Patterson v. Va. Dep't of Corr.

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MALLORY PATTERSON, EMILY COMER, CARLA McDOWNEY, Plaintiffs, v. VIRGINIA DEPARTMENT OF CORRECTIONS, CHADWICK DOTSON in his official capacity, Defendants.

CIVIL No. 3:23cv757(DJN)

United States District Court, E.D. Virginia, Richmond Division

April 19, 2024

MEMORANDUM OPINION

David J. Novak, United States District Judge.

This matter comes before the Court on Virginia Department of Corrections ("VDOC") and Director Chadwick Dotson's ("Director Dotson") Joint Motion to Dismiss (ECF No. 10). There, Defendants move to dismiss each of the four claims levied by Mallory Patterson, Emily Comer and Carla McDowney (collectively, "Plaintiffs") under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs bring this suit against Defendants^[1] for gender discrimination that Plaintiffs experienced while employed by VDOC and request declaratory relief, equitable relief and an award of damages.^[2] For the reasons that follow, the Court will GRANT IN PART and DENY IN PART Defendant's Motion to Dismiss, (ECF No. 10).

I. BACKGROUND

Mallory Patterson ("Patterson"), Emily Comer ("Comer") and Carla McDowney ("McDowney") are three women who were employed by VDOC between 2020 and 2023.^[3](Complaint ¶¶ 7-9 ("Compl.").) Like every VDOC employee working within a correctional center, Plaintiffs began their workdays by passing through a full-body security scanner that conducts an x-ray scan of their person.^[4] Such scanners are routinely used throughout VDOC's numerous correctional facilities, and VDOC's Standard Operating Procedure ("SOP") requires all individuals entering a correctional center equipped with body scanners to submit themselves to a body scan. (Id. ¶ 15.) The SOP likewise states that when the body scanner detects an anomaly, like an object within the body, VDOC may strip search the individual. (Id. ¶ 16.) The strip search requires becoming fully undressed in front of correctional officers while they inspect one's clothing, breasts, genitalia and buttocks. (Id. ¶¶ 44-46, 72-74.) Refusing to consent to a strip search results in employment termination and potential criminal penalties. (Id. ¶¶ 42 78.)

VDOC's body scanners, through which its employees pass daily, are not perfect. Relevant here, VDOC's body scanners are unable to distinguish between a tampon, menstrual cup or intrauterine device (IUD) and contraband, a fact that VDOC has recognized multiple times. (Id. ¶ 21.) Simply put, female employees at VDOC risk being strip searched merely due to their menstruation or for using a routine hormonal control and contraceptive device like an IUD. Thus, monthly, each of VDOC's roughly 6,000 female employees risk being subjected to a highly invasive strip search due to using female hygiene products or semi-permanent contraceptive and hormonal control devices, conditions inextricably linked to their sex. (Id. ¶ 83.)

Indeed VDOC's SOP provides no guidance specifically tailored to the fact that women will be disproportionately affected by its security measures. In fact, VDOC's training has further exacerbated the effect that its body-scan policy has on women, as it has instructed its employees that "nothing should be inside of the lower cavity of any person," which presumably fails to consider the existence of tampons, pads, menstrual cups, IUDs and other sanitary items routinely used by its female employees. (Id. ¶ 24.) To be sure, VDOC's training materials do contain images of women with IUDs and tampons to inform body scan operators on the distinction between a tampon and contraband, but those images are of medical grade x-rays, which render images of a much higher resolution than the body scanners that VDOC deploys. (Id. ¶ 26.) VDOC has consistently described its body scanners as being unable to differentiate between female hygiene items and legitimate contraband. (Id. ¶ 21.) Thus, to the extent that VDOC has provided training tailored to the fact that something besides contraband may exist within a woman's body cavities when its scanners detect an anomaly, such training stands wholly irrelevant to the body scanners used by VDOC in its facilities. (Id.) Moreover, VDOC has advised its personnel that "most contraband will be concealed in the woman['s] internal body cavity." (Id. ¶ 24.) VDOC's training again fails to reflect reality, as its own data indicates that only nine percent of contraband detected by VDOC was found in a body cavity, let alone female body cavities. (Id. ¶ 25.)

The inability for VDOC's body scanners to distinguish between contraband and a tampon, and VDOC's failure to implement policies accounting for that, forms the basis of this suit. Each Plaintiff here experienced either a strip search or was fired, because they had a tampon, menstrual cup or IUD on their person. In other words, each Plaintiff- by virtue of a sex-based characteristic - was subject to discrimination actionable under our Nation's civil rights laws.

Plaintiff Patterson began working for VDOC in June of 2021 at VDOC's Indian Creek Correctional Center in Chesapeake, Virginia as a Therapeutic Community Counselor. (Id. ¶ 7.) No reported incidents of misconduct were reported during her tenure, and she apparently satisfied her employment obligations. On November 10, 2021, Patterson arrived at work and entered through the body scanner as she did every day. (Id. ¶ 35.) However, on that day, VDOC noticed an anomaly on Patterson's body scan and ordered her to wait until an investigator arrived, which took over an hour. (Id. ¶ 37.) Eventually, a sergeant and a lieutenant arrived and queried whether Patterson had contraband on her. (Id. ¶ 39.) She replied that she did not, but that she was currently menstruating and was using a menstrual cup. (Id.)

Sometime later, Major Lassiter arrived and informed Patterson that, because she could not clear the scanner, she could not enter the facility. Her options were to "comply with a strip search or leave and be separated from employment, pending potential criminal charges." (Id. ¶ 40.) At that point, faced with the Hobson's choice of an invasive strip search on account of her menstrual cycle, or employment termination and potential criminal charges, Patterson consented to a strip search overseen by two officers and Major Lassiter, an experience that caused her significant emotional distress.^[5] (Id. ¶ 44.) The officers instructed Patterson to remove the menstrual cup and show it to them, but she was not permitted to reinsert it. (Id. ¶ 45.) She then cleared the body scanner but left work, because the strip search rendered her too distraught to work that day. (Id. ¶ 46.) She eventually resigned one month after this experience, as she was left shaken and doubtful that she could continue working at that VDOC correctional facility with the threat of monthly strip searches. (Id. ¶ 50.)

The second plaintiff is Plaintiff Comer. She began working for VDOC as a Licensed Practical Nurse in April of 2020 as VDOC's State Farm Correctional Center located in Goochland County, Virginia. (Id. ¶¶ 8, 51.) Like Plaintiff Patterson, Plaintiff Comer also successfully undertook the duties and expectations of her employment. (Id. ¶ 53.) On April 4, 2022, Plaintiff Comer passed through the body scanner as she always did, but this time an officer asked her whether she was menstruating, because the officer "saw something" on her scan. (Id. ¶ 54.) Plaintiff Comer replied that she was not, but that she had an IUD, a device routinely used by women of almost all age groups to regulate hormones and prevent pregnancy.^[6] (Id. ¶ 55.) After disclosing that she used an IUD, Plaintiff Comer was allowed to enter the correctional facility and worked a normal day.

Two days later, VDOC fired Plaintiff Comer. VDOC informed Plaintiff Comer that the reason her employment was terminated was due to a series of "suspicious body scans." (Id. ¶ 59.) VDOC has not provided any evidence related to the "suspicious" scans that predicated Plaintiff Comer's termination and has otherwise failed to provide further detail on Plaintiff Comer's discharge. Thus, only two days after a VDOC officer "saw something" - i.e., an IUD - on Plaintiff Comer's body scan, she was discharged from her position. (Id. ¶¶ 58, 59.)

Plaintiff McDowney, who began working for VDOC in August of 2023 at its Haynesville Correctional Center in Richmond County, Virginia constitutes the final plaintiff in this matter. (Id. ¶¶ 65, 66.) Unlike Plaintiffs Comer and Patterson, Plaintiff McDowney does not routinely pass through body scanners, as her work is not conducted in the secured section of the facility. (Id. ¶ 63.) However, on October 27, 2023, she decided to attend an inmate graduation ceremony along with her colleagues. (Id.) The ceremony was in a secure section of the facility, which required Plaintiff McDowney to pass through VDOC's body scanners. (Id. ¶¶ 64, 65.) After passing through the body scanner, she was instructed to stop and wait in a conference room without being told why she was being sequestered. (Id.) Eventually, the Warden^[7] arrived, and he pointedly asked Plaintiff McDowney in front of multiple colleagues, "what is in your vagina?" (Id. ¶ 69.) At first, she responded "nothing," but then remembered that she was menstruating and had a tampon and sanitary pad in place. (Id.) The Warden replied, "if that is it, do you give consent to us doing a strip search?" (Id. ¶ 70.) Plaintiff McDowney asked what would occur if she did not consent, to which the Warden replied, "then you don't have a job." (Id.) Plaintiff McDowney began crying and ultimately consented to the strip search. (Id.) During the strip search, overseen by two VDOC officers,^[8] she removed all clothing, and then was instructed to remove her tampon and sanitary pad, which she did. (Id. ¶¶ 73-75.) Afterwards, she asked the...