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Woman’s claim for ‘constructive demotion’ recognized

Where an instructor at a Virginia-based truck driver training and job placement program alleged she was subjected to lewd and lascivious comments by multiple employees, that she stepped down from her position after she complained about the harassment and that she was paid less than a male comparator, the school’s motion to dismiss the discrimination, retaliation and equal pay claims was denied. The judge recognized a claim for “constructive demotion” under Title VII.

Background

Diana Salmons filed a five-count complaint against her former employer, Commercial Driver Services Inc., or CDS. Count One is a claim for sexual harassment and hostile work environment in violation of Title VII of the Civil Rights Act of 1964. Counts Two and Three allege claims of discriminatory and retaliatory constructive demotion and constructive discharge, respectively, in violation of Title VII. Counts Four and Five allege sex-based wage discrimination in violation of Title VII and the Equal Pay Act of 1963.

CDS moved to dismiss all of Salmons’ claims under Federal Rule of Civil Procedure 12(b)(6). On Nov. 18, 2019, the parties presented oral argument in a telephonic hearing. During that hearing, Salmons moved for leave to amend her wage discrimination claims, and CDS moved for a discovery stay until the court ruled on CDS’ motion. The court granted both motions.

Salmons has since filed an amended complaint, and CDS has filed an answer in response. CDS’ motion to dismiss is thus ripe for review.

Sexual harassment and hostile work environment

CDS primarily argues that Salmons has not alleged that CDS created a work environment that was sufficiently hostile or severe to state a claim under Title VII, and that Salmons’ allegations are not specific enough. CDS is wrong.

Salmons has alleged more than enough facts for it to be plausible that she faced harassment and a hostile work environment at CDS. Salmons recounts repeated lewd and lascivious comments made by multiple employees, directed at her and other female employees. She also describes unwanted sexual touching by one of her co-workers. Employees continued this behavior over a number of years.

Moreover, CDS management heard her complaints—as well as complaints from CDS’ students—and allegedly let that harassment continue. Moreover, according to Salmons, CDS management insulted her and blamed her for the sex-based harassment she faced. Taking Salmons’ allegations as true, which it must, the court does not hesitate in allowing this claim to proceed.

Retaliation

CDS’ arguments for dismissing Salmons’ retaliation claims are similarly without merit. The allegations clearly show that Salmons reported her concerns of sexual harassment to CDS. Therefore, the court concludes that Salmons has alleged that she engaged in a protected activity.

It appears that the Fourth Circuit has not yet squarely addressed whether a claim for constructive demotion should be recognized under Title VII. Other Courts of Appeals have recognized constructive demotion as a natural extension of constructive discharge, holding that the same standards apply. Similarly, other district courts within the Fourth Circuit have reached the same conclusion. This court will follow suit and recognize constructive demotion as a claim under Title VII. Salmons has plausibly alleged that she was constructively discharged and demoted.

CDS argues that Salmons has not alleged a causal connection between her complaints and the purported retaliation. However, Salmons has alleged that she complained to Kennedy in September 2017 and stepped down from her role as co-lead instructor in the same month after being treated differently and “feeling forced to step down . . . because of all the harassment.” These facts create a plausible inference of causation. The court will allow Salmons’ retaliation claims to proceed.

Sex-based wage discrimination

Finally Salmons alleges that CDS paid a comparator (Everett Markham) a higher salary than it paid her. Salmons also alleges that she and Markham shared the same job titles and performed substantially equal tasks. Indeed, to the extent that Salmons alleges differences in their job tasks, she alleges that she performed more tasks than Markham, beyond those on which they overlapped.

Although Salmons alleges that there were negative reviews of her performance, she plausibly alleges that they were false and motivated by animus. These facts support plausible claims under the Equal Pay Act and Title VII.

Defendant’s motion to dismiss denied.

Salmons v. Commercial Driver Services Inc., Case No. 19-cv-00532, Dec. 13, 2019. WDVA at Roanoke (Conrad). VLW 019-3-602. 15 pp.