United States District Court, M.D. Tennessee, Nashville Division
NITZA SCARBRO, Ms. Scarbro,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
JEFFEKY S. FKEJNSEEY United States Magistrate Judge
matter is before the Court upon a “Motion to Dismiss
Counts I and IV” filed by the Social Security
Administration (“SSA”), which is the plaintiff,
Ms. Scarbro's, employer. Docket No. 63. In its Motion,
SSA argues that Ms. Scarbro fails to state a claim for gender
discrimination upon which relief can be granted, and failed
to exhaust her administrative remedies before asserting
sexual harassment claims. Id. SSA has also filed a
Supporting Memorandum of Law. Docket No. 64. Ms. Scarbro has
filed a Response and Memorandum of Law in Opposition. Docket
Motions to Dismiss Under Fed. R. Civ. P.
United States Court of Appeals for the Sixth Circuit has
described the standard of review on a motion to dismiss as
Under Rule 8(a)(2) of the Federal Rules of Civil
Procedure, a complaint must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Although this standard does not
require “detailed factual allegations, ” it does
require more than “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed. 2D 929 (2007).
Rather, to survive a motion to dismiss, the plaintiff must
allege facts that, if accepted as true, are sufficient
“to raise a right to relief above the speculative
level, ” id., and to “state a claim to
relief that is plausible on its face, ” id. at
570, see also Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 129 F. Ct. at 1949. And
although we must accept all well-pleaded factual allegations
in the complaint as true, we need not “accept as true a
legal conclusion couched as a factual allegation.”
Twombly, 550 U.S. at 555 (quoting Papasan v.
Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
209 (1986)); see also Iqbal, 556 U.S. at 678.
Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609
(6th Cir. 2009); accord Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
following factual allegations are taken from the Amended
Complaint, and are accepted as true for the purposes of the
Motion to Dismiss. Ms. Scarbro is a female employee of SSA,
where she has been employed since approximately 2001. She
alleges that around 2009, she began working with a male Staff
Assistant, Dan Phillips, who subsequently began to treat her
in ways that made her uncomfortable. Id. at 3-8.
Although she reported Mr. Phillips' conduct to her
supervisors, they did not take appropriate steps to address
the situation. Examples of Mr. Phillips' behavior
On or around September 30, 2012, Phillips approached [Ms.
Scarbro] and informed her that he was having marital issues
and that his wife had broached the topic of an “open
marriage.” Phillips insinuated that he wanted her to
participate in his open marriage.
. . .
In September of 2012, Phillips made a statement to Ms.
Scarbro that she was the “only woman he wanted to have
his money.” At this time, Ms. Scarbro was collecting
money from management for an office activity. Each employee
was to give Ms. Scarbro seven dollars. Phillips gave Ms.
Scarbro 10 dollars instead. He said he did not want his wife
to have his money. At that time he stared at Ms. Scarbro, and
stated “you are the only WOMAN I want to have my
money.” Phillips frequently stared at Ms. Scarbro,
making her feel uncomfortable. Because of such, she was
unable to concentrate on her work.
Phillips also asked inappropriate personal questions about
[Ms. Scarbro's] husband, who was in Afghanistan ...