Byington (Kennedy) v. NBRS Financial Bank
Filing
12
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 10/10/12. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JANET E. BYINGTON (KENNEDY),
Plaintiff,
:
:
v.
:
NBRS FINANCIAL BANK,
:
Defendant.
Civil Action No. GLR-12-705
:
MEMORANDUM OPINION
Plaintiff, Janet E. Byington (Kennedy) (“Byington”), brings
this action against Defendant NBRS Financial Bank (“NBRS”).
The
Complaint alleges violations of Title VII of the Civil Rights
Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq.
(West 2012); the Age Discrimination in Employment Act (“ADEA”),
29
U.S.C.
§
621
et
seq.
(West
2012);
the
Americans
with
Disabilities Act (“ADA”), as amended, 42 U.S.C. § 12101 et seq.
(West 2012); and the Family and Medical Leave Act (“FMLA”), 29
U.S.C.
§
2601
et
seq.
(West
2012);
as
well
as
intentional
infliction of emotional distress, false light, and defamation.
Now
pending
before
the
Court
is
NBRS’
Motion
for
Partial
Dismissal or, in the alternative, for Partial Summary Judgment
(“Motion”) (ECF No. 6).
The issues have been fully briefed and
no hearing is deemed necessary.
See Local Rule 105.6 (D.Md.
2011).
For the reasons stated herein, NBRS’ Motion will be
granted.
BACKGROUND1
I.
NBRS
Financial
Bank
(“NBRS”)
is
a
chartered
bank
incorporated under the laws of the State of Maryland, with its
principal office located in Rising Sun, Maryland.
1981
until
February
2009,
NBRS
employed
From January
Byington
in
various
capacities.
During her tenure at NBRS, Byington concurrently served as
the primary caregiver of her son, Kevin Hadwin, who was, at age
three months, diagnosed with cerebral palsy and declared blind.
Byington served as primary caregiver to Kevin from July 1984
until
his
passing
in
November
2010.
Despite
her
enormous
caregiving responsibilities at home, Byington “steadily rose in
employment” with NBRS, maintained above average evaluations for
twenty years while employed at the Rising Sun main location,
received annual raises, and “was entitled to the most paid leave
of any employee” in NBRS.
Despite
Byington’s
(Compl. ¶ 4, ECF No. 2).
continued
success,
however,
she
was
discharged from her employment at NBRS on February 27, 2009, for
allegedly check-kiting.
Specifically, Byington “wrote a check
in the amount of $425.00 on an account with an actual balance of
1
Unless otherwise noted, the following facts are taken from
the Complaint and viewed in a light most favorable to Byington.
2
$0.13.”
(Compl.
¶
14).
Byington
denies
check-kiting,
and
instead contends that her termination was one of many incidents
of intentional harassment and discrimination she incurred during
her tenure at NBRS.2
On June 25, 2009, Byington filed a Charge of Discrimination
(“administrative charge”) with the Equal Employment Opportunity
Commission
(“EEOC”),
retaliation
and
alleging
disability.
discrimination
(See
Compl.
Ex.
based
1,
at
on
2).
Byington’s charge intimates that the check-kiting allegation was
pretext for the real reasons for her discharge: her associative
disability and retaliation.
Byington received a Right to Sue letter on December 7,
2011, and filed the pending action in the Circuit Court for
Cecil County, Maryland on February 6, 2012.
On March 6, 2012,
NBRS removed the action to this Court and filed the pending
Motion.
In addition to the ADA claim presented in the EEOC charge,
Byington’s Complaint alleges violations of Title VII, the ADEA,
the FMLA, intentional infliction of emotional distress, false
2
Incidentally, Byington claims that she was simply taking
advantage of “her lawful use of the Bank’s published overdraft
privilege.”
(Compl.
¶
15).
Byington
states
that
the
Unemployment Insurance Appeals Board “noted that the overdraft
privilege was an established customer policy of the bank” and
awarded Byington unemployment benefits despite NBRS’ motion to
deny Byington those benefits on the basis of check-kiting.
(Compl. ¶ 18).
3
light,
and
defamation.
Byington’s
Complaint
references
five
specific incidents of alleged harassment and discrimination.3
First, Byington alleges the mistreatment began in 2001 when
she was transferred from NBRS’ branch in Rising Sun, Maryland to
the Havre de Grace branch.
This transfer was “understood among
employees of the Bank to be a sign of disfavor [and] an act
routinely taken to encourage employees to leave employment at
the
Bank.”
(Compl.
¶
5).
Byington
alleges
that
she
was
encouraged to quit because of her age and seniority, which made
her more costly to NBRS in wages and benefits than a younger
employee.
Second, in 2006, Byington applied for an assistant branch
manager position, but was informed that the position had been
eliminated
in
representatives,
position
in
contends
their
because
she
all
however,
NBRS’
was
locations.
were
customer
subsequently
Dublin
and
Bel
promotions
were
an
more
Two
qualified
for
Air
act
the
promoted
branches.
of
age
service
to
the
Byington
discrimination
position.4
Byington
3
Byington makes additional generalized references to
harsher evaluation standards and hostile working conditions
beginning at the time of her transfer to Havre de Grace.
(Compl. ¶¶ 5, 26, 40).
4
Byington was responsible for training new managers and had
more seniority, wages, and benefits due to her longevity with
NBRS. Byington cites her additional responsibilities as further
evidence of discrimination since they were not within the scope
of her duties as a customer service representative and she was
4
claims
that
“NBRS
intentionally
engaged
in
a
pattern
of
discrimination against [her] and others similarly situated when
it created a hostile work environment for persons of greater
seniority.”
incident
(Compl. ¶ 28).
violated
her
Byington also contends that this
rights
under
the
ADA
based
on
her
associative disability; namely, being the primary caregiver for
her disabled son.
Third, Byington cites a November 2008 incident involving a
NBRS
accusation
of
“inappropriate
communication
information with a former employee of the Bank.”
According
because
to
NBRS
occurred.
Byington,
had
no
the
matter
evidence
Byington
that
further
of
(Compl. ¶ 12).
was
subsequently
the
alleged
states
that
customer
resolved
communication
the
accusation
contributed to the overall hostile work environment intended to
encourage her to quit.
Fourth, Byington claims that her rights under the FMLA and
ADA were violated when she was disciplined for taking reasonable
time off to care for her severely disabled son.
2008,
NBRS
management
counseled
Byington
In December
regarding
her
attendance during the period beginning August 8, 2008 through
August 22, 2008.
During that time, Byington took unpaid leave
to care for her son pursuant to the FMLA and authorization by
never “compensated by title or wages for her added duties.”
(Compl. ¶ 9).
5
NBRS’ head of human resources.
Byington claims that her manager
stated “[if she] worked elsewhere and missed [that] much time,
[Byington] would have been fired by now.”
(Compl. ¶ 13).
Finally, Byington claims that NBRS discriminated against
her based on her age when “it articulated a false pretext for
terminating her employment, thus making it possible to employ
persons at lesser salaries, lesser paid leave, and other costsaving
reasons.”
(Compl.
¶
27).
Byington
also
cites
her
termination as a violation of her rights under the ADA and FMLA.
II.
A.
DISCUSSION
Standard of Review
NBRS has moved to partially dismiss Byington’s Complaint
pursuant
to
Federal
Rules
of
Civil
Procedure
12(b)(1)
and
12(b)(6) or, in the alternative, for partial summary judgment
pursuant to Rule 56.
Byington’s discrimination claims will be
addressed pursuant to Rule 12(b)(1); the tort claims, pursuant
to Rule 12(b)(6).
A motion to dismiss for lack of subject matter jurisdiction
is governed by Rule 12(b)(1).
The plaintiff bears the burden of
proving that subject matter jurisdiction properly exists in the
federal court. See Evans v. B.F. Perkins Co., a Div. of Standex
Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
In a 12(b)(1)
motion, the court “may consider evidence outside the pleadings”
to help determine whether it has jurisdiction over the case
6
before it.
Richmond, Fredericksburg & Potomac R.R. Co. v. U.S.,
945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at
647.
The court should grant a 12(b)(1) motion “only if the
material jurisdictional facts are not in dispute and the moving
party is entitled to prevail as a matter of law.”
Richmond, 945
F.2d at 768.
Conversely, a motion to dismiss for failure to state a
claim is governed by Rule 12(b)(6).
Under Rule 12(d), however,
if
are
“matters
outside
the
pleadings
presented
to
and
not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56,” and “[a]ll parties must be
given a reasonable opportunity to present all the material that
is pertinent to the motion.”
Fed.R.Civ.P. 12(d).
Although the
parties have presented matters outside of the pleadings, the
Court
does
not
rely
upon
them
in
deciding
the
tort
claims.
NBRS’ Motion is, therefore, not converted into one for summary
judgment.
“[T]he purpose of Rule 12(b)(6) is to test the sufficiency
of
a
complaint
and
not
to
resolve
contests
surrounding
the
facts, the merits of a claim, or the applicability of defenses.”
Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006)
(internal
quotation
marks
and
alterations
omitted)
(quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th
Cir. 1999)).
7
When ruling on such a motion, the court must “accept the
well-pled allegations of the complaint as true,” and “construe
the facts and reasonable inferences derived therefrom in the
light most favorable to the plaintiff.”
F.3d 472, 474 (4th Cir. 1997).
for
pleading
a
proper
Ibarra v. U.S., 120
“Even though the requirements
complaint
are
substantially
aimed
at
assuring that the defendant be given adequate notice of the
nature of a claim being made against him, they also provide
criteria for defining issues for trial and for early disposition
of inappropriate complaints.”
Francis v. Giacomelli, 588 F.3d
186, 192 (4th Cir. 2009).
To survive a motion to dismiss, the factual allegations of
a complaint “must be enough to raise a right to relief above the
speculative
level,
.
allegations
in
complaint
fact).”
(internal
the
.
.
on
the
are
assumption
true
(even
that
if
all
doubtful
the
in
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
citations
and
alterations
omitted).
Thus,
the
plaintiff’s obligation is to set forth sufficiently the “grounds
of his entitlement to relief,” offering more than “labels and
conclusions.”
omitted).
Id.
(internal quotation marks and alterations
“[W]here the well-pleaded facts do not permit the
court to infer more than the mere possibility of misconduct, the
complaint
has
alleged
—
but
it
8
has
not
‘show[n]’—‘that
the
pleader is entitled to relief.’”
Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009) (quoting Fed.R.Civ.P. 8(a)(2)).
B.
Analysis
NBRS
has
moved
for
partial
dismissal
on
four
grounds.
First, NBRS avers that Byington failed to exhaust administrative
remedies with respect to her Title VII,5 ADEA, pre-August 2008
ADA intentional discrimination, and ADA hostile work environment
claims.
Second, NBRS contends that Byington failed to state a
claim for hostile work environment under the ADA.
Third, NBRS
argues
action
that
Byington
failed
to
state
causes
of
for
intentional infliction of emotional distress, false light, and
defamation.
Finally, NBRS asserts that Byington’s defamation
claim is time-barred.
discussed
herein,
throughout
NBRS’
Byington’s oppositional arguments will be
this
Motion
section.
will
Therefore,
the
only
claims
Byington’s
ADA
intentional
be
For
the
granted
in
remaining
in
discrimination
reasons
its
stated
entirety.
this
action
are
claims
that
span
August 2008 through February 2009 and the FMLA claim.
5
Although Byington claims to bring suit pursuant to Title
VII, the Complaint contains no allegation of discrimination
based on race, gender, religion, nationality, or retaliation.
Furthermore, NBRS identifies Byington’s omission in its Motion,
but nonetheless moves to “dismiss all potential Title VII
claims.”
(Def.’s Mot. at 2 n.1).
This Memorandum Opinion,
however, will not address Title VII as it is not properly before
the Court.
9
1.
Failure to Exhaust Administrative Remedies
NBRS’
contention
that
Byington
failed
to
acquire
full
administrative exhaustion hinges upon the question of whether
Byington’s ADEA, pre-August 2008 ADA intentional discrimination,
and ADA hostile work environment claims exceed the scope of the
administrative
Therefore,
charge.
Byington’s
The
ADEA,
Court
finds
pre-August
2008
that
they
ADA
do.
intentional
discrimination, and ADA hostile work environment claims will be
dismissed for lack of subject matter jurisdiction.
Before filing a discrimination suit alleging violations of
the
ADEA
or
ADA,
an
individual
discrimination
with
the
EEOC,
must
pursuant
file
to
the
a
charge
of
same
powers,
procedures, and remedies applied to Title VII claims.
See 29
U.S.C. § 626(d) (West 2012) (ADEA); 42 U.S.C. § 12117(a) (West
2012)
(ADA).
[under
the
Therefore,
ADEA
or
ADA]
administrative process.”
505,
509
(4th
Cir.
“[a]n
individual
until
he
cannot
has
bring
exhausted
suit
[the]
Chacko v. Patuxent Inst., 429 F.3d
2005)
(citations
omitted).
The
primary
purpose of engaging in the administrative process is to notify
the employer of the alleged discrimination and give it “a[n]
initial opportunity to voluntarily and independently investigate
and resolve the alleged discriminatory actions.”
F.3d
at
510.
congressional
This
purpose
opportunity
of
the
exhaustion
10
aligns
itself
Chacko, 429
with
requirement,
the
which
includes encouraging “quicker, less formal, and less expensive
resolution[s] of disputes.”
Id.
The scope of the federal suit, however, is determined by,
and
limited
to,
the
contents
of
the
administrative
charge.
Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
Limiting federal suits in this way ensures that the underlying
purpose
of
the
administrative
process
is
upheld.
Swift
v.
Montgomery Cnty. Pub. Schs., No. DKC-99-2171, 2001 WL 650710, at
*8 (D.Md. June 5, 2001).
To
determine
whether
a
suit
exceeds
the
scope
of
the
administrative charge, the Court considers whether the Complaint
contains
“those
discrimination
claims
stated
in
the
initial
charge, those reasonably related to [that charge], and those
developed by reasonable investigation [of that charge].”
Thorn
v. Sebelius, 766 F.Supp.2d 585, 596 (D.Md. 2011) (quoting Jones,
551 F.3d at 300).
Moreover, discrete discriminatory acts may
not be considered by the Court if they occur outside of the 300day
limitations
period.
See
Nat’l
R.R.
Passenger
Corp.
v.
Morgan, 536 U.S. 101, 105 (2002).
a.
ADEA (Count I)
NBRS avers that Byington’s ADEA claim exceeds the scope of
the
administrative
charge
because
the
charge
explicitly
references disability and retaliation as the sole discriminatory
bases.
Moreover, NBRS argues that the age box was not checked
11
on the charge and that the narrative section neither makes any
reference,
nor
is
it
discrimination claim.
claim
would
not
reasonably
related,
to
an
age
According to NBRS, the age discrimination
have
been
developed
by
a
reasonable
investigation of the charge.
Byington
Complaint
is
counters
that
reasonably
the
related
ADEA
to
claim
raised
the
in
in
claims
the
the
administrative charge because the claims arise out of the same
set of facts and circumstances.
According to Byington, the EEOC
would
claim
have
identified
investigation.
relatedness,
this
Byington
NBRS
was
on
argues
notice
upon
that,
regarding
a
comprehensive
because
the
of
ADEA
this
claim.
Byington alternatively argues that, pursuant to the identity of
interest
exception,
her
EEOC
charge
should
receive
wider
latitude because she filed pro se.6
Byington’s arguments are unpersuasive.
As a preliminary
matter, the fact that Byington filed the administrative charge
pro se does not automatically extend Byington the benefit of a
6
Byington references Manzi v. DiCarlo, 62 F.Supp.2d 780
(E.D.N.Y. 1999), to support this argument.
The identity of
interest exception, however, permits a plaintiff to join
defendants not previously named in the administrative charge; it
does not specifically permit the joinder of new claims. Id. at
787.
Moreover, NBRS asks that this Court reject Byington’s
contention that she filed the charge pro se because Byington
failed to submit an affidavit detailing the particulars of her
representation.
(See Def.’s Reply to Pl.’s Opp’n at 4).
The
Court, however, will assume without concluding that Byington was
unrepresented when she filed her administrative charge.
12
broad interpretation of the charge because “laypersons, rather
than
lawyers,
process.”
are
expected
to
initiate
the
[administrative]
Syndor v. Fairfax Cnty., Va., 681 F.3d 591, 594 (4th
Cir. 2012) (citation omitted).
Being pro se, therefore, does
not absolve Byington of the responsibility of ensuring that each
claim is articulated in the charge.
Rather, the primary effect
a pro se filing has on the administrative charge is to remove
strict adherence to the charge and replace it with an inquiry
into
reasonable
inquiry
ensures
relatedness
that
and
investigation.
“plaintiffs
are
not
Id.
tripped
up
This
over
technicalities” while honoring the notice requirement inherent
in the administrative process.
Byington,
however,
Id.
failed
to
satisfy
the
exhaustion
requirement as it relates to her ADEA claim because it exceeds
the scope of the administrative charge.
A “plaintiff’s claim
will generally be barred if [her] charge alleges discrimination
on one basis — such as race — and [she] introduces another basis
in formal litigation — such as sex.”
Chacko, 429 F.3d at 509;
see also Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132-33
(4th Cir. 2002) (finding no exhaustion where the charge alleged
racial
discrimination,
but
the
complaint
included
sex
discrimination); Jones, 551 F.3d at 301 (finding no exhaustion
where the charge alleged retaliation, but the complaint included
racial discrimination).
Moreover, the United States Court of
13
Appeals for the Fourth Circuit (“Fourth Circuit”) has previously
held
that
a
discrimination
suit
may
be
dismissed
if
the
appropriate box is not checked in the administrative charge.
Jones, 551 F.3d at 301; see also Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996).
In the case sub judice, Byington’s administrative charge
references discrimination based on her associative disability
and retaliation.
the
box
for
(See Compl. Ex. 1).
discrimination
based
on
Byington did not check
age,
and
there
is
no
reference to age discrimination in the narrative portion of the
document.7
Byington
(See Compl. Ex. 1, at 2).
erroneously
raises
(See Compl. ¶¶ 24-37).
an
ADEA
Despite this omission,
claim
in
her
Complaint.
The inclusion of the ADEA claim mirrors
the actions barred by Chacko, Bryant, and Jones because this
discriminatory basis completely differs from the disability and
retaliation bases indicated in the administrative charge.
7
Moreover, Byington’s August 28, 2010 letter drafted by
counsel (Pl.’s Opp’n to Def.’s Mot. Ex. 2, ECF No. 10-3 [“Pl.s
Opp’n”]; Def.’s Reply to Pl.’s Opp’n Ex. 2, at ¶ 8, ECF No. 112) does not constitute an amendment to the administrative
charge. See, e.g., Sloop v. Mem’l Mission Hosp., Inc., 198 F.3d
147, 149 (4th Cir. 1999) (citation omitted) (“[I]t would be
objectively illogical to view a private letter from a
complaining party to the EEOC as constructively amending a
formal charge, given that one of the purposes of requiring a
party to file charges with the EEOC is to put the charged party
on notice of the claims raised against it.”).
14
Accordingly, Byington failed to achieve full administrative
exhaustion on the ADEA claim, and it is, therefore, dismissed
for lack of subject matter jurisdiction.
b.
ADA (Count II)
NBRS argues that Byington’s pre-August 2008 ADA intentional
discrimination claims are time-barred and that the ADA hostile
work environment claim exceeds the scope of the administrative
charge.
she
Byington failed to respond to NBRS’ first argument, but
renews
her
“comprehensive
pro
and
se
argument
muscular”
and
further
investigation
would
developed the hostile work environment claim.
5).
Byington
also
argues
that
it
would
argues
have
that
a
fully
(Pl.’s Opp’n at
be
prejudicial
to
adjudicate the allegations of a hostile work environment before
a period of discovery because the claim’s label is merely a
“characterization”
upon discovery.
of
the
facts,
whose
accuracy
is
dependent
(Id.)
Byington’s ADA claim can be separated into three groups:
(1) intentional discrimination that pre-dates August 2008; (2)
intentional discrimination that occurred between August 2008 and
February 2009; and (3) hostile work environment.
allegation
Byington
may
pursue
is
for
the
The only ADA
intentional
discrimination that allegedly occurred between August 2008 and
February 2009. The others will be dismissed for lack of subject
matter jurisdiction.
15
At
that
the
outset,
allegedly
all
occurred
claims
prior
of
to
intentional
August
2008
discrimination
are
dismissed
because they constitute discrete acts that occurred more than
300 days before Byington filed the administrative charge in June
2009.
See 42 U.S.C. § 2000e-5(1); Nat’l R.R. Passenger Corp.,
536 U.S. at 105 (“We hold that the statute precludes recovery
for discrete acts of discrimination or retaliation that occur
outside
the
intentional
statutory
time
discrimination
period.”).
claims
relate
Byington’s
back
to
ADA
2000
and
include, inter alia, her transfer to NBRS’ Havre de Grace branch
and the denial of an assistant branch manager position.
Compl.
¶¶
intentional
5,
8,
12-13).
To
discrimination
must
be
considered,
not
have
(See
however,
occurred
prior
the
to
August 2008. The ADA intentional discrimination claims that predate August 2008 are, therefore, dismissed.
Conversely, Byington’s hostile work environment allegation
is not precluded by the 300-day limitations period.
See Nat’l
R.R. Passenger Corp., 536 U.S. at 122 (“A charge alleging a
hostile work environment claim, however, will not be time barred
so long as all acts which constitute the claim are part of the
same unlawful employment practice and at least one act falls
within the time period.”).
This claim, however, fails to reach
full administrative exhaustion because “the factual foundation
in
the
administrative
charge
is
16
too
vague
to
support”
the
hostile work environment claim raised in the Complaint.
Chacko,
429 F.3d at 509 (citation omitted).
The administrative charge specifically states that after
Byington was accused of using too much leave during the December
10, 2008 meeting, she “began to be subjected to harassment with
regards to taking care of [her] son.”
(emphasis added).
(Compl. Ex. 1, at 2)
Byington further alleges she “was subjected
to unequal terms and conditions of employment and harassment due
to disability.”
(Id.)
Byington’s generalized allegation of “harassment” in the
administrative charge is void of the specifics necessary to put
NBRS on notice that its work environment was “permeated with
discriminatory
sufficiently
[Byington’s]
environment.”
(1993).
intimidation,
severe
or
ridicule,
pervasive
employment
and
to
and
alter
create
an
insult
the
that
[was]
conditions
abusive
of
working
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
First, Byington alleged that the harassment did not
begin until December 2008 and the “continuing action” box was
not checked.
indicate
the
(See Compl. Ex. 1).
frequency
of
the
Byington also failed to
allegedly
harassing
Second, the charge fails to identify specific actors.
conduct.
At the
very least Byington, even filing pro se, could have informed the
investigative agency of whether the perpetrators were managers,
17
co-workers, or any other individual.
Finally, the nature of the
discriminatory conduct (or harassment) was not specified.
Accordingly, Byington’s ADA hostile work environment claim
is dismissed for lack of subject matter jurisdiction.8
2.
Failure to State
Defamation Claims
Plausible
IIED,
False
Light,
and
NBRS argues that Byington failed to state causes of action
for intentional infliction of emotional distress, false light,
and
defamation.
The
Court
will
consider
each
tort
claim
seriatim.
a. Intentional Infliction of Emotional Distress (Count
IV)
To state a claim for intentional infliction of emotional
distress (“IIED”), a plaintiff must show four elements:
intentional
or
reckless
conduct;
(2)
extreme
and
(1)
outrageous
conduct; (3) a causal connection between the wrongful conduct
and the emotional distress; and (4) severe emotional distress.
Harris v. Jones, 380 A.2d 611, 614 (Md. 1977); Arbabi v. Fred
Meyers, Inc., 205 F.Supp.2d 462, 466 (D.Md. 2002).
In Maryland,
however, IIED claims are “rarely viable” and, thus, subject to a
heightened pleading standard. Bagwell v. Peninsula Reg’l Med.
Ctr.,
665
A.2d
297,
319
(Md.Ct.Spec.App.
1995);
see
also
Kentucky Fried Chicken Nat’l Mgmt. Co. v. Weathersby, 607 A.2d
8
The Court need not address NBRS’ argument that Byington
failed to state an ADA hostile work environment claim because
the claim is dismissed on this ground.
18
8, 11 (Md. 1992) (“Weathersby II”) (“[T]he tort is to be used
sparingly and only for opprobrious behavior that includes truly
outrageous conduct.”).
NBRS argues that Byington failed to sufficiently allege the
extreme
and
outrageous
element
of
the
tort.
Extreme
and
outrageous conduct constitutes behavior that is “so outrageous
in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.”
at 614 (citation omitted).
Harris, 380 A.2d
Byington’s allegations of extreme
and outrageous conduct involve being denied the assistant branch
manager position, differential policy enforcement, unfavorable
transfers, subjugation to harsher evaluation standards, and a
false accusation of check kiting, among other things.
Compl.
¶¶
61-65).
Furthermore,
through
the
use
of
(See
Greek
mythology and colorful adjectives, Byington argues that, as an
employer, NBRS was in a unique position to harass and intimidate
her.
(See Pl.’s Opp’n ¶¶ 14-18).
Byington also argues that
NBRS acted with knowledge that “if they hurt her economically
they would be hurting her son, too . . . .”
As
a
preliminary
matter,
NBRS’
(Id. ¶ 15).
knowledge
of
Byington’s
emotional susceptibility is not indicated on the face of the
Complaint.
Even if knowledge were asserted, however, it would
not be dispositive on this issue.
19
See Weathersby II, 607 A.2d
at 14 (“Although it is a factor in evaluating a defendant’s
conduct, the mere fact that a defendant knew that a plaintiff
was
susceptible
.
.
.
does
not
require
defendant’s conduct was outrageous.”).
a
finding
that
the
Moreover, although the
employment relationship is a factor in this analysis, it does
not lower the heightened pleading standard.
Here,
Byington
may
have
alleged
Id. at 15.
a
disagreeable
work
environment, but she fails to present any conduct that would
plausibly
rise
to
the
level
of
outrageousness
required
to
sufficiently state an IIED claim.
Accordingly, Count IV is dismissed for failure to state a
claim upon which relief may be granted.
b. False Light (Count V)
To succeed on a false light claim, the plaintiff must show
three
elements:
(1)
defendant
gave
publicity
to
a
matter
concerning the plaintiff that placed her before the public in a
false light; (2) the false light would be highly offensive to a
reasonable person; and (3) defendant acted with knowledge of or
reckless disregard for the falsity of the publicized matter and
the
false
light
in
which
the
plaintiff
would
be
placed.
Campbell v. Lyon, 26 F.App’x 183, 188 (4th Cir. 2001) (quoting
Bagwell, 665 A.2d at 318).
The parties disagree over the nature
of the publicity required in the first element.
20
False light publicity requires the matter to be disclosed
beyond the purview of a single individual or small group of
persons.
See
Furman
v.
Sheppard,
744
A.2d
583,
588
(Md.Ct.Spec.App. 2000) (“It is not an invasion of the right of
privacy . . . to communicate a fact concerning the plaintiff’s
private life to a single person or even to a small group of
persons.”)
(citation
omitted);
Henderson
v.
Claire’s
Stores,
Inc., 607 F.Supp.2d 725, 733 (D.Md. 2009) (“Concomitantly, it is
not an invasion of privacy to communicate a fact about someone’s
private life to a single person or even to a small group of
people.”) (citation omitted).
Here, Byington alleges that NBRS falsely accused her of
check kiting and that, as a result of the false accusation,
Byington has to publish the incident each time she completes an
employment
application.
(See
Compl.
¶¶
71-76).
Byington’s
“publication,” however, does not reach the level of publicity
required to state a plausible false light claim because she only
communicated
this
information
to
a
small
group
of
potential
employers.
Accordingly, Count V is dismissed for failure to state a
claim upon which relief may be granted.
c.
To
state
plaintiff
must
Defamation (Count VI)
a
claim
show:
for
(1)
defamation
the
21
under
defendant
Maryland
made
a
law,
a
defamatory
communication to a third party; (2) the communication was false;
(3) defendant intended to communicate a false statement; and (4)
plaintiff suffered damages.
Carter v. Morgan, 34 F.App’x 427,
428 (4th Cir. 2002) (citing Gohari v. Darvish, 767 A.2d 321, 327
(Md. 2001)).
Similar to the false light claim, the parties
disagree on the publication element of this tort.
the
question
is
whether
the
theory
of
Specifically,
compelled
“self-
publication” is recognized in Maryland and, thus, sufficient to
satisfy the first element of a defamation claim.
The
theory
of
self-publication
involves
a
forced
communication to a third party by the plaintiff, which defames
her.
to
Here, the forced self-publication is Byington’s obligation
disclose
the
applications.
basis
of
her
termination
on
employment
The case law is clear that the Maryland state
courts have been silent on this issue.
See Bagwell, 665 A.2d at
318
although
n.10
(“According
to
appellant,
this
emerging
doctrine has not been considered by any Maryland court, it has
been accepted by ten states.
it
was
not
raised
We decline to reach this issue, as
below.”).
Despite
the
Maryland
courts’
silence, in De Leon v. Saint Joseph Hosp., Inc., the Fourth
Circuit concluded that the “Maryland Court of Appeals, at least
on the facts presented [in the case], would not adopt [the]
self-publication
[theory].”
871
1989).
22
F.2d
1229,
1237
(4th
Cir.
De Leon, decided prior to Bagwell, is factually analogous
to the present case.
not
published
the
Specifically, the De Leon defendant had
allegedly
defamatory
material
to
a
third
party, but the plaintiff, Mr. De Leon, argued that he would be
forced
to
reveal
said
material
when
applying
for
other
positions, resulting in a “compelled ‘self-publication.’”
(citation omitted).
Id.
The Fourth Circuit affirmed the district
court’s conclusion that the Maryland courts would not adopt the
self-publication theory.
Byington utilizes case law outside of this circuit to argue
that the theory of self-publication has evolved since De Leon
and is currently accepted.
Court
declines
to
adopt
(See Pl.’s Opp’n ¶¶ 23-24).
this
position
for
several
The
reasons.
First, although De Leon was decided in 1989, the case interprets
Maryland
law.
Byington’s
Moreover,
case.
De
Finally,
Leon
is
factually
analogous
to
since
De
Leon
decided,
the
was
Maryland courts have been silent on this issue.
De Leon is,
therefore, the only controlling precedent before the Court at
this time.
Accordingly, Count VI is dismissed for failure to state a
claim upon which relief may be granted.9
9
In light of this decision, the Court will not address
NBRS’ defamation statute of limitations argument.
23
III. CONCLUSION
For the foregoing reasons, the Court GRANTS NBRS’ Motion.
(ECF No. 6).
Counts I (ADEA), IV (IIED), V (false light), VI
(defamation), and partially II (ADA) are dismissed.
The portion of Count II that covers August 2008 through
February 2009 and Count III (FMLA) will proceed to discovery.
A
separate Order and Preliminary Scheduling Order will issue.
Entered this 10th day of October, 2012
/s/
_____________________________
George L. Russell, III
United States District Judge
24
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