The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
This matter is before the Court on the motion of Appalachian Christian Village Foundation, Inc., (hereinafter referred to as "ACV"), to dismiss plaintiff's amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons which follow, the motion will be GRANTED in part and DENIED in part.
As it must when considering a Rule 12(b)(6) motion, the Court will accept as true all factual allegations in the complaint and construe the complaint in the light most favorable to the plaintiff. Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983). Indeed, the facts as alleged by the plaintiff cannot be disbelieved by the Court. See, e.g., Neitzke v. Williams, 490 U.S. 319 (1989); Murphy v. Sofamor Danek Group, Inc., 123 F.3d 394, 400 (6th Cir. 1997). Where there are conflicting interpretations of the facts, they must be construed in the plaintiff's favor. Sinay v. Lamson & Sessions Co., 948 F.2d 1037, 1039-40 (6th Cir. 1991). A Rule 12(b)(6) motion tests only whether the plaintiff has pleaded a cognizable claim. Scheid v. Fanny Farmer Candy Shops, Inc., 859 2d 434, 436 (6th Cir. 1998). The complaint, however, must do more than make bare assertion of legal conclusions. Columbia Natural Resources, Inc. v. Tadem, 58 F.3d 1101, 1109 (6th Cir. 1995). Legal conclusions or unwarranted factual inferences need not be accepted as true. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). The complaint "must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." LRL Propertoes v. Portage Metro Housing Authority, 55 F.3d 1097, 1103 (6th Cir. 1995).
The plaintiff asserts claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 2000e-3, 2000e-5, and 42 U.S.C. § 1981a for "sexual harassment, sex discrimination, hostile work environment with resulting adverse employment actions, and constructive discharge. . ." Amend. Comp., ¶ 1. The plaintiff is a 34 year old white female resident of Washington County, Tennessee who, at all times relevant to her claims, was jointly employed by ACV and Sodexho. ACV operates a nursing home and an independent assisted living facility in Johnson City, Tennessee and plaintiff worked in the catering and food service operation at its Pine Oaks Johnson City, Tennessee assisted living facility. Id. ¶¶ 2, 3. Sodexho (used herein to refer jointly to the Sodexho defendants, Sodexho, Inc. and Sodexho Management, Inc.) is a food and facilities management company which operated the kitchen and catering service for ACV under a contractual arrangement with ACV. Id. ¶ 4. Plaintiff was supervised by Sodexho employee David Scott Meese and it is alleged by plaintiff that both Sodexho and Meese were agents of ACV for Title VII purposes. Id. ¶¶ 2, 4.
While plaintiff was employed at the Pine Oaks facility, Meese announced to the plaintiff and other kitchen employees that he "was God" and dealt with employees in a loud and overbearing manner. One female kitchen employee who complained to AVC about Meese's behavior was discharged during the summer of 2005. Id. ¶ 5. Beginning in June, 2005, Meese began to sexually harass the plaintiff by making level and unwelcome sexually oriented comments. The plaintiff was offended and distressed by Meese's unwelcome behavior and rebuffed his repeated propositions. Meese often made offensive and embarrassing comments about plaintiff's physical characteristics. Id. ¶ 6. On or about July 1, 2005, Meese physically assaulted the plaintiff by grabbing her and touching her in a sexually suggestive and offensive manner. Id. ¶ 7.
After plaintiff had rejected Meese's advances, Meese began a pattern of discriminating and retaliatory conduct against the plaintiff, repeatedly directing loud, obscene and offensive comments toward her. Meese also physically assaulted the plaintiff and threatened to fire her. In an effort to punish plaintiff for rejecting his unwelcome sexual advances, Meese scheduled plaintiff to work consecutive shifts without the customary days off. Id. ¶ 8.
As a result of Meese's behavior, plaintiff suffered from anxiety and panic attacks, for which she was treated by a physician. In September, 2005, Meese reduced plaintiff's working hours from a regular 40 hour week to approximately one-half that number of hours, reducing her income and making her ineligible for employer health care insurance benefits. Id. ¶ 9. Because of the emotional distress associated with Meese's behavior, plaintiff suffered a nervous breakdown, could not drive herself to work and voluntarily left her employment, apparently on September 3, 2005. Id. ¶ 10. During an exit interview which was required by ACV before plaintiff could receive her final pay check, plaintiff told ACV's human resources manager about Meese's sexual harassment, his sexual assault upon her and of her repeated objections to, and rejections of, Meese's sexual demands. She also complained about the reduced work schedule and explained to the human resources manager that she could not continue to work after Meese had reduced her hours and made her ineligible for participation in the company's health insurance plan. Id. ¶ 11. While the HR manager expressed that the company would not tolerate sexual harassment, neither the HR manager nor any other managing agent of ACV took any action to restore plaintiff's position or to stop Meese's sexual harassment and retaliation. Id. ¶ 12. Plaintiff alleges that her resignation was in reality a constructive discharge and constitutes an adverse employment action for purposes of Title VII liability. Id. ¶ 13.
III. Analysis and Discussion
ACV moves the Court to dismiss plaintiff's amended complaint in its entirety for failure to state a claim upon which relief can be granted. ACV raises a host of arguments in support of its position in its memorandum and the Court will deal with each of these in turn.
A. Is ACV A Proper Party?
ACV claims that plaintiff was an employee of Christian Home For The Aged, Inc. d/b/a Appalachian Christian Village and asserts that "ACV has put plaintiff on notice of this fact in at least five different pleadings before this Court." ACV also refers to its certificate of corporate interest which states that Christian Home For The Aged, Inc. d/b/a Appalachian Christian Village is a non-profit corporation and is the sole member of Appalachian Christian Village Foundation, Inc., also a non-profit corporation. As noted above, plaintiff's amended complaint alleges that she was "employed jointly" by ACV and the co-defendant, Sodexho.
Simply put, this is not a question appropriate for resolution on a Rule 12(b)(6) motion to dismiss. Whether plaintiff was, in fact, an employee of ACV is a question of fact, more appropriately resolved on a motion for summary judgment. ACV's argument that it is entitled to judgment as a matter of law based on its allegations that it is not the proper party is a distortion of the purpose of Rule 12(b)(6) and misstates the standard to be applied in deciding the motion. The question of whether or not plaintiff was employed by ACV, as well as the questions of whether Meese and/or Sodexho are the agents of ACV for Title VII purposes, all appear to be fact intensive ...