Genovese et al v. Harford Health and Fitness Club, Inc. et al
Filing
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MEMORANDUM. Signed by Judge William M Nickerson on 5/29/13. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHELLE LYNN GENOVESE et al. *
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v.
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HARFORD HEALTH AND FITNES
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CLUB, INC. T/A
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THE ARENA CLUB et al.
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Civil Action No. WMN-13-217
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MEMORANDUM
Pending is Defendants’ Motion to Dismiss Plaintiffs’ First
Amended Complaint.
ECF No. 14.
The motion is fully briefed.
Upon review of the pleadings and the applicable case law, the
Court determines that no hearing is necessary, Local Rule 105.6,
and that Plaintiffs’ federal claims, Counts I, II, and III, will
be dismissed and the remaining claims remanded to the state
court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Michelle Lynn Genovese was employed by Defendant
Harford Health and Fitness Club, T/A The Arena Club (The Arena
Club) from March 2010 to May 2011.
Her last position at the
Arena Club was that of Membership Representative and her
supervisor was Defendant Kathy Wise, The Arena Club’s Sales
Manager.
Although the Amended Complaint does not provide
Plaintiff’s age, her EEOC Charge attached to the Complaint, ECF
No. 2-2, indicates that she was forty-five years old when her
employment was terminated.
Plaintiff was also pregnant at the
time.
The critical incident related to this action took place on
May 18, 2011, when Defendant Wise conducted a “contentious and
hostile” meeting of the Sales Team.
When Plaintiff became upset
and attempted to leave the meeting, she was told by Wise to sit
down.
Plaintiff complied.
Plaintiff alleges, however, that
another woman who was significantly younger than her and not
pregnant was permitted to leave the meeting shortly before
Plaintiff attempted to leave.
Plaintiff’s employment was
terminated later that day for purported insubordination.
Plaintiff suffered a miscarriage shortly thereafter, the cause
of which she attributes to the emotional and physical stress
caused by the May 18, 2011, meeting.
Plaintiff and her husband, James John Genovese,1 proceeding
pro se, originally filed this suit in the Circuit Court for
Harford County, Maryland.
The Complaint named as Defendants:
The Arena Club, Wise, two other Arena Club employees, and the
attorney that represented The Arena Club in proceedings before
the Equal Employment Opportunity Commission (EEOC).
Without
specifically identifying the statutory or other bases for these
1
For ease of reference, the Court will refer to Michele Genovese
as Plaintiff, James Genovese simply as Mr. Genovese, and the two
collectively as Plaintiffs.
2
claims, the Complaint included counts for “Hostile Work
Environment” (Count 1), “Disparate Treatment” (Count 2),
“Reasonable Accommodation” (Count 3) “Intentional Infliction of
Emotional Distress” (Count 4) “Wrongful Termination” (Count 5)
and several counts labeled simply “Fraud” (Counts 6-12).
No. 2.
ECF
On the assumption that the Hostile Work Environment,
Disparate Treatment, and Reasonable Accommodation claims were
being asserted under Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et seq. (Title VII) and the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
§ 621-34 (ADEA), Defendants removed the action to this Court,
invoking this Court’s federal question jurisdiction.
Defendants then filed a motion to dismiss.
ECF No. 1.
ECF No. 8.
In
response to that motion and with the consent of Defendants’
counsel, Plaintiffs filed an amended complaint.
ECF No. 13.
In
this First Amended Complaint, Plaintiffs dropped the claims
against the individual defendants, except for those against
Wise, and the “Fraud” claims against all Defendants.
The First
Amended Complaint added, however, a claim for “Loss of
Consortium.”
Defendants have moved to dismiss the First Amended
Complaint in its entirety.
II. LEGAL STANDARD
A claim must be dismissed if the allegations in the
complaint do not include enough facts to render that claim to
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relief “plausible on its face.”
U.S. 544, 570 (2007).
Bell Atl. Corp. v. Twombly, 550
Under the plausibility standard, a
complaint must contain “more than labels and conclusions” or a
“formulaic recitation of the elements of a cause of action.”
Twombly, 550 U.S. at 555.
To survive a Rule 12(b)(6) motion,
the legal framework of the complaint must be supported by
factual allegations that “raise a right to relief above the
speculative level.”
Twombly, 550 U.S. at 555.
The Supreme
Court has explained that “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements,
do not suffice” to plead a claim.
Ashcroft v. Iqbal, 556 U.S.
662, 678.
The plausibility standard requires that the pleader show
more than a sheer possibility of success, although it does not
impose a “probability requirement.”
Twombly, 550 U.S. at 556.
Instead, “[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.”
Iqbal, 556 U.S. at 663.
Thus, a court
must “draw on its judicial experience and common sense” to
determine whether the pleader has stated a plausible claim for
relief.
Id. at 664; see also Brockington v. Boykins, 637 F.3d
503, 505–06 (4th Cir. 2011).
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III. DISCUSSION
For the three counts that potentially arise out of federal
antidiscrimination statutes - the hostile environment, disparate
treatment, and reasonable accommodation claims - the primary
focus of the Court’s inquiry is on Defendants’ conduct,
specifically, whether Defendants treated Plaintiff differently
because of her pregnancy or age.
In focusing on Defendants’
conduct instead of the alleged outcome of that conduct, the
Court in no way intends to diminish the tragedy of Plaintiff’s
miscarriage.
While Defendants’ conduct allegedly led to a very
tragic outcome, the Court concludes that the First Amended
Complaint fails to connect that conduct or outcome with any
unlawful discriminatory intent.
A. Hostile Environment Claim
Title VII of the Civil Rights Act of 1964 states that “[i]t
shall be an unlawful employment practice for an employer ... to
discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment,
because of ... sex.”
42 U.S.C. § 2000e–2(a)(1).
In amending
Title VII, the Pregnancy Discrimination Act (PDA) provided that
“[t]he terms ‘because of sex’ or ‘on the basis of sex’ include,
but are not limited to, because of or on the basis of pregnancy,
childbirth, or related medical conditions; and women affected by
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pregnancy, childbirth, or related medical conditions.”
2000e(k).
Id. §
Thus, to establish a hostile work environment claim
based on pregnancy discrimination under Title VII, a plaintiff
must show that the offending conduct was (1) unwelcome, (2)
based on the individual's pregnant status, (3) sufficiently
severe or pervasive to alter the conditions of . . . employment
and create an abusive work environment, and (4) imputable to the
employer.
See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325,
331 (4th Cir. 2003) (en banc) (discussing a hostile environment
claim based on gender discrimination); DeJarnette v. Corning,
Inc., 133 F.3d 293, 297 (4th Cir. 1998) (holding that “a claim
of discrimination on the basis of pregnancy must be analyzed in
the same manner as any other sex discrimination claim brought
pursuant to Title VII.”).
Plaintiff faces a similar burden to state a hostile
environment claim under the ADEA.
The ADEA makes it unlawful to
“discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment,
because of such individual's age.”
29 U.S.C. § 623(a)(1).
To
establish a hostile environment claim under the ADEA, a
plaintiff must adduce evidence that “(1) [s]he experienced
unwelcome harassment; (2) the harassment was based on [her] age;
(3) the harassment was sufficiently severe or pervasive to alter
the conditions of [her] employment and to create an abusive
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atmosphere; and (4) there is some basis for imposing liability
on the employer.”
Baqir v. Principi, 434 F.3d 733, 745-46 (4th
Cir. 2006) (citing Bass v. E.I. DuPont de Nemours & Co., 324
F.3d 761, 765 (4th Cir. 2003)).
The First Amended Complaint contains no allegations that
any negative comments or remarks were made relating in any way
to Plaintiff’s pregnancy or age.
Instead, it appears that Wise,
the alleged harasser, treated all of the members of the Sales
Team in a similar manner.
Plaintiffs assert that in the May 18,
2011, meeting, “Wise was brow beating and yelling at [Plaintiff]
and other team members . . . [and,] as was her common practice,
inappropriately and unnecessarily yelled at and dressed down
Plaintiff [] and the rest of the Sales Team.”
(emphasis added).
ECF No. 13 ¶ 5
Plaintiffs allege that at an earlier meeting,
Wise “began to brow beat the team” and “continued to berate the
Sales Team.”
Id. (emphasis added).
In describing the
anticipated testimony of another member of the sale team,
Lorraine Kern, Plaintiffs proffered that Kern would testify
“about [the May 18, 2011] incident as well as many others during
which Defendant Wise displayed the very same type of hostile
behavior to Plaintiff [] and the Sales Team.”
Id. (emphasis
added).
Elsewhere in the First Amended Complaint, in the count for
intentional infliction of emotional distress, Plaintiff does
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allege that Plaintiff was “singled out” for termination.
22.
Id. ¶
In that same paragraph, however, Plaintiff alleges that
when she “tried to voice her concerns, she was threatened by
Defendant Wise with termination by Defendant Wise’s reference to
a former sales team employee, ‘Sadie’ who was recently
terminated for expressing concerns about Defendant Wise and her
conduct.”
Id.
There is no indication that “Sadie” was pregnant
when she was terminated, nor does Plaintiff mention Sadie’s age.
Thus, it is clear from Plaintiffs’ allegations that, if
Plaintiff was singled out, it was because Wise believed
Plaintiff was challenging her authority, not because of her age
or the fact that she was pregnant.
See id. ¶ 21 (alleging
Plaintiff was “threaten[ed] with termination every time she
offered feedback or dared to speak when Defendant Wise
repeatedly lost control of herself”).
It appears that even the non-pregnant, “significantly
younger” sales team member who Plaintiffs allege allowed to
leave the May 18, 2011, meeting, Jenn Burman, was subjected to a
similar environment as Plaintiff.
Plaintiffs aver that Burman
“became emotionally distressed” and “was also substantially
distressed by the environment” of the meeting.
Id. at 6.
According to Plaintiffs’ own allegations, the harassment she
suffered was directed at the entire sales team and there are no
allegations that would support the conclusion that Plaintiff was
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singled out for unequal treatment.
Furthermore, statements made
in Plaintiffs’ Opposition belie the conclusion that Plaintiff
was singled out, even in the ability to leave the meeting.
Plaintiff states that after Burman left the meeting, “Defendant
[Wise] then subjected the Plaintiff to further humiliation and
abuse for a significant period of time before the Plaintiff, and
the others who remained, were allowed to leave.”
ECF No. 15 at
7 (emphasis added).
It would be plausible to conclude from the allegations in
the First Amended Complaint, if those allegations were proven
true, that Defendant Wise was a very difficult manager under
which to work.
It might even be plausible to conclude that she
was inflicting emotional distress on the members of her sales
team.
It would not be plausible, however, to conclude that
Wise’s treatment of Plaintiff was in any way based upon
Plaintiff’s age or pregnancy.
The allegations throughout the
First Amended Complaint support only the conclusion that Wise
treated everyone on the sales team harshly.
According to
Plaintiffs’ own allegations, Wise terminated the employment of
another employee, “Sadie,” for the same kind of
“insubordination” for which Plaintiff’s employment was
terminated, i.e., expressing concerns or otherwise challenging
Wise’s conduct or decisions.
Accordingly, Plaintiff’s hostile
environment claim must be dismissed.
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B. Disparate Treatment
Plaintiff’s disparate treatment claim fails for similar
reasons.
To establish a disparate treatment claim under Title
VII, Plaintiff would need to show that: “(1) she is a member of
a protected class under Title VII; (2) the prohibited conduct in
which she engaged was comparable in seriousness to misconduct of
employees outside the protected class; and (3) she suffered more
severe discipline for her misconduct as compared to those
employees outside the protected class.”
LLC, 650 F.3d 321, 336 (4th Cir. 2011).
Hoyle v. Freightliner,
Similarly, to
establish a disparate treatment claim under the ADEA a plaintiff
must allege: “(1) [s]he is at least 40; (2) adverse employment
action; (3) satisfactory job performance; and (4) similarlysituated younger employees received more favorable treatment.”
Cepada v. Bd. Of Ed. Of Baltimore Co., 814 F. Supp. 2d 500, 513
(D. Md. 2011).
That she was “similarly situated” to the
favorably treated employee requires a showing of “similar[ity]
in all relevant respects.”
355, 359 (4th Cir. 2010).
Haywood v. Locke, 387 Fed. Appx.
This includes engaging in conduct of
comparable culpability or seriousness.
See id.
Plaintiff supports her disparate treatment claims solely on
the basis that a younger, non-pregnant team member, Jenn Burman,
was permitted to leave the May 18, 2011, meeting and was not
terminated for doing so.
The Court concludes, however, that the
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allegations in the First Amended Complaint do not establish that
Burman and Plaintiff were similarly situated.
It is apparent
from Plaintiffs’ allegations that there was a history of
disagreement and tension between Plaintiff and Defendant Wise.
After describing an incident that occurred prior to May 18,
2011, where Plaintiff attempted to leave another sales meeting
and Wise shouted at her to stay in the meeting or be fired,
Plaintiff alleges there were “many other” similar incidents.
ECF No. 13 ¶ 5.
Burman.
No similar history is alleged related to
In fact, it appears from the EEOC Decision which
Plaintiff attached to her Complaint, that Burman was a new
employee.
ECF No. 2-3 at 1.2
Because Plaintiff has not identified a similarly situated
individual outside the protected classes that was treated
differently, her disparate treatment claim must be dismissed.
C. Reasonable Accommodation
In her “Reasonable Accommodation” claim, Plaintiff asserts
that she was “denied the reasonable accommodation of leaving the
meeting when she became emotionally distressed and feared for
the health and safety of herself and her unborn child.”
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ECF No.
In the Findings of Fact, the Hearing Examiner reported that the
issue being discussed in the May 18, 2011, meeting was that the
sales team was not making this new employee feel welcomed. Id.
That the teams’ treatment of Burman was the topic of discussion
would explain why Burman was permitted to leave the meeting.
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13 ¶ 16.3
She also states that she “had already made a request
for reasonable accommodation on at least 4 other occasions” by
asking for a transfer to another department of the Arena Club so
she would not be under the supervision of Defendant Wise.
There are several shortcomings with this claim.
Id.
First, it
is not clear that Plaintiff exhausted her administrative
remedies as to this claim.
Her EEOC Charge, ECF No. 2-2, does
not mention the denial of an accommodation and the “disability”
box was not checked.
To the extent this claim is premised on
Defendants’ refusal to transfer Plaintiff to another department,
there is no reference, whatsoever, in the Charge to her having
made those requests.
It is also not clear that Plaintiff communicated to Wise
that her desire to leave the contentious meeting was related to
her pregnancy.
She mentions in the First Amended Complaint that
the exigent circumstances of the May 18, 2011, meeting prevented
her from making a written request for an accommodation, but she
does not allege that she verbally connected her desire to leave
the meeting with her pregnancy.
It appears that she tried to
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It is not apparent from the First Amended Complaint whether
Plaintiff’s “Reasonable Accommodation” claim is brought pursuant
to Title VII, as amended by the PDA, or pursuant to the
Americans with Disability Act, 42 U.S.C. § 12101 et seq. (ADA).
Plaintiff’s EEOC Charge makes no reference to the ADA.
Regardless, Plaintiff cannot state a claim under the ADA. “With
near unanimity, federal courts have held that pregnancy is not a
‘disability’ under the ADA.” Wenzlaff v. NationsBank, 940 F.
Supp. 889, 890 (D. Md. 1996).
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leave the meeting, Wise told her she could not, and Plaintiff
sat back down in silence for the rest of the meeting.
The most significant shortcoming with this claim, however,
is that, with the exception of Burman, all the other members of
the sale team were required to sit through the same contentious
meeting.
The PDA “does not impose an affirmative obligation on
employers to grant preferential treatment to pregnant women.”
Urbano v. Continental Airlines, Inc., 138 F.3d 204 (5th Cir.
1998).
As one court remarked in language that might be
particularly suited to this case, under the PDA “[e]mployers can
treat pregnant women as badly as they treat similarly affected
but non-pregnant employees.”
Troupe v. May Dep’t Stores Co., 20
F.3d 734, 738 (7th Cir. 1994).
If Plaintiffs’ allegations are
true, that is all that occurred at The Arena Club.
Accordingly,
this claim must be dismissed as well.
IV. CONCLUSION
For the reasons stated above, the Court will dismiss Counts
1 through 3, the only counts in the First Amended Complaint that
assert federal claims.
Where “the district court has dismissed
all claims over which it has original jurisdiction,” it has
discretion to remand a removed case to state court.
1367(c)(3).
28 U.S.C. §
Because this case is at a “relatively early stage,”
and this Court has not expended such a substantial “amount of
time and energy” that it is more efficient to exercise
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jurisdiction, Shanaghan v. Cahill, 58 F.3d 106, 112 (4th Cir.
1995), the Court will remand the case to the Circuit Court for
Harford County without reaching the merits of the state claims.
A separate order will issue.
_______________/s/________________
William M. Nickerson
Senior United States District Judge
DATED: May 29, 2013
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