Nhira v. Thompson Hospitality et al

Filing 65

MEMORANDUM. Signed by Judge William M Nickerson on 11/12/2014. (c/m 11/12/2014 nd2, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

TAFADZWA NHIRA

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v.
BOWIE STATE UNIVERISTY
et al.
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Civil Action No. WMN-14-676

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MEMORANDUM
Plaintiff was employed as a Food Service Director by
Defendant Thompson Hospitality (Thompson) and/or Defendant
Compass Group (Compass).

He worked in that capacity on the

campus of Morgan State University until December of 2011 when
his position was terminated.

Plaintiff is a “45 year old black

male of Zimbabwean national origin and of Christian faith” and
alleges that this termination was on account of his race, color,
religion, sex, and national origin.

Compl., ECF No. 1 at 5.

In

addition, Plaintiff alleges his discharge was in retaliation for
having protested the unlawful employment practices of Thompson
and Compass regarding another employee, Tajun JarAllah, who was
employed on the campus of Bowie State University in a similar
capacity to that of Plaintiff.
Proceeding pro se, Plaintiff filed this action on March 7,
2014, asserting discrimination and retaliation claims under

Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et seq.

Plaintiff also asserts claims under the

whistleblower provisions of the Sarbanes Oxley Act, 18 U.S.C. §
1514A(a).

In addition to Thompson and Compass, Plaintiff has

named as Defendants several current and former employees of
Thompson and/or Compass: Maurice Jenoure, Jill Brown, Dina
Zaikouk, Dana Mitchell, Todd Burge, Dan Kelly, Nancy Wediner,
Abdelmajid Zaghari, Michael Amos, and Alessandria McGwire.1

Also

named as Defendants are Morgan State University (Morgan State)
and Bowie State University (Bowie State).
Plaintiff has filed various documents that he asserts
represent service of process on each of the Defendants.

As to

Morgan State, Dana Mitchell, Abdelmajid Zaghari, Michael Amos,
Alessandria McGwire, and Bowie State, Plaintiff filed copies of
United States Postal Service Tracking Records.
(respectively).

ECF Nos. 15-20

Morgan State and Bowie State were also

apparently served by mailing of process to the Office of the
Attorney General.

See ECF No. 41-3 (Domestic Return Receipt).

As to Maurice Jenoure, Jill Brown, Dina Zaikouk, Todd Burge, Dan
Kelly, and Nancy Wediner, Plaintiff submitted Domestic Return
Receipts indicating that summonses were sent to these individual
at Thompson’s business address.

ECF No. 27.

1

A summons was also

Michael Amos and Alessandria McQuire were added as Defendants
in an Amended Complaint filed on June 6, 2014. ECF No. 5.
2

sent to Thompson at that same address, id., and a summons was
sent to Compass at its corporate offices in Charlotte, North
Carolina.

See ECF No. 10.

Plaintiff has filed motions for entry of default judgment
as to the following Defendants: Jill Brown (ECF No. 32); Nancy
Weidner (ECF No. 33); Alessandra McGwire (ECF No. 34); Michael
Amos (ECF No. 35); Morgan State (ECF No. 36); Bowie State (ECF
No. 37); Dan Kelly and Todd Burge (ECF No. 56); and Compass,
Thompson, Maurice Jenoure, Dina Zaikouk, Dana Mitchell, and Mark
Zaghari (ECF No. 62).

Defendants Morgan State and Bowie State

have filed motions to dismiss.
ECF No. 30 (Morgan State).

ECF Nos. 25 (Bowie State) and

Apparently believing that Bowie

State had an obligation to file a response to Plaintiff’s Reply
in further support of his first motion for entry of default
judgment against it, Plaintiff filed a second motion for entry
of default judgment against Bowie State.

ECF No. 59.

Plaintiff

has also filed a “Motion for setting the record straight and
requesting counsel on record to refrain from making conclusion
of law.”

ECF No. 28.

All of these motions are ripe.

Turning first to Plaintiff’s motions for default judgment,
the Court concludes that they all will be denied.

Six of the

individuals for which Plaintiff seeks entry of default judgment
- Jill Brown, Todd Burge, Dan Kelly, Nancy Wediner, Michael
Amos, and Alessandria McGwire – were no longer employed by
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Thompson at the time of attempted service and thus would not
have received notice of the suit by delivery of the summonses
and Complaint to Thompson’s place of business.
Maurice Jenoure, ECF Nos. 38-1 and 52.

See Decls. of

In his “Motion to set

the record straight,” Plaintiff suggests that Thompson was
“responsible for giving the mail to their employees who were
discharging duties within the scope of their employment.”
No. 28 at 2.

ECF

Plaintiff also counters that these individuals,

when they were still employed by Thompson, were advancing the
interests of Thompson and, thus, Thompson is bound by their
actions.

While that later argument may be a valid means of

imposing liability on Thompson, there is no obligation on the
part of an employer to forward summonses to former employees nor
does an employer have the authority to accept service of process
for former employees.
Thompson, Compass, Jenoure, Zaikouk, Mitchell, and Zaghari
filed a timely answer to the Complaint.

ECF No. 44.

Plaintiff’s motion for default judgment against these Defendants
appears to be premised on his erroneous belief that these
Defendants were obligated to “respond to [Plaintiff’s] reply to
their answer.”

ECF No. 62 at 1.

under the Federal Rules.

There is no such obligation

Once an answer is filed, a case

typically proceeds to discovery and not until the close of
discovery and the filing of dispositive motions, if any, will
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the validity of Plaintiff’s claims or Defendants’ defenses be
tested.
In moving for default judgment against Morgan State and
Bowie State, Plaintiff argues that they failed to file their
answers to the Complaint within the requisite 21 days of
service.

Morgan State and Bowie State were served on June 27,

2014, by delivery of the summons and complaint to the Attorney
General’s Office.

ECF No. 41-3.

Bowie State filed its motion

to dismiss on Friday, July 18, 2014, which was the last day to
timely respond to the complaint.

Morgan State filed its motion

to dismiss on the next business day, Monday, July 21, 2014, so
its response was one day late.

Even were the Court to assume,

as Plaintiff argues, that both of these Defendants were a day or
two late in responding to the Complaint, Plaintiff has
demonstrated no prejudice by this delay and the Fourth Circuit
has expressed a strong preference that defaults be avoided and
the claims and defenses be disposed of on their merits.
Colleton Preparatory Academy, Inc. v. Hoover Universal, Inc.,
616 F.3d 413, 417 (4th Cir. 2010).

In arguing for default,

Plaintiff focuses on the merits of the claims in his Complaint,
not on any prejudice he suffered as a result of the brief delay
in Defendants’ response to his Complaint.
Turning to the merits of the motions to dismiss filed by
Morgan State and Bowie State, both argue that the Title VII
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claims must be dismissed because neither entity was Plaintiff’s
employer and that the Sarbanes Oxley claims must be dismissed
because they are not publicly traded companies.

Plaintiff

provides no substantive opposition to either motion.

In both

documents that he captioned as his “Responses to the Dismissal
motions,” Plaintiff offers a single sentence, “Defendant through
counsel on record failed to timely answer the summons
accompanied by the complaint.”

ECF Nos. 39 and 40.

Title VII makes it “an unlawful employment practice for an
employer . . . to discharge any individual or otherwise to
discriminate against any individual with respect to his . . .
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)(1) (emphasis added).

Title VII also

makes it unlawful “for an employer to discriminate against” an
employee for opposing any practice made unlawful under Title VII
or for participating in Title VII enforcement proceedings.
§ 2000e-3(a) (emphasis added).

Id.

Plaintiff does not allege that

either Bowie State or Morgan State was his employer.

The only

allegation in the Complaint concerning Morgan State is that
“Morgan State wanted an African American food service director
and Thompson agreed by terminating [Plaintiff].”

Compl. ¶ 34.

Plaintiff asserts a similar allegation against Bowie State, that
Bowie State wanted a food service director of African American
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descent and, as a result, JarAllah was transferred from Bowie
State.

Id. ¶ 36.

While pro se Plaintiff does not make this argument, there
is a line of decisions from other Circuits holding that, in some
circumstances, an entity may be liable for interfering with
someone’s employment relationship with a third party, if done
for discriminatory reasons.

This “interference theory” was

first articulated more than forty years ago by the District of
Columbia Circuit in Sibley Memorial Hospital v. Wilson, 488 F.2d
1338, 1341-42 (D.C. Cir. 1973), and was initially adopted by
some other circuits as well.

See Zaklama v. Mt. Sinai Med.

Ctr., 842 F.2d 291, 294 (11th Cir. 1988); Gomez v. Alexian Bros.
Hosp., 698 F.2d 1019, 1021–22 (9th Cir. 1983).

More recently,

however, courts have backed away from this expansion of
potential “employers” under Title VII.

See Lopez v.

Massachusetts, 588 F.3d 69, 83-98 (1st Cir. 2009); Gulino v. New
York State Educ. Dept., 460 F.3d 361, 373-775 (2d Cir. 2006).
Most pointedly, the First Circuit in Lopez concluded that the
“interference theory is entirely inconsistent with the use of
the common law criteria the Supreme Court has identified” for
interpreting the term “employer” in Title VII.

Lopez, 588 F.3d

at 89 (concluding a lengthy discussion of the Supreme Court’s
decisions in Clackamas Gastroenterology Assocs., P.C. v. Wells,
538 U.S. 440, 448 (2003); Walters v. Metro. Educ. Enter., Inc.,
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519 U.S. 202, 211–12 (1997); Nationwide Mut. Ins. Co. v. Darden,
503 U.S. 318, 322–23 (1992); and Cmty. for Creative Non–Violence
v. Reid, 490 U.S. 730 (1989)).

Furthermore, the court concluded

that “the conceptual underpinning for the doctrine, that a broad
reading of the terms “employee” and “employer” are supposedly
justified by the remedial purpose of the statute, has been
expressly rejected by the Supreme Court.”

Id. (citing

Clackamas, 538 U.S. at 446-47).
The Fourth Circuit has never reached the issue of whether
liability under Title VII can be imposed on an “interference
theory.”

See Bender v. Suburban Hosp., Inc., 159 F.3d 186, 188

(4th Cir. 1998) (assuming without deciding that the doctrine
would apply but finding it inapplicable on other grounds).

This

Court notes that, even while assuming its applicability, the
Fourth Circuit in Bender expressed some reservation as to the
application of the doctrine and also noted a narrowing of the
scope of the doctrine by other courts.

Id. at 188 n.1.

In the

absence of controlling precedent to the contrary, this Court
finds the reasoning of Gulino and Lopez compelling.
Accordingly, because Plaintiff does not allege that Morgan State
or Bowie State was his employer, the Court finds that there is
no ground for liability against them, at least not under Title
VII.

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The absence of liability under the Sarbanes Oxley Act is
perhaps more straightforward.

The whistleblower protection

provision of the Act provides in pertinent part that “[n]o
[publicly traded]2 company . . . or any officer [or] employee . .
. of such company

. . .

may discharge . . . or in any other

manner discriminate against an employee in the terms and
conditions of employment because of any lawful act done by the
employee” including an employee’s assistance in an investigation
of fraud.

18 U.S.C. § 1514(A)(a); see also, Brady v. Calyon

Sec. (USA), 406 F. Supp. 2d 307, 317 (S.D.N.Y. 2005) (holding
that a specific requirement for establishing a violation under
the Act “is that defendant be a publicly traded company”).

By

its own terms, any primary liability under the Act is limited to
publicly traded companies.

Bowie State and Morgan State are not

publicly traded companies, but are agencies of the State of
Maryland.3

2

The term publicly traded company encompasses any “company with
a class of securities registered under section 12 of the
Securities Exchange Act of 1934 (15 U.S.C. 78l), or that is
required to file reports under section 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78o(d)) including any subsidiary
or affiliate whose financial information is included in the
consolidated financial statements of such company, or nationally
recognized statistical rating organization (as defined in
section 3(a) of the Securities Exchange Act of 1934 (15 U.S.C.
78c). 18 U.S.C. § 1514A(a).
3

In addition, Plaintiff’s Sarbanes Oxley claims appear to be
based on his allegations that Thompson inaccurately reported
inventory and expenses. There is no allegation that Morgan
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As the case now stands, the following Defendants have been
served and have answered the Complaint:

Thompson, Compass,

Maurice Jenoure, Dina Zaikouk, Dana Mitchell, and Abdelmajid
Zaghari.

Defendants Bowie State and Morgan State shall be

dismissed from this action.

The following Defendants have not

been served and it appears that Plaintiff has no current address
for these individuals: Jill Brown, Todd Burge, Dan Kelly, Nancy
Wediner, Michael Amos, and Alessandria McGwire.

Under Rule 4(m)

of the Federal Rules of Civil Procedure, if a defendant is not
served within 120 days of the filing of a complaint, the claim
against that defendant should be dismissed, without prejudice,
unless good cause is shown for the failure to serve.

Plaintiff

shall be given ten days from the date of this Memorandum and
Order to show cause why the claims against these Defendants
should not be dismissed.

If good cause is not shown, these

Defendants will be dismissed and the Court will then issue a
scheduling order and permit discovery to go forward as to the
remaining Defendants.

A separate order consistent with this

Memorandum will issue.

November 12, 2014

_______________/s/________________
William M. Nickerson
Senior United States District Judge

State or Bowie State were aware of or participated in this
inaccurate reporting.
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