concluding that the plaintiff’s allegation of sexual assault by a coworker “was sufficiently severe or pervasive to survive review at the pleading stage”
How later courts described this case
- concluding that the plaintiff’s allegation of sexual assault by a coworker “was sufficiently severe or pervasive to survive review at the pleading stage”
- finding complaint adequately made out negligence when plaintiff “alleged that she immediately reported her first incident of harassment to a supervisor and that the harassment occurred again after she brought it to the attention of her employer”
- finding complaint adequately stated a claim for negligence when plaintiff “alleged that she immediately reported her first incident of harassment to a supervisor and that the harassment occurred again after she brought it to the attention of her employer”
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1646
SHEILA DAVIS,
Plaintiff - Appellant,
v.
CITY OF CHARLOTTESVILLE SCHOOL BOARD; WARREN MAWYER,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:11-cv-00026-NKM-BWC)
Submitted: October 10, 2012 Decided: November 29, 2012
Before KING, KEENAN, and DIAZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
John E. Davidson, DAVIDSON & KITZMAN, PLC, Charlottesville,
Virginia, for Appellant. Richard H. Milnor, ZUNKA, MILNOR &
CARTER, LTD., Charlottesville, Virginia; David W. Thomas,
MICHIEHAMLETT, PLLC, Charlottesville, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sheila Davis appeals the district court’s orders
dismissing her complaint and denying her motions to amend her
complaint and amend the judgment. Davis alleged a sexual
harassment claim under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003 &
Supp. 2012), which the district court dismissed pursuant to Fed.
R. Civ. P. 12(b)(6), finding that Davis had not alleged any
facts that would entitle her to relief. We disagree. We
conclude that Davis’s complaint stated a plausible claim for
relief under Title VII sufficient to survive a Rule 12(b)(6)
dismissal. We vacate the district court’s judgment and remand
for further proceedings.
We review de novo a district court’s grant of a motion
to dismiss for failure to state a claim under Rule 12(b)(6).
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 179-80 (4th
Cir. 2009). To survive such a motion, a complaint’s “[f]actual
allegations must be enough to raise a right to relief above the
speculative level,” with “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). “[W]e accept as true
all well-pleaded allegations and view the complaint in the light
most favorable to the plaintiff.” Philips, 572 F.3d at 180. To
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establish a claim for sexual harassment under Title VII based on
the harassment of a coworker, a plaintiff must demonstrate that
the conduct was unwelcome, that it was based on gender, that it
“was sufficiently severe or pervasive to alter the conditions of
her employment and create an abusive work environment,” and that
it is “imputable to her employer.” Ocheltree v. Scollon Prods.,
Inc., 335 F.3d 325, 331 (4th Cir. 2003) (en banc) (citations
omitted).
In her initial complaint, Davis alleged that she was
the subject of an attempted assault of a sexual nature by a
coworker, that she reported the incident to a supervisor, and
that she then suffered an unwanted intimate touching by the same
coworker the following work day. The facts alleged by Davis,
including the physical nature of the harassment, state a
plausible claim that the assault was “sufficiently severe or
pervasive” to survive review at the pleading stage. See, e.g.,
Okoli v. City of Balt., 648 F.3d 216, 221 (4th Cir. 2011)
(concluding that plaintiff created question of fact as to
severity of harassment); Mosby-Grant v. City of Hagerstown, 630
F.3d 326, 335 (4th Cir. 2010) (“In the Fourth Circuit, the
question of whether harassment was sufficiently severe or
pervasive is quintessentially a question of fact.”) (internal
quotation marks and brackets omitted).
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Additionally, Davis’s complaint plausibly alleged that
the conduct was imputable to her employer. “In a case where an
employee is sexually harassed by a coworker, the employer may be
liable in negligence if it knew or should have known about the
harassment and failed to take effective action to stop it.”
Ocheltree, 335 F.3d at 333-34. Davis alleged that she
immediately reported the first incident of harassment to a
supervisor and that the harassment occurred again after she
brought it to the attention of her employer. Davis thus
sufficiently alleged facts that could demonstrate liability on
behalf of her employer. See, e.g., E.E.O.C. v. Xerxes Corp.,
639 F.3d 658, 671 (4th Cir. 2011) (in racial harassment case,
holding that a reasonable juror might conclude that complaints
were sufficient to put employer on notice and that employer’s
response was unreasonable); Spicer v. Commonwealth of Va., 66
F.3d 705, 711 (4th Cir. 1995) (“When presented with the
existence of illegal conduct, employers can be required to
respond promptly and effectively . . . .”).
Accordingly, we conclude that Davis’s original
complaint was sufficient to state a plausible claim for relief.
We therefore vacate the district court’s judgment and post-
judgment orders and remand for further proceedings not
inconsistent with this opinion. We dispense with oral argument
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because the facts and legal contentions are adequately presented
in the materials before the Court and argument would not aid the
decisional process.
VACATED AND REMANDED
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