Wilson v. Susquehanna Bancshares, Inc. et al

Filing 8

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 5/19/14. (apl, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL A. WILSON,

:

Plaintiff,

:

v.

:
Civil Action No. GLR-14-79

SUSQUEHANNA BANCSHARES, INC.,
et al.,

:
:

Defendants.
:
MEMORANDUM OPINION
Pending
Bancshares,

before

the

Inc.

and

Court

is

Susquehanna

Defendants
Bank’s

Susquehanna
(collectively,

“Susquehanna”) Motion to Dismiss and Motion for Summary Judgment.
(ECF No. 3).

Plaintiff Michael A. Wilson is suing Susquehanna for

the

retaliation

alleged

he

received

in

response

to

Wilson

reporting Susquehanna’s alleged unlawful practices to the proper
authorities.

Wilson is also suing Susquehanna for alleged racial

discrimination.

The

Court,

having

reviewed

the

supporting documents, finds no hearing necessary.
105.6 (D.Md. 2011).

pleadings

and

See Local Rule

Susquehanna’s Motion will be granted.
I.

BACKGROUND1

Susquehanna is a chartered bank incorporated in the State of
Maryland.

1

From May 2012 until March 2013, Susquehanna employed

Unless otherwise noted, the following facts are taken from
the Complaint and accepted as true for the purpose of this motion.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)).

Wilson,

an

Associate.

African-American

male,

as

an

Appraisal

Review

In this capacity, Wilson reviewed state and federally

related commercial real estate transactions to ensure compliance
with internal and external regulations.

Wilson also routinely

verified the independence of external appraisers.
During
differential

his

tenure

at

treatment.

Susquehanna,

Wilson

example,

Susquehanna

For

experienced
monitored

Wilson’s arrival and departure times while others were extended
the courtesy of arriving late to address personal matters.

On one

occasion, Wilson was informed that he returned from lunch minutes
late.
to

Wilson was also labeled a “brown nose” and “suck up,” asked

arrange

others’

birthday

celebrations

while

his

was

never

acknowledged, and repeatedly denied an opportunity to transfer to
a location closer to home.

According to Wilson, Appraisal Review

Associate Robert Dennison2 made significantly more than him despite
Wilson’s participation on the team that hired and trained Mr.
Dennison.
In

January

2013,

Tonya

Swanson,

Susquehanna’s

V.P.

and

Appraisal Review Officer, and Paula Browning, Susquehanna’s V.P.
and

Manager

of

Commercial

Real

Estate,

instructed

Wilson

to

discontinue external appraisal independence verifications and to
ignore Interagency Appraisal and Evaluation Valuation Guidelines
2

Susquehanna notes the correct spelling of Robert’s last name
is Dennison, not Denison.
(See Defs.’ Mem. Supp. Mot. Dismiss &
Mot. Summ. J. [“Defs.’ Mot.”] at 2 n.3, ECF No. 3-1). Therefore,
the Court will use the correct spelling throughout this opinion.
2

when

reviewing

Susquehanna.

appraisals
Wilson

performed

informed

guidelines was illegal.

both

for

banks
that

ladies

other

than

ignoring

the

Specifically, on January 17, 2013, Wilson

informed Swanson that he intended to file a complaint regarding
her request because it was unethical and in violation of the law.
That day, Wilson filed an internal complaint with Susquehanna’s
EthicsPoint telephone hotline.

The next day, on January 18, 2013,

Wilson filed a complaint with the Philadelphia Federal Reserve
Consumer Help Department (“FRB Complaint”).

On January 22, 2013,

Wilson reiterated his complaint to Karen Gerdes, Regional Manager
of Human Resources.
Despite
continued
filing

Wilson’s

to

the

violate
FRB

complaints,
appraisal

Complaint,

Susquehanna’s

regulations.

Wilson

endured

employees

Moreover,
various

after

forms

of

retaliation, including being excluded from critical meetings and
decisions, receiving hostile comments and emails from managers,
denial

of

professional

development

denial

of

financial

previously

assistance

reimbursement,

and

opportunities.

Wilson was also denied an internal promotion to

Chief Review Appraiser without an interview.

offered

and

learning

Approximately two

months after filing his complaint, Wilson resigned under duress on
March 18, 2013.
On or about April 2013, Wilson filed an administrative charge
with the Equal Employment Opportunity Commission (“EEOC”).
3

The

EEOC issued Wilson a right-to-sue letter on December 24, 2013.
Wilson
alleging

filed

suit

violation

against
of

the

Susquehanna
Dodd-Frank

on

January

Whistleblower

10,

2014,

Statute,

15

U.S.C. § 78u-6 (2012) (Count I), wrongful discharge against public
policy (Count II), and racial discrimination in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§
2000e et seq. (2012) (Count III).

(ECF No. 1).

Susquehanna now

moves to dismiss Counts I and II, and a portion of Count III.
Susquehanna also moves for summary judgment on Wilson’s unequal
pay claim in Count III.
II.
A.

DISCUSSION

Motion to Dismiss
1.

Standard of Review

The purpose of a Federal Rule of Civil Procedure 12(b)(6)
motion to dismiss is to test the legal sufficiency of a complaint.
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
In considering a Rule 12(b)(6) motion, the court must construe the
complaint in the light most favorable to the plaintiff, read the
complaint as a whole, and take the facts asserted therein as true.
See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783
(4th Cir. 1999).

“A pleading that offers labels and conclusions

or a formulaic recitation of the elements of a cause of action
will not do.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 555).

A complaint is also insufficient if it
4

relies

upon

enhancement.”

“naked

assertions

devoid

of

further

factual

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.

at 557) (internal quotation marks omitted).
2.

Analysis

The Court will grant Susquehanna’s Motion to Dismiss as to
Counts I and II because Wilson has failed to allege an adverse
employment action.
as

to

Count

inference

of

III

The Court will also grant Susquehanna’s Motion
because

racial

the

alleged

discrimination,

facts

fail

to

fail

to

allege

raise

an

an

adverse

employment action, and fail to identify protected activity.
a. Counts I and II
The primary basis of Wilson’s Dodd-Frank Whistleblower and
common law wrongful discharge claims is that Susquehanna forced
him to resign under duress after he informed the proper internal
and

external

Susquehanna
Wilson’s

channels
avers

voluntary

employment action.

of

these

management’s
claims

resignation

should
is

not

law-breaking
be

directives.

dismissed

considered

an

because
adverse

Specifically, Susquehanna argues Wilson does

not properly allege that he was constructively discharged.

The

Court agrees.
To allege a prima facie claim of retaliation under the DoddFrank

Whistleblower

statute

and

common

law

wrongful

discharge,

Wilson must show that he suffered an adverse employment action,
among other things.

See Ott v. Fred Alger Mgmt., Inc., No. 11
5

Civ. 4418 LAP, 2012 WL 4767200, at *4 (S.D.N.Y. Sept. 27, 2012)
(“The elements of a retaliation claim under the Dodd-Frank Act are
(1) that the plaintiff engaged in a protected activity, (2) that
the plaintiff suffered an adverse employment action, and (3) that
the

adverse

action

activity.”);

was

Shapiro

(Md.Ct.Spec.App.

causally

v.

1995)

connected

Massengill,

(“[T]o

state

to

661
a

the

protected

A.2d

claim

202,

for

213

wrongful

discharge, the employee must demonstrate: (1) that the employee
was discharged; (2) that the dismissal violated some clear mandate
of

public

policy;

and

(3)

that

there

is

a

nexus

between

the

defendant and the decision to fire the employee.” (citing Leese v.
Balt.

Cnty.,

497

A.2d

159,

172

(Md.Ct.Spec.App.

1985))).

Moreover, because Wilson alleges he resigned under duress, the
constructive discharge theory applies.
“To
able

to

establish
show

employee’s

that

working

[him] to quit.”

constructive
[his]

discharge,

former

conditions

employer

intolerable,

a

plaintiff

must

be

deliberately

made

an

and

thereby

forced

Murphy-Taylor v. Hofmann, 968 F.Supp.2d 693, 722

(D.Md. 2013) (quoting James v. Booz-Allen & Hamilton, Inc., 368
F.3d 371, 378 (4th Cir. 2004)) (internal quotation marks omitted);
see also Jackson v. Clark, 564 F.Supp.2d 483, 492 (D.Md. 2008)
(“Maryland

courts

constructive
determine

if

apply

discharge
the

an

objective

claims.

resignation

‘The
is,
6

in

standard

to

assess

applicable

standard

effect,

constructive

a

to

discharge,

is

whether

the

employer

has

deliberately

caused

or

allowed the employee’s working conditions to become so intolerable
that a reasonable person in the employee’s place would have felt
compelled to resign.” (quoting Beye v. Bureau of Nat’l Affairs,
477 A.2d 1197, 1203 (Md.Ct.Spec.App. 1985))).

To be deliberate,

an employer’s actions must be intended “‘as an effort to force the
plaintiff to quit.’”

Heiko v. Colombo Sav. Bank, 434 F.3d 249,

262 (4th Cir. 2006) (quoting Matvia v. Bald Head Island Mgmt.,
Inc.,

259

F.3d

261,

272

(4th

Cir.

2001)).

Moreover,

the

intolerable nature of an employment environment is determined from
the objective perspective of a reasonable person.

Id. (citing

Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004)).
Although

Wilson

alleges

that

the

compulsion

of

his

resignation under duress constitutes an adverse employment action,
there is nothing in the Complaint that suggests his resignation
was involuntary.

In fact, Wilson merely repeatedly alleges he

“was compelled to resign.”

(See, e.g., Compl. ¶¶ 39, 47, 58).

This conclusory allegation fails to indicate what Susquehanna did
to compel Wilson to resign after he reported the violations, or
that Susquehanna intended for Wilson to resign.
to

remedy

his

insufficient

allegations

by

Wilson attempts
arguing

“it

is

reasonable to infer from his actions and complaint concerning the
reported
law.”

violations,

that

he

could

not

tolerate

violating

the

(Pl.’s Opp’n to Defs.’ Mot. to Dismiss Pl.’s Compl. & Mot.
7

Summ. J. [“Pl.’s Opp’n”] at 15, ECF No. 6).

This argument fails

for several reasons.
First, it is well settled that the sufficiency of Wilson’s
allegations is limited to the face of the Complaint.

See Zachair,

Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997) (stating the
plaintiff

“is

bound

by

the

allegations

contained

in

[his]

complaint and cannot, through the use of motion briefs, amend the
complaint.”).

Second, there is no indication that Wilson actually

agreed to violate the law.

Contrarily, Wilson alleges that, in

addition to filing the internal and external complaints, he also
refused to violate the law on two different occasions.
28).

(Compl. ¶

Even if Wilson did violate the law and his disdain for those

violations

was

the

catalyst

for

his

resignation,

there

is

no

indication that Susquehanna demanded that Wilson violate the law
or

lose

his

job.

Finally,

to

the

extent

Wilson

intends

to

incorporate the allegations in Count III to Counts I and II, that
intention fails for the reasons discussed infra.
Complaint

fails

to

allege

plausibly

that

Therefore, the

Susquehanna

compelled

Wilson to resign under duress.
Accordingly, Susquehanna’s Motion to Dismiss Counts I and II
will be granted.
b. Count III
Susquehanna moves to dismiss Wilson’s Title VII claim because
he

failed

to

allege

a

constructive
8

discharge,

his

remaining

allegations
failed

to

do

not

allege

constitute

an

inference

adverse

employment

of

discrimination,

race

actions,
and

he
he

failed to engage in protected activity under Title VII.
Wilson’s Title VII claim is a hodgepodge of allegations that
range

from

disparate

retaliation.

treatment,

to

failure

to

promote,

to

Although Wilson is a member of a protected class,

his Complaint is void of facts suggesting that race played a role
in the listed allegations.

At bottom, Wilson’s allegations merely

identify his membership in a protected class and list a series of
events that allegedly occurred during his tenure at Susquehanna.
There is nothing in the Complaint that suggests Wilson’s race was
a motivating factor in any of these actions.
Furthermore,

Susquehanna

allegedly

monitoring

Wilson’s

arrival and departure times, failing to acknowledge his birthday,
refusing to transfer him to a location closer to his residence,
and requests that he violate internal controls neither constitute
constructive

discharge

nor

adverse

employment

actions.

See

Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007)
(“An

adverse

employment

action

is

a

discriminatory

act

that

‘adversely affect[s] the terms, conditions, or benefits of the
plaintiff’s employment.’” (alteration in original) (quoting James,
368

F.3d

at

‘dissatisfaction

375));
with

James,
work

368

F.3d

assignments,

a

at

378

feeling

(“[M]ere
of

being

unfairly criticized, or difficult or unpleasant working conditions
9

are

not

so

intolerable

as

to

compel

a

reasonable

person

to

resign.’” (quoting Carter v. Ball, 33 F.3d 450, 459 (4th Cir.
1994))).
Wilson’s retaliation claim3 fails because he does not allege
he engaged in a protected activity recognized under Title VII.
See, e.g., Harden v. Wicomico Cnty., Md., 436 F.App’x 143, 146
(4th Cir. 2011) (noting the two distinct categories of protected
activities
“engaging

are
in

participating

oppositional

in

a

Title

activities

to

employer’s discriminatory activities”).

VII

bring

proceeding
attention

to

and
an

To the contrary, Wilson

alleges he was retaliated against after filing his whistleblower
complaints.
promote
According

(Compl.

claim4
to

lacks
the

¶
an

75).

Similarly,

inference

Complaint,

Wilson

of
was

Wilson’s

racial
denied

failure

to

discrimination.
the

promotion

because he “objected to management and refused to violate internal
controls against public policy.”
3

(Compl. ¶ 74).

To establish a prima facie case of retaliation, Wilson must
prove three elements: “(1) that [he] engaged in a protected
activity; (2) that [his] employer took an adverse employment
action against [him]; and (3) that there was a causal link between
the two events.”
Balas v. Huntington Ingalls Indus., Inc., 711
F.3d 401, 410 (4th Cir. 2013) (quoting EEOC v. Navy Fed. Credit
Union, 424 F.3d 397, 405-06 (4th Cir. 2005)) (internal quotation
marks omitted).
4
To establish a prima face case of discriminatory failure to
promote under Title VII, Wilson must show four elements: “(1) he
is a member of a protected group; (2) he applied for a position;
(3) he was qualified for the position; and (4) he was rejected
from the position under circumstances giving rise to an inference
of unlawful discrimination.” Lamb v. Boeing Co., 213 F.App’x 175,
179 (4th Cir. 2007) (citing Amirmokri v. Balt. Gas & Elec. Co., 60
F.3d 1126, 1129 (4th Cir. 1995)).
10

Accordingly, Susquehanna’s Motion to Dismiss Count III will
be granted.
B.

Motion for Summary Judgment
1.

Standard of Review

Under Federal Rule of Civil Procedure 56(a), the Court must
grant summary judgment if the moving party demonstrates that there
is no genuine issue as to any material fact, and that the moving
party is entitled to judgment as a matter of law.

Fed.R.Civ.P.

56(a).
In reviewing a motion for summary judgment, the Court views
the

facts

in

a

light

most

favorable

to

the

nonmoving

party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Once a

motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute
exists.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 586–87 (1986).

“[T]he mere existence of some alleged

factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”

Anderson, 477

U.S. at 247–48 (emphasis in original).
2.

Analysis

Susquehanna
Wilson’s

unequal

argues
pay

it

claim

is
in

entitled
Count

11

to

III

summary
because

judgment
there

is

on
no

genuine dispute of material fact that Wilson earned more than Mr.
Dennison.
To establish a prima facie unequal pay claim under Title VII,
Wilson must show that: “(1) [he] is a member of a protected class;
(2) [he] was paid less than an employee outside the class; and (3)
the higher paid employee was performing a substantially similar
job.”

Kess

v.

Mun.

Emps.

Credit

F.Supp.2d 637, 644 (D.Md. 2004).

Union

of

Balt.,

Inc.,

319

Susquehanna challenges the third

element.
Wilson alleges he was part of the team that hired and trained
Appraisal Review Associate, Robert Dennison.

Wilson also alleges

that Mr. Dennison indicated that he earned significantly more than
Wilson.

According to Susquehanna, contrary to his allegations,

Wilson made ninety-six cents more per hour than Mr. Dennison while
they

were

employed

in

the

same

capacity.

To

support

this

assertion, Susquehanna provides a declaration from Karen Gerdes,
Regional

Manager

of

Human

Resources.

[“Gerdes Decl.”], ECF No. 3-2).
Susquehanna

employed

Mr.

(See

Defs.’

Mot.

Ex.

1

Ms. Gerdes declares that while

Dennison

as

an

Appraisal

Review

Associate, Wilson earned ninety-six cents more per hour than Mr.
Dennison.

(Gerdes Decl. ¶ 5).

Ms. Gerdes further declares that

shortly after Mr. Dennison left Susquehanna’s employ, it retained
Mr. Dennison as a consultant under different payment arrangements.
(Id. ¶¶ 6-7).
12

Wilson

rebuts

Susquehanna’s

declaration

averring

Dennison’s

salary,

privileges

were

that

“[u]pon

compensation

more

favorable

evidence

with

information

and

arrangement,
compared

¶

10,

however,

ECF

No.

6-8).

does

not

raise

Wilson’s
a

genuine

sufficient to defeat summary judgment.5

belief,

own
Mr.

employment

[his]

to

employment

(Pl.’s Opp’n Ex.

“information
issue

his

and

privileges and salary on a gross income basis.”
5,

a

of

and

belief,”

material

fact

See Fed.R.Civ.P. 56(c)(4)

(“An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be
admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”); Causey v. Balog,
162

F.3d

795,

803

n.4

(4th

Cir.

1998)

(“Rule

56(e)

precludes

consideration of materials not based on the affiant’s first hand
knowledge.”).

Furthermore,

Wilson’s

self-serving

declaration

fails to create a genuine issue of material fact regarding the
disparity between Wilson’s and Mr. Dennison’s salary.

Therefore,

it is undisputed that Wilson earned more than Mr. Dennison while
Susquehanna employed both as Appraisal Review Associates.
Wilson avers, in the alternative, that this issue is not ripe
for summary judgment.

5

To support this averment, Wilson submits a

Moreover, paragraphs six and seven of Wilson’s declaration
fail to defeat Susquehanna’s motion because paragraph six
constitutes hearsay and Dennison’s alleged contractual agreement
with Susquehanna removes him from consideration as a reasonable
comparator.
13

Rule

56(d)

declaration

from

counsel

insisting,

in

conclusory

fashion, that Wilson has not had the opportunity for discovery and
that the facts needed to oppose the motion is in Susquehanna’s
exclusive control.

(See Pl.’s Opp’n Ex. 6, ECF No. 6-9).

Rule

56(d), however, requires Wilson to “specify” the reasons he cannot
present facts “essential” to his opposition.

Fed.R.Civ.P. 56(d);

see also Strag v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943,
954 (4th Cir. 1995) (stating a request for additional discovery is
properly

denied

“where

the

additional

evidence

sought

for

discovery would not have by itself created a genuine issue of
material fact sufficient to defeat summary judgment”).

Wilson has

not provided any indication that additional discovery may uncover
facts

to

rebut

Accordingly,

Ms.

Wilson’s

Gerdes’s
request

review
for

of

Susquehanna’s

additional

discovery

records.
will

be

denied and Susquehanna’s Motion for Summary Judgment on Wilson’s
unequal pay claim will be granted.
C.

Wilson’s Request for Leave to Amend the Complaint
In his Opposition, Wilson avers he may amend his Complaint as

a matter of course and, in the alternative, justice requires that
the Court grant him leave to amend.
Contrary

to

Wilson’s

averment,

Rule

15(a)(1)

permits

plaintiffs to amend their complaints as a matter of course within
twenty-one days of service or “if the pleading is one to which a
responsive pleading is required, [twenty-one] days after service
14

of a responsive pleading or [twenty-one] days after service of a
motion under Rule 12(b), (e), or (f), whichever is earlier.”

None

of these conditions apply here because the twenty-one days to file
the amendment under either provision has passed.
Conversely,
complaint

“with

court’s leave.”

Rule
the

15(a)(2)
opposing

permits
party’s

a

party

written

to

consent

Wilson seeks leave of the Court.

or

its
the

Leave to amend

should be freely given “when justice so requires.”
15(a)(2).

amend

Fed.R.Civ.P.

Denial of an amendment request is appropriate, however,

where “‘the amendment would be prejudicial to the opposing party,
there has been bad faith on the part of the moving party, or the
amendment would be futile.’”

Edwards, 178 F.3d at 242 (quoting

Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986)).
After careful review of the Complaint, the Court concludes
that an amendment would be futile in this matter.

There is no

indication that Wilson’s claims are salvageable given the bases
upon which they were denied.
proposed

amended

complaint

Moreover, Wilson failed to submit a
or

identify

any

factual

allegations

that would overcome the deficiencies in his Complaint.
Accordingly,

Wilson’s

request

Complaint will be denied.

15

for

leave

to

amend

his

III. CONCLUSION
For

the

foregoing

reasons,

the

Court

GRANTS

Susquehanna’s

Motion to Dismiss Plaintiff’s Complaint and Motion for Summary
Judgment.

(ECF No. 3).

Wilson’s request to amend his Complaint

is DENIED.

A separate Order follows.

Entered this 19th day of May, 2014.

/s/
____________________________
George L. Russell, III
United States District Judge

16