TWINE v. AT INC (2024)

OPINION AND ORDER

This matter comes before the court on Defendant's Partial Motion to Dismiss for Failure to State a Claim. See ECF No. 18. For the following reasons, the Partial Motion to Dismiss is DENIED.

I. PROCEDURAL HISTORY

Plaintiff sought leave to proceed in forma pauperis (“IFP”) on October 16, 2023, ECF No. 1, and filed a Proposed Complaint, ECF No. 1-1, naming AT&T, Amy C. Smith, Angela Rutherford, and Carolyn Lavalais as Defendants. On March 27, 2024, the court granted Plaintiff's IFP application, directed that Plaintiff's Proposed Complaint be filed, and issued a Show Cause Order, directing Plaintiff to show cause as to why Ms. Smith, Ms. Rutherford, and Ms. Lavalais should not be dismissed. See ECF Nos. 2, 3. Plaintiff did not respond to the Show Cause Order, and the court dismissed Ms. Smith, Ms. Rutherford, and Ms. Lavalais from the action on June 4, 2024, leaving AT&T as the sole defendant. ECF No. 7. On July 10, 2024, Plaintiff filed an Amended Complaint against AT&T. ECF No. 13. Thus, the Amended Complaint superseded the Complaint as the operative pleading in this action. See Young v. City of Mt. Ranier, 238 F.3d 567, 572 (4th Cir. 2001).

Shortly thereafter, on July 24, 2024, Defendant filed the instant Partial Motion to Dismiss (“Motion”), ECF No. 18, with an accompanying Memorandum in Support, ECF No. 19. Defendant's Motion seeks dismissal of counts Two (Title VII-Quid Pro Quo Sexual Harassment), Three (Title VII-Hostile Work Environment), Six (Virginia Human Rights Act-Quid Pro Quo Sexual Harassment), Seven (Virginia Human Rights Act-Hostile Work Environment), Ten (Americans with Disabilities Act-Discrimination), and Twelve (Family and Medical Leave Act-Interference/Retaliation).¹ Plaintiff filed a Memorandum in Opposition on August 23, 2024. ECF No. 26. In response, Defendant filed its Reply on September 5, 2024. ECF No. 29. Accordingly, the Partial Motion to Dismiss is now ripe for judicial determination.

II. MOTION TO DISMISS LEGAL STANDARD

A complaint must be dismissed if the plaintiff's allegations fail to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To meet the pleading standard established in Rule 8 of the Federal Rules of Civil Procedure and 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “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. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

“[W]hen 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) (collecting cases). However, courts “need not accept a complaint's legal conclusions,” ACA Fin. Guar. Corp. v. City of Buena Vista, 917 F.3d 206, 212 (4th Cir. 2019) (citing Iqbal, 556 U.S. at 678, 129 S.Ct. 1937), as Rule 8 “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions,” Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937.

III. FACTUAL BACKGROUND

The court draws the following facts from the Amended Complaint, ECF No. 13, which it accepts as true for the purposes of ruling on the instant motion.

Shantelle Twine (“Plaintiff”) began working for AT&T (“Defendant”) on or about August 3, 2020. Id. at ¶ 12. At some point, Plaintiff took medical leave after she contracted COVID-19. Id. at ¶¶ 12-13. When she returned to work on or about June 15, 2022, she learned that Alex Mason would be her new supervisor. Id. at ¶ 13. That same day, Plaintiff went to lunch with Mr. Mason. Id. at ¶ 15. Over lunch, Mr. Mason told Plaintiff that she “looked nice for [her] age,” and that her “skin color is lovely.” Id.

Over the coming weeks and months, Mr. Mason subjected Plaintiff to “very noticeable sexual behavior.” Id. at ¶ 14. Mr. Mason would leer at Defendant in a way that conveyed sexual interest. Id. at ¶ 16. He made additional comments regarding Defendant's personal appearance, telling her that she “looked good,” that he could see that she “takes care of herself,” and that her “husband must be happy.” Id. at ¶ 17. Mr. Mason was married but frequently spoke negatively about his wife and argued with her over the phone within earshot of Plaintiff. Id. at ¶¶ 17, 19. When Mr. Mason asked Plaintiff about the strength of her marriage, she informed him that her marriage was “centered in Christ,” hoping this would curtail his sexual advances. Id. at ¶ 18.

Around this time, Mr. Mason asked Plaintiff to join him on a work trip to Northern Virginia. Id. at ¶ 20. He proposed the two share a hotel so they could “hang out, have a few drinks, and have a good time.” Id. He also suggested the two get massages together while they were traveling. Id. Plaintiff perceived Mr. Mason's invitation as a sexual proposition. Id. When Plaintiff told Mr. Mason that his behavior was inappropriate and unwelcome, Mr. Mason maintained that Plaintiff had taken his statements the “wrong way,” and that he regularly asks coworkers to get massages with him. Id.

Plaintiff did not attend the trip because of an illness in her family. Id. at ¶ 21. When she returned to work, Mr. Mason began treating her poorly, something he had not done before their conversation regarding the work trip. Id. at ¶¶ 21, 22. While Mr. Mason had previously been helpful, he now refused to answer Plaintiff's questions, giving her snarky responses and telling her to rely on AT&T's employee resources. Id. at ¶ 21. Mr. Mason did not treat other employees in this manner, only Plaintiff. Id.

Around this time, Mr. Mason began to sabotage Plaintiff's career. See id. at ¶¶ 23-29. He told another employee to keep an eye on Plaintiff, as she had not been “taking the time to do her work properly.” Id. at ¶ 23. Another incident occurred around August 2022. Plaintiff was expected to attend a meeting with Amy Smith, a Vice President at AT&T, but Plaintiff was never informed of the meeting, and Mr. Mason sent her notice only five minutes before it was scheduled to begin. Id. at ¶ 24. Additionally, Mr. Mason sent the message to Plaintiff's personal email account, which she was not monitoring closely at the time. Id. As a result, Plaintiff was unable to attend and was later scolded by Ms. Smith. Id. at ¶ 25. Mr. Mason was in the room when Ms. Smith berated Plaintiff, but said nothing to explain Plaintiff's absence. Id.

In August 2022, Plaintiff spoke with Ms. Smith to explain her absence from the meeting. Id. at ¶¶ 26, 28. She also informed Ms. Smith of Mr. Mason's behavior. Id. at ¶ 26. In response, Ms. Smith defended Mr. Mason, saying he was “not used to being around women,” and asking Plaintiff, “are you sure?” Id. She also said, “don't you think if you just talk [to Mr. Mason], you can get past this?” Id. Plaintiff did not wish to speak with Mr. Mason and requested a new supervisor. Id. at ¶ 27. Ms. Smith informed Plaintiff that a transfer would not be possible until January 2023. Id. She also told Plaintiff that she was required to have a one-on-one performance evaluation with Mr. Mason. Id. Sometime thereafter, in December 2022, Mr. Mason retaliated by not timely approving Ms. Twine's payroll. Id. at ¶ 29. As a result, Plaintiff did not receive her paychecks for several pay periods. Id. Near the end of December, after several weeks of waiting, Plaintiff received the missing pay. Id.

In January 2023, roughly four months after requesting a transfer, Plaintiff was reassigned to a new manager, Breanna Apostolopoulos. Id. at ¶ 30. Ms. Apostolopoulos is a white woman; Defendant is a black woman. Id. at ¶¶ 30, 39. The relationship got off to a rocky start when Ms. Apostolopoulos told Plaintiff that she did not approve of Plaintiff reporting Mr. Mason for sexual harassment and that she thought highly of Mr. Mason. Id. at ¶ 31. She told Plaintiff that Mr. Mason had informed her that Plaintiff was having performance issues due to her medical condition. Id. at ¶ 32. She made clear that while working for her, Plaintiff's medical condition was not a valid excuse for poor performance. Id. This was despite the fact that Plaintiff was performing well and had received positive performance reviews. Id. at ¶ 32. Ms. Apostolopoulos, like Mr. Mason, also sought to sabotage Plaintiff's career. She removed Plaintiff from a group messaging platform, which restricted Plaintiff's access to key information and “directly impacted” her “ability to make income via commissions.” Id. at ¶ 34.

In January 2023, AT&T approved Plaintiff's request for a reasonable accommodation relating to her autoimmune condition. Id. at ¶ 37. Plaintiff had made her request in June 2022. Id. at ¶ 35. Plaintiff's accommodation entitled her to three 30-minute breaks per workday and two days of intermittent FMLA leave per week. Id. at ¶ 36. Ms. Apostolopoulos reiterated her displeasure with Plaintiff's disability, telling Plaintiff that her disability would not exempt her from meeting performance goals and that Plaintiff could be terminated within one to two months. Id. at ¶ 38. She also told Plaintiff that she had just fired someone and had threatened to fire another employee who had multiple sclerosis. Id. at ¶ 39. She suggested that Plaintiff “partner” with the latter employee—who was also a black woman—as this employee would either “work around” her disability or be fired. Id. Plaintiff perceived Ms. Apostolopoulos's statements as “thinly veiled threats” that she would be fired because of her disability. Id. Plaintiff was also concerned that Ms. Apostolopoulos had disclosed another employee's private medical information. Id. When Plaintiff voiced her displeasure to Ms. Apostolopoulos, Ms. Apostolopoulos told her that she discusses employee medical information “all the time.” Id. at ¶ 40.

Bothered by Ms. Apostolopoulos's disclosure, Plaintiff informed the employee in question about the incident. Id. at ¶ 41. The other employee told Plaintiff that she had faced similar discrimination from Ms. Apostolopoulos and had never given Ms. Apostolopoulos permission to share such information. Id. Plaintiff also reported the conversation to AT&T Vice President Amy C. Smith. Id. at ¶ 42. Ms. Smith stated that she would speak with Ms. Apostolopoulos and report back to Plaintiff. Id. at ¶ 42. Ms. Smith never followed up with Plaintiff, prompting Plaintiff to report her concerns through the AT&T ethics line. Id. Following her report, Ms. Apostolopoulos removed Plaintiff from group messaging platforms, refused to assist Plaintiff with accounts, and became hostile in future conversations. Id. at ¶ 43. Plaintiff was not notified as to the status of the investigation until she asked, and no action was taken against Ms. Apostolopoulos. Id. at ¶ 44. Plaintiff also requested a new supervisor but was denied. Id.

In February 2023, while Plaintiff was on approved medical leave, Ms. Apostolopoulos sent her a text message asking to discuss Plaintiff's workplace accommodation request. Id. at ¶ 45. Plaintiff suggested that the two save this conversation for when Plaintiff returned to work. Id. After receiving Ms. Apostolopoulos's message, Plaintiff scheduled a meeting with Angela Rutherford, AT&T's Vice President of Business, to discuss the discrimination, harassment, and retaliation to which she felt she was being subjected. Id. at ¶ 46. In the meeting, Plaintiff told Ms. Rutherford that the mistreatment was increasing, despite her prior complaints. Id. at ¶ 47. She also requested that Ms. Rutherford help move her to a new department within AT&T. Id. Ms. Rutherford agreed to release Plaintiff to a new department but advised her that she would need to find and apply for open positions within the company on her own. Id. Ms. Rutherford also told Plaintiff that she would speak to Ms. Smith about Plaintiff's concerns. Id. Despite her assurances, Plaintiff's emails to Ms. Rutherford would go largely unanswered in the months that followed, and AT&T took no corrective action. Id. at ¶ 48.

After her conversation with Ms. Rutherford, Plaintiff spoke with an HR Representative about moving to another department within AT&T. Id. at ¶ 49. The Representative informed Plaintiff that only Ms. Rutherford could authorize such a transfer. Id. Plaintiff also spoke with Carolyn Lavalais, an HR Representative at AT&T who was investigating Plaintiff's complaints. Id. at ¶ 50. When Plaintiff asked Ms. Lavalais if she could move to another department within the company, Ms. Lavalais refused. Id. Later, Plaintiff learned that Ms. Lavalais concluded her investigation into Plaintiff's concerns but never informed Plaintiff of the results. Id. at ¶ 51.

On March 13, 2023, Plaintiff sent a message to AT&T's HR Escalation Response Team. In her email, Plaintiff reiterated many of her earlier concerns, and stressed that she felt nothing was being done to remedy her situation. Id. at ¶ 52. During this time, Ms. Apostolopoulos continued to comment upon Plaintiff's disability, telling her that she could not allow it to affect her work. Id. at ¶ 53.

On or about May 2023, Plaintiff requested Ms. Apostolopoulos's assistance in fixing her company-issued computer. Id. at ¶ 54. Ms. Apostolopoulos thwarted Plaintiff's attempts to fix her computer, restricting Plaintiff's access to essential company software and systems. Id. On or about May 23, 2023, Plaintiff learned that her computer was under warranty and could be repaired free of charge. Id. at ¶ 55. When she suggested this idea to Ms. Apostolopoulos, Ms. Apostolopoulos began yelling at Plaintiff, threatening to make Plaintiff pay any fee associated with the repair. Id. Instead, Ms. Apostolopoulos insisted that her friend would fix the computer. Id. When Ms. Apostolopoulos persisted in berating Plaintiff, Plaintiff sought Ms. Smith, whom she thought would help facilitate the conversation. Id. at ¶ 56. When Ms. Smith was not available, Ms. Apostolopoulos suggested that Jeffrey Kyle, a friend of Ms. Apostolopoulos, witness the two's phone call. Id. With Mr. Kyle on the line, Plaintiff informed Ms. Apostolopoulos that she was no longer comfortable continuing the conversation. Id. at ¶ 57. Thinking that Plaintiff had already hung up, Ms. Apostolopoulos yelled, “I want to strangle this black bitch!” Id.

Plaintiff reported Ms. Apostolopoulos's statement to her managers and AT&T's Human Resources Department. Id. at ¶ 59. She also informed Ms. Smith, who referred her to AT&T's ethics hotline. Id. Later, she sent emails detailing the aforementioned incidents to Ms. Rutherford; AT&T's HR Escalation Response Team; Ms. Smith; Deb Everett (an AT&T Employee Relations Manager); and AT&T CEO John Stankey. Id. at ¶¶ 60-63.

IV. ANALYSIS

A. Counts Two and Six – Quid Pro Quo Sexual Harassment

Count Two and Six allege that Defendant's employee, Alex Mason, engaged in quid pro quo sexual harassment in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2000e17 (“Title VII”) and the Virginia Human Rights Act (“VHRA”).²

Quid pro quo sexual harassment occurs when “a supervisor demands sexual consideration in exchange for job benefits.” Katz v. Dole, 709 F.2d 251, 254 (4th Cir. 1983) (citation omitted). To state a claim for quid pro quo sexual harassment, a plaintiff must show: (1) she is a member of a protected group; (2) she was subjected to unwelcome sexual harassment; (3) the harassment was based on sex; (4) her “reaction to the harassment affected tangible aspects of [her] compensation, terms, conditions, or privileges of employment”; and (5) the employer knew or should have known of the harassment but failed to take remedial action. Nixon v. Kysela Pere et Fils, Ltd., 2024 WL 3666166, at *5 (4th Cir. Aug. 6, 2024) (citing Okoli v. City of Balt., 648 F.3d 216, 222 (4th Cir. 2011)). Defendant argues that Plaintiff fails to allege elements (3) and (4) of her quid pro quo sexual harassment claim.

1. Sex-Based Harassment

To establish the third element, sex-based harassment, Plaintiff must show that the harassment was based on her sex. This requirement distinguishes sex-based discrimination from otherwise boorish behavior, the former of which is the concern of Title VII. To show that harassment is sex-based, Plaintiff must show that “but-for the employee's sex, he or she would not have been the victim of the discrimination.” Hartsell v. Duplex Prod. Inc., 123 F.3d 766, 772 (4th Cir. 1997) (citation and quotations omitted) (explaining the requirement in the context of a hostile work environment claim).

The most common way a plaintiff meets this standard is by showing “that she was ‘subjected to sexual advances or propositions.’ ” See Cosby v. S.C. Prob., Parole & Pardon Servs., 93 F.4th 707, 717 (4th Cir. 2024) (citing Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir. 2003)); see also West v. MCI Worldcom, Inc., 205 F. Supp. 2d 531, 544 (E.D. Va. 2002) (Lee, J.) (“To be sure, evidence of an earnest sexual solicitation is a valid evidentiary route to establishing the ‘because of sex’ causation element.” (citation omitted)). The Supreme Court has noted that, “[c]ourts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).

Defendant maintains that Mr. Mason never “made an offer which was based on the Plaintiff's sex.” See ECF No. 19 at 9. Even if Mr. Mason never made an explicit sexual solicitation, courts have found that “[t]o establish the existence of a sexual advance, a plaintiff need not show that an explicit request for sex was made.” Briggs v. Waters, 484 F. Supp. 2d 466, 478 (E.D. Va. 2007) (Smith, J.) (citing Lewis v. Forest Pharms., Inc., 217 F. Supp. 2d 638, 647 (D. Md. 2002)). Rather, “[w]ords and actions that implicitly proposition suffice.” Id. To determine whether a party's conduct constitutes an implicit proposition, the court will examine “all of the relevant facts and circumstances,” bearing in mind “common sense, sound general principles, and a true understanding of human nature.” Briggs, 484 F. Supp. 2d at 479 (citing Nichols v. Frank, 42 F.3d 503, 513 (9th Cir. 1994)).

Here, Plaintiff has clearly alleged sufficient facts, taken as true at this juncture, to show that Mr. Mason made an implicit sexual proposition. Plaintiff alleges Mr. Mason made several comments about Plaintiff's appearance, telling her that she “looked good for her age,” that her “skin color was lovely,” that she “takes care of herself,” and that her “husband must be happy.” See ECF No. 13 at ¶¶ 15, 17. Mr. Mason also “frequently leered at [Plaintiff's] body in a way clearly intended to convey his sexual interest in her.” Id. at ¶ 16. Furthermore, his questions about Plaintiff's marriage, combined with disclosing his displeasure with his own marriage could be seen as probing Plaintiff's interest in an extramarital affair, further suggesting a sexual motive. Id. at ¶ 17. Mr. Mason's suggestion that he and Defendant stay at the same hotel, so that they could “hang out, have a few drinks, and have a good time,” supports this inference. Id. at ¶ 20. He also proposed getting massages together while the two were traveling. Id. While it is possible that Mr. Mason's motives were “pure as the driven snow,” or that the allegations are not ultimately substantiated, at this stage of litigation, his alleged conduct suffices to infer an implicit sexual proposition. See generally Oncale, 523 U.S. at 82, 118 S.Ct. 998 (“The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.”).

Mr. Mason's alleged conduct after Plaintiff rejected his alleged sexual proposition strengthens the court's inference that a proposition occurred. After Plaintiff rejected his advances, Mr. Mason stopped answering her questions, spread rumors about her work performance, sabotaged her by not informing her of an important meeting, and did not timely approve her payroll for several weeks. See ECF No. 13 at ¶¶ 23-29. This alleged retaliatory conduct supports the inference that Mr. Mason made a sexual proposition and was rebuffed by Plaintiff. Cf. Sonnier v. Diamond Healthcare Corp., 114 F. Supp. 3d 349, 357 (E.D. Va. 2015) (Davis, J.) (finding that the defendant's statements, after the alleged harassment, supported the court's inference that the defendant's earlier comments were of a sexual nature).

In sum, Plaintiff has alleged sufficient facts to claim that Mr. Mason's comments were “based on sex.”

2. Tangible Employment Action

To establish the fourth element, a tangible employment action, Plaintiff must show that her “reaction to the harassment affected tangible aspects of [her] compensation, terms, conditions, or privileges of employment.” Brown v. Perry, 184 F.3d 388, 393 (4th Cir. 1999). “In other words, the plaintiff must establish, through direct or circumstantial evidence, a nexus or causal connection between the acceptance or rejection of the unwelcome sexual advances and the employment decision complained of.” Briggs, 484 F. Supp. 2d. at 479 (citing Lewis, 217 F. Supp. 2d at 648). A plaintiff can establish this connection by showing that acceptance of the harassment was an “express or implied condition to the receipt of a job benefit.” Perry, 184 F.3d at 393.

Ultimately making this showing can be difficult. As this court has noted, “quid pro quo harassment is clear if a manager explicitly tells his subordinate ‘I will fire you unless you sleep with me.’ ” Briggs, 484 F. Supp. 2d at 479 (quoting Nichols, 42 F.3d at 512). However, it is much harder to show an express or implied condition when, for example, “ ‘the manager merely invites the employee out for a drink on one or more occasions but does not suggest that he wishes to discuss work-related matters’ and, some time after the manager is spurned, he or she takes an adverse employment action against the subordinate.” Id. Indeed, the latter is remarkably similar to this case and much more common. See Nichols, 42 F.3d at 512 (noting that this type of harassment “is far more likely to take place than is the explicit variety”).

For this reason, plaintiffs may make an alternative evidentiary showing to demonstrate an implied condition. Rather than show the condition itself, plaintiffs may offer evidence that their rejection of a defendant's advances caused a defendant to take an adverse employment action against them. Showing that a defendant's retaliatory action was caused by a plaintiff's rejection raises an inference that the defendant implicitly conditioned proper treatment of the plaintiff on acquiescence to their sexual demands. To satisfy this test, a plaintiff must show that “rejection of the harassment [is the cause] of a tangible job detriment[.]” Perry, 184 F.3d at 393; see Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753-54, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (“When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.”).

The court looks to various factors in assessing causation. Perhaps the most important is the temporal proximity of the plaintiff's rejection to the defendant's retaliatory conduct. See Bush v. Potter, 2009 WL 5177286, at *7 (D. Md. Dec. 21, 2009) (“The circumstances surrounding the employment decision, including the close temporal proximity between the sexual advance and employment action ․ should guide the court in its analysis of the fourth element.” (citing Briggs, 484 F. Supp. 2d at 479)). The court will infer causation when “the unwelcome sexual advances proximately preceded the tangible employment action and the alleged harasser made or substantially influenced the relevant decision.” Lewis, 217 F. Supp. 2d at 648-49 (citing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)). Courts reason that the shorter the lapse in time between the rejection and the employment action, the more likely the employment action was in retaliation for the rejection.

While temporal proximity is perhaps the most important factor, courts must still consider the totality of the circumstances. See Briggs, 484 F. Supp. 2d at 479 (“ ‘[A] plaintiff may rely upon a broad array of evidence’ to establish the requisite causal link, and a court can consider circumstantial evidence and draw inferences in favor of the plaintiff in determining whether the causal link has been established.” (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 283-84 (3d Cir. 2000))).

In this case, under the allegations, the longest possible interval between when she rejected Mr. Mason and when Mr. Mason retaliated is roughly two and one-half months, the time between June 15, 2022, when she returned to work, ECF No. 13 at ¶ 13, and August 31, 2022, the latest possible date he began retaliating, id. at ¶ 24. Because of the relatively short time between rebuffing Mr. Mason's unwelcome contact and his alleged retaliatory behavior, the court finds Plaintiff plausibly alleged that Mr. Mason's conduct was “caused” by her rejection of his advances. Courts have found that similar, or even longer, lapses of time give rise to such an inference.³ See e.g., Briggs, 484 F. Supp. 2d at 481 (finding that there was a sufficient causal nexus when the plaintiff was placed on administrative leave “less than three months” after rejecting her supervisor's advances); see also Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980) (finding that an eight-month gap between filing an EEOC complaint and the employer's retaliatory action suggested a causal relationship). In reaching this conclusion, the court emphasizes that “there is no bright-line rule for defining when a temporal relationship becomes too remote to support a discrimination claim.” Briggs, 484 F. Supp. 2d at 480 (citing Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir. 2001)).

Because the court has found that the alleged temporal proximity between Plaintiff rebuffing Mr. Mason's demands and Mr. Mason taking adverse action against Plaintiff is sufficient to show a causal relationship at this stage of litigation, the question becomes whether Mr. Mason's adverse treatment of Plaintiff was a “tangible employment action.”

“[A] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Okoli, 648 F.3d at 222 (citing Ellerth, 524 U.S. at 761, 118 S.Ct. 2257). Courts have found that a variety of similarly damaging conduct can constitute a “tangible employment action.” For example, a written or verbal reprimand can be a tangible employment action if it “not only bruises an employee's ego or reputation, but also works a real, rather than speculative, employment injury[.]” Lewis, 217 F. Supp. 2d at 648. In each situation, the court seeks to determine whether the action caused a “materially adverse change” or merely a “bruised ego.” Ellerth, 524 U.S. at 761, 118 S.Ct. 2257. To resolve this question, courts often examine whether the defendant's actions caused the plaintiff direct economic harm. Ray v. Int'l Paper Co., 909 F.3d 661, 667 (4th Cir. 2018) (“In most cases, a tangible employment action ‘inflicts direct economic harm.’ ” (quoting Ellerth, 524 U.S. at 762, 118 S.Ct. 2257)).

In this case, Plaintiff alleges that Mr. Mason took several adverse employment actions against her. Specifically, Mr. Mason stopped answering Plaintiff's questions, pointing her to employee resources instead. See ECF No. 13 at ¶ 21. He also spoke poorly about Plaintiff, telling another employee to keep a close eye on her, as she was not “taking the time to do her work properly.” Id. at ¶ 23. Later, in August 2022, he intentionally did not tell Plaintiff about an important business meeting. Id. at ¶ 24. This caused Plaintiff to miss the meeting, damaging her standing with Ms. Smith. Id. Mr. Mason also failed to inform Ms. Smith that it was his fault that Plaintiff missed the meeting, standing idly by while Plaintiff was reprimanded. Id. at ¶ 25. Lastly, in December 2022, Mr. Mason intentionally failed to approve Plaintiff's payroll, causing Plaintiff a several week delay in receiving her paychecks. Id. at ¶ 29.

While some of these allegations may not constitute an actionable tangible employment action, Plaintiff's allegation that Mr. Mason intentionally failed to approve her payroll, if proven, does.⁴ It is well-established that reducing an employee's compensation is a tangible employment action. See e.g., McKinnish v. Brennan, 630 F. App'x 177, 181 (4th Cir. 2015) (“A reduction in an employee's hours, which reduces the employee's take-home pay, qualifies as a tangible employment action.” (quoting Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1231 (11th Cir. 2006))). The same holds true for a delay in payment. See, e.g., White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789, 802 (6th Cir. 2004) (finding that withholding an employee's wages for one month, even though they were later reinstated, constituted an adverse employment action); Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223–24 (2d Cir. 2001) (finding that a suspension without pay for one week was an adverse employment action even though the employee was later reimbursed for lost wages because the employee “suffered the loss of the use of her wages for a time”).

Here, Plaintiff alleges that AT&T withheld her paychecks “for several pay periods.” See ECF No. 13 at ¶ 29. This began “[i]n about December 2022,” and she was eventually paid “in the last week in December.” Id. Drawing all reasonable inferences in favor of Plaintiff, the court finds that Plaintiff alleges she was deprived of several weeks’ pay from roughly the beginning to the end of December. As a result of the delay, Plaintiff “suffered the loss of the use of her wages for a time,” thus causing her “direct economic harm.” Lovejoy–Wilson, 263 F.3d at 223–24; Ray, 909 F.3d at 667. This delay was not trivial. As one district court noted: “[f]or many people, a prolonged delay in receiving [several] days worth of pay can cause serious economic hardship.” Lan Nguyen v. GMC, 2006 WL 2460792, at *4, 2006 U.S. Dist. LEXIS 60088, at *14 (W.D. Mich. Aug. 23, 2006). Accordingly, the court finds that Plaintiff has alleged sufficient facts to show that she suffered a tangible employment action.

Plaintiff has plausibly alleged all elements of quid pro quo harassment, and Defendant's Partial Motion to Dismiss Counts Two and Six is DENIED.

B. Counts Three and Seven – Hostile Work Environment

Counts Three and Seven of Plaintiff's Amended Complaint allege that Defendant violated Title VII and VHRA by creating a hostile work environment. ECF No. 13 at ¶¶ 77-84, 102-109.⁵

An employer violates the substantive discrimination provision of Title VII when it subjects an employee to a hostile work environment. Laurent-Workman v. Wormuth, 54 F.4th 201, 210 (4th Cir. 2022) (citing Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 276–77 (4th Cir. 2015) (en banc)). The elements of a Title VII claim for hostile work environment are: “(1) unwelcome conduct; (2) that is based on the plaintiff's [protected status]; (3) which is sufficiently severe or pervasive to alter her conditions of employment and to create an abusive work environment; and (4) which is imputable to the employer.” Strothers v. City of Laurel, 895 F.3d 317, 328 (4th Cir. 2018) (alteration in original) (internal quotation omitted) (quoting Okoli, 648 F.3d at 220).

“At the motion to dismiss stage, an employment discrimination plaintiff is not required to plead a prima facie case.” Jalmiran v. Alutiiq Com. Enters., LLC, 639 F. Supp. 3d 605, 608 (E.D. Va. 2022) (Smith, J.) (citing Bing v. Brivo Sys., LLC, 959 F.3d 605, 616-17 (4th Cir. 2020)). “Instead, the plaintiff is merely ‘required to allege facts to satisfy the elements of a cause of action created by that statute.’ ” Id. at 609 (quoting McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015)). Accordingly, the relevant inquiry is whether Plaintiff has alleged facts that satisfy the elements of a hostile work environment claim “above a speculative level.” Id. (quoting Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)).

Defendant does not dispute that Plaintiff has sufficiently alleged the first or second elements of her hostile work environment claim. Rather, Defendant argues that the alleged harassment in Plaintiff's complaint is not sufficiently severe or pervasive to satisfy the third element of the claim and that the alleged harassment is not imputable on Defendant. See ECF No. 16 at 6-7. The court does not agree.

1. Severe or Pervasive

“A hostile environment exists ‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ ” Boyer-Liberto, 786 F.3d at 277 (alteration in original) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). “The ‘severe or pervasive’ element of a hostile work environment claim ‘has both subjective and objective components.” EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (quoting Ocheltree, 335 F.3d at 333). The subjective component requires Plaintiff to show that she “subjectively perceive[d] the environment to be abusive.” Id. (alteration in original) (internal quotation omitted) (quoting Harris, 510 U.S. at 21-22, 114 S.Ct. 367). The objective component requires Plaintiff to show that “the conduct was such that ‘a reasonable person in [her] position’ would have found the environment objectively hostile or abusive.” Id. (quoting Oncale, 523 U.S. at 81–82, 118 S.Ct. 998). Because Defendant does not, and could not, challenge whether Plaintiff subjectively found the alleged conduct to be abusive, the court focuses on the objective component.

“Whether the environment is objectively hostile or abusive is judged from the perspective of a reasonable person in the plaintiff's position.” Irani v. Palmetto Health, 767 F. App'x 399, 416 (4th Cir. 2019) (internal quotation omitted) (quoting Boyer-Liberto, 786 F.3d at 277). “This objective determination requires consideration of all circumstances, which ‘may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.’ ” Id. (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). However, “ ‘[n]o single factor is’ dispositive.” Sunbelt Rentals, Inc., 521 F.3d at 315 (alteration in original) (quoting Harris, 510 U.S. at 23, 114 S.Ct. 367). “The behavior need not be both severe and pervasive: the more severe the conduct, the less pervasive the plaintiff need prove that it is.” Reed v. AirTran Airways, 531 F. Supp. 2d 660, 669 n.15 (D. Md. 2008). An “ ‘isolated incident[ ]’ of harassment can ‘amount to discriminatory changes in the terms and conditions of employment,’ if that incident is ‘extremely serious.’ ” Boyer-Liberto, 786 F.3d at 277 (alteration in original) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998)).

Drawing all reasonable inferences in favor of the Plaintiff, the court finds that Mr. Mason's alleged conduct was sufficiently “severe or pervasive” as to create a hostile work environment. In making its decision, the court relies on three indicia that courts in this circuit have found connote particularly serious harassment: (1) “the status of the harasser,” (2) “propositioning the plaintiff to engage in sexual activity,” and (3) “a harasser physically touching the plaintiff.” Sonnier, 114 F. Supp. 3d at 359. Two of these three factors are present in this case.⁶

First, Mr. Mason's status as Plaintiff's supervisor amplifies the severity of his conduct. See, e.g., EEOC v. Fairbrook Med. Clinic, 609 F.3d 320, 329 (4th Cir. 2010) (finding that the supervisory position of the harasser could enhance the severity of the conduct). As the Fourth Circuit has noted, “In measuring the severity of harassing conduct, the status of the harasser may be a significant factor” because “a supervisor's power and authority invests his or her harassing conduct with a particular threatening character.” Boyer-Liberto, 786 F.3d at 278 (internal citations omitted). Because of this power imbalance, “an employee generally cannot check a supervisor's abusive conduct the same way that she might deal with abuse from a co-worker.” Faragher, 524 U.S. at 803, 118 S.Ct. 2275.

As previously stated, Mr. Mason also allegedly propositioned the Plaintiff. Courts in this circuit have found that such propositions weigh heavily in favor of finding that the conduct was severe or pervasive. See Okoli, 648 F.3d at 221 (noting that defendant was “subject to repeated propositioning and physical touching”); Kerns v. RCS Trucking & Freight, Inc., 2023 WL 4868555, at *5 (E.D. Va. July 31, 2023) (Alston, J.) (finding it significant that defendant made “persistent unwanted sexual advances”). That Mr. Mason made implicit, rather than explicit requests for sex, does not diminish the severity of his conduct. See Fairbrook Med. Clinic, 609 F.3d at 330 (finding it significant that the defendant “at least implicitly, proposed that they [the plaintiff and the defendant] engage in sexual activity”).

That both factors are present makes the alleged harassment especially odious. Because a victim's employment is contingent upon remaining in good standing with her supervisor, harassment by that same supervisor puts her in a bind. If she resists her supervisor's demands and reports him, she may damage her career. Her other option—acquiescing to unwanted sexual contact—is an unconscionable alternative. In these cases, courts are far more willing to find that the harassment was severe and pervasive. See Sunkins v. Hampton Roads Connector Partners, 701 F. Supp. 3d 342, 354 (E.D. Va. 2023) (Smith, J.) (finding that “[the p]laintiff's allegation that [her supervisor] directly propositioned her to participate in a sex act with another employee is significant.” (citing Oncale, 523 U.S. at 81, 118 S.Ct. 998)); see also Okoli, 648 F.3d at 220-21 (finding that soliciting sex from one's subordinate contributed to the court's finding that the conduct was severe or pervasive).

Accordingly, drawing all reasonable inferences in favor of Plaintiff, the court finds that Mr. Mason's conduct was sufficiently severe and pervasive to cross the line into actionable harassment at this stage of litigation.

2. Imputable to Defendant

Defendant AT&T also argues that Mr. Mason's conduct cannot be imputed to AT&T. There are two separate standards for evaluating this question. When “the harasser is a co-worker, then the employee must show that the employer was ‘negligent in controlling working conditions’—that is, the employer ‘knew or should have known about the harassment and failed to take effective action to stop it.’ ” Strothers, 895 F.3d at 332 (citing Vance v. Ball State Univ., 570 U.S. 421, 424, 133 S.Ct. 2434, 186 L.Ed.2d 565 (2013)). Effective action requires the employer “to take prompt remedial action reasonably calculated to end the harassment.” Id. at 334 (quoting Freeman v. Dal-Tile Corp., 750 F.3d 413, 423 (4th Cir. 2014)).

Alternatively, “[i]f the harasser is a supervisor, then the employer may be either strictly or vicariously liable,” depending on whether the harassment “culminates in a ‘tangible employment action.’ ” Strothers, 895 F.3d at 333 n.6 (citing Vance, 570 U.S. at 429-30, 133 S.Ct. 2434). When “the supervisor's harassment culminates in a tangible employment action, the employer is strictly liable.” Vance, 570 U.S. at 424, 133 S.Ct. 2434. If there is no tangible employment action, the “employer can mitigate or avoid liability by showing (1) that it exercised reasonable care to prevent and promptly correct any harassing behavior and (2) that the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities that were provided.” Id. at 430, 133 S.Ct. 2434.

Plaintiff has alleged sufficient facts for the court to conclude that Mr. Mason was her supervisor. A “supervisor” has the ability “to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Vance, 570 U.S. at 431, 133 S.Ct. 2434. This definition mirrors that of a “tangible employment action.” See Okoli, 648 F.3d at 222 (citing Ellerth, 524 U.S. at 761, 118 S.Ct. 2257). Mr. Mason allegedly took a tangible employment action against Plaintiff, so Mr. Mason was a “supervisor” for purposes of Title VII. See discussion infra Section IV.A.2. at 20-23; Vance, 570 U.S. at 424, 133 S.Ct. 2434 (finding that strict liability applies when the alleged harasser is the plaintiff's supervisor). Nonetheless, even if Mr. Mason was not Plaintiff's supervisor, and the standard for coworker harassment applies, as Defendant failed “to take prompt remedial action reasonably calculated to end the harassment.” Strothers, 895 F.3d at 334 (citing Freeman, 750 F.3d at 423).

Plaintiff reported the harassment to Ms. Smith around August 2022. See ECF No. 13 at ¶¶ 24-26. Ms. Smith dismissed Plaintiff's complaints, allegedly telling her that Mr. Mason is “not used to being around women,” and asking, “are you sure?” Id. at ¶ 26. Additionally, Ms. Smith said “don't you think if you just talk [to Mr. Mason], you can get past this?” Id. Several months later, in January 2023, Plaintiff was transferred to a new supervisor. Id. at ¶ 30. Plaintiff argues that this unexplained four-month gap between reporting and corrective action was not sufficiently “prompt.” ECF No. 26 at 14. The court agrees.

Courts generally find that a several month lapse between reporting and corrective action is not “prompt,” at least at the motion to dismiss stage. See e.g., Thabatah v. McDonough, 2024 WL 3595476, at *10 (E.D. La. July 31, 2024) (finding that when the defendant's investigation did not begin until two months after the plaintiff made a report of harassment, “a reasonable factfinder could conclude that Defendant knew of the harassment and failed to take prompt remedial action”). Accordingly, Plaintiff has sufficiently alleged that Defendant did not take “prompt remedial action,” and Mr. Mason's conduct can be imputed on Defendant.

For these reasons, Defendant's Partial Motion to Dismiss Counts Three and Seven is DENIED.

C. Count Ten – Americans with Disabilities Act

Count Ten of Plaintiff's Complaint alleges that Defendant failed to provide her with a reasonable accommodation for her disability in violation of the Americans with Disabilities Act (“ADA”). See ECF No. 13 at ¶¶ 120-124.

The ADA prohibits employers with fifteen (15) or more employees, 42 U.S.C. § 12111(5)(A), from discriminating against qualified individuals “on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). By its terms, the ADA proscribes a wide array of potentially unlawful discrimination. Id. § 12112(b). This includes “the failure to make ‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee ․’ ” Wilson v. Dollar Gen. Corp., 717 F.3d 337, 344-45 (4th Cir. 2013) (quoting 42 U.S.C. § 12112(b)(5)(a)).

To show an employer's failure to accommodate, the plaintiff must prove: (1) that she had a disability within the statutory meaning; (2) that the employer knew of her disability; (3) that a reasonable accommodation would permit her to perform the essential function of the position; and (4) that the employer refused to make the accommodation.

Jordan v. Sch. Bd. of City of Norfolk, 640 F. Supp. 3d 431, 442 (E.D. Va. 2022) (Smith, J.) (quoting Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954, 959 (4th Cir. 2021)).

Defendant does not dispute that Plaintiff's claim satisfies elements (1)-(3). Rather, Defendant argues that factor (4) is not met, because Defendant did, in fact, provide Plaintiff with a reasonable accommodation. See ECF No. 19 at 14. Plaintiff concedes that Defendant provided her an accommodation but alleges that Defendant's six-month delay in doing so amounts to a failure to accommodate. See ECF No. 26 at 15.

“In some circumstances, an ‘unreasonable delay’ may constitute a denial of an accommodation.” Murphy v. Cnty. of New Hanover, 2021 WL 4704780, at *2 (4th Cir. Oct. 8, 2021) (citing Smith v. CSRA, 12 F.4th 396, 415 (4th Cir. 2021) (Rehabilitation Act case)).⁷ In making this determination, “[n]o hard and fast rule will suffice.” Crabill v. Charlotte Mecklenburg Bd. of Educ., 423 F. App'x 314, 323 (4th Cir. 2011) (quoting Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d 1130, 1135-36 (7th Cir. 1996)). Rather, “courts consider the totality of the circumstances, including factors such as whether the employer acted in good faith, the length of the delay, the reasons for the delay, the nature of the disability and accommodation, and whether the employer provided interim or alternative accommodations.” Williams v. Fairfax Cnty., 2022 WL 2346615, at *8 (E.D. Va. June 29, 2022) (Alston, J.) (citing Davis v. Wilkie, 2020 WL 7647455, at *4 (D.S.C. Oct. 8, 2020), report and recommendation adopted, 2020 WL 7396044 (D.S.C. Dec. 17, 2020)).

In determining whether the delay was unreasonable, the court finds it necessary to review the alleged facts of this case. Plaintiff has an autoimmune condition that affects her blood. See ECF No. 13 at ¶ 35. To help manage her condition, in June 2022, Plaintiff requested three thirty (30) minute breaks throughout the workday. Id. She also requested that Defendant permit her to take intermittent Family Medical Leave Act (FMLA) leave two days per week. Id. at ¶ 36. Roughly six months later, in January 2023, Defendant approved Plaintiff's accommodation. Id. at ¶ 37. Neither party alleges that Defendant offered alternative accommodations in the interim. Additionally, neither party offers an explanation as to why Defendant took six months to grant the accommodation.

When ruling on a motion to dismiss, courts are hesitant to find that an unexplained delay of greater than several months is reasonable as a matter of law. See McCray v. Wilkie, 966 F.3d 616, 622 (7th Cir. 2020) (“[W]e cannot rule out the possibility that the factfinder might conclude the 11-month delay in accommodating [the plaintiff's] disability was unreasonable.”); Krocka v. Riegler, 958 F. Supp. 1333, 1342 (N.D. Ill. 1997) (“The court cannot say that the eight-month delay was, under the circumstances of this case, a reasonable delay as a matter of law.”).

Even when considering a shorter delay, courts will often allow a case to proceed past the pleading stage, since determining the reasonableness of the delay requires a more developed factual record. See, e.g., Callbeck v. Fallon Cmty. Health Plan, Inc., 480 F. Supp. 3d 308, 314 (D. Mass 2020) (finding that a seven-week delay was sufficient to survive a motion to dismiss). This is especially true when the pleadings give rise to an inference of bad faith or discrimination. See DiFranco v. City of Chicago, 589 F. Supp. 3d 909, 916 (N.D. Ill. 2022) (finding that plaintiff's allegations regarding a ten-day delay “give rise to a plausible inference that the [defendant's] delay in responding to [plaintiff] was unreasonable given the circumstances presented by the COVID-19 pandemic and also was in bad faith”); see also Johnson v. Brennan, 2020 WL 1139253, at *7 (N.D. Ill. Mar. 9, 2020) (finding that when accompanied by facts which permit an inference of bad faith, a five-month delay was sufficient to survive a motion for summary judgment).

Similarly, at this stage of litigation, the court draws the reasonable inference that Defendant's failure to accommodate was in bad faith. The court bases this finding on Plaintiff's allegations that she was treated with hostility regarding her disability. See ECF No. 13 at ¶¶ 38-41. From this, the court can infer that Defendant took a negative view of disability accommodations in general and acted in bad faith in delaying Plaintiff's accommodation for six months. Accordingly, Plaintiff has stated a plausible claim that Defendant constructively denied her a reasonable accommodation in violation of the ADA, and Defendant's Partial Motion to Dismiss Count Ten is DENIED.

D. Count Twelve – Family Medical Leave Act

Count Twelve of Plaintiff's Complaint alleges that Defendant violated Plaintiff's rights under the Family Medical Leave Act (“FMLA”). The FMLA provides that “an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period” for an employee's serious health condition that makes the employee unable to perform the functions of their job. 29 U.S.C. § 2612(a)(1). A “serious health condition” is “an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). Plaintiff alleges that her autoimmune condition entitles her to FMLA leave. See ECF No. 13 at ¶ 36.

In January 2023, Defendant approved Plaintiff's request for an accommodation, authorizing her to take two days of FMLA leave per week. Id. at ¶ 37. Plaintiff alleges that in the months that followed, Defendant violated her rights under the FMLA by retaliating and/or interfering with her right to take FMLA leave. Id. at ¶¶ 131-32. Interference and retaliation are distinct causes of action under the FMLA and must be pled individually. See Shipton v. Balt. Gas & Elec. Co., 109 F.4th 701, 707 (4th Cir. 2024). Accordingly, the court analyzes each claim in turn.

1. Interference

The FMLA makes it unlawful for any employer “to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). To state a cause of action under this provision, a plaintiff must allege sufficient facts for the court to find that “(1) [she] is entitled to an FMLA benefit; (2) [her] employer interfered with the provision of that benefit; and (3) that interference caused harm.” Shipton, 109 F.4th at 705-06 (citing Adams v. Anne Arundel Cnty. Pub. Schs., 789 F.3d 422, 427 (4th Cir. 2015)). Defendant argues that it did not interfere with Plaintiff's rights, and that even if it did, Plaintiff suffered no harm. See ECF No. 19 at 15-16.

a. Benefits

Interference with FMLA benefits includes “refusing to authorize FMLA leave, discouraging an employee from taking FMLA leave, and manipulating the work force to avoid responsibilities under the FMLA.” Rodriguez v. Reston Hosp. Ctr., LLC, 2017 WL 772348, at *4 (E.D. Va. Feb. 28, 2017) (Cacheris, J.) (citing Battle v. City of Alexandria, 2015 WL 1650246, at *4 (E.D. Va. Apr. 14, 2015) (Cacheris, J.)). Most relevant to this case, “[a]n employer's conduct may constitute interference with an employee's FMLA rights if it would have a chilling effect and would discourage employees from exercising their FMLA rights.” Mook v. City of Martinsville, 2024 WL 2988285, at *2 (W.D. Va. June 14, 2024) (internal citations omitted). This interference can occur when a supervisor verbally reprimands an employee for taking leave. See McNeill v. Fayetteville State Univ., 2018 WL 5291858, at *5 (E.D.N.C. July 27, 2018) (finding that a supervisor's verbal displeasure “could reasonably discourage an employee from taking FMLA leave”), report and recommendation adopted, 2018 WL 4350176 (E.D.N.C. Sept. 12, 2018).

Plaintiff has alleged sufficient facts for the court to reasonably infer that Defendant discouraged her from taking FMLA leave. In her Complaint, Plaintiff alleges that Ms. Apostolopoulos informed her on multiple occasions that her illness was not an excuse for poor performance. See ECF No. 13 at ¶¶ 33, 38. She told Plaintiff that she had recently fired one employee and had threatened to fire another employee—who was suffering from multiple sclerosis—stating that this employee would either “work around” her disability or be fired. Id. at ¶ 39. Further, while Plaintiff was on FMLA leave, Ms. Apostolopoulos sent her a text message stating that Plaintiff's disability would not protect her from termination. Id. at ¶ 45. When viewed in the context of a supervisor-employee relationship, Ms. Apostolopoulos's statements could reasonably be seen as “thinly-veiled threats.” Id. at ¶ 39. Such threats could discourage an employee from utilizing their FMLA leave. Accordingly, Plaintiff has pled sufficient facts to show that Defendant interfered with her FMLA benefits.

b. Prejudice

Plaintiff must also show that Defendant's interference caused her prejudice. See Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89, 122 S.Ct. 1155, 152 L.Ed.2d 167 (2002) (finding that the FMLA “provides no relief unless the employee has been prejudiced by the violation”). To make this showing, Plaintiff must allege “she lost compensation or benefits ‘by reason of the violation,’ sustained other monetary losses ‘as a direct result of the violation,’ or suffered some loss in employment status remediable through ‘appropriate’ equitable relief, such as employment, reinstatement, or promotion.” Ranade v. BT Americas, Inc., 581 F. App'x 182, 184 (4th Cir. 2014) (internal citations omitted).

Plaintiff alleges that in response to taking FMLA leave, Ms. Apostolopoulos “actively thwarted [Plaintiff's] attempts to fix her computer.” ECF No. 26 at 19. This restricted Plaintiff's access to company software and systems, damaging her ability to do her job. Id. Plaintiff also alleges that Ms. Apostolopoulos sent her a message while she was on approved medical leave to discuss Plaintiff's accommodation request. See ECF No. 13 at ¶ 45.

Plaintiffs often show prejudice by alleging that the defendant denied their FMLA benefits, but this is not required. See Vannoy v. Fed. Rsrv. Bank of Richmond, 827 F.3d 296, 303 n.5 (4th Cir. 2016) (“The fact that [the defendant] approved [the plaintiff's] FMLA leave does not automatically foreclose his interference claim.”). Rather, in cases like Plaintiff's—where a defendant is alleged to have discouraged a plaintiff's exercise of FMLA rights, but the plaintiff was nonetheless granted FMLA leave—courts will find prejudice, if the Plaintiff “provides evidence that she would have structured her leave differently absent the interference.” McNeill, 2018 WL 5291858, at *5 (citing Vannoy, 827 F.3d at 302).

Here, Plaintiff alleges sufficient facts for the court to infer that absent Ms. Apostolopoulos’ discouragement, she would have structured her leave differently. In response to Ms. Apostolopoulos’ message, Plaintiff contacted Ms. Rutherford to lodge a formal complaint. ECF No. 13 at ¶ 46. Presumably, Plaintiff did so with the intent that Ms. Apostolopoulos stop her alleged abusive behavior, which included discouraging Plaintiff from using her FMLA leave. In effect, Plaintiff was requesting more leave, since she viewed Ms. Apostolopoulos’ behavior as constructively denying her leave and sought to remedy this situation. It may be inferred that Plaintiff would have structured her leave differently absent Ms. Apostolopoulos’ discouragement.⁸ Accordingly, the court DENIES Defendant's Partial Motion to Dismiss with respect to Plaintiff's interference claim in Count Twelve.

2. Retaliation

The FMLA provides that it is “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” 29 U.S.C. § 2615(a)(2). “Retaliation claims brought under the FMLA are analogous to those brought under Title VII.” Adams, 789 F.3d at 429. Thus, “[t]o establish a prima facie retaliation claim under the FMLA, the plaintiff must demonstrate that [s]he engaged in protected activity, that the employer took adverse action against [her], and that the adverse action was causally connected to the plaintiff's protected activity.” Sabouri-Yazdi v. Red Coats, Inc., 751 F. App'x 389, 391 (4th Cir. 2018) (quoting Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 191 (4th Cir. 2017) (internal quotation omitted)). However, “[t]he prima facie case ․ is an evidentiary standard, not a pleading requirement.” Tutt v. Wormuth, 2021 WL 4076729, at *1 (4th Cir. Sept. 8, 2021) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (internal quotation omitted)). “Thus, a plaintiff is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss” in the context of a retaliation claim under the FMLA. Tutt, 2021 WL 4076729, at *1 (citing Bing, 959 F.3d at 616-17). Defendant argues that Plaintiff has not alleged sufficient factual matter to show that it took an adverse action, nor that its actions were causally connected to Plaintiff's use of leave. See ECF No. 19 at 16.

a. Adverse Employment Action

“An adverse employment action is a discriminatory act that adversely ‘affects the terms, conditions, or benefits of the plaintiff's employment.’ ” Giles v. Nat'l R.R. Passenger Corp., 59 F.4th 696, 704 (4th Cir. 2023) (quoting Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007)). For an action to be adverse, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from’ ” using FMLA leave. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006) (internal quotation omitted)).

In this case, Plaintiff alleges sufficient factual matter to show that Defendant took adverse actions which “might have dissuaded a reasonable worker from” using their FMLA leave. White, 548 U.S. at 68, 126 S.Ct. 2405. The court has already noted Ms. Apostolopoulos’ pattern of harassing Plaintiff and making “thinly-veiled threats” regarding Plaintiff's disability in the ADA context. See supra Section IV.D.1.a. at 38-39. Ms. Apostolopoulos’ actions are also relevant here, as Plaintiff was also on FMLA leave during this time period. See ECF No. 13 at ¶ 36. Courts have found that such threats of termination “would plainly dissuade a reasonable worker” from engaging in protected activity. See Marley v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 2018 WL 4509900, at *7 (D. Md. Sep. 20, 2018) (Title VII case); see also Redlin v. Grosse Pointe Pub. Sch. Sys., 921 F.3d 599, 609 (6th Cir. 2019) (noting that a threat of termination can be an adverse employment action). Accordingly, Plaintiff has pled sufficient facts to show that Defendant took a materially adverse action against her.

b. Causation

Defendant also argues that Plaintiff has failed to allege that its adverse employment actions were causally connected to Plaintiff's use of FMLA leave. At this stage in litigation, “close temporal proximity between activity protected by the statute and an adverse employment action may suffice to demonstrate causation.” Waag, 857 F.3d at 192; Yashenko v. Harrah's NC Casino Co., 446 F.3d 541, 551 (4th Cir. 2006) (“While evidence as to the closeness in time ‘far from conclusively establishes the requisite causal connection, it certainly satisfies the less onerous burden of making a prima facie case of causality.’ ” (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989))).

Plaintiff was approved to take two days of FMLA leave per week, intermittently, beginning in January 2023. See ECF No. 13 at ¶¶ 36-37. Plaintiff alleges that shortly thereafter, in January 2023, Ms. Apostolopoulos’ retaliation began. See id. at ¶ 38. Because Plaintiff was taking her FMLA leave intermittently, Ms. Apostolopoulos’ actions were occurring simultaneously with Plaintiff's taking of leave, leaving no time between the protected activity and an adverse employment action. This is more than sufficient to show a causal connection at this stage of litigation. See King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003) (finding a span of “two months and two weeks” between the protected activity and adverse action “weaken[ed] significantly the inference of causation between the two events” but that it did “not undercut the inference of causation enough to render [plaintiff's] prima facie claim unsuccessful”). Accordingly, the court FINDS that Plaintiff has sufficiently alleged that Defendant's actions were causally connected to her taking of FMLA leave and DENIES Defendant's Partial Motion to Dismiss with respect to Plaintiff's retaliation claim in Count Twelve.

V. CONCLUSION

For the foregoing reasons, Defendant's Partial Motion to Dismiss, ECF No. 18, is DENIED. It is time for the parties to move forward with the pre-trial conference under Rule 16(b) of the Federal Rules of Civil Procedure, conduct discovery, and flesh out these many legal claims of workplace misconduct.

IT IS SO ORDERED.⁹

INDEX

I. PROCEDURAL HISTORY․––––

II. MOTION TO DISMISS LEGAL STANDARD․––––

III. FACTUAL BACKGROUND․––––

IV. ANALYSIS․––––

A. Counts Two and Six – Quid Pro Quo Sexual Harassment․––––

1. Sex-Based Harassment․––––

2. Tangible Employment Action․––––

B. Counts Three and Seven – Hostile Work Environment․––––

1. Severe or Pervasive․––––

2. Imputable to Defendant․––––

C. Count Ten – Americans with Disabilities Act․––––

D. Count Twelve – Family Medical Leave Act․––––

1. Interference․––––

a. Benefits․––––

b. Prejudice․––––

2. Retaliation․––––

a. Adverse Employment Action․––––

b. Causation․––––

V. CONCLUSION․––––

FOOTNOTES

1.   Defendant does not seek dismissal of counts One (Title VII-Sex and Gender Discrimination), Four (Section 1981-Racial Discrimination), Five (Virginia Human Rights Act-Sex and Gender Discrimination), Eight (Title VII-Retaliation), Nine (Virginia Human Rights Act-Retaliation), or Eleven (Americans with Disabilities Act-Retaliation).

2.   Because Plaintiff's Title VII and VHRA discrimination claims are based on the same facts and because the statutes are substantially the same, the court analyzes these claims together. See Abreu v. N. Am. Partners in Anesthesia, LLP, 2023 WL 5959430, at *10 n.8 (E.D. Va. Sept. 12, 2023) (Alston, J.) (analyzing Title VII and VHRA claims together because the claims rested on the same facts and the plaintiff “provide[d] no alternative framework by which to analyze his VHRA claims”); Washington v. Offender Aid & Restoration of Charlottesville-Albemarle, Inc., 677 F. Supp. 3d 383, 394 n.4 (W.D. Va. 2023) (analyzing Title VII and VHRA claims together because the statutes use “substantially identical language”). The court does the same in evaluating Plaintiff's hostile work environment claims. See infra Section IV.B.

3.   In evaluating these claims in the quid pro quo context, courts routinely borrow caselaw from retaliation claims. See, e.g., Lewis, 217 F. Supp. 2d at 649 (noting the same causation standard employed in Title VII retaliation claims (citing Dowe, 145 F.3d at 657)). The court elects to do the same.

4.   Moreover, the totality of the circumstances of the allegations at this juncture are sufficient to survive a Motion to Dismiss.

5.   See supra note 2.

6.   That Mr. Mason did not make physical contact with Plaintiff does not disturb the court's finding. The Fourth Circuit has noted that “harassment need not involve touching or be ‘physically threatening’ in order to be actionable[.]” Walker v. Mod-U-Kraf Homes, LLC, 775 F.3d 202, 209 (4th Cir. 2014) (citing Hoyle v. Freightliner, LLC, 650 F.3d 321, 334-35 (4th Cir. 2011)).

7.   The court cites cases under both the Rehabilitation Act and the ADA when evaluating whether the delay was “unreasonable.” See, e.g., Gearhart v. Dep't of Veterans Affs., 2022 WL 4594037, at *5 n.7 (W.D. Va. Sept. 30, 2022) (noting that, “the court cites interchangeably to cases under the Rehabilitation Act and ADA”).

8.   This is analogous to McNeill. In McNeill, the defendant made a threatening phone call to the plaintiff while she was on FMLA leave. 2018 WL 5291858, at *6. This distressed the plaintiff, causing her to speak with her psychiatrist, who in turn, recommended more FMLA leave for the plaintiff. Id. Like in this case, the defendant's actions effectively caused the plaintiff to require more leave, creating an inference that the plaintiff would have structured their leave differently absent the defendant's discouragement. Id.

9.   An index is attached to this Opinion and Order for reference purposes.

REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE