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Robertson v. Siouxland Cmty. Health Ctr.

United States District Court, N.D. Iowa, Western Division

April 10, 2013

SHARON MARIE ROBERTSON, Plaintiff,
v.
SIOUXLAND COMMUNITY HEALTH CENTER and MICHELLE STEPHAN, Defendants, MICHELLE STEPHAN, Counterclaimant,
v.
SHARON MARIE ROBERTSON, Counterclaim Defendant,

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[Copyrighted Material Omitted]

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For Sharon Marie Robertson, Plaintiff: Jay Elliott Denne, Stanley E Munger, LEAD ATTORNEYS, Munger, Reinschmidt & Denne, Sioux City, IA.

For Siouxland Community Health Center, Defendant: Julie Tomka Bittner, Kerrie M Murphy, LEAD ATTORNEYS, Gonzalez, Saggio & Harlan, LLP, West Des Moines, IA.

For Michelle Stephan, Defendant: Douglas L Phillips, LEAD ATTORNEY, Klass Law Firm, L.L.P., Mayfair Center, Upper Level, Sioux City, IA.

For Michelle Stephan, Counter Claimant: Douglas L Phillips, LEAD ATTORNEY, Klass Law Firm, L.L.P., Mayfair Center, Upper Level, Sioux City, IA.

For Sharon Marie Robertson, Counter Defendant: Jay Elliott Denne, Stanley E Munger, LEAD ATTORNEYS, Munger, Reinschmidt & Denne, Sioux City, IA.

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MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS' JOINT MOTION FOR PARTIAL DISMISSAL

MARK W. BENNETT, U.S. DISTRICT COURT JUDGE.

TABLE OF CONTENTS

I. INTRODUCTION

A. Factual Background

B. Procedural Background

II. LEGAL ANALYSIS

A. Standards For Dismissal Pursuant To Rule 12(b)(6)

B. The Defendants' Motion To Dismiss

1. Lack of Title VII protection for sexual orientation

2. Exhaustion of claims based on sex

a. Arguments of the parties

b. Analysis

i. The administrative exhaustion requirement

ii. Exhaustion here

3. Pleading of claims based on sex

a. Arguments of the parties

b. Analysis

i. Harassment because of sex

ii. Same-sex harassment

iii. Robertson's " same-sex harassment"

allegations

4. Pleading of retaliation

III. CONCLUSION

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In this action, the female former human resources director for a medical practice alleges that the medical practice and its female chief executive officer discriminated against and harassed her because of her sex and/or her sexual orientation and retaliated against her for resisting a sexually hostile work environment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. , and the Iowa Civil Rights Act (ICRA), Iowa Code Ch. 216, and discriminated against her because of her age, in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623 et seq. , and the ICRA. The defendants have filed a " Joint Partial Motion To Dismiss," [1] asserting that Title VII provides no cause of action for discrimination or harassment based on sexual orientation, that the plaintiff did not exhaust in administrative proceedings any federal or state claims of discrimination or harassment because of her sex, and that, because the plaintiff cannot state a sexual harassment claim, she also cannot state a Title VII retaliation claim. Thus, the defendants contend that the only claims that the plaintiff has stated upon which relief can be granted are her state sexual orientation claims and her federal and state age discrimination claims. I must determine what claims have been adequately pleaded and exhausted.

I. INTRODUCTION

A. Factual Background

" When ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Thus, the factual background to a motion to dismiss must necessarily be drawn from the plaintiff's factual allegations.

In her Petition At Law (docket no. 2), originally filed in the Iowa District Court for Woodbury County, then removed to this federal court, plaintiff Sharon Marie Robertson alleges that, on or about January 2, 2004, she was hired by defendant Siouxland Community Health Center (SCHC) in Sioux City, Iowa, as the human resources director, and that she was discharged from her employment on or about November 30, 2011. Robertson alleges that, at the pertinent times, defendant Michelle

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Stephan was the chief executive officer (CEO) of SCHC and Robertson's direct superior.

Robertson alleges that, during her employment, she was subjected to a hostile and pervasive atmosphere of discrimination and harassment " based on [her] sex/sexual orientation." Petition, ¶ 13. She alleges that the harassment included, but was not limited to, " Defendant Stephan subject[ing] [her] to unwanted and unwelcomed sexual comments, sexual questions, sexual conversations, sexual emails, sexual texts, and sexual jokes," including a list of twenty incidents. Id. at ¶ 13(a).[2] Robertson alleges that the defendants knew or should have known of the hostile environment and discrimination, but that they failed to take corrective action and, indeed, encouraged the harassment and retaliated against her for objecting to it. Id. at ¶ 15. Robertson alleges that the harassment and discrimination ultimately resulted in her discharge from employment with SCHC--indeed, it does not appear that she alleges any form of discrimination, as distinguished from harassment or retaliation, other than her discharge. Id. at ¶ 11. Robertson also alleges that she " resisted the sexually hostile work environment fostered by the Defendants' conduct" by complaining about it to SCHC, Stephan, and other SCHC staff, but instead of taking appropriate action to end the harassment, the defendants retaliated against her " through adverse employment actions, up to and including termination." Id. at ¶ ¶ 18-20.[3]

Robertson alleges that she filed a timely Complaint of Discrimination with the Iowa Civil Rights Commission (ICRC) and the Equal Employment Opportunity Commission (EEOC) and that she was issued " right to sue" letters by both commissions. She alleges that, thereafter, she timely filed this lawsuit. Id. at ¶ ¶ 6-8. Robertson has attached her administrative Complaint of Discrimination to her Petition as Exhibit A.

The claims asserted in Robertson's administrative charge and, consequently, the claims that are exhausted for purposes of her lawsuit, are in dispute. For the moment, I note that, in response to Question 6, which asked Robertson to " [p]lease check the ACTION that the Organization took against you. (Check all that apply)," Robertson checked " Harassment," " Sexual Harassment," and " Terminated," and also wrote in after " Other," " Hostile, volital [sic] work environment." On the other hand, in answer to Question 9, which asked, " Do you believe you were discriminated against because of your sex?," Robertson answered " no," and in response to Question 10, which asked, " Do you believe you were discriminated against because of your sexual orientation?," Robertson answered " yes" and indicated that her sexual orientation is " Lesbian." Also, in pertinent part, Robertson's Complaint of Discrimination states, in response to Question 17, that Robertson believed that she was treated differently since she complained about discrimination, explaining how she was retaliated against and by whom by stating, " Termination, Hostile work place by Michelle Stephan, Siouxland Community Health Center CEO." The administrative Complaint of Discrimination includes a 14-page typed narrative explaining the alleged discrimination, harassment, and retaliation. It also includes a 3-page list of reasons that Robertson claims that she was given for her termination, relating to alleged performance issues, with Robertson's response to each allegation.

B. Procedural Background

Robertson filed her Petition At Law in the Iowa District Court for Woodbury County on November 27, 2012. On January 17, 2013, the defendants removed this action to this federal court on the basis of federal question jurisdiction and supplemental jurisdiction over Robertson's state law claims. See Joint Notice Of Removal (docket no. 1). After removal, Robertson's state court Petition was refiled in this court at docket number 2. The Petition states that Robertson's " causes of action are brought pursuant to the Iowa Civil Rights Act, Iowa Code Chapter 216, Title VII, and the Age Discrimination In Employment Act where relevant." Petition at ¶ 9. Count I asserts a claim of " Hostile Work Environment And Discrimination Based On Sex/Sexual Orientation," Count II asserts a claim of " Retaliation," alleging that Robertson resisted and complained about " the sexually hostile work environment" created by the defendants' conduct, and that Robertson suffered retaliation for such resistance and complaints, up to and including termination, and Count III asserts a claim of " Age Discrimination." None of the counts alleges the specific legal basis for the claim or claims stated therein, so that, like the defendants, I will assume that each count is based on both state and federal law. On Counts I and II, Robertson seeks compensatory damages, including back pay, front pay, benefits, training, promotions, and seniority; damages for past and future emotional distress and other non-pecuniary losses; punitive damages; past and future medical and counseling expenses; injunctive relief; costs, expenses, and attorneys' fees; interest; and such other relief as the court deems proper. On Count III, she seeks essentially the same damages, with the exceptions that she seeks " liquidated/punitive damages," rather than punitive damages, and she does not seek injunctive relief. By Order (docket no. 16), dated February 26, 2013, trial in this matter is set to begin on May 27, 2014.

On January 22, 2013, the defendants filed the " Joint Partial Motion To Dismiss Plaintiff's Petition" (docket no. 4), which is now before me. Also on January 22, 2013, SCHC filed its Answer (docket no. 5), and Stephan filed her separate Answer, Affirmative Defenses, And Counterclaim (docket no. 6), denying Robertson's claims. Stephan's Counterclaim alleges that Robertson's administrative charge is frivolous, unreasonable, and groundless, and that the allegations were not made for their intended purpose, but for the improper purpose of shifting the blame for her discharge from her to Stephan, in the hopes of extracting some monetary concession, which has damaged Stephan's personal and professional reputation, Stephan's relationship with her current employer, and Stephan's prospects for future professional development. Counterclaim (docket no. 6).[4]

On February 1, 2013, Robertson filed her Answer To Defendant Michelle Stephan's Counterclaim (docket no. 7), denying Stephan's Counterclaim. On February 15, 2013, Robertson filed her Resistance To Defendants Siouxland Community Health Center's And Michelle Stephan's Joint Partial Motion To Dismiss Plaintiff's Petition (docket no. 11), conceding that Title VII does not provide protection from sexual orientation discrimination, but asserting that she has properly exhausted and pleaded claims of sexual discrimination, sexual harassment, and retaliation for complaining about sexual harassment under Title VII and the ICRA, under a " same-sex harassment" theory. The defendants filed a Joint Reply Brief (docket no. 15), in further support of their motion to dismiss on February 22, 2013.

The defendants requested oral arguments on their motion to dismiss. I conclude, however, that the parties have adequately briefed the issues and that oral arguments are unlikely to be beneficial. Therefore, I will consider the motion on the parties' written submissions.

II. LEGAL ANALYSIS

A. Standards For Dismissal Pursuant To Rule 12(b)(6)

The defendants seek dismissal of Robertson's Petition, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, which authorizes a pre-answer motion to dismiss for " failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). As the Eighth Circuit Court of Appeals recently explained,

We review de novo the district court's grant of a motion to dismiss, accepting as true all factual allegations in the complaint and drawing all reasonable inferences in favor of the nonmoving party. See Palmer v. Ill. Farmers Ins. Co., 666 F.3d 1081, 1083 (8th Cir. 2012); see also Fed.R.Civ.P. 12(b)(6). " To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation omitted). " 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." Id.

Richter v. Advance Auto Parts, Inc., 686 F.3d 847, 850 (8th Cir. 2012); accord Freitas v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438 (8th Cir. 2013) (quoting Richter, 686 F.3d at 850); Whitney v. Guys, Inc., 700 F.3d ...


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