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Scarbro v. Berryhill

United States District Court, M.D. Tennessee, Nashville Division

January 15, 2018

NITZA SCARBRO, Ms. Scarbro,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          Judge Trauger

          REPORT AND RECOMMENDATION

          JEFFEKY S. FKEJNSEEY United States Magistrate Judge

         This 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 No. 65.

         1. Motions to Dismiss Under Fed. R. Civ. P.

         The United States Court of Appeals for the Sixth Circuit has described the standard of review on a motion to dismiss as follows:

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).

         2. Factual Allegations

         The 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 include:

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 ...

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