Karen Greene v. Harris Corporation

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:13-cv-00190-MJG Copies to all parties and the district court/agency. [999862980].. [14-1601]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1601
KAREN E. GREENE,
Plaintiff - Appellant,
v.
HARRIS CORPORATION; HARL DAN PIERCE,
Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Marvin J. Garbis, Senior District
Judge. (1:13-cv-00190-MJG)
Argued:

March 22, 2016

Decided:

June 22, 2016

Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.
Affirmed by unpublished opinion.
Judge Keenan wrote the
majority opinion, in which Judge Wilkinson joined. Chief Judge
Traxler wrote a dissenting opinion.
ARGUED: James R. Klimaski, KLIMASKI & ASSOCIATES, P.C.,
Washington, D.C., for Appellant.
Lynn E. Calkins, HOLLAND &
KNIGHT LLP, Washington, D.C., for Appellees. ON BRIEF: John P.
Racin, Lynn I. Miller, KLIMASKI & ASSOCIATES, P.C., Washington,
D.C., for Appellant.
Unpublished opinions are not binding precedent in this circuit.

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BARBARA MILANO KEENAN, Circuit Judge:
This case arose from plaintiff Karen Greene’s employment as
a

janitor

with

Eurest

Services,

Inc.

(Eurest).

Eurest

had

assigned Greene to provide cleaning services at the office of
the

defendant,

maintained
doctrine.

also

Harris
was

Corporation

her

employer

(Harris),
under

a

which

joint

Greene

employment

Greene alleged that while working at Harris’ office,

Harris and its employee, Harl Dan Pierce, discriminated against
her based on her sexual orientation and personal appearance, in
violation of local anti-discrimination laws.
The district court dismissed Greene’s complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), concluding that Greene
had failed to allege sufficiently that she was an “employee” of
Harris

as

required

by

the

relevant

anti-discrimination

laws.

Upon our review, we affirm the district court’s judgment.

I.
Before
janitorial

her

employment

services

for

with

Harris

Eurest,
for

14

Greene
years

had

under

provided
contracts

between Harris and the cleaning company that Greene formerly
operated.1

In

October

2008,

during

1

the

period

of

Greene’s

Because the district court dismissed the complaint under
Rule 12(b)(6), we accept the factual allegations in the
complaint as true and construe them in the light most favorable
(Continued)
2

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contracts with Harris, Pierce began working in Harris’ office in
Columbia, Maryland (Harris’ office).
Greene in a rude manner.

Pierce generally treated

Pierce also made derogatory statements

about Greene to other employees, including that she was “frumpy,
dumpy, and dress[ed] like a man in flannel and jeans.”
In January or February 2010, Pierce learned from another
employee that Greene was a lesbian, and soon after terminated
her contract.

Greene first learned of the decision when she saw

a termination letter while cleaning Pierce’s office.

Pierce

later informed Greene that her contract was being terminated for
budgetary

reasons.

Greene’s

last

day

at

Harris

under

the

terminated contract was March 31, 2010.
Later in the same year, Harris and Eurest entered into a
contract

for

cleaning

services

under

which

Eurest

agreed

to

assign some of its janitorial employees to clean Harris’ office.
Under

the

terms

of

the

Eurest-Harris

contract,

Harris

was

required to provide cleaning supplies for Eurest’s cleaning crew
and to conduct on-site supervision of the crew’s work.

Harris

also retained the ability to evaluate assigned Eurest personnel,
and to exercise its discretion to refuse an assigned janitor
“for cause.”

to the plaintiff.
Coleman v. Md. Court of Appeals, 626 F.3d
187, 189 (4th Cir. 2010).

3

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Eurest

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hired

Greene

as

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a

full-time

Eurest

employee

on

December 6, 2010, and assigned her to work at Harris’ office.
On

her

first

day

at

Harris’

office,

Pierce

saw

Greene

and

“immediately had Harris security escort her from the premises.”2
Pierce sent an email the same day to Harris’ facilities manager
stating:
I came to work this morning to find Karen Greene
cleaning the facility.
This is the woman whom we
dismissed because she was charging us $5000 a month.
This is the woman who inappropriately searched my
office and screamed obscenities at me.
Russ, what is going on?
Four

days

later,

Pierce

placed

a

telephone

stating that Harris had banned Greene

call

to

Eurest,

from the premises and

directing Eurest “to immediately remove her from working at the
office.”

After receiving Pierce’s complaint, Eurest terminated

Greene’s employment.
Greene filed this civil action3 against Harris and Pierce
(the

defendants),

alleging:

(1)

discrimination

based

on

her

2

In her complaint, Greene alleges that Pierce noticed her
working at the office on December 6, 2010, and had her removed
from the premises the same day.
During the administrative
investigation conducted by the Howard County Office of Human
Rights, however, Greene stated that she worked at Harris for
four days in December 2010.
This discrepancy does not affect
our analysis of the sufficiency of Greene’s complaint.
3

Greene originally filed her complaint in the Circuit Court
for Howard County, Maryland.
Harris removed the case to the
United States District Court for the District of Maryland.

4

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sexual

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orientation

and

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personal

appearance,

in

violation

of

Howard County, Maryland Code §§ 12.208, I(a) & II(a)(1);4 and (2)
a claim under Maryland law for tortious interference with her
business relationship with Eurest.

The district court granted

the defendants’ motion to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(6).

The court concluded that

Greene was not an “employee” of Harris and, therefore, was not
protected against Pierce’s conduct under the Howard County antidiscrimination laws.

The court also held that Greene had not

plausibly alleged that Harris committed a “wrongful act,” as
required under Maryland law for a tortious interference claim.
This appeal followed.

II.
We

review

de

novo

the

district

court’s

dismissal

of

a

complaint for failure to state a claim under Rule 12(b)(6).
Andon, LLC v. City of Newport News, Va., 813 F.3d 510, 513 (4th
Cir. 2016).

The allegations in a plaintiff’s complaint “must

state a claim to relief that is plausible on its face.”

Id. at

513-14 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))
4

Maryland State Government Code § 20-1202(b) authorizes “a
person that is subjected to a discriminatory act prohibited by
the county code [to] bring and maintain a civil action against
the person that committed the alleged discriminatory act for
damages, injunctive relief, or other civil relief.”

5

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(internal quotation marks omitted).

Accordingly, to survive a

motion to dismiss, the “[f]actual allegations [of a complaint]
must be enough to raise a right to relief above the speculative
level.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A.

Greene first argues that she was an employee of both Eurest
and Harris on December 6, 2010, and that the district court
erred in concluding that she failed to allege an employment
relationship with Harris.

Although Greene’s complaint relies

heavily on selected language from the contract between Eurest
and Harris, the record before us does not contain the entire
contract.

Nevertheless,

Greene

contends

that

because

the

contract gave Harris some authority to evaluate and supervise
Eurest janitorial personnel, the contract thereby established an
employment relationship between Greene and Harris.

We disagree

with Greene’s argument.
As

relevant

here,

the

Howard

County

Code

(the

Code)

prohibits employers from discharging an employee because of the
person’s

sexual

orientation

or

personal

appearance.

County, Maryland Code (HCC) § 12.208, I(a), II(a).

Howard
The Code

defines the term “employer” as “a person, engaged in an industry
or

business,

who

has

five

or

more

full-time

or

part-time

employees for each working day in each [of] 20 or more calendar
weeks in the current or previous calendar year and any agent of
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Id. § 12.208, (I)(d).

The term “employee” is

defined in a circular fashion as “an individual employed by an
employer.”

Id. § 12.208, (I)(c).

Because the definition of

“employer” in the Code is analogous to the definition of that
term in Title VII of the Civil Rights Act of 1964 (Title VII),
see 42 U.S.C. § 2000e(b), we are guided by federal precedent in
interpreting the Code’s definition.

See Taylor v. Giant of Md.,

LLC, 33 A.3d 445, 459 (Md. 2011) (explaining Maryland courts’
“history of consulting federal precedent in the equal employment
area”) (citing Haas v. Lockheed Martin Corp., 914 A.2d 735, 742
(Md. 2007)).
After the district court’s decision in this case, we issued
our opinion in Butler v. Drive Automotive Industries of America,
Inc., in which we held that a plaintiff pursuing a claim under
Title

VII

may

be

considered

an

employee

employer under the joint employment doctrine.
(4th Cir. 2015).

of

more

than

one

793 F.3d 404, 408

We emphasized that this doctrine is intended

to prevent “those who effectively employ a worker from evading
liability by hiding behind another entity, such as a staffing
agency.”

Id. at 410.

We established a nine-factor test to determine whether an
employee of a staffing agency also was employed by the client to
which she was assigned, focusing on the amount of control the

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client exercised over the putative employee.

Id. at 414.

Under

this test, we may consider:
(1) [the putative employer’s] authority to hire and
fire the individual;
(2) [the] day-to-day supervision of the individual,
including employee discipline;
(3) whether the putative employer
equipment used and the place of work;

furnishes

the

(4)
possession
of
and
responsibility
over
the
individual’s employment records, including payroll,
insurance, and taxes;
(5) the length of time during which the individual has
worked for the putative employer;
(6) whether the putative employer provides
individual with formal or informal training;
(7) whether the individual’s
regular employee’s duties;

duties

are

akin

the
to

a

(8) whether the individual is assigned solely to the
putative employer; and
(9) whether the individual and putative employer
intended to enter into an employment relationship.
Id.
The plaintiff in Butler was employed directly by a staffing
agency, which conducted many traditional employer functions such
as issuing paychecks and imposing employee discipline.
415.

Id. at

However, because the plaintiff in that case worked side-

by-side with workers employed solely by the client, was directly
engaged in producing the client’s product, and was supervised by
a

manager

employed

by

the

client,
8

we

concluded

that

the

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plaintiff had established an employment relationship necessary
to subject the client to potential liability under Title VII.
Id.
In contrast, Greene wholly has failed to plead plausible
allegations of an employment relationship with Harris.
Eurest

assigned

Greene

exclusively

to

clean

Although

Harris’

office,

Greene’s complaint alleges that she worked there only for a few
hours

in

December

2010,

undermining

any

contention

that

she

developed an employment relationship with Harris over the course
of an ongoing work assignment.

The limited facts that Greene

offers to support her allegation of an employment relationship
are:

(1)

Harris

provided

the

cleaning

supplies

for

Eurest

janitors, (2) Harris had the ability to interview prospective
janitorial

workers

provided

by

Eurest,

“evaluate”

Eurest

personnel, “accept or reject any individual(s) based upon their
experience,” and request that Eurest remove a person from the
Harris assignment “for cause,” (3) an on-site Harris employee
supervised Eurest cleaning personnel, and (4) Harris selected
the days on which Greene would work at its office.
These allegations are based largely on the contract between
Eurest and Harris.

Because the full contract was not made a

part of the present record, we are unable to evaluate the full
context of the parties’ relative contractual responsibilities.
Greene

has

not

identified

in

her
9

complaint

how

the

cited

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contractual provisions were applied in practice to her, other
than the fact that a Harris employee was named as her on-site
supervisor.
Harris

and

Under
its

effectiveness”

the

terms

of

the

Eurest-Harris

contract,

on-site

supervisor

regularly

would

“review

Eurest

janitorial

workers.

And,

notably,

of

Greene does not allege that she actually met with or received
any direction from any Harris supervisor during the few hours in
December

2010

that

she

was

present

at

Harris’

facility.

Construing the allegations most favorably to Greene, we conclude
that

the

contract

“effectiveness
does

not

review”

amount

to

provision

the

included

“day-to-day

in

the

supervision”

controlling the manner in which work would be completed, which
we found relevant in Butler.

See Butler, 793 F.3d at 414-15.

Greene also has not alleged that her duties were related to
Harris’ business product, or that she performed work that also
was

undertaken

by

Harris

employees.

Nor

has

she

plausibly

alleged that Eurest or Harris intended that their contractual
agreement establish any type of employment relationship between
Eurest employees and Harris.

See generally id. at 414.

Although Greene alleges that Harris possessed some control
over which Eurest employees were assigned to Harris’ contract,
we conclude that these allegations alone do not establish an
employment relationship between Greene and Harris.
with

the

putative

employer’s

authority
10

to

hire

Our concern
and

fire

in

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Butler

arose

from

the

client

relationship,

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circumstances

namely,

that

of

staffing

client

the

the

could

agency-

terminate

staffing agency employees who were performing the work of the
client, as it could its own direct employees.

In contrast,

here, Harris’ authority to approve or reject Eurest employees
arises from its authority to ensure that the services contract
is performed to Harris’ satisfaction.
The

factors

mechanical

set

forth

application,

but

in

Butler

instead

are

provide

not
a

intended

for

framework

to

elicit the true nature of a putative employment relationship.
In

the

present

case,

considering

all

the

facts

alleged

in

Greene’s complaint, we conclude that the contractual arrangement
between

Eurest

and

Harris

is

not

analogous

to

the

staffing

agency-client relationship that supported our conclusion of a
joint

employment

relationship

in

Butler.

Instead,

the

contractual provisions cited by Greene describe a contract for
janitorial services between a vendor of those services and its
business client.

We therefore hold that the district court did

not err in concluding that Greene failed to state a claim of
discrimination on which relief can be granted.
Apart from this conclusion, we observe that the conduct
alleged in Greene’s complaint is egregious in nature.

However,

allegations of animus or discriminatory behavior cannot create
an

employment

relationship

when
11

such

a

relationship

has

not

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been

pleaded.

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Although

remedial

in

nature,

see

Butler, 793 F.3d at 409, anti-discrimination laws do not provide
a remedy for all reprehensible conduct in society.

See, e.g.,

HCC

scheme

§ 12.208,

I(d)

(limiting

the

Code’s

remedial

to

employers with five or more employees); cf. Cilecek v. Inova
Health

Sys.

Servs.,

115

F.3d

256,

257-58

(4th

Cir.

1997)

(concluding that an independent contractor was not entitled to
protection under Title VII).

Thus, while future changes in the

law may provide a remedy for such conduct as that alleged in
Greene’s complaint, this Court cannot create a remedy simply
because it wants to achieve that result.
We also emphasize that because Greene did not challenge in
her

complaint

Harris’

earlier

decision,

in

March

2010,

to

terminate her longstanding contract with Harris, we have not
considered any indicia of employment that may have been present
in that prior relationship.

Thus, we necessarily have decided

only the case that Greene has set before us.
B.
Greene
dismissing

next
her

argues
claim

that

the

under

district

Maryland

interference with a business relationship.

court

law

for

erred

in

tortious

She contends that

Pierce tortiously interfered with her business relationship with

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Eurest, by defaming her5 in falsely stating to Eurest personnel
that Harris previously had barred her from its premises.

We

disagree with Greene’s argument.
To

state

interference

a

with

claim
a

under

business

Maryland

law

relationship,

a

for

tortious

plaintiff

must

allege:
(1) intentional and willful acts; (2) calculated to
cause damage to the plaintiffs in their lawful
business; (3) done with the unlawful purpose to cause
such damage and loss, without right or justifiable
cause on the part of the defendants (which constitutes
malice); and (4) actual damage and loss resulting.
Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 354 (4th Cir.
2013) (quoting Alexander & Alexander Inc. v. B. Dixon Evander &
Assocs., Inc., 650 A.2d 260, 269 (Md. 1994)).

In presenting a

claim of this nature, the plaintiff must show that a defendant
engaged in wrongful conduct, such as defamation or other common
law tort.

Alexander & Alexander, 650 A.2d at 271.

asserting

defamation

bears

the

burden

of

A plaintiff

proving

challenged statement was “not substantially correct.”

that

the

Batson v.

Shiflett, 602 A.2d 1191, 1210, 1212 (Md. 1992).

5

Although Greene did not allege defamation explicitly in
her complaint as a basis for her tortious interference claim,
she did allege that Pierce made a false statement to Eurest, and
argued a defamation theory before the district court and on
appeal.

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We conclude that Greene has not alleged facts raising a
plausible

inference

that

Pierce’s

statement,

that

Greene

previously been barred from Harris’ office, was false.

had

In her

complaint, Greene acknowledges that her original contract was
terminated

effective

March

31,

2010,

and

that

Pierce

“immediately had Harris security escort her from the premises”
upon

observing

her

at

the

office

on

December

6,

2010.

Accordingly, Greene’s own pleading refutes her assertion that
Pierce’s

statement

in

December

2010,

regarding

Greene’s

exclusion from the premises, was not “substantially correct.”
Batson,

602

A.2d

at

1212.

Thus,

because

Greene’s

tortious

interference claim rested on the purported falsity of that one
statement,

we

conclude

that

the

district

court

properly

dismissed the claim under Rule 12(b)(6).6

III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
6

Greene’s tortious interference claim also fails on the
separate ground that Pierce’s alleged statement was not
defamatory. To qualify as defamatory, a statement must “tend[]
to expose a person to public scorn, hatred, contempt, or
ridicule, thereby discouraging others in the community from
having a good opinion of, or from associating or dealing with,
that person.”
Batson, 602 A.2d at 1210.
Pierce’s statement
that Greene was barred from Harris’ office falls well short of
this standard.

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TRAXLER, Chief Judge, dissenting:
In

March

2010,

Dan

Pierce

terminated

Karen

Greene’s

fourteen-year stint as the janitor at Harris Corporation because
Greene is a lesbian and, in Pierce’s view, dressed like a man.
In

December

2010,

Greene

came

back

to

Harris

as

a

janitor

through a cleaning service, and Pierce terminated Greene as soon
as he saw her there, again because Greene is a lesbian and
dressed like a man.

To justify his discriminatory actions,

Pierce claimed that he terminated Greene’s contract in March
because she charged too much.

That was false.

He claimed that

Greene had inappropriately searched his desk.

That was false.

He claimed Greene screamed obscenities at him before she left in
March.

That was false.

He also informed Eurest that Greene was

not allowed to return to work at Harris because she had been
previously banned from Harris’ premises.
well.

That was false as

Yet somehow Greene cannot get past the pleading stage of

this litigation.
The

two

questions

presently

before

us

are

these:

Did

Greene allege facts in her complaint sufficient to state a claim
that

Harris

terminated

in

was

a

joint

December

employer

2010?

And

of
did

Greene
Greene

when

she

allege

was
facts

sufficient to state a claim that Pierce tortiously interfered
with her employment relationship with Eurest in December 2010.
In my view, both questions must be answered in the affirmative.
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I.
The

following

facts

are

derived

from

Greene’s

34-page

complaint, which is comprised of 255 separate allegations.
purposes

of

the

Rule

12(b)(6)

motion,

all

of

the

For

factual

allegations in the complaint must be accepted as true, and all
reasonable inferences must be drawn in favor of Greene.

See

Wright v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015).
Greene

cleaned

the

Harris

incident, for fourteen years.

office

in

Maryland,

without

From March 1, 2008, through March

1, 2010, she did so under an automatically renewable contract
with Harris.

However, Harris was Greene’s only customer.

In October 2008, Pierce began working for Harris as the
Director of Engineering.

He treated Greene rudely from the

outset,

and

in

December

2009,

comments

to

other

staff

appearance

and

manner

of

members
dress.”

“made
about

overt
Ms.

J.A.

discriminatory

Greene’s

75.

personal

“According

to

eyewitnesses, Mr. Pierce stated that Ms. Greene dressed like a
man, ‘which really bothered him,’” and “described Ms. Greene as
‘frumpy, dumpy and dresses like a man in flannel and jeans.’”
J.A. 75.

“In late January to early February 2010, a different

set of Harris employees in a staff meeting [also] witnessed Mr.
Pierce make derogatory remarks concerning Ms. Greene’s personal
appearance.”

J.A. 76.

One of the Harris employees “laughed

and, in a manner demeaning to Ms. Greene, informed Mr. Pierce
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that, ‘Well, Dan, you know she’s a lesbian, don’t you?’”
76.

J.A.

“The staff members stated that Mr. Pierce did not respond,

but appeared visibly upset and then disgusted.”

J.A. 77.

In early March, 2010, Pierce reviewed Greene’s contract,
“claim[ing] that the [New York] office had instructed him to do
so.”

J.A. 77.

That was untrue.

Greene was informed that her

contract was being terminated for budgetary reasons.
also untrue.

That was

Pierce terminated Greene’s contract because her

sexual orientation and manner of dress were offensive to him.
Pierce asked Greene to continue to clean until March 31, 2010,
which gave him time to make alternate cleaning arrangements, and
she agreed.

However, “Pierce continued to disparage her” during

this interim period and took steps to intentionally avoid her.
J.A. 81.

Pierce also falsely informed Harris’ human resources

representative that Greene had “rifled through his desk” and
“cursed

him

out”

when

he

terminated

her

contract.

J.A.

80

(internal quotation marks omitted).1
1

After Greene was terminated in December 2010, she
initiated
her
claims
for
employment
discrimination
and
interference with her employment relationship with Eurest before
the Howard County Office of Human Rights (“OHR”).
During the
course of the administrative investigation, Harris and Pierce
were forced to recant their claims that Greene had “rifled
through [Pierce’s] desk” and “cursed him out” because several
Harris employees who witnessed Greene’s March termination were
poised to directly contradict Pierce’s account.

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On April 1, 2010, Pierce chose Eurest to be the successor
cleaning service for Harris.
contract

required

Eurest

to

Among other things, the cleaning
“immediately

remove”

any

janitor

whose services Harris “found to be unacceptable . . . for cause,
including, but not limited to, a reasonable belief that he or
she

is

not

qualified

to

Services as required.”
not go well.

perform

or

is

not

performing

J.A. 85 (emphasis added).

the

Things did

Several janitors were hired, but they often failed

to show up and cleaned poorly when they did.

This resulted in

the “Harris employees continually complain[ing] about Eurest’s
service.”

J.A. 83.

In December 2010, Eurest hired Greene to clean the Harris
office.

“During

thoroughly

the

cleaned

time

the

Ms.

Greene

office,”

and

worked
the

at

Harris,

she

“Harris

employees

commented about the once-again spic-and-span office.”

J.A. 86.

However, “[w]hen Mr. Pierce saw Ms. Greene cleaning the office,
he

immediately

premises.”

had

J.A. 86.

Harris

security

escort

her

from

the

In other words, he fired her as soon as he

saw her, because what he saw was a lesbian.

To justify this

action, Pierce resorted to his earlier lies about Greene.

He

first emailed Russell Moodie, the Senior Facilities Manager at
Harris,

demanding

repeating

his

to

claims

know
that

“what

is

Greene

going
was

on,”

“the

J.A.

woman

86,

and

whom

we

dismissed because she was charging [too much],” and “the woman
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who

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[had]

inappropriately

obscenities
omitted).

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at

[him].”

Pg: 19 of 31

searched

[his]

J.A.

(internal

86

office

and

screamed

quotation

marks

Pierce also contacted Eurest “and lied, saying that

Harris had prohibited Ms. Greene from the premises and Eurest
had to immediately remove her from working at the office.”

J.A.

87.

with

Eurest,

in

turn,

“presumed

Ms.

Greene

Harris when she cleaned for them directly.”

had

issues

J.A. 88.

Because

the “contract gave Harris the right to dismiss any individual
Eurest provided for cause,” “Eurest immediately terminated Ms.
Greene’s employment.”
Mr.

Pierce’s

false

employed at Harris.”

J.A. 88.
information,

“Eurest explained that but for
Ms.

Greene

would

still

be

J.A. 88.2
II.

“The joint employment doctrine captures instances in which
multiple entities control an employee.”

Butler v. Drive Auto.

Indus. of Am., Inc., 793 F.3d 404, 409 (4th Cir. 2015).

It

recognizes that “two parties can be considered joint employers
and therefore both be liable under Title VII if they share or
2

As noted by the majority, there is some discrepancy as to
how long Greene had been on the job in December. The complaint
indicates that she only worked a portion of her first day on the
job. However, the OHR report and the parties seem to agree that
Greene had been on the job for four days.
I agree with the
majority that the discrepancy is unimportant for purposes of
this motion.
Under either factual scenario, Greene had been
hired and was on the job cleaning the Harris office when her
employment was terminated.

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co-determine

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those

matters

conditions of employment.”
omitted).
could

Pg: 20 of 31

governing

the

essential

terms

and

Id. at 408 (internal quotation marks

“Otherwise, an employer who exercises actual control

avoid

entity.”

Title

VII

liability

by

hiding

behind

another

Id. at 415.

We recently adopted the “joint employer doctrine” as the
law in this circuit, and formulated a nine-factor test that
“specifically
employment
control

aims

to

relationship

over

an

authority

to

to

the

while

Id. at 415.

Id. at 414.

hire

and

fire

legal

determine

employee,

formalities entirely.”
are dispositive.”

pierce

formalities
of

of

the

loci

not

discounting

an

effective
those

“[N]one of the[] factors

However, the first three – “(1)

the

individual”;

“(2)

day-to-day

supervision of the individual, including employee discipline”;
and “(3) whether the putative employer furnishes the equipment
used and the place of work” are the “most important.”

Id.

A.
Under the Harris/Eurest contract, Eurest was responsible
for payroll, benefits, insurance, and taxes associated with the
janitors

assigned

to

Harris’

worksite.

Harris,

however,

retained more than a mere modicum of control over the hiring and
firing of the individual janitors, as well as over their day-today activities.

Among other things, the Harris/Eurest contract

provided that:
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(1) “Harris shall have the right to interview and
otherwise evaluate all [Eurest] personnel assigned to
perform services under this Agreement and to accept or
reject any individual(s) based upon their experience.”
(2) “Harris shall have the right to require [Eurest]
personnel to submit to Harris’ standard drug testing
at Harris’ expense, or to require drug testing
comparable to Harris’ standard to be performed by
[Eurest] on all personnel if the personnel are to be
onsite at any of Harris’ facilities.”
(3) “In the event that any [Eurest] personnel
performing Services under th[e] Agreement are found to
be unacceptable to Harris for cause, including, but
not limited to, a reasonable belief that he or she is
not qualified to perform or is not performing the
Services as required, Harris shall notify [Eurest] of
such fact in writing, setting forth such cause.
[Eurest] shall immediately remove said employee from
performing Services. . . .
Harris is the sole judge
as to performance capability but shall exercise its
discretion reasonably.”
J.A.

84-85.

janitor.

Harris

provided

an

on-site

supervisor

for

the

Harris was also to “meet with [the] on site supervisor

and review effectiveness [of the janitor] on a weekly basis for
the first 3 months,” and, thereafter, “no more than on a biweekly basis but no less than monthly.”
With

regard

to

Greene

in

J.A. 85.

particular,

she

was

assigned

exclusively to Harris and was intended “to be on a long-term
relationship with Harris.”

J.A. 86.

“Harris chose the days on

which Ms. Greene worked at its office” and “Kellee Peebles, a
Harris employee, was to be Ms. Greene’s on-site supervisor.”
J.A. 85.

“For security purposes, Harris required that a Harris

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employee escort Ms. Greene when she cleaned in a ‘Closed Area,’
i.e., an area performing classified work.”

J.A. 86.

These allegations, viewed in the light most favorable to
Greene, are sufficient to state a claim that Harris was a joint
employer

of

Greene

when

she

was

terminated

in

December.

Although Eurest was Greene’s direct employer, Harris reserved
much of the first three and “most important” Butler factors to
itself -- authority to hire and fire, day-to-day supervision,
and where and how the work was to take place.

When Harris chose

Eurest to replace Greene, it retained the right to interview
individual janitors, the right to evaluate their experience and
qualifications to perform cleaning services, the right to accept
or reject the janitors based upon their experience, the right to
submit the janitors to drug testing, and the right to terminate
the janitors for cause.

Harris also maintained control over the

day-to-day supervision of the janitors, including Greene, and
where and how the work would take place.
on which Greene was to work.

Harris chose the days

Harris furnished the cleaning

supplies and equipment for her use.

Harris assigned an on-site

supervisor to physically accompany her.

And Harris was charged

with conducting ongoing, periodic evaluations of her work.
Moreover,
accusations

in

Pierce’s
March

discriminatory

(which

he

animus

resurrected

to

and
justify

false
her

immediate termination in December) are not irrelevant to the
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Greene might well have been able to develop evidence

and a persuasive argument that Pierce, when he “chose [Eurest to
be

the]

successor

cleaning

service”

for

Harris,

J.A.

82,

maintained substantial control over the individual janitors just
so

he

could

“evad[e]

behind another entity.”

liability

[for

his

bigotry]

Butler, 793 F.3d at 410.

by

hiding

According to

the majority view, Harris and Pierce were at liberty to reject
any

janitor

for

any

discriminatory

reason

–

race,

color,

religion, sex or national origin – even though they were working
exclusively at Harris’ office, under the day-to-day supervision
of Harris employees, and using Harris supplies.
believe,

is

wholly

inconsistent

with

the

That premise, I

remedial

principles

that informed our decision in Butler.
B.
The majority concludes that dismissal under Rule 12(b)(6)
is

justified

because

the

Harris/Eurest

contract

is

a

mere

contract for janitorial services between a vendor and its client
and does not fit the staffing agency-client relationship that we
found to be a joint employment arrangement in Butler.

Although

discovery may have proven this to be true, I believe this at the
very least to be a premature determination on our part.
First, Butler considered the joint employment doctrine for
the first time and at the summary judgment stage.

If anything,

we

inquiry

recognized

the

fact-specific
23

nature

of

the

and

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cautioned against rigid application of its factors.
793

F.3d

at

413-14;

id.

at

414

(noting

“that

See Butler,
an

employer-

employee relationship is a ‘fact-intensive consideration of all
aspects

of

the

working

relationship

between

the

parties’”

(quoting Hunt v. State of Mo., Dep’t of Corr., 297 F.3d 735, 741
(8th Cir. 2002)); id. at 415 (noting that “no one factor is
determinative, and the consideration of factors must relate to
the

particular

relationship

under

consideration”

(quoting

Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir.
1997)).
client

Also, while I might presume that a routine vendorcontract

for

janitorial

services

would

allow

for

the

client to terminate services or refuse to pay if the cleaning is
substandard, I cannot say at the Rule 12(b)(6) stage that the
level of control that Harris retained over individual janitors
is the norm.
Second, Butler did not purport to set the outer boundary
for “joint employment” relationships.
that

Greene’s

somewhere
considered

allegations

between
in

the

Butler

place

staffing
and

a

the

At a minimum, I believe
Harris/Eurest

agency-client

simple

contract

contract

relationship
for

services between a vendor and a business client.

we

janitorial
And because

Greene’s allegations “do not fall within the four corners of our
prior case law,” dismissal under Rule 12(b)(6) is not justified.
Wright, 787 F.3d at 263 (internal quotation marks omitted).
24

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the contrary, Rule 12(b)(6) dismissals are especially disfavored
in cases where the complaint sets forth a novel legal theory
that

can

best

be

assessed

after

factual

(internal quotation marks omitted)).

development.”

Id.

“[A]s the law firms up in

unsettled areas, it may be more feasible to dismiss weaker cases
on

the

pleadings;

otherwise,

plaintiffs

should

be

given

an

opportunity to develop evidence before the merits are resolved.”
Id. (internal quotation marks and alteration omitted).
C.
To conclude, I believe that Greene has set forth sufficient
allegations to present a plausible claim that Harris was a joint
employer “who exercise[d] actual control” over the individual
janitors assigned exclusively to its premises, exercised that
control against Greene in a discriminatory manner, and should
not

be

allowed

another entity.”

to

“avoid

.

.

.

liability

Butler, 793 F.3d at 415.

by

hiding

behind

Somehow, Greene is

faulted for not having worked longer in December and for not
having established more evidence of supervision and control by
Harris.

But she was at work and she was terminated as soon as

Pierce saw her.

That is how discrimination manifests itself.

You lose your job because of how you look, where you come from,
or

for

some

other

immutable

characteristic.

Race,

color,

national origin, religion, sex, or, as in this case, sexual
orientation

and

the

way

you

dress
25

mean

everything;

and

job

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performance means nothing.

Pg: 26 of 31

That is what Greene alleges happened

to her and I believe she should be allowed to go forward with
her case.

Accordingly, I would vacate the district court’s

dismissal of Greene’s employment discrimination claim and remand
for further proceedings.
III.
I also believe that Greene has alleged sufficient facts to
state

a

claim

for

tortious

interference

with

her

economic

relationship with Eurest.
A.
Maryland

recognizes

a

tort

action

for

“maliciously

wrongfully interfering with economic relationships.”

or

Alexander

& Alexander Inc. v. B. Dixon Evander & Assocs., Inc., 650 A.2d
260, 268 (Md. 1994) (internal quotation marks omitted).
state a claim, the plaintiff must allege:

To

“‘(1) intentional and

willful acts; (2) calculated to cause damage to the plaintiffs
in their lawful business; (3) done with the unlawful purpose to
cause such damage and loss, without right or justifiable cause
on the part of the defendants (which constitutes malice); and
(4) actual damage and loss resulting.’”
LLC

v.

Brown,

716

F.3d

342,

354

Painter’s Mill Grille,

(4th

Cir.

2013)

(quoting

with

economic

Alexander, 650 A.2d at 269).
“[W]rongful
relations

is

or

malicious

interference

by

interference
conduct

26

that

is

independently

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wrongful

or

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unlawful,

quite

Pg: 27 of 31

apart

plaintiff’s business relationships.
include

common

defamation,

law

injurious

torts

its

effect

on

the

Wrongful or unlawful acts

and

falsehood

from

‘violence
or

other

or

intimidation,

fraud,

violation

of

criminal law, and the institution or threat of groundless civil
suits or criminal prosecutions in bad faith.’”

Alexander, 650

A.2d at 271 (internal quotation marks omitted).

“In addition,

“‘actual malice,’ in the sense of ill will, hatred or spite, may
be sufficient to make an act of interference wrongful where the
defendant’s

malice

interference.”

is

the

primary

factor

that

motivates

the

Id.
B.

In this case, Greene has alleged that Pierce immediately
halted her in the performance of her janitorial duties under the
Harris/Eurest contract and had Harris security escort her from
the premises in December 2010 for the same malicious reason that
he terminated her contract in March 2010
orientation

(Lesbian)

offensive to him.

and

–

appearance/manner

“Greene’s sexual
of

dress”

were

J.A. 100.

Pierce then set about proclaiming a litany of lies about
Greene

that

supported

by

were

calculated

legitimate

to

justify

employment

his

reasons.

action

as

one

Pierce

falsely

informed Moodie that Greene was the woman that he had dismissed
in March 2010 for budgetary reasons and repeated his false claim
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that

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Greene

screamed

Filed: 06/22/2016

had

“inappropriately

obscenities

(internal

Pg: 28 of 31

at

quotation

[him]”

marks

searched

before

[his]

she

omitted).

office

left.

Pierce

and

J.A.

then

98

“falsely

informed [Eurest] that it had to immediately remove Ms. Greene
from cleaning at Harris because Harris had previously barred her
from

the

premises,”

J.A.

70,

leading

Eurest

to

reasonably

believe that “Greene had issues with Harris when she cleaned for
them directly,” J.A. 100.
Harris

and

Eurest

gave

And “[b]ecause the contract between

Harris

the

right

to

remove

employee, Eurest had to terminate Ms. Greene.”

a

Eurest

J.A. 70.

By falsely representing to Eurest that Harris had “banned”
or “barred” Greene when she worked directly for Harris in March,
Pierce

at

a

minimum

implied

that

Greene

had

done

something

during her first stint that justified his accompanying demand
that

Eurest

December.
1983)

(A

fitness

immediately

remove

her

from

the

position

in

See Hearst Corp. v. Hughes, 466 A.2d 486, 489 (Md.
statement

for

the

that

proper

“adversely
conduct

of

affect[s]
his

[an

business

employee’s]
.

.

.

[is]

actionable per se.”); see also Samuels v. Tschechtelin, 763 A.2d
209, 242 (Md. Ct. Spec. App. 2000) (explaining that falsity of
facts implied in allegedly defamatory statement can be basis for
finding that statement was false); cf. id. at 245 (holding that
statement that person was fired for poor performance on the job
suggested

that

the

judgment

of
28

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firing

the

person

was

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founded on fact); Restatement (Second) of Torts § 566 (1977) (“A
defamatory communication may consist of a statement in the form
of an opinion, but a statement of this nature is actionable only
if it implies the allegation of undisclosed defamatory facts as
the basis for the opinion.”).
This implication is even clearer in light of the fact that
the context for Pierce’s statement was that he was exercising
Harris’

contractual

right

to

terminate

Greene

“for

cause,

including, but not limited to, a reasonable belief that . . .
she [was] not qualified to perform or [was] not performing the
[s]ervices as required.”

J.A. 84.

Although Pierce may not have

explicitly conveyed false reasons for why Greene was banned, to
cover for his discriminatory ones, the clear implication in his
statement was that she had done something to bring about the ban
that would be cause for Harris’ rejection of her under Harris’
contract with Eurest.
Accordingly, I believe that Greene has stated a plausible
claim

that

Pierce,

motivated

by

his

discriminatory

animus

against lesbians, engaged in intentional and willful acts that
were calculated to damage Greene’s work reputation and result in
her termination, and which succeeded in causing actual damage
and loss to Greene by (not surprisingly) causing Eurest to fire
her.

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C.
The majority is of the opinion that Greene’s claim must be
dismissed under Rule 12(b)(6) because Greene acknowledged in her
complaint that Harris had terminated her original contract in
March and that Pierce had Harris security escort her from the
premises

upon

seeing

acknowledgments,

the

her

in

December.

majority

appears

Building
to

draw

upon
the

these

factual

inference that Pierce’s statement to Eurest must be true and,
therefore, could not be defamatory.

But to read the complaint

in this fashion, one must read it in the light most favorable to
Harris and Pierce, not to Greene.
Greene
[Eurest]

plainly

that

it

had

alleged
to

that

Pierce

immediately

“falsely

remove

Ms.

informed

Greene

from

cleaning at Harris because Harris had previously barred her from
the premises.”
stop there.

J.A. 70 (emphasis added).

But Greene did not

Greene also alleged that “after [Pierce] terminated

her and her contract [in March], Mr. Pierce asked [her] to stay
and clean another month until he obtained a successor cleaning
service,”

and

“[n]either

Mr.

Pierce

nor

anyone

else

at

the

[Harris] office ever told Ms. Greene she was barred from the
premises.”

J.A. 99.

Greene was informed in March that she was

being replaced for budgetary reasons only and, of course, Greene
returned to Harris to clean as a direct employee of Eurest in
December.

Clearly, these supporting allegations were intended
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to demonstrate the falsity of Pierce’s statement to Eurest in
December that Greene had been banned from the Harris property
when he terminated her in March.
Viewing these supporting factual allegations in the light
most favorable to Greene, the only reasonable factual inference
that can be drawn (were we at liberty to draw one) would be that
Pierce did not ban Greene from the premises in March and that he
only claimed to have done so to justify his hasty ejection of
her from the premises in December.

But it is enough to say that

Greene’s acknowledgement that Pierce terminated her contract in
March and had security remove her from the premises in December
simply does not contradict her allegation that Pierce lied to
Eurest in December, nor does it provide a basis for dismissing
her complaint on a Rule 12(b)(6) motion to dismiss.3
Accordingly, I would vacate the district court’s dismissal
of Greene’s tortious interference claim and also remand it for
further proceedings.

3

For the reasons set forth above, I also disagree with the
majority’s view that Pierce’s representation to Eurest that
Greene had been “banned” or “barred” from Harris’ premises after
her earlier stint with them, even if false, was not defamatory.
Such a statement, from one employer to another, could hardly
have any connotation other than that Greene was not worthy of
enjoying a good opinion or reputation as an employee.

31