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Austin v. Safeway

United States District Court, D. Maryland

March 5, 2019

SAFEWAY, et al., Defendants.



         Pro 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 suit.

         Safeway 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 GRANTED-IN-PART and DENIED-IN-PART.


         In July 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. Id.

         Eventually, “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 situation. Id.

         On 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.

         On 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.

         Contemporaneously 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.

         Austin 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.


         Federal 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).

         Federal 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)).

         To 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).

         “Before 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).

         III. ...

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