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Underwood v. Dynamic Security, Inc.

United States District Court, E.D. Tennessee, Knoxville

June 18, 2018

CARLA UNDERWOOD, Plaintiff,
v.
DYNAMIC SECURITY, INC. and IAN CONROY, Defendants.

          MEMORANDUM OPINION AND ORDER

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff 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].

         For the reasons set forth herein, defendant's motion to dismiss [Doc. 31] is GRANTED.

         I. Relevant Facts[1]

         Plaintiff 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 ¶¶ 15-16].

         Plaintiff 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].

         At the 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].

         Plaintiff's 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 seq.[2]

         II. Standard of Review

         Federal 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, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In 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. at 679.

         III. Analysis

         Title VII prohibits discrimination in employment “because of such individual's … sex.” 42 U.S.C. § 2000e-2(a).[3] 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 motion.

         It is 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 ...


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