United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM OPINION AND ORDER
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE
Carla Underwood asserts claims of sexual harassment,
retaliation, and false imprisonment arising from her
employment with defendant Dynamic Security, Inc.
(“Dynamic Security”). Dynamic Security has filed
a motion to dismiss [Doc. 31] part of plaintiff's
retaliation claim to the extent it stems from a complaint of
sexual harassment based on sexual orientation. Dynamic
Security has filed briefs in support of this motion [Docs.
32, 41] and plaintiff has responded [Doc. 39].
reasons set forth herein, defendant's motion to dismiss
[Doc. 31] is GRANTED.
began working for Dynamic Security on January 6, 2016, as a
security officer assigned to the Hardin Valley campus of
Pellissippi State Community College [Doc. 27 at ¶¶
12, 14]. Plaintiff is lesbian [Id. at ¶ 1].
Plaintiff's direct supervisor was Angela Garrett, whom
plaintiff believes to be lesbian or bisexual [Id. at
claims Ms. Garrett “flirted” with her and
harassed her “on account of [her] sex and/or sexual
orientation” [Id. at ¶ 17]. In support of
this assertion, plaintiff claims Ms. Garrett punched her in
the arm, kicked her in the back of the legs, and groped her
breast [Id. at ¶ 18]. Plaintiff protested this
behavior, but Ms. Garrett “continued her conduct,
unabated” [Id. at ¶ 18]. Comparing Ms.
Garrett's conduct toward a male employee, plaintiff
believes the difference “was due to Garrett's
sexual orientation (lesbian or bisexual) and her resulting
desire to actively ‘flirt' with and/or sexually
pursue [plaintiff] on account of [plaintiff's] sex and/or
sexual orientation” [Id. at ¶ 19].
Plaintiff complained to Dynamic Security about Ms.
Garrett's unwanted attention and Dynamic Security
reassigned plaintiff to the Blount County campus of
Pellissippi State Community College in August 2016
[Id. at ¶¶ 20, 23].
Blount County campus, plaintiff was supervised by J.T.
Gibson, who also sexually harassed plaintiff [Id. at
¶¶ 24-25]. For example, Mr. Gibson repeatedly
invited plaintiff to come to his house and “perform
sexual acts with/on him, ” made “thinly-veiled
sexual overtures, ” and inappropriately touched her
[Id. at ¶¶ 26-28]. Plaintiff complained
about Mr. Gibson's conduct to Dynamic Security several
times [Id. at ¶¶ 29-30]. At a June 2, 2017
meeting, a Dynamic Security office manager
“lambasted” plaintiff for contacting Human
Resources seven times to report sexual harassment and the
company's “mishandling” of her prior
complaints of sexual harassment [Id. at ¶¶
33-34, 36]. Dynamic Security then terminated plaintiff's
employment [Id. at ¶ 39].
claim of hostile work environment harassment relates solely
to the conduct by Mr. Gibson and she describes the harassment
as “on account of her sex” [see Id.
¶¶ 60-68]. Plaintiff's retaliation claim
asserts that she repeatedly reported Mr. Gibson's conduct
to Dynamic Security [Id. at ¶ 71] and that she
“repeatedly protested and/or attempted to protest
Dynamic Security's mishandling of [her] sexual harassment
claim(s) against Garrett” [Id. at ¶ 73].
Thus, she alleges that she was terminated in retaliation for
this protected conduct - “reporting Gibson's sexual
harassment and protesting Dynamic Security's mishandling
of Garrett's harassment” [Id. at ¶
76]. Both plaintiff's sexual harassment and retaliation
claims are asserted as violations of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. sec.
2000e, et seq., and the Tennessee Human Rights Act
(“THRA”), Tenn. Code Ann. Sec. 4-21-401, et
Standard of Review
Rule of Civil Procedure 8(a)(2) sets out a liberal pleading
standard, Smith v. City of Salem, 378 F.3d 566, 576
n.1 (6th Cir. 2004), requiring only “‘a short and
plain statement of the claim showing that the pleader is
entitled to relief, ' in order to ‘give the
[opposing party] 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) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed
factual allegations are not required, but a party's
“obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions.” Twombly, 550 U.S. at 555.
“[A] formulaic recitation of the elements of a cause of
action will not do, ” nor will “an unadorned,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
deciding a Rule 12(b)(6) motion to dismiss, a court must
construe the complaint in the light most favorable to the
plaintiff, accept all factual allegations as true, draw all
reasonable inferences in favor of the plaintiff, and
determine whether the complaint contains “enough facts
to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570; Directv,
Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)
(citation omitted). “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, 556
U.S. at 678. “Determining whether a complaint states a
plausible claim for relief will [ultimately] . . . be a
context-specific task that requires th[is Court] to draw on
its judicial experience and common sense.” Id.
VII prohibits discrimination in employment “because of
such individual's … sex.” 42 U.S.C. §
2000e-2(a). The scope of by that prohibition -
“because of … sex” - has been, and
continues to be, the subject of many conflicting court
opinions and forms the nexus of dispute for the pending
well settled that sexual harassment that creates a hostile
and abusive working environment violates Title VII.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993). It is also settled that same-sex harassment violates
Title VII as long as the harassment constitutes
“discrimination … because of …
sex.” Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 80-81 (1998). Whether a claim of
harassment based on sexual orientation falls within Title
VII's prohibition against discrimination “because
of … sex” has produced conflicting and evolving
decisions among the circuits. See, e.g., Gilbert v.
Country Music Ass'n, Inc., 432 Fed.Appx. 516, 519
(6th Cir. 2011) (“Under Title VII, ‘sexual
orientation is not a prohibited basis for discriminatory
acts'”) (quoting Vickers v. Fairfield Med.
Ctr., 453 F.3d 757, 762 (6th Cir. 2006); Evans v.
Georgia Reg'l Hosp., 850 F.3d 1248, 1255 (11th
Cir.), cert. denied, 138 S.Ct. 557 (2017)
(“Our binding precedent forecloses such an
action” for discrimination because of sexual
orientation); Higgins v. New Balance Athletic Shoe,
Inc., 194 F.3d 252, 259 (1st Cir. 1999) (“we
regard it as settled law that … Title VII does not
proscribe harassment simply because of sexual
orientation”); Prowel v. Wise Business Forms,
Inc., 579 F.3d 285, 290 (3rd Cir. 2009) (“Congress
chose not to include sexual orientation harassment in Title
VII”); Wrightson v. Pizza Hut of Am., Inc., 99
F.3d 138, 143 (4th Cir. 1996) (“Title VII does not
afford a cause of action for discrimination based upon sexual
orientation”); Medina v. Income Support Div.,
413 F.3d 1131, 1135 (10th Cir. 2005) (“Title VII's
protections … do not extend to harassment due to a