Employment & Labor Insider

Even though I represent employers, I am not a big fan of the motion to dismiss for failure to state a claim, also known as the Rule 12(b)(6) motion.

A 12(b)(6) motion is usually filed at the very beginning of the case, before the defendant has even responded to the allegations and before any evidence has been presented to the court.

Hmmm . . . sounds too good to be true.

That right there ought to tell you why I think that these motions are frequently a waste of time and money.

Because the defendant is trying to get the suit thrown out at the very beginning, the courts are required to give the plaintiff every benefit of the doubt. In fact, the courts are required to assume that the allegations in the lawsuit are true. Which means that early motions to dismiss are often denied. And even if granted, the plaintiff is often given a chance to fix the problems with the lawsuit and refile it.

Valid lawsuit, if true?

Which brings me to today’s story. Based only on the allegations, do you think her claims are valid? I do.

Our plaintiff – we’ll call her Natasha – was a housekeeper at a hotel in Alabama. After she’d been on the job a couple of months, her co-worker (we’ll call him Melvin) allegedly came to her and said, “Hey, sexy Shay*, how are you doing?"

*As a person whose last name is a homonym for “Shay,” I was of course curious about this term. There is apparently a music artist who goes by the name “SexyShay.” (You all probably knew this already.) I saw no indication that SexyShay the artist engages in sexually inappropriate behavior.  

Melvin (allegedly) continued, "Can I get you to come up here at night? I can pay you.” Natasha alleges that she took this to mean that Melvin was trying to solicit her for sex.

Natasha went straight to her supervisor – we’ll call her “Dotty” – and reported what happened. Dotty allegedly said she would “handle it.” She also allegedly told Natasha that Melvin had run off several other female employees at the hotel.

A month later, Melvin was still there. He allegedly called Natasha “Sexy Shay” again and made what sounded like a very explicit invitation to engage in oral sex. (What he allegedly said is X-rated, so I won’t repeat it here. But you can read it in the court filings linked below.)

Natasha made another complaint to management and submitted a written statement in support of her complaint. After allegedly being threatened by members of Melvin’s family, Natasha resigned.

She sued the hotel chain, alleging hostile work environment in violation of Title VII, constructive discharge (discussion below), and other claims. The hotel chain immediately filed a motion to dismiss under Rule 12(b)(6).

"Counsel, are you serious?"

You will not be surprised to learn that the court for the most part denied the hotel’s motion, although it did dismiss one claim. That leaves five claims that will go forward, including her sexual harassment and constructive discharge claims.

Sexual harassment

Melvin was not a member of management, so the hotel had that much going for it. But once Natasha (allegedly) put her supervisor on notice of the alleged harassment, the hotel was potentially on the hook. As I’m sure you all know, if your employee asks a co-worker to have sex for money and the co-worker reports it, you have a duty as the employer to investigate and take appropriate action.

Supervisor Dotty’s alleged statement that Melvin had already driven away several other female employees with his sexually inappropriate behavior is very bad for the hotel, if true. That would indicate that the hotel knew about past issues with Melvin and didn’t adequately address them – or maybe didn’t address them at all.

And then there was the final alleged incident, when Melvin invited Natasha to have oral sex. Which Natasha allegedly promptly reported to her supervisor. In response, members of Melvin’s family allegedly started threatening Natasha.

I agree with the judge that Natasha alleged enough to get her lawsuit out of the starting gate.

Constructive discharge

I’ve written about “constructive discharge” before. It generally applies when an employee isn’t fired but quits because the conditions in the workplace were so intolerable that a reasonable person in her place would feel that he or she had no choice but to resign.

Natasha wasn’t fired. She quit. But she asserted a claim for constructive discharge based on Melvin’s alleged behavior and the hotel’s alleged failure to take any remedial action despite its knowledge of his proclivities, possibly putting her physical safety at risk.

The hotel claimed that the constructive discharge claim should be dismissed because what Natasha claimed she endured wasn’t bad enough.

But, again, the court said that she had alleged enough to move forward on this claim. Melvin’s behavior as alleged was terrible. And the allegation that the company knew what he was up to and did nothing to stop it was even worse.

The usual disclaimer

None of this means that the hotel will ultimately lose the case. Once the parties engage in discovery, the hotel may present evidence that Natasha did not in fact report Melvin’s alleged conduct, or that Natasha and Melvin were in a consensual relationship, or that the hotel was aware of the allegations and did take appropriate action but Natasha quit anyway.

But because at this early stage the court is looking only at what Natasha has alleged, the suit can go forward.

Tried and true

You and your lawyer may decide that a 12(b)(6) motion is worth a shot. That's fine, but don’t count on a win, or a lasting one. Following these old standbys should get you a win that will last:

• Have a good harassment policy that is communicated to all employees.
• Train all members of management on the policy and how they should respond to employee complaints of harassment. (And also on avoiding any response that could be seen as retaliatory.)
• Train all employees about the policy and how to report actual or suspected harassment.
• Respond to all complaints promptly, and take whatever immediate interim steps might be needed (such as separating the alleged harasser from the complaining employee).
• Conduct a thorough investigation of the allegations, with the help of your employment counsel if necessary.
• Determine (to the best of your ability) what happened, and take appropriate remedial action.
• Document like the wind.

I hope it turns out that the hotel did all these things. If so, it should win -- just a little bit later.