Peterson v. Northrop Grumman Systems Corporation et al

Filing 35

MEMORANDUM. Signed by Judge William M Nickerson on 9/15/14. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

BRIAN PETERSON
v.
NORTHROP GRUMMAN SYSTEMS
CORPORATION, et al.
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Civil Action No. WMN-13-03812

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MEMORANDUM
Pending before the Court are various motions to dismiss.
Specifically, Defendant Northrop Grumman Systems Corporation
(Northrop Grumman) filed a motion to dismiss Count I of the
Amended Complaint, ECF No. 24, and Defendant Salaried Employees
Association (SEA) filed a motion to dismiss Count III of the
Amended Complaint, ECF No. 23.

The Court determines that no

hearing is necessary, Local Rule 105.6 and for the reasons
stated herein, both motions will be GRANTED.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Brian Peterson (Peterson) filed this case against

Northrop Grumman and SEA for employment discrimination based on
sex, race, and retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e, et. seq., 42 U.S.C. § 1981, and
the National Labor Relations Act (NLRA), 29 U.S.C. § 158.
Peterson is an African-American male who was employed at
Northrop Grumman from 1985 to 1996, and again from 1998 until

March 13, 2012.

Until 2011, he progressed in employment,

gaining top secret clearance and other necessary experiences to
qualify him for positions that became available.
During the time at issue, Peterson worked in the Sensors
and Systems Division in the Advanced Technical Laboratory.

He

was a top secret clearance employee who provided back up support
and coverage for understaffed areas.

The manager of his group,

the Mission Assurance H-Module, was Gary Tichnell (Tichnell).
Peterson was also a dues paying member of SEA from 2005
onward.

In 2009, he was elected to be an SEA Union

Representative.
in 2013.

He served in that capacity until his dismissal

As Union Representative, Peterson requested a review

of overtime assignments within his group for the first half of
2011.

The resulting investigation showed that a female

Caucasian co-worker, Donna Crum, received 441 hours of overtime
while the remaining ten male workers in the department received
272 hours combined.
Peterson alleges that because of his investigation request
and his sex and gender, the following adverse employment actions
occurred:
(1)

Peterson was excluded from silicon carbide wafer
training that all other members – Caucasian - of
Assurance H-Module received.

This training was a

prerequisite for certain employment and overtime

opportunities, from which Peterson could not benefit
because Tichnell refused to offer training.
(2)

In July, 2011, Tichnell, counter to usual practice
with Caucasian and female employees, failed to respond
to Peterson’s request to participate in a class
through Northrop Grumman’s Education Reimbursement
Program until the class’s second-to-last day.

(3)

Northrop Grumman failed to investigate Peterson’s
September 13, 2011, report that three coworkers – Ed
Deltuva, Dudley Crum, and Donna Crum – had broken into
his locker to steal his notes of union violations.

Following these incidents, Plaintiff filed a complaint with
the National Labor Relations Board (“NLRB”) as well as with Jim
O’Hair, a Northrop Grumman Executive.

Peterson was eventually

referred to the Human Resources Director, but no further action
was taken.
In addition, as part of his union duties, Peterson was
asked to track instances of professional salaried employees
performing union jobs.

On September 19, 2011, Peterson reported

that Allen Mumford, a professional employee, was working a union
job assigned to Ed Deltuva.

Peterson also reported a violation

of SEA policy when a junior union member – the SEA President’s
son - was promoted over three senior engineers.

As a result of

his reports to SEA, Northrop Grumman, and the NLRB, Peterson

alleges that he has been subjected to isolation and harassment
by co-workers and supervisors.
On February 28, 2012, Northrop Grumman indefinitely
suspended Peterson for engaging in misconduct.
the suspension was converted to termination.

Shortly after,

Peterson requested

a “Last Chance” letter through SEA, but that request was
rejected on the ground that a Level 3 accusation was lodged.
Peterson alleges that other employees had their “Last Chance”
letters accepted, and notwithstanding acceptance, that the Level
3 accusation was retaliation for his reporting activities.
Upon termination, Peterson filed a charge with the Equal
Employment Opportunity Commission (EEOC).

Peterson states that

his claim with the EEOC was on grounds of race and gender
discrimination as well as retaliation for protected activity.
The EEOC charge sheet provided by Northrop Grumman has the
“Retaliation” box checked along with a note to “See enclosed
copy of charge of discrimination.”

ECF No. 24-1.

Neither

Northrop Grumman nor Peterson has provided additional
documentation to further explain the charge sheet.
Peterson received his right to sue letter on September 20,
2013.

He then filed his original complaint on December 18,

2013, and SEA moved to dismiss Peterson’s Title VII and NLRA
claims.

In response, Peterson filed an amended complaint on May

26, 2014, alleging Title VII claims of sex and gender

discrimination and retaliation against Northrop Grumman (Counts
I and II), and § 1981 claims against both Northrop Grumman and
SEA (Count III).
II.

LEGAL STANDARD

Defendant Northrop Grumman’s motion is properly brought
under Fed. R. Civ. P. 12(b)(1), in that a Title VII plaintiff’s
failure to exhaust administrative remedies deprives the federal
court of subject matter jurisdiction over such claims.

Jones v.

Calvert Group, Ltd., 551 F.3d 297, 300-01 & n. 2 (4th Cir.
2009).

The plaintiff always bears the burden of demonstrating

that subject matter jurisdiction properly exists in federal
court.

See Evans v. B.F. Perkins Co., a Div. of Standex Int’l

Corp., 166 F.3d 642, 647 (4th Cir. 1999).

Dismissal for lack of

subject matter jurisdiction is appropriate “only if the material
jurisdictional facts are not in dispute” and the defendant is
“entitled to prevail as a matter of law.”

Id.

In its analysis,

the court should “regard the pleadings as mere evidence on the
issue, and may consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.”

Evans,

166 F.3d at 647.
Defendant SEA’s motion is governed by Fed. R. Civ. P.
12(b)(6).

In evaluating a motion to dismiss filed pursuant to

Rule 12(b)(6), the Court must accept as true all well-pled
allegations of the complaint and construe the facts and

reasonable inferences derived therefrom in the light most
favorable to the plaintiff.

See Ibarra v. United States, 120

F.3d 472, 474 (4th Cir. 1997).

To survive dismissal, “a

complaint must contain sufficient factual matter . . . to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v.
Twombly, 550 U.S. 554, 570 (2007)).

“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.”
U.S. at 678 (citing Twombly, 550 U.S. at 556).

Iqbal, 556

A court need not

accept a plaintiff’s legal conclusions as true, as “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id.

Thus,

“[d]etermining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”

Id. at 679.

III. ANALYSIS
A. Northrop Grumman’s Motion to Dismiss
Defendant Northrop Grumman seeks dismissal of Count I of
the Amended Complaint, which asserts that Northrop Grumman
discriminated against Peterson on account of his race and sex.
Northrop Grumman avers that this Court lacks jurisdiction over

Peterson’s race and sex discrimination claim because Peterson’s
EEOC Notice of Charge of Discrimination marks “Retaliation” as
the circumstance of discrimination, and not “Race” or “Sex,” and
thus Peterson failed to exhaust his administrative remedies as
to claims of race or sex discrimination.
Title VII requires a plaintiff to file a charge of
discrimination with the EEOC prior to filing suit in federal
court.

Jones, 551 F.3d at 300-01.

Furthermore, the scope of

the civil action is confined to “those discrimination claims
stated in the initial charge, those reasonably related to the
original complaint, and those developed by reasonable
investigation [of that complaint].”

Id.

Case law in the Fourth

Circuit “make[s] clear that the factual allegations made in
formal litigation must correspond to those set forth in the
administrative charge.

For example, the plaintiff’s claim

generally will be barred if his charge alleges discrimination on
one basis – such as race – and he introduces another basis in
formal litigation – such as sex.”

Chacko v. Patuxent Inst., 429

F.3d 505, 509 (4th Cir. 2005).
From the evidence provided, Peterson’s claim of sex and
race discrimination is barred because of his failure to include
them in the EEOC charge.
retaliation claim.

The charge sheet is only marked as a

ECF No. 24-2.

Plaintiff’s unsubstantiated

claims that he filed a complaint on grounds of race and sex

discrimination and that the lack of check marks on the charge
sheet was “in error or was later clarified and expanded” are
insufficient without further evidence.

In addition, Plaintiff

has declined to provide the narrative portion of the charge that
would potentially mention race or sex discrimination sufficient
to provide Northrop Grumman notice of these claims.

See Bryant

v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir.
2002) (“The EEOC charge defines the scope of the plaintiff’s
right to institute a civil suit.”).
In the absence of further evidence concerning the EEOC
charge sheet, the Court can only conclude that Peterson filed
his claim with the EEOC on the ground of retaliation for
engaging in protected activities, thus limiting his claim in
this Court to retaliation.

Thus, Peterson failed to exhaust his

administrative remedies as to claims of sex or gender
discrimination.

Defendant Northrop Grumman’s partial motion to

dismiss Count I of the Amended Complaint will be granted.
B. SEA’s Motion to Dismiss
Defendant SEA seeks dismissal of Count III of the Amended
Complaint, which asserts that SEA unlawfully interfered with
Peterson’s employment relationship with Northrop Grumman on

account of his race and sex in violation of 42 U.S.C. § 1981.1
SEA asserts that Peterson has failed to plead with particularity
facts giving rise to an interference claim under § 1981.
The Court concludes that, even when construed in
Plaintiff’s favor, the Amended Complaint fails to produce
sufficient facts on which to state a claim against SEA.
Peterson must allege facts that tend to show “(1) he or she is a
member of a racial minority; (2) the defendant intended to
discriminate on the basis of race; and (3) the discrimination
concerned one or more of the activities protected by the
statute.”

Baltimore-Clark v. Kinko’s, Inc., 270 F. Supp. 2d

695, 699 (D. Md. 2003).

Although there is neither a heightened

pleading standard, nor requirement to establish a prima facie
case of discrimination, Swierkiewicz v. Sorema, 534 U.S. 506,
510-11 (2002), a plaintiff still carries the burden of alleging
facts sufficient to state all elements of his claim.

See

Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002)
(“The Supreme Court’s holding in Swierkiewicz v. Sorema did not
alter the basic pleading requirements that a plaintiff set forth
facts sufficient to allege each element of his claim.”).
Plaintiff does not carry his burden with respect to SEA.
1

SEA correctly notes that 42 U.S.C. § 1981 protects only against race
discrimination and not sex discrimination as alleged. See Duane v.
Government Employees Ins. Co., 784 F. Supp. 1209, 1216 (1992) (“[N]othing in
the language or history of (§ 1981) addresses discrimination on the basis of
. . . sex.”)

In the whole of his complaint, Plaintiff describes three SEA
actions: SEA submitted Peterson’s “Last Chance” request to
Northrop Grumman, SEA failed to file grievances or advocate on
behalf of Peterson, and SEA failed to fairly represent Plaintiff
and his claims of disparate treatment.

While Peterson includes

specific factual occurrences with respect to Northrop Grumman,
SEA’s appearance in the complaint is mostly limited to these
general references.
Plaintiff’s allegations against SEA closely mirror the
allegations made in Bass v. E.I. DuPont de Nemours & Co., 324
F.3d 761 (4th Cir. 2003).

There, the Fourth Circuit found that

the allegation that “[p]laintiff, an African American female was
consistently paid less than and consistently did not advance as
fast as similarly situated white men” was insufficient to
support plaintiff’s claim of gender, race, or sex
discrimination.

Id. at 765.

The court also found that her

allegations were merely supported “with a story of a workplace
dispute . . . and some callous behavior by her superiors” that
did “not seem to have anything to do with gender, race, or age
harassment.”

Id.

Here, Peterson fails to even describe a particular
“workplace dispute” or “callous behavior” by the SEA, much less
facts that are plausibly connected to Peterson’s claim that
SEA’s actions were “because of Plaintiff’s race.”

And while

Peterson claims that the Amended Complaint “made reference to
specific acts, practices, procedures, or failures to act in
support of his claims,” ECF No. 31 at 11, the Court finds that
there are no specific facts alleged that could support a claim
against SEA.
As plead by Peterson, SEA’s involvement in his termination
was limited to requesting the “Last Chance” letter.

To say

simply that SEA “failed to file grievances” and “fairly
represent Plaintiff to address his claims” does not sufficiently
support a conclusion that Peterson, as an African American union
member, was treated differently than a Caucasian union member
during the grievance process.

While Peterson may not like the

way SEA handled his grievances, there is no suggestion that SEA
intended to discriminate against him on account of his race.

By

and large, Peterson’s references to SEA in his § 1981 claim
constitute the “threadbare recitals” and “conclusory
allegations” that fail a 12(b)(6) motion.
However, since SEA failed to raise this issue in its first
motion to dismiss, the Court will give Peterson the opportunity
to amend his complaint as to SEA and Count III within fourteen
days of this Order.

The Court will again emphasize that

“general allegations of differential treatment must be
substantiated by ‘accounts of specific dates, times, or
circumstances.’”

Cepada v. Board of Educ. Of Baltimore City,

974 F. Supp. 772, 784 (D. Md. 2013).
IV.

CONCLUSION

For the foregoing reasons, Defendants’ Partial Motions to
Dismiss will be granted, and within fourteen days of the Order,
Plaintiff may amend Count III of his complaint as to SEA.

A

separate Order will issue.
______________/s/__________________
William M. Nickerson
Senior United States District Judge

DATED:

September 15, 2014