bishop, “who failed to do anything about [Plaintiff's] complaint.” Id. Thereafter, Jayme's behavior got worse, and Plaintiff was fired on January 17, 2020, for making her complaint. Id. Plaintiff claimed that she was discriminated against on the basis of her race, sex, and religion and in retaliation for her reports of wrongdoing. Id.
II. First and Second Causes of Action - Religious and Race Discrimination
Defendant moves to dismiss Plaintiff's First Cause of Action for “Religious Discrimination” and her Second Cause of Action for “Race Discrimination” under Title VII.
Defendant also argues that any claim alleged pursuant to the South Carolina Human Affairs Law (“SCHAL”) should be dismissed. In her Response, Plaintiff clarifies that she has not alleged any claims pursuant to the SCHAL and that she will remove all references to the SCHAL in any amended complaint. ECF No. 16 at 5 n.2.
First, Defendant contends that it is unclear from the Amended Complaint whether these are disparate treatment, hostile work environment, or retaliation claims, arguing that “Plaintiff has attempted to ‘shotgun' virtually all Title VII” claims into these two causes of action. ECF No. 14 at 4. The undersigned agrees that the First Cause of Action invokes claims for religious disparate treatment, hostile work environment, and retaliation, and that the Second Cause of Action invokes claims for disparate treatment and hostile work environment because of race. However, given that the Third and Fourth Causes of Action allege Title VII retaliation and hostile work environment, respectively, the undersigned construes the First and Second Causes of Action as religious and race disparate treatment claims only. See also ECF No. 16 at 4 (confirming that Plaintiff intended to allege Title VII race and religion disparate treatment claims). To the extent that allegations in the First and Second Cause of Action relate to a hostile work environment, the undersigned will consider them in the evaluation of the hostile work environment claim below.
The concept of race or religious discrimination includes maintaining a racially or religiously hostile work environment, that is, a “workplace . . . permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (internal quotation marks omitted)). Although a hostile work environment claim is a separate legal claim from a disparate treatment discrimination claim and should be asserted in separate causes of action, a plaintiff's failure to plead them separately does not warrant preclusion of either claim. See Oroujian v. Delfin Grp., USA LLC, 57 F.Supp.3d 544, 548 n.2 (D.S.C. 2014); see also Kolon Indus., Inc., 637 F.3d at 440 (when reviewing a Rule 12(b)(6) motion, the court must evaluate “the complaint in its entirety”).
To survive dismissal and proceed with these claims, Plaintiff's Amended Complaint must allege facts to satisfy the elements of a cause of action created by Title VII-i.e., in this case, that Defendant “discharge[d]” Plaintiff, or “otherwise discriminate[d] against [her] with respect to h[er] compensation, terms, conditions, or privileges of employment, because of [her] race . . . [or] religion.” 42 U.S.C. § 2000e-2(a)(1) (emphasis added); see McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015). “[W]hile a plaintiff is not required to plead facts that constitute a prima facie case6 in order to survive a motion to dismiss, factual allegations must be enough to raise a right to relief above the speculative level.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (internal quotation marks and citation omitted); see also Bing v. Brivo Sys., LLC, 959 F.3d 605, 616 (4th Cir. 2020), cert. denied, 141 S.Ct. 1376 (2021) (same).
Moreover, to prove a religious discrimination claim under the disparate treatment theory, Plaintiff “must demonstrate that [her] employer treated her differently than other employees because of her religious beliefs.” Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996) (emphasis in original); see Brennan v. Deluxe Corp., 361 F.Supp.3d 494, 507 (D. Md. 2019) (“In support, [Plaintiff] might allege ‘that the employer treated [her] more harshly than other employees of a different religion, or no religion, who had engaged in similar conduct.'”) (quoting Chalmers, 101 F.3d at 1017).
The undersigned agrees with Defendant that Plaintiff failed to state a claim under Title VII for religious or race disparate treatment. First, the facts Plaintiff pled about her termination cannot be construed to plausibly state a claim that she was terminated because of either her religion or her race. Although Plaintiff alleges that Defendant “fail[ed] to continue to employ Plaintiff because she didn't hold the religious beliefs of other employees” and “based on her interracial relationship, ” Plaintiff has not alleged any facts to support this contention. To the contrary, Plaintiff specifically alleged a non-religious, non-racial reason for her termination: “it was clear she was terminated for reporting the wrongdoings of her coworker, Jayme.” ECF No. 11 at 2 ¶ 18. As stated above, Defendant does not challenge the sufficiency of Plaintiff's retaliation claim.
Second, Plaintiff has not alleged any facts plausibly stating a claim that she was treated differently than other employees by Defendant because of her race or religion. Indeed, Plaintiff does not even allege what her own race or religion is, although it can be reasonably inferred that she is not African American, given that she alleges that she was in an “interracial relationship” with an African-American male. Moreover, although Plaintiff alleges facts from which it can be inferred that Jayme's repeated and offensive comments were motivated by impermissible bias, there are no factual allegations from which to infer that Jayme-whom Plaintiff alleges was merely her coworker-made the decision to terminate Plaintiff or otherwise exercised control over Plaintiff's compensation, terms, conditions, or privileges of employment. Nor are there any factual allegations demonstrating that supervisor Bishop or any other management employee took any adverse action against Plaintiff because of Plaintiff's race or religion or treated other employees more favorably than Plaintiff because of race or religion. Plaintiff's factual allegations simply are insufficient to plausibly claim that her employer discharged her or otherwise treated her differently than other employees because of Plaintiff's religion or race.
The remaining allegations are no more than conclusions and speculation. Plaintiff alleges that Defendant discriminated against her “for being in a protected group on the basis of her religious beliefs” by “failing to continue to employ Plaintiff because she didn't hold the religious beliefs of other employees of Defendant” and in “showing preferential treatment to discriminatory employees and detrimental treatment to Plaintiff.” ECF No. 11 at 3 ¶¶ 21-22. Similarly, she alleges Defendant “demonstrate[ed] a pattern of discriminatory treatment towards Plaintiff, African American employees, and customers by making disparaging remarks about those who were in a protected class.” ECF No. 11 at 4 ¶ 34. However, these are naked and conclusory allegations without any factual support, and they are insufficient to state a plausible claim that her employer treated her differently because of her race or religious beliefs. See McCleary-Evans, 780 F.3d at 585 (finding that plaintiff's repeated allegations that the defendant did not hire her “because of the relevant decisionmakers' bias against African American women” were insufficient “naked allegations . . . [and] no more than conclusions”) (internal quotation marks and citations omitted); see also Bing, 959 F.3d at 618 (finding plaintiff's factual allegations insufficient to state a claim where the court “would have to speculate to fill in the gaps” as to the defendant's motivation).
Because Plaintiff has failed to allege sufficient factual matter, accepted as true, to state a plausible claim for disparate treatment based on her religion or race, the undersigned recommends that Plaintiff's First and Second Causes of Action be dismissed. See Iqbal, 556 U.S. at 678; Bing, 959 F.3d at 618; McCleary-Evans, 780 F.3d at 585.
III. Plaintiff Has Stated a Claim for Hostile Work Environment.
To state a claim for a hostile work environment under Title VII, Plaintiff must plead facts showing that she was subjected to (1) unwelcome conduct (2) based on her protected characteristic, such as race, religion or sex, that was (3) sufficiently severe or pervasive to alter Plaintiff's conditions of employment and to create an abusive work environment, and (4) imputable to Plaintiff's employer. See Bazemore v. Best Buy, 957 F.3d 195, 200 (4th Cir. 2020); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (en banc). Defendant argues that Plaintiff has failed to plead facts showing the second, third, and fourth elements. ECF No. 14 at 7.
The undersigned disagrees.
With regard to the first two elements, Jayme's repeated offensive comments and remarks to Plaintiff and to customers about Plaintiff's sexuality and her “sinful” interracial relationship are sufficient, at this stage of the litigation, to allege unwelcome conduct based on Plaintiff's protected class. See Holcomb v. Iona Coll., 521 F.3d 130, 139 (2d Cir. 2008) (“[W]here an employee is subjected to adverse action because an employer disapproves of [the employee's] interracial association, the employee suffers discrimination because of the employee's own race.”) (emphasis in original); Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 258 (4th Cir. 2001) (“It is well-settled that a claim of discrimination based on an interracial relationship or association is cognizable under Section 1981.”) (quoting Rosenblatt v. Bivona & Cohen, P.C., 946 F.Supp. 298, 300 (S.D.N.Y. 1996)); see also Bostock v. Clayton County, __ U.S. __, 140 S.Ct. 1731 (2020) (holding that discrimination based on sexual orientation violates Title VII); Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 121 (4th Cir. 2021) (explaining that “a plaintiff may prove that same-sex harassment is based on sex where the plaintiff was perceived as not conforming to traditional [fe]male stereotypes”).
As Defendant notes in its Motion, “it is unclear from Plaintiff's Amended Complaint whether the Plaintiff bases her claim on religious discrimination, racial discrimination, sexual orientation discrimination, or some combination thereof.” ECF No. 14 at 7 (further arguing that “[r]egardless of the motivating factor forming the basis of Plaintiff's hostile work environment claim, Plaintiff has failed to allege sufficient facts to plausibly support it”). In her EEOC Charge, Plaintiff alleged discrimination based on her race, religion, and sex. ECF No. 14-1. Although Plaintiff alleges in her Amended Complaint that she is bisexual and that Jayme made offensive and “homophobic” comments regarding Plaintiff's sexuality, Plaintiff's enumerated causes of action focus on religion and race and do not mention sex. Similarly, at the beginning of her Amended Complaint, Plaintiff omits sex from her list of the protected classes that she raised before the EEOC. ECF No. 11 at 1 ¶ 2a (“A charge of employment discrimination on [the] basis of race, color, religious discrimination, and retaliation was filed by the Plaintiff with the [EEOC].”). However, for purposes of the Motion to Dismiss, viewing the Amended Complaint in its entirety, the undersigned finds that Plaintiff has alleged sufficient facts to allege unwanted conduct based on both race and sex. As stated in the discussion of the claim for religious disparate treatment, however, Plaintiff does not make any factual allegations related to her own beliefs, such that the undersigned finds that she has not alleged a hostile work environment claim based on religion.
Regarding the third element, a hostile work environment exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citation and quotation marks omitted). “The severe or pervasive element has both a subjective and objective component.” Perkins v. Int'l Paper Co., 936 F.3d 196, 203 (4th Cir. 2019) (citing E.E.O.C. v. Cent. Wholesalers, Inc., 573 F.3d 167, 175 (4th Cir. 2009)). As a result, Plaintiff must allege sufficient facts to show that she “did perceive, and a reasonable person would perceive, the environment to be abusive or hostile.” Id. (internal citations omitted). In making this determination, the Court is to consider “the totality of the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work.” Okoli v. City of Balt., 648 F.3d 216, 222 (4th Cir. 2011); see Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“[S]imple teasing, offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.”) (internal citations and quotation marks omitted).
Plaintiff alleges that she found Jayme's repeated comments about her sexuality and interracial relationship “overbearing” and she complained to her supervisor about them, thus demonstrating that she perceived the environment to be abusive or hostile. She further alleges that Jayme made these types of comments “constantly” and “every time they worked together” between October 2019 and January 2020; that Jayme began to make comments to customers and other workers about Plaintiff's sexuality and interracial relationship; and that Jayme's conduct worsened after Plaintiff complained to Bishop. Drawing all reasonable inferences in Plaintiff's favor, the totality of the alleged facts is sufficient, for purposes of a motion to dismiss, to allege that the discriminatory conduct was frequent, increased in severity, and interfered with Plaintiff's work, such that a reasonable person would perceive the environment to be abusive or hostile. Cf. Autrey v. Maryland, No. CV GLR-14-3064, 2016 WL 362502, at *4 (D. Md. Jan. 29, 2016) (denying motion to dismiss hostile work environment claim where complaint alleged that plaintiffs were harassed based on their interracial relationship and their supervisors commented that “their relationship was disgusting and sickening”).
Regarding the fourth element, employers cannot be held liable for every action their employees take. See Vance v. Ball State Univ., 570 U.S. 421, 428 (2013). If the harassing employee is not the victim's supervisor, the employer is liable only if it was negligent in controlling working conditions. Id. at 424. To avoid liability, an employer is only required to take steps reasonably likely to stop the harassment. E.E.O.C. v. Xerxes Corp., 639 F.3d 658, 674 (4th Cir. 2011). The Amended Complaint does not allege that Jayme had any supervisory power over Plaintiff, instead referring to her as a coworker. ECF No. 11 at 2 ¶ 11. Therefore, Defendant is responsible for Jayme's actions only if it knew or should have known about the harassment and failed to stop or prevent it. See Boyer-Liberto, 786 F.3d at 278. According to the Amended Complaint, Plaintiff reported Jayme's conduct to her supervisor, Bishop, who failed to take any action to address Plaintiff's complaints. Thereafter, Jayme's conduct worsened. These facts are sufficient to state the fourth element-that is, that Defendant knew or should have known about the alleged harassment and failed to stop or prevent it.
In sum, after considering the arguments of counsel, reviewing the entirety of the Amended Complaint, accepting the allegations in the pleading as true, and drawing all reasonable factual inferences from those allegations in favor of Plaintiff, the undersigned concludes that, at least at this point in the proceedings, Plaintiff's claim for hostile work environment based upon her race and sex should be allowed to proceed. See Twombly, 550 U.S. at 556 (explaining that the plausibility standard “does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of illegal [conduct]”). Therefore, the undersigned recommends that Defendant's Motion to Dismiss Plaintiff's hostile work environment claim be denied.
CONCLUSION
Based on the foregoing, it is RECOMMENDED that Defendant's Motion to Dismiss (ECF No. 14) be GRANTED, in part, and DENIED, in part.
Specifically, the undersigned recommends that the Motion be GRANTED as to Plaintiffs First and Second Causes of Action for religious and race disparate treatment, as well as any hostile work environment claim based upon religion, and that those claims be dismissed without prejudice. However, Defendant's Motion to Dismiss Plaintiffs Title VII hostile work environment claim (Fourth Cause of Action) based upon race and sex and for failure to exhaust her administrative remedies should be DENIED.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”' Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).