United States District Court, D. Maryland
J. MESSITTE UNITED STATES DISTRICT JUDGE.
Se Plaintiff Lakila Austin has sued Safeway and an
unnamed Safeway Labor Relations Manager, alleging sexual
harassment in violation of Title VII of the Civil Rights Act
of 1964, as amended, and unspecified claims under the
Americans with Disabilities Act (ADA) and the Genetic
Information Nondiscrimination Act (GINA). She also suggests
in her pleadings, but not in her Complaint as it stands, that
she has a Negligent Hiring/Retention claim against Safeway
and possibly an assault and battery claim against another
Safeway employee, Henry Carter, not presently a party to the
has filed a Motion to Dismiss the Complaint (ECF No. 10). The
matter has been fully briefed, and no hearing is necessary.
See D. Md. Loc. R. 105(6). For the reasons that
follow, Safeway's Motion to Dismiss (ECF No. 10) is
FACTUAL AND PROCEDURAL BACKGROUND
2014, Austin began working in the cut fruit department of a
Safeway store located at 1701 Corcoran Street N.W. in
Washington, D.C. ECF No. 4 at 1, ECF No. 12 at 2. Allegedly,
on her very first day of work, Henry Carter, the Seafood
Manager at the store, said he hoped Austin was being hired
for his department because he needed help and would love to
watch her work all day. ECF No. 12 at 2. Thereafter, Carter
“would always come over” to Austin's
department and watch her work and, while she was working
alone, would “[stick] his tongue out, and [lick] his
lips and [grab] himself in an inappropriate way.”
Id. That first summer, Austin “would verbally
inform [her] Manager, Union Rep, [and] Store Manager about
[her] concerns and issues” with Carter, but
“nothing was ever done to address” them.
“the sexual advancement got so bad that [Austin's]
manager had to force Mr. Carter from coming into the produce
department by being rude” to him. ECF No. 12 at 3.
Rudeness notwithstanding, Carter allegedly would still wait
until Austin was alone, then return to her department to
harass her. Id. In the fall or winter of 2014,
Austin also became aware of Carter harassing another female
co-worker, and that the Store Manager was aware of the
December 16, 2016, Carter approached Austin and initiated
what began as a normal conversation. ECF No. 1 at 7. Carter
was drinking from a bottle that, Austin alleges, he said
contained alcohol. ECF No. 4 at 3. Carter allegedly began
telling Austin that he would have his way with her and
another female coworker if they let him. Id. Austin
told Carter she was not interested in that and that he should
return to work. Austin claims Carter then started talking
about kissing her, and she said she was not interested in
him, “period, ” and turned back to her work.
Id. Carter then supposedly leaned in to kiss Austin,
who held him at arm's length. Id. She again told
him to return to his department, but he refused. Id.
Austin says Carter then hugged her from behind in a
“bear hold/ hug.” ECF No. 4 at 3. Austin waved
her hand at the shop's security camera to summon help,
but the camera was apparently non-functional that weekend.
ECF No. 4 at 1. After Carter let her go, Austin cleaned her
station and clocked out early because she was so distressed.
ECF No. 4 at 3. That same day, Carter allegedly tried to kiss
another female employee while on the job. Id.
December 17, 2016, the day after the hugging incident, Austin
returned to work and informed management and her union
representative what had happened. ECF No. 4 at 3. Management
told Carter to apologize and he did so. Id. Carter
was suspended after the incident; Austin's Complaint
indicates that Carter is no longer employed by Safeway. ECF
No. 1 at 7.
with the incident, Austin wrote an e-mail to an unnamed third
party describing the incident in detail. See ECF No.
4 at p. 3. Austin thereafter filed a charge of sexual
harassment with the EEOC on December 20, 2016, indicating
December 16, 2016, the day Carter physically assaulted her,
as the date of discrimination. ECF No. 4 at 1. An EEOC
investigation followed, with no apparent determination being
made, and on January 3, 2018, the EEOC closed its
investigation and issued Austin a Right to Sue letter.
Id. at 2.
filed the instant suit on March 30, 2018, ECF No. 1, and
Supplemented her Complaint with additional information on
April 30, 2018. ECF No. 4. Safeway submitted its Motion to
Dismiss for failure to state a claim and lack of jurisdiction
on June 14, 2018. ECF No. 10. Austin submitted a
“Memorandum of points and Authorities in Support of
Complaint” on July 6, 2018, ECF No. 12, and Safeway
submitted its Reply on July 20, 2018. ECF No. 13.
Rule of Civil Procedure 8(a) prescribes “liberal
pleading standards, ” requiring only that a plaintiff
submit a “short and plain statement of the claim
showing that [she] is entitled to relief.” Erickson
v. Pardus, 551 U.S. 89, 93-94 (2007) (citing
Fed.R.Civ.P. 8(a)(2)). To survive a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), a plaintiff must
plead facts sufficient to “state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 554, 570 (2007). But this standard
requires “more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Although a court will
accept factual allegations as true, “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. Indeed, the court need not accept legal
conclusions couched as factual allegations or
“unwarranted inferences, unreasonable conclusions, or
arguments.” E. Shore Markets, Inc. v. J.D.
Associates Ltd. P'ship, 213 F.3d 175, 180 (4th Cir.
2000). Overall, the Complaint must contain factual
allegations sufficient to apprise a defendant of “what
the . . . claim is and the grounds upon which it
rests.” Twombly, 550 U.S. at 555 (internal
quotations and citations omitted).
courts are obliged to liberally construe a pro se
litigant's claims in applying the above analysis, but the
Fourth Circuit has noted that “[w]hile pro se
complaints may ‘represent the work of an untutored hand
requiring special judicial solicitude,' a district court
is not required to recognize ‘obscure or extravagant
claims defying the most concerted efforts to unravel
them.'” Weller v. Dep't of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quoting
Beaudett v. City of Hampton, 775 F.2d 1274, 1277
(4th Cir. 1985)).
prove sexual harassment that creates a hostile work
environment in violation of Title VII, a plaintiff has the
burden of proving (1) unwelcome conduct; (2) based on the
plaintiff's sex; (3) which is sufficiently severe or
pervasive to alter the plaintiff's conditions of
employment and to create an abusive work environment; and (4)
which is imputable to the employer. Okoli v. City of
Baltimore, 648 F.3d 216, 220 (4th Cir. 2011).
a Title VII plaintiff can bring a formal suit, [s]he must
file an administrative charge with the Equal Employment
Opportunity Commission (EEOC).” Chacko v. Patuxent
Institution, 429 F.3d 505, 506 (4th Cir. 2005).
“Only those discrimination claims stated in the initial
charge, those reasonably related to the original complaint,
and those developed by reasonable investigation of the
original complaint may be maintained in a subsequent Title
VII lawsuit.” Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).
“Motions to dismiss for failure to exhaust
administrative remedies are governed by Federal Rule of Civil
Procedure 12(b)(1).” Khoury v. Meserve, 268
F.Supp.2d 600, 606 (D. Md. 2003).