Opinion
1:00CV1265
May 24, 2002
MEMORANDUM OPINION and ORDER
Plaintiff Leslie G. Dodd initiated this case against Defendants Salvatore Pizzo ("Pizzo") and Duke University ("University") claiming she was discriminated against an violation of Title VII, Title IX, and North Carolina public policy. Plaintiff also states claims for intentional or negligent infliction of emotional distress against both Defendants and assault and battery against Defendant Pizzo only. The case is currently before the court on both Pizzo's and the University's motions to dismiss the Title VII and Title IX claims, as well as the public policy claim. Defendant Pizzo has further moved to dismiss the complaint for improper form or, in the alternative, for a more definite statement. For the reasons set forth below, Defendants' motions will be granted in part and denied in part.
The complaint also names Duke University Medical Center ("DUMC") as a defendant. The University has moved to dismiss the complaint against DUMC because it has no separate legal identity from that of the University. Plaintiff does not object. Therefore, DUMC will be dismissed as a defendant.
I. FACTUAL BACKGROUND
The following brief fact summary is taken from the complaint. Plaintiff was hired by Defendant Duke University as an Assistant Professor of Pathology in August 1993. Pizzo played a role in interviewing Plaintiff. Plaintiff was eventually promoted to Division Chief of Cytology in 1996. Later in 1996, Plaintiff and Pizzo commenced a sexual relationship. Except for a six-week break, the relationship lasted until fall 1997, when Plaintiff ended it. Pizzo expressed interest in resuming a sexual relationship with Dodd.
Plaintiff was awarded tenure and became an Associate Professor in June 1998. On July 1, 1998, Plaintiff learned that a piece of laboratory equipment had been purchased without her input. Other members of the department claimed Plaintiff knew about the purchase and had in fact helped prepare the budget resolution, which Plaintiff denied. The incident caused serious friction between Plaintiff and other members of the department. Shortly thereafter, Plaintiff complained to Duke's Office of Institutional Equity ("IE") that she was being subjected to retaliatory treatment. She contacted IE again on August 11, 1998 and related "her experiences during the last two years in detail." (Compl. ¶ 47.) Finally, in November 1998, Plaintiff was removed as Division Chief of Cytology and replaced with another female doctor.
II. STANDARD OF REVIEW
A motion to dismiss under Federal Rule 12(b)(6) of Civil Procedure tests the legal sufficiency of the complaint. It should be granted only when, taking the facts in the complaint as true and considering any facts that could be proved in support of the complaint, the plaintiff can prove no set of facts entitling her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102 (1957). However, the court is not bound by the legal conclusions contained in a complaint and is not required to accept "conclusory allegations regarding the legal effect of the facts alleged."Labram v. Havel, 43 F.3d 918, 921 (4th Cir. 1995). Father, "self-serving . . . legal conclusions cannot rescue a factually deficient complaint."Faulkner Adver. Assocs. Inc. v. Nissan Motor Corp., 945 F.2d 694, 695 (4th Cir. 1991) (en banc) (per curiam). Courts will recognize legal conclusions on a 12(b)(6) motion only when they are supported by the pleaded facts. See, e.g., Revene v. Charles County Comm'rs, 882 F.2d 370, 873 (4th Cir. 1989).
III. TITLE VII CLAIMS
A. Sex Discrimination and Hostile Work Environment
Title VII prohibits discrimination in the terms, conditions, or privileges of employment on the basis of an employee's sex. 42 U.S.C. § 2000e-2(a) (West 2001). Plaintiff asserts title VII claims for both sex discrimination and hostile work environment. To withstand a motion to dismiss either claim, Plaintiff must allege facts showing she was discriminated against because of her sex. See Balazs v. Liebenthal, 32 F.3d 151, 155 (4th Cir. 1994) (sex discrimination); Smith v. First Union Nat'l Bank, 202 F.3d 234, 241 (4th Cir. 2000) (hostile work environment).
Defendants assert that Plaintiff has alleged no facts by which she would be entitled to relief because the complaint does not allege that she was harassed because of her sex. To be harassed because of her sex. Plaintiff must show that she would not have been discriminated against "but for" her sex. Id. at 242. The complaint alleges no conduct that would not have been suffered by Plaintiff but for her sex. Rather, if the complaint alleges my hostile conduct at all, it is simply conduct that she would not have been subjected to but for her failed relationship with Pizzo. In fact, Plaintiff was demoted in favor of another female, further indicating that her demotion was not based on sex. Therefore, Plaintiff has not stated a sex discrimination or a hostile work environment claim.
B. Retaliation
Plaintiff further claims that she was subjected to retaliatory treatment. Title VII prohibits retaliating against employees who engage in activities opposing unlawful discrimination. 42 U.S.C. § 2000e-3 (a) (West 2001). In order to state a claim for retaliation, Plaintiff must allege that she engaged in a protected activity, that she suffered an adverse employment action, and that a causal connection existed between the protected activity and adverse action. Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994).
Plaintiff failed to allege facts in the complaint that show a causal connection between the protected activity she engaged in and the adverse employment action she suffered. On the contrary, the facts as alleged in the complaint conclusively refute a causal connection. Plaintiff alleges that she engaged in a protected activity when she complained to IE and that she suffered an adverse employment action when she was demoted from division chief. However, as Defendants point out and Plaintiff does not dispute, the complaint alleges that Plaintiff's demotion was actually initiated before she complained to IE. The division chief position was offered to Plaintiff's future replacement prior to Plaintiff's IE complaint. Therefore, Plaintiff simply cannot show a causal connection between the complaint and her demotion. Plaintiff has therefore failed to state a retaliation claim. See Gregory v. Daly, 243 F.3d 687, 701 (2d Cir. 2001) ("Of course, in examining the sufficiency of [Plaintiff's] pleadings of retaliation, we must omit from consideration those episodes of harassment that preceded her protected activity . . ., since prior harassment could not have been in retaliation for acts not yet taken.")
Plaintiff's opposition brief also states that Defendants retaliated. against her by "ordering an expensive item of equipment which she did not request over her forged signature, . . . generating expressions of ill will in the Department of Pathology against Plaintiff, causing other professors to refuse to work with her, and having her work subjected to uncalled for and unusual quality reviews." (Pl.'s Resp. at 2.) The court doubts that any of these actions would qualify as adverse employment actions. However, as they all happened before the IE complaint, they suffer from the same lack of causal connection.
C. Quid Pro Quo Sexual Harassment
Plaintiff's final Title VII claim is for quid pro quo sexual harassment. Quid pro quo sexual harassment occurs when an employee is required to submit to unwelcome sexual conduct as a condition of employment or in exchange for more favorable conditions. See Campbell v. Masten, 955 F. Supp. 526, 529 (D. Md. 1997). The complaint alleges that after their relationship ended, Plaintiff considered leaving the University. She further alleges that Pizzo approached her to convince her to stay, promising improved job conditions, and stated his desire to resume their relationship, which Plaintiff refused. Plaintiff was subsequently demoted. The court finds that these allegations are sufficient to withstand a motion to dismiss.
Defendants urge the court to adopt the reasoning of Keepler v. Hinsdale Township High Sch. Dist. 86, 715 F. Supp. 862 (N.D. Ill. 1989). That case addressed the plaintiff's burden in a quid pro quo sexual harassment case when the parties had previously been romantically involved. The court held that in such a situation, the plaintiff must allege that the defendant not only desired The relationship to continue, but that he or she threatened the plaintiff's job if the relationship did not resume.Id. at 869. Whether this court will adopt the Keppler reasoning need not be decided now, as the court finds that even under Keppler Plaintiff has alleged sufficient facts in the complaint to survive a motion to dismiss.
IV. TITLE IX CLAIMS
Plaintiff has also asserted a claim under Title IX, which prohibits sex discrimination in "any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681 (nest 2001). While mostly used to address discriminatory behavior directed toward students, Title IX has more recently been used to address employment discrimination in the education context.
Defendants make two arguments why Plaintiff's Title IX claim should be dismissed. First, Defendants assert that Title IX does not provide a monetary remedy for employment discrimination, relying on Lakoski v. James, 66 F.3d 751 (5th Cir. 1995). In Lakoski, the Fifth Circuit refused to find an implied right of action under Title IX for monetary damages stemming from employment discrimination and held that Title VII, not Title IX, provided the appropriate remedy. Id. at 753. Defendants go on to distinguish the relevant Fourth Circuit precedent because the case did not reach whether monetary damages were available for a Title IX employment discrimination claim. Preston v. Commonwealth of Virginia ex rel. New River Cmtv. College, 31 F.3d 203, 205 n. 1 (4th Cir. 1994).
While Defendants' arguments are reasonable, the court is not ready to lend its stamp of approval at this juncture. Defendants have distinguished Preston, but it is far from clear from the context of the decision whether the Fourth Circuit would find a right of action for monetary damages given the appropriate opportunity. However, the court does find that Title VII principles apply to Title IX employment discrimination. Id. at 207 ("We agree that Title VII, and the judicial interpretations of it, provide a persuasive body of standards to which we may look in shaping the contours of a private right of action under Title IX."). Therefore, should Plaintiff be unable to prove her remaininq Title VII claim of quid pro quo sexual harassment, the court will likely not have to reach the issue of monetary damages under Title IX.
Second, Defendants claim that Plaintiff has failed to allege that the University acted with deliberate indifference, citing Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274, 118 S.Ct. 1989 (1998). InGebser, the Supreme Court held that damages under Title IX for sexual harassment of a student would not be recoverable unless the school district was deliberately indifferent to the harassing behavior. Id. at 277, 118 S.Ct. at 1993.
The court finds two flaws with Defendants' argument. First, the complaint contains allegations that, if proven, could show that the University was deliberately indifferent to Pizzo's behavior. Second, it is not clear that the deliberate indifference standard should apply in this context. The deliberate indifference standard arose in the context of sex discrimination against students. The court is not certain whether the same rationale should apply in a Title IX employment discrimination action which, as previously stated, borrows Title VII principles. Defendants' motion to dismiss will be denied as to Plaintiff's Title IX claim.
The Gebser Court based its decision requiring deliberate indifference in large part on the fact that Title IX does not implicate agency principles as does Title VII. Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274, 283, 118 S.Ct. 1989, 1996 (1998). Should this reasoning apply equally in the employment discrimination context, then Title IX employment discrimination plaintiffs would have a significant additional evidentiary hurdle to overcome.
V. VIOLATION OF NORTH CAROLINA PUBLIC POLICY
Plaintiff's fifth claim for relief asserts that Defendants' allegedly wrongful acts "constitute employment actions taken for purposes which contravene the public policy of this state against sex discrimination in employment." (Compl. ¶ 86.) In her response brief, Plaintiff states that this claim "is based upon the common law tort of wrongful discharge in violation of public policy." (Pl.'s Resp. at 6.) Plaintiff then proceeds to discuss a long list of cases all of which deal with wrongful discharge.
Plaintiff, however, has not been discharged and is still employed by Duke University. The one case cited by Plaintiff that arguably applies the tort of wrongful discharge to a case where the employee was not discharged is Coman v. Thomas Mfg. Co., 381 S.E.2d 445 (N.C. 1989). However, that case involved a 50% reduction in the plaintiff's salary, an action that the North Carolina Supreme Court described as "tantamount to a discharge of plaintiff." Id. at 446. Plaintiff does not contend that her demotion was tantamount to discharge. To the extent that Plaintiff is inviting the court to craft a new common law tort of wrongful adverse employment action, the court declines to do so. Plaintiff has stated no claim for violation of the public policy of North Carolina.
VI. IMPROPER FORM OR MORE DEFINITE STATEMENT
Finally, we address Defendant Pizzo's motion to dismiss for improper form or for a more definite statement. Pizzo asserts that the complaint fails under Federal Rules of Civil Procedure 8(a) and (e)(1) for not being a "short and plain statement" nor "simple, concise, and direct." The court finds that the complaint is sufficient to put Defendants on notice and to enable them to provide an adequate answer.
The complaint is confusing in that it is improperly numbered in several places. However, as shown by Pizzo's answer, this flaw is not fatal to providing an adequate response.
Pizzo's motion asks in the alternative for a more definite statement, asserting that the assault and battery claim is insufficient in that it fails to state the times and places of the alleged assaults. A motion for a more definite statement is permitted if the questioned pleading "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed.R.Civ.P. 12(e). It is apparent to the court that this is simply not the case, as Pizzo filed his answer on the same day he filed his motion to dismiss. Therefore, Pizzo's motion hill be denied.
VII. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Defendants' motions to dismiss are:
Granted as to Plaintiff's Title VII claims of hostile work environment, sex discrimination, and retaliation, but denied as to Plaintiff's Title VII claim of quid pro quo sexual harassment;
Denied as to Plaintiff's Title IX claim;
Granted as to Plaintiff's claim for violation of North Carolina public policy; and
Denied as to Defendant Pizzo's motion to dismiss for improper form or for a more definite statement.
IT IS FURTHER ORDERED that Duke University Medical Center is dismissed as a defendant.