Sheppard v. Amazon.com Servs.

1

NETQUETTA SHEPPARD, Plaintiff, v. AMAZON.COM SERVICES, LLC, Defendant.

No. 2:23-CV-02216-JAR-RES

United States District Court, D. Kansas

August 29, 2023

MEMORANDUM AND ORDER

JULIE A. ROBINSON UNITED STATES DISTRICT JUDGE

Plaintiff Netquetta Sheppard brings this lawsuit against her former employer, Defendant Amazon.com Services LLC, alleging claims of sexual harassment and retaliation in violation of Title VII of the Civil Rights Act (“Title VII”), and interference with and retaliation in violation of the Family Medical Leave Act (“FMLA”). This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's First Amended Complaint in Part (Doc. 20). The motion is fully briefed, and the Court is prepared to rule. For the reasons set forth below, the Court grants in part and denies in part Defendant's motion to dismiss.

I. Legal Standard

To survive a motion to dismiss brought under Fed.R.Civ.P 12(b)(6), a complaint must contain factual allegations that assumed to be true, “raise a right to relief above the speculative level”^[1] and must include “enough facts to state a claim for relief that is plausible on its face.”^[2]Under this standard, “the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.”^[3] The plausibility standard does not require a showing of probability that “a defendant has acted unlawfully,” but requires more than “a sheer possibility.”^[4] “[M]ere ‘labels and conclusions,' and ‘a formulaic recitation of the elements of a cause of action' will not suffice; a plaintiff must offer specific factual allegations to support each claim.”^[5] Finally, the court must accept the nonmoving party's factual allegations as true and may not dismiss on the ground that it appears unlikely the allegations can be proven.^[6]

The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but is] ‘not bound to accept as true a legal conclusion couched as a factual allegation.'”^[7] Thus, the court must first determine if the allegations are factual and entitled to an assumption of truth, or merely legal conclusions that are not entitled to an assumption of truth.^[8] Second, the court must determine whether the factual allegations, when assumed true, “plausibly give rise to an entitlement to relief.”^[9] “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”^[10]

II. Background

The following facts are alleged in Plaintiff's First Amended Complaint.^[11] For the purposes of deciding this motion, the Court assumes these facts to be true.

Plaintiff was hired as an outbound dock associate at Defendant's warehouse in Kansas City, Kansas in 2017. Plaintiff was promoted in 2019 to a “problem solver,” where she was responsible for resolving shipping issues that arose at that warehouse. In the fall of 2020, Defendant hired Roger Lutcher as a manager in charge of various departments around Plaintiff's workplace area. Lutcher also directly managed Plaintiff on occasion.

Shortly after he was hired, Lutcher began behaving inappropriately toward Plaintiff and other female employees. For example, Lutcher would make sexual comments about Plaintiff's body, such as: “girl you got a fat ass” and “I can tell you've been working out” while staring at her inappropriately. Lutcher then found Plaintiff's profile on Facebook and began sending her inappropriate messages, including an unsolicited photograph of his erect penis. In response, Plaintiff deleted the photograph and blocked Lutcher from her Facebook account. Plaintiff approached Lutcher at work the next day and told him to stop treating her inappropriately and warned that if he did not stop, she would report him to the police.

In October 2020, Carry Pressly, one of Defendant's Human Services Representatives, asked Plaintiff if any manager had behaved inappropriately towards her. Plaintiff immediately told Pressly about the photograph Lutcher sent her and the comments he routinely made about her. Plaintiff wrote a statement regarding Lutcher's harassment for Pressly. After submitting her written statement, no one from Human Resources followed up with Plaintiff.

About a month after Plaintiff's meeting with Pressly, Lutcher was reassigned to another department. This reassignment appeared to Plaintiff to be routine in nature and not in an effort to prevent or remedy the sexual harassment against Plaintiff. Lutcher was not otherwise disciplined, nor did he receive any additional anti-sexual harassment training.

In the spring of 2021, despite being reassigned, Lutcher approached Plaintiff at work and told her that he was her manager again. Plaintiff responded that he was not, but Lutcher insisted that he was. Lutcher did ultimately return to work in Plaintiff's workplace area. Shortly after his return, Plaintiff observed him brush his penis against the backside of another female employee.. Plaintiff told Lutcher that she witnessed this and warned him that she would report him to Human Resources again.

While working at Defendant's warehouse, employees used an app called Chime to communicate with each other and to resolve issues. Occasionally, the Chime app would malfunction, and the employees instead texted each other from their personal cell phone numbers. On one occasion, Plaintiff needed to discuss a work issue with Lutcher when the Chime app was down, so Lutcher gave Plaintiff his personal cell phone number. Weeks after resolving the work issue, Lutcher sent Plaintiff a text message stating that he wanted to “lick her clit.” Plaintiff did not respond to this message but did show it to another employee.

In November 2021, Lutcher texted Plaintiff two separate videos of his erect penis. One of these videos was sent to Plaintiff while they were both at work. Plaintiff showed the video to another employee. Later that day, Lutcher approached Plaintiff and asked whether she had watched the video. When Plaintiff responded that she had not watched it and that she was afraid to do so, Lutcher responded, “You better watch that fucking video and respond,” in a threatening tone.

Several days later, Lutcher was leading a department meeting when Plaintiff noticed him inappropriately staring at a new female employee. Upon witnessing this, Plaintiff reported all of Lutcher's inappropriate sexual behavior, including the videos of his erect penis, to managers Mike Legget and Taylor Quen. Legget and Quen accompanied Plaintiff to the Human Resources Department to file a formal complaint against Lutcher. Plaintiff filed her complaint and provided the phone number from which she received the videos to cross-reference with Lutcher's phone number. Plaintiff also provided the video to Human Resources Supervisor Tiffany Dantzler.

At that meeting, Dantzler asked Plaintiff if she would like to transfer to another department, which Plaintiff declined. Plaintiff had two other phone conversations with employees from the Human Resources Department. Lutcher remained Plaintiff's manager for over a month after Plaintiff filed her complaint and during that time, Lutcher behaved rudely to Plaintiff and spoke to her in an aggressive tone.

As a result of the sexual harassment, Plaintiff felt anxious, humiliated, embarrassed, degraded, and threatened. Therefore, she sought to take leave under the FMLA and short-term disability. Plaintiff had to work with Defendant's third-party administrator to facilitate the leave request, which included being required to submit a lot of additional information and documentation. Her leave was never formally approved. Additionally, in April 2022, Defendant accidentally terminated Plaintiff's employment. After being informed that it was a mistake, Plaintiff resumed her efforts to obtain leave but was unsuccessful. Defendant terminated Plaintiff's employment a second and final time in January 2023. While she was trying to obtain FMLA and short-term disability leave, Plaintiff received help from a mental health professional due to the harassment and retaliation, because Plaintiff did not feel safe at work, and because prior to her termination, she felt compelled to resign. Plaintiff initiated this lawsuit against Defendant in April 2023.

III. Discussion

Plaintiff's First Amended Complaint asserts three counts against Defendant: Sexual Harassment in Violation of Title VII (Count I); Retaliation in Violation of Title VII (Count II); and Interference and/or Retaliation in Violation of the FMLA (Count III). Defendant moves to dismiss Count I in part because the allegations of conduct occurring in 2020 are untimely and because the First Amended Complaint does not contain sufficient factual allegations to support constructive discharge; Count II in its entirety for failure to exhaust administrative remedies and failure to state a claim of constructive discharge; and Count III in its entirety because the sole basis for Plaintiff's claim-that she was required to provide documentation to support her need for leave-is permitted under the FMLA and she was ultimately given leave in excess of what the FMLA requires. The Court addresses each in turn.

A. Plaintiff's Allegations of Sexually Harassing Conduct in 2020 in Count I

“Title VII requires a litigant to file a claim within 300 days of the alleged discriminatory conduct.”^[12] “The exhaustion requirement is not jurisdictional, but is an affirmative defense that the court must enforce if the employer raises it.”^[13] Here, Defendant raised the affirmative defense, contending that the...