United States District Court, D. Kansas
AMBER R. McDERMOTT, f/k/a AMBER R. PALATYNUSZ, Plaintiff,
GMD-100, LLC, f/k/a GLOBAL MEDICAL DIRECT, LLC, et al., Defendants.
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Plaintiff Amber R. McDermott brings this lawsuit against Defendants alleging claims of a hostile work environment based upon her sex and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(f). This matter is before the Court on Defendant Complete Medical Homecare, Inc.'s ("CMH") Motion to Dismiss Plaintiff's Complaint (Doc. 22) under Fed.R.Civ.P. 12(b)(6). CMH argues that Plaintiff has not satisfied the requirements of Twombly-Iqbal in setting forth her Title VII claims in the Complaint; in the alternative, CMH argues that Plaintiff cannot prove that CMH was ever her employer or should be held responsible under a successor liability theory because it did not have notice of the alleged discriminatory acts. For the reasons explained below, the Court grants CMH's motion on the first ground, and dismisses Plaintiff's Complaint without prejudice to amend.
I. Factual and Procedural Background
Plaintiff names the following defendants in her Complaint: GMD-100, LLC, formerly known as Global Medical Direct, LLC ("GMD"); GMD-100, Inc., formerly known as Global Medical, Inc. ("GMI"); Complete Medical Homecare, Inc. ("CMH"); and MMS-100, Inc., formerly known as Midwest Medical Services, Inc. ("MMS"). Plaintiff alleges that all Defendants are "employers" withing the meaning of Title VII. Plaintiff alleges that all named Defendants are actually part of a single integrated enterprise so that, for all purposes, there is in fact only a single employer; that Defendants are "joint employers of each of their employees, including plaintiff; and that Defendants maintain a substantial interrelation of operations, common management, centralized control of labor relations, and common ownership and/or financial control."
Plaintiff was employed by Defendants from approximately May 7, 2012 until her termination on approximately April 11, 2013. During the course of her employment with Defendants, Plaintiff was subjected to severe and unwelcome conduct of a sexual nature because of Plaintiff's sex, including but not limited to, sexual comments and innuendo and offensive bodily contact. Plaintiff objected to and complained about that conduct, but it continued. As a result, Plaintiff believed her work environment to be hostile and abusive, and the conduct affected her ability to perform her job duties. Plaintiff complained to Defendants' management personnel about the sexually offensive conduct, and Defendants knew or should have know about the improper conduct, but failed to take prompt and effective corrective action to end the harassment. Instead, Defendants chose to adversely alter the terms and conditions of her employment by forcing Plaintiff to sign a resignation letter, thus terminating her employment.
At the time Plaintiff complained about the sexually harassing conduct, she was performing all duties of her job satisfactorily. On or about April 11, 2013, however, Defendants adversely altered the terms and conditions of her employment in retaliation for exercising her statutorily protected rights.
On April 22, 2013, Plaintiff filed with the Equal Employment Opportunity Commission ("EEOC") a charge of discrimination against Defendants on the basis of sexual harassment and retaliation.
Plaintiff alleges that upon information and belief, GMD sold and/or transferred its company assets to CMH and/or MMS while Plaintiff's charge of discrimination was pending with the EEOC. Defendants CMH and MMS had notice of Plaintiff's pending charge of discrimination prior to the acquisition of GMD's assets. Upon acquisition of GMD's assets, CMH and MMS maintained a substantial continuity in business operations, maintained the same business location, maintained the same or substantially the same supervisory personnel and management, maintained the same working conditions, maintained the same methods of production, and maintained the same or substantially the same work force.
Plaintiff further alleges that upon information and belief, GMI sold and/or transferred its company assets to CMH and/or MMS while Plaintiff's charge of discrimination with the EEOC was pending. Defendants CMH and MMS had notice of Plaintiff's pending EEOC charge of discrimination prior to the acquisition of GMI's assets. Upon acquisition of GMI's assets, CMH and MMS maintained a substantial continuity in business operations, maintained the same business location, maintained the same or substantially the same supervisory personnel and management, maintained the same working conditions, maintained the same methods of production, and maintained the same or substantially the same work force.
II. Standard of Review
To survive a motion to dismiss, a complaint must present factual allegations, assumed to be true, that "raise a right to relief above the speculative level" and must contain "enough facts to state a claim to relief that is plausible on its face." Under this standard, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief. As the Supreme Court explained, "[a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders naked assertion[s]' devoid of further factual enhancement.'" Additionally, "[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." "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted."
CMH challenges Plaintiff's sexual harassment/hostile work environment and retaliation claims under Title VII. The Tenth Circuit has provided an extensive analysis of the pleading standard for employment discrimination and retaliation claims under Twombly. In Khalik v. United Air Lines,  the court cautioned that under Twombly, the plaintiff is not required to "set forth a prima facie case for each element" to successfully plead a claim of discrimination. Rather, the plaintiff is only required to "set forth plausible claims." The court explained that Twombly created "a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or a formulaic recitation of a cause of action, which the [Supreme] Court stated will not do." The court noted that "[w]hile [s]pecific facts are not necessary, 'some facts are." While Plaintiff need not establish a prima ...