Bruce v. Carroll et al
Filing
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MEMORANDUM. Signed by Judge Catherine C. Blake on 6/30/14. (dass, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
PAUL BRUCE
v.
FAIR COLLECTIONS &
OUTSOURCING, INC.
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Civil No. CCB-13-3200
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MEMORANDUM
Plaintiff Paul Bruce brings this lawsuit against former employer Fair Collections &
Outsourcing, Inc. (“FCO”), alleging violations of Title VII of the Civil Rights Act of 1964 and
wrongful termination under Maryland law.1 He claims that he was sexually harassed and
discriminated against based on his religious beliefs as a Christian. Now pending before the court
is FCO’s motion to dismiss or, in the alternative, for summary judgment. The issues in this case
have been fully briefed, and no hearing is necessary. See Local R. 105.6. For the reasons stated
below, FCO’s motion—treated as a motion to dismiss—will be granted in part and denied in
part.
BACKGROUND
Bruce began working at FCO as a Debt Collector on January 18, 2011. He alleges that,
approximately three months later, he began experiencing “repeated, persistent, and unwanted
sexual advances” from his supervisor, Renee Carroll. (Compl., ECF No. 1, at 5.) The first
alleged incident occurred on April 22, 2011, when Carroll approached him from behind, placed a
1
Bruce voluntarily dismissed claims for battery and tortious interference with contract and all
individual claims against defendant Renee Carroll. (See ECF Nos. 9 & 10.)
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banana on his right shoulder, and asked him, “Would you like a bite of my banana?” (Id.) Bruce
“sternly” declined, and gave Carroll “an unfriendly look.” (Id. at 6.)2 During a second alleged
incident, Carroll approached him at his desk, placed a service dog on his head and neck, and
began rubbing the dog against him. Bruce, finding this contact unwelcome, jumped up from his
desk in surprise. Carroll then asked him if he wanted “to rub her baby.” (Id.) Bruce did not say
anything in response to Carroll’s behavior. On a third occasion, while Bruce was on a break
with a co-worker, Carroll placed her hand on Bruce’s abdomen and touched his belt. Bruce
“recoiled” from her, although he again did not say anything in response. (Id. at 8.) Finally, on
August 12, 2011, Carroll asked him if he “needed a hug today,” to which Bruce responded “in
blunt language to leave him alone” and that her conduct “had gotten out of hand.” (Id.) Bruce
considered filing a sexual harassment report against Carroll with FCO Vice President Kevin
Martin, but he decided not to do so out of fear of retaliation.3
In addition to claiming sexual harassment, Bruce alleges that Maurice Gordon, a manager
at FCO, treated him differently from Muslim co-workers. On June 6, 2011, Gordon told Bruce
to remove his Bible from his desk. Bruce responded that Muslim employees were permitted to
keep religious scriptures on their desks, and so he should be allowed to do so. Gordon, however,
did not reply, and Bruce made no additional request to keep his Bible on his desk.
According to Bruce, the above events culminated in his termination on August 15, 2011.
Martin told him that his termination was due to his “work performance” and “negative response
2
Following this incident, Bruce began avoiding the lunchroom and other areas where Carroll
might frequent. Nevertheless, despite Bruce’s efforts to avoid Carroll, she issued him “a total of
five ‘write-ups’ for violations of company policies,” all of which came “in rapid succession”
after April 22, 2011. (Compl. at 7.)
3
Bruce claims that he feared retaliation because of a recent encounter with an FCO manager,
Maurice Gordon, in which he complained about a non-sexual harassment matter. According to
Bruce, Gordon responded to his complaint by publicly humiliating him.
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towards [Carroll].” (Id.) Bruce claims that he never received an explanation as to why his
behavior toward Carroll was unacceptable, nor had he previously received any warning or
counseling regarding his performance at work.
After his termination, Bruce filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on July 28, 2012. (See Charge of Discrimination, ECF No.
5-26.)4 The EEOC, upon investigation of Bruce’s claims, was unable to conclude that FCO
violated Title VII, and informed Bruce of his right to sue on July 30, 2013. (See Dismissal and
Notice of Rights, ECF No. 1-1.) Bruce filed this suit on October 28, 2013.5
STANDARD
FCO has moved to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6) or, in
the alternative, for summary judgment under Fed. R. Civ. P. 56. Because Bruce has not had a
reasonable opportunity to seek discovery, he cannot properly oppose a motion for summary
4
The charge of discrimination form indicates that Bruce’s case was assigned the number 8462011-84348, which suggests that his case was opened in 2011.
5
FCO argues that Bruce’s Title VII claims are time-barred because he did not file a formal
charge of discrimination until July 28, 2012, or more than 300 days after the alleged unlawful
employment practices. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009)
(citation and internal quotation marks omitted) (“The basic limitations period [for filing a charge
of discrimination] is 180 days after the alleged unlawful employment practice. However, the
limitations period is extended to 300 days when state law proscribes the alleged employment
practice and the charge has initially been filed with a state deferral agency.”). As an initial
matter, the court determines that Bruce had 300 days after the alleged misconduct to file a
charge, as Maryland is a deferral state and the Maryland Commission on Human Relations has a
work sharing agreement with the EEOC whereby a claim filed before one commission is
effectively filed before both. See Valderrama v. Honeywell Tech. Solutions, Inc., 473 F. Supp.
2d 658, 662 n.4 (D. Md. 2007). Turning to whether Bruce filed a charge within 300 days, it
appears that the EEOC opened Bruce’s case in 2011, not in 2012 when he filed a formal charge
of discrimination. Moreover, the EEOC did not dismiss Bruce’s claims as untimely; rather, it
rejected them on the merits. Bruce has submitted a FOIA request to receive records from the
EEOC, but has not yet received a response. Should the records reveal his charge of
discrimination was not timely filed, the court may dismiss the case at that time. At this time,
however, the court lacks sufficient information to conclude that Bruce failed to file a timely
charge.
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judgment. See Greater Baltimore Ctr. for Pregnancy Concerns, Inc. v. Mayor and City Council
of Baltimore, 721 F.3d 264, 281 (4th Cir. 2013). Accordingly, the court will treat FCO’s motion
as a motion to dismiss.
When ruling on a motion under Rule 12(b)(6), 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.” Ibarra v. United States, 120 F.3d 472, 474
(4th Cir. 1997). “Even though the requirements for pleading a proper 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). “The
mere recital of elements of a cause of action, supported only by conclusory statements, is not
sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (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 . . . on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations and alterations omitted). “To satisfy this standard, a plaintiff need not ‘forecast’
evidence sufficient to prove the elements of the claim. . . . However, the complaint must allege
sufficient facts to establish those elements.” Walters, 684 F.3d at 439 (quotations and citation
omitted). “Thus, while a plaintiff does not need to demonstrate in a complaint that the right to
relief is ‘probable,’ the complaint must advance the plaintiff’s claim ‘across the line from
conceivable to plausible.’” Id. (quoting Twombly, 550 U.S. at 570).
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In considering a Rule 12(b)(6) motion, the court does not always have to limit its review
to the pleadings. It may take judicial notice of public records, including statutes, and may
“consider documents incorporated into the complaint by reference, as well as those attached to
the motion to dismiss, so long as they are integral to the complaint and authentic.” United States
ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir.
2014) (citations and internal quotation marks omitted).
ANALYSIS
A. Sexual Harassment
Title VII of the Civil Rights Act of 1964 makes it illegal for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Courts
have long endorsed and adopted the EEOC’s interpretation that sexual harassment is a form of
prohibited sex discrimination. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65–66
(1986). Actionable workplace sexual harassment claims come in two forms: (1) claims of a
hostile work environment due to severe or pervasive sexual harassment and (2) claims of quid
pro quo sexual harassment. See Pitter v. Cmty. Imaging Partners, Inc., 735 F. Supp. 2d 379, 390
(D. Md. 2010). Bruce asserts both.
1. Hostile Work Environment
Bruce claims that he was subjected to a hostile work environment as a result of the four
alleged incidents with Carroll. To establish a hostile work environment claim under Title VII,
the plaintiff must establish that: “(1) []he experienced unwelcome harassment; (2) the harassment
was based on [his] gender, race, or age; (3) the harassment was sufficiently severe or pervasive
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to alter the conditions of employment and create an abusive atmosphere; and (4) there is some
basis for imposing liability on the employer.” Bass v. E.I. DuPoint de Nemours & Co., 324 F.3d
761, 765 (4th Cir. 2003). The plaintiff must show not only that he subjectively believed his
workplace environment was hostile, but also that a reasonable person would have found it to be
objectively hostile. Equal Emp’t Opportunity Comm'n v. Sunbelt Rentals, Inc., 521 F.3d 306,
315 (4th Cir. 2008). The court considers a number of factors in determining whether a
reasonable person would perceive a workplace environment to be sufficiently hostile, such as
“the frequency of the discriminatory conduct; its severity; whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s performance.” Faragher v. City of Boca Raton, 524 U.S. 775, 787–88 (1998).
Turning to the instant case, Carroll’s alleged conduct, although certainly inappropriate,
was not so extreme as to alter the terms and conditions of Bruce’s employment. Bruce claims
just four discrete incidents occurring over an approximately four-month period. Cf. Ocheltree v.
Scollon Prods., Inc., 335 F.3d 325, 333 (4th Cir. 2003) (finding that male coworkers’ almost
daily conduct, which included repeatedly simulating sex with a mannequin, directing vulgar and
sexually explicit jingles at plaintiff, and presenting her with graphic pornography, were
sufficiently severe or pervasive to alter the conditions of plaintiff’s employment and create an
abusive work environment). He alleges one incident in which Carroll asked him if he needed a
hug, but the Fourth Circuit has made clear that “a mere offensive utterance” does not constitute
severe or pervasive harassment. See Sunbelt Rentals, Inc., 521 F.3d at 315 (citation and internal
quotation marks omitted) (“[S]imple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment.”). As for Bruce’s claims that Carroll touched his head, neck, and shoulder on two
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separate occasions, they appear to be isolated incidents and, in any event, did not create an
environment “permeated with discriminatory intimidation, ridicule, and insult.” Id. (citation and
internal quotation marks omitted). Finally, his claim that Carroll touched his belt, while the most
serious of his allegations, does not by itself form the basis of a hostile work environment claim,
as it occurred only once. Cf. Khoury v. Meserve, 268 F. Supp. 2d 600, 614 (D. Md. 2003)
(rejecting a hostile work environment claim where the plaintiff described one encounter in which
her employer yelled at her, told her she was incompetent, pushed her down into her chair, and
blocked the door to prevent her from leaving).
Moreover, Bruce fails to allege how any of the above incidents caused unreasonable
interference with his work. To the extent Bruce felt he needed to avoid the lunchroom or other
areas of the workplace, he fails to explain how this negatively affected his work performance or
made it more difficult for him to perform his job. The court, therefore, will dismiss his claim for
hostile work environment.
2. Quid Pro Quo Sexual Harassment
Bruce alleges that, because he rebuffed sexual advances from Carroll, he was written up
for disciplinary infractions and eventually terminated. To prove a claim for quid pro quo
harassment, an employee must establish the following five elements:
(1) The employee belongs to a protected group.
(2) The employee was subject to unwelcome sexual harassment.
(3) The harassment complained of was based upon sex.
(4) The employee’s reaction to the harassment affected tangible aspects of the
employee’s compensation, terms, conditions, or privileges of employment. The
acceptance or rejection of the harassment must be an express or implied condition to
the receipt of a job benefit or cause a tangible job detriment to create liability . . . .
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(5) The employer . . . knew or should have known of the harassment and took no
effective remedial action.
Okoli v. City of Baltimore, 648 F.3d 216, 222 (4th Cir. 2011) (citation omitted). Where the
alleged harasser is the employee’s supervisor, however, an employer may be vicariously liable
for sexual harassment even if the employer had no knowledge of the harassment. See Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 753–54, 765–66 (1998); Faragher, 524 U.S. at 807–08.6
An employer is strictly liable for sexual harassment by a supervisor whenever that harassment
“culminates in a tangible employment action, such as discharge, demotion, or undesirable
reassignment.” Ellerth, 524 U.S. at 765. And the employer may be vicariously liable for the
supervisor’s conduct even when the supervisor’s harassment does not culminate in a tangible
employment action. But, in those circumstances, “the employer may raise an affirmative
defense to liability, subject to proof by a preponderance of the evidence: ‘The defense comprises
two necessary elements: (a) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.’” Pa. State Police v. Suders, 542 U.S. 129, 137–38 (2004) (quoting
Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807).
Here, FCO argues that Bruce’s quid pro quo claim must be dismissed because he admits
in his complaint that he did not notify FCO of any acts of alleged harassment. Although FCO is
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Although each of these cases involved claims of hostile work environment rather than quid pro
quo harassment, the Ellerth Court stated that the distinction between hostile work environment
claims and quid pro quo claims is relevant only with respect to the determination whether the
employee experienced actionable sexual harassment. Once the court (or the jury) has determined
that the employee experienced sexual harassment, the same standard is applied to determine
whether the employer may be held vicariously liable for the harassment of its employee,
irrespective of whether the plaintiff asserts a claim for hostile work environment or quid pro quo
harassment. See Brown v. Perry, 184 F.3d 388, 394–95 (4th Cir. 1999).
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correct that Bruce decided not to report Carroll’s alleged behavior, it overlooks Bruce’s claim
that Carroll was his supervisor. According to Bruce, Carroll had the ability to take tangible
employment actions against him, as she issued him “a total of five ‘write-ups’ for violations of
company policies.” (Compl. at 7.) See Vance v. Ball State Univ., 133 S. Ct. 2434, 2454 (2013)
(holding that “an employee is a ‘supervisor’ for purposes of vicarious liability under Title VII if
he or she is empowered by the employer to take tangible employment actions against the
victim”). Bruce also explains that, when he was terminated, one of the reasons given for his
termination was his negative response towards [Carroll],” suggesting that she had involvement in
the decision to terminate him. (Compl. at 8.) Bruce, in sum, alleges facts to plausibly support
that Carroll was his supervisor and, accordingly, the court will not dismiss his quid pro quo
harassment claim.
B. Retaliation
Bruce argues that he was terminated from his job at FCO because he opposed Carroll’s
alleged sexual advances and told her to leave him alone. To make a claim for retaliation, the
plaintiff must establish the following three elements: (1) he engaged in a protected activity; (2)
he suffered an adverse employment action; and (3) there is a causal connection between the
protected activity and the adverse employment action. Holland v. Washington Homes, Inc., 487
F.3d 208, 218 (4th Cir. 2007) (emphasis added). There are two categories of protected activities:
(1) “opposition” and (2) “participation.” Equal Emp’t Opportunity Comm'n v. Navy Fed. Credit
Union, 424 F.3d 397, 406 (4th Cir. 2005). “[P]rotected oppositional activities may include
staging informal protests and voicing one’s own opinions in order to bring attention to an
employer’s discriminatory activities as well as complain[ts] . . . about suspected violations.” Id.
(citations and internal quotation marks omitted). Activities that constitute “participation” may
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include “(1) making a charge; (2) testifying; (3) assisting; or (4) participating in any manner in
an investigation, proceeding, or hearing under Title VII.” Laughlin v. Metro. Washington
Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998); see also 42 U.S.C. § 2000e-3(a).
FCO argues that Bruce fails to state a claim upon which relief may be granted because
opposing sexual advances does not constitute protected activity. Although the court is skeptical
that Bruce makes a claim for retaliation,7 there appears to be some split in authority on whether
rebuffing sexual advances may be considered protected activity under Title VII. Compare
Fleming v. South Carolina Dep’t of Corrs., 952 F. Supp. 283, 294 (D.S.C. 1996) (“The
defendant maintains that refusal to submit to a supervisor’s sexual advances is not opposition
under Section 704(a). However this court disagrees.”), with Yancey v. Nat’l Ctr. on Insts. and
Alts., 986 F. Supp. 945, 955 n.14 (D. Md. 1997) (“[The plaintiff] seems to allege that [her
supervisor] retaliated against her by ‘writing her up’ after she refused his sexual advances. This
is not an appropriate retaliation claim.”); see also Maiden v. Cnty. of Albemarle, No.
3:09CV00034, 2009 WL 2511951, at *4 (W.D. Va. Aug. 17, 2009) (determining the plaintiff
failed to state a claim for quid pro quo sexual harassment where he “attempt[ed] to couch his
retaliation claim in the guise of a quid pro quo claim”).8 Because the quid pro quo claim is
continuing in any event, the court will not dismiss Bruce’s retaliation claim at this time.
C. Religious Discrimination
Bruce claims disparate treatment based on his religious beliefs as a Christian, asserting
that Muslim employees were allowed to keep scripture on their desks while he was not permitted
to do so. To make a disparate treatment claim based on religion, the plaintiff “must demonstrate
that the employer treated her differently than other employees because of her religious beliefs.”
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Bruce appears to repackage his quid pro quo claim as a claim for retaliation.
Unpublished opinions are cited not as precedent but for the persuasiveness of their reasoning.
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Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996). Bruce alleges broadly
that Muslim employees were allowed to keep scripture on their desks, but does not refer to even
a single instance in which an FCO supervisor explicitly told Muslim employees this conduct was
acceptable, or noticed Muslim employees displaying scripture and failed to respond. The court
cannot conclude from a single instance in which Bruce was asked not to keep his Bible on his
desk that FCO was treating him differently from employees of another religion. Accordingly,
Bruce’s religious discrimination claim must be dismissed.
D. Wrongful Discharge
Maryland recognizes the common law tort of wrongful discharge. See Adler v. Am.
Standard Corp., 432 A.2d 464, 473 (Md. 1981); see also King v. Marriott Int’l Inc., 866 A.2d
895, 700–01 (Md. App. 2005). “In order to establish wrongful discharge, the employee must
prove by a preponderance of the evidence, that (1) []he was discharged; (2) h[is] discharge
violated a clear mandate of public policy; and, (3) there is a nexus between the employee’s
conduct and the employer’s decision to fire the employee.” King, 866 A.2d at 700 (emphasis
added). However, “if the relevant public policy is contained in a statute and the statute provides
a remedy, the tort of wrongful discharge is not available.” Porterfield v. Mascari II, Inc., 788
A.2d 242, 245–46 (Md. App. 2002); see also Owen v. Carpenters’ Dist. Council, 161 F.3d 767,
774 (4th Cir. 1998).
In this case, Bruce bases his wrongful discharge claim on FCO’s alleged discriminatory
and retaliatory conduct. But Title VII affords him a remedy against those unlawful practices,
thus rendering his Maryland law claim “redundant and inappropriate.” Owen, 161 F.3d at 774.
That Bruce’s Title VII claims may be unsuccessful does not mean the remedy provided by Title
VII is somehow inadequate, nor does it alter the above analysis. (See Bruce Opp., ECF No. 8, at
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7–8 (attempting to argue that, should the court dismiss Bruce’s Title VII claims, his wrongful
termination claim would not be impermissibly duplicative).) Accordingly, Bruce cannot
maintain a separate cause of action for wrongful discharge, and it will be dismissed.
CONCLUSION
For the reasons stated above, FCO’s motion will be granted in part, as to Bruce’s claims
for hostile work environment, religious discrimination, and wrongful termination, and otherwise
denied. A separate order follows.
June 30, 2014
Date
/s/
Catherine C. Blake
United States District Judge
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