Price v. Grasonville Volunteer Fire Department
Filing
20
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 12/29/2014. (nd2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
OSCAR L. PRICE,
Plaintiff,
v.
Civil Action No. ELH-14-1989
GRASONVILLE VOLUNTEER FIRE
DEPARTMENT,
Defendant.
MEMORANDUM OPINION
Plaintiff Oscar L. Price was a volunteer firefighter for defendant, the Grasonville
Volunteer Fire Department (the “Department”) in Queen Anne’s County, Maryland. See ECF 1
at ¶¶ 5, 6 (“Complaint”). He has sued the Department, asserting four claims: employment
discrimination on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. (“Title VII”) (Count One); a racially hostile work environment, also in
violation of Title VII (Count Two); employment discrimination on the basis of race, in violation
of the Civil Rights Act of 1991, 42 U.S.C. § 1981 et seq. (Count Three); and retaliation, in
violation of Title VII (Count Four).1
At issue before the Court is defendant’s “Preliminary Motion to Dismiss or in [the]
1
Plaintiff attached several exhibits to the Complaint: two black and white photographs,
one allegedly from Chief Steve McComb’s Facebook page, and one depicting several members
of the Department posing in a “stereotypical urban, gang member style” (ECF 1-2); a
“Determination” issued by the United States Equal Employment Opportunity Commission (ECF
1-3); and a “Notice of Right to Sue” issued by the United States Equal Employment Opportunity
Commission (ECF 1-4).
Alternative Motion to Strike” (ECF 5, “Motion”),2 which has been fully briefed.3 No hearing is
necessary to resolve it. See Local Rule 105.6. For the reasons that follow, the Motion will be
denied.
Factual Background4
Mr. Price, who is African American, began volunteering with the Department in 1983.
Complaint ¶ 5. He was the first African American firefighter admitted to the Department, id. ¶ 6,
and served as an engineer and a driver. Id. ¶ 5. Although the Department did not compensate
Mr. Price directly for his services, he alleges that he was entitled to certain benefits pursuant to
several Maryland statutes, which amount to compensation. ECF 19 at 3, 8.5 In particular, Mr.
2
It does not appear that defendant double-spaced its pleadings. See, e.g., Motion (ECF
5); Reply (ECF 11). Local Rule 102.2.b provides that, with respect to all documents submitted
to the Court, “[l]ines of text shall be double-spaced except for quotations and footnotes.”
3
In addition to the Motion (ECF 5), I have considered plaintiff’s opposition
(“Opposition,” ECF 10), and defendant’s “Second Motion to Strike” (ECF 11). Notably, in an
Order dated August 7, 2014 (ECF 13), I observed that although defendant titled ECF 11 as
“Second Motion to Strike,” it is listed “on the docket as a reply and, in substance, appears to
amount to a response to plaintiff’s Opposition, rather than an entirely new motion seeking to
strike additional material.” Accordingly, I refer to ECF 11 as defendant’s “Reply.” I have also
considered plaintiff’s Surreply (ECF 19, “Surreply”), filed with leave of Court. As discussed,
infra, by Order dated September 8, 2014 (ECF 15), I permitted plaintiff to file the Surreply to
respond to the argument that Mr. Price was not the Department’s employee, which was raised by
the Department for the first time in its Reply. See Reply ¶ 1.
4
Unless otherwise indicated, the Factual Background is drawn largely from the
Complaint. At this juncture, the court must accept as true all factual allegations contained in the
Complaint and must draw all reasonable inferences in favor of Price. See E.I. du Pont de
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted).
5
As discussed, infra, Mr. Price does not state in his Complaint that he received
remuneration in exchange for his services as a firefighter. But, the Court may take judicial
notice of several Maryland statutes cited by plaintiff in his Surreply, which enumerate certain
benefits to which firefighters in the State of Maryland are entitled. See, e.g., Philips v. Pitts
County Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (“In reviewing a Rule 12(b)(6)
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Price claims that, in exchange for his work as a volunteer firefighter, he was entitled to the
following: “a generous state-funded disability pension, group life insurance, survivors’ benefits
for dependents, a scholarship for dependents, tuition reimbursement, workers’ compensation, and
federal and state income tax credits, deductions, and exemptions.”
Id. at 3.6
Mr. Price alleges that, “[a]fter twenty-six years of honorably serving the Department, he
became subject to discrimination and harassment by the Department’s new President Robert
Sharp and new line staff,” which included Chief Jason Anthony, Lieutenant Keith Thomas, Matt
Coursey, John Werkheiser, and Ray Stokes. ECF 1 at ¶ 6. To illustrate, plaintiff refers to an
incident that occurred on December 14, 2009. On that date, plaintiff was unable to attend the
Department’s annual election meeting, at which Sharp presided, and so he submitted a ballot in a
sealed envelope. Id. ¶ 7. He asserts, in part, id.:
At the meeting, President Sharp made a spectacle of Mr. Price by throwing Mr.
Price’s ballot in the trash in front of the entire Department. Dawn Anthony[,
another member of the Department,] protested President Sharp’s actions and was
physically assaulted for her opposition. President Sharp was subsequently found
guilty of second degree assault in connection with his attack.
dismissal, we may properly take judicial notice of matters of public record.”); Colonial Penn Ins.
Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); see also Bey v. Shapiro Brown & Alt, LLP, 997
F. Supp. 2d 310, 316 n.4 (D. Md. 2014).
6
Clearly, Mr. Price omitted important factual allegations from his Complaint. However,
based on Maryland statutory law, which is subject to judicial notice, I need not dismiss the
Complaint because of these omissions. Because I may consider applicable Maryland statutes in
resolving this Motion, this minimizes the significance of the factual omissions. Nevertheless, the
Court will grant plaintiff leave to amend to add the allegations he included in ECF 19.
Also, I note that plaintiff appended to his Surreply his own Affidavit, in which he asserts
that he is entitled to certain benefits. ECF 19-1. And, plaintiff appended to his Surreply a
printed excerpt from an Equal Employment Opportunity Commission Compliance Manual,
which discusses the treatment of volunteers. ECF 19-2. I did not take these materials into
consideration as they are extraneous to the Complaint. See U.S. ex rel. Oberg v. Pennsylvania
Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014).
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Ms. Anthony subsequently related to Mr. Price what happened at the meeting. Id. ¶ 8.
When Mr. Price attempted to address with President Sharp and his command staff the issue of
why his vote did not count, Mr. Price was told that his one vote “did not matter.” Id.
Plaintiff also alleges that in February 2010, Chief Anthony requested that Mr. Price be
available on “February 5, 2010 and February 11, 2011”7 to clear the Department’s parking lot
during snow storms. Id. at ¶ 9. Mr. Price agreed, but he informed Chief Anthony that he would
have to rent a tractor in order to remove the snow because his own was broken. Id. Chief
Anthony told Mr. Price that the Department would “cover the costs associated with the snow
removal.” Id.
In reliance on Chief Anthony’s assurances, Mr. Price rented a tractor and cleared the
snow. Id. at 10. Thereafter, he submitted an invoice to the Department for a total of $1,950,
which included the costs of renting the tractor and Mr. Price’s thirty-five hours of labor to clear
the snow. Id. at 10. According to Mr. Price, the Department received funds from FEMA for
snow removal, but the Department did not reimburse Mr. Price for the cost of renting the tractor
or for his time and labor.
Id.
Mr. Price alleges that President Sharp remarked that the
Department “‘was not going to pay his black ass.’” Id. Nonetheless, according to Mr. Price, the
Department paid a Caucasian individual who also removed snow from the Department’s parking
lot. Id.
Shortly after the February snow storms, the harassment against Mr. Price allegedly
escalated. Mr. Price contends that his equipment necessary to respond to fires had been moved
to the back of the station, “without his knowledge or consent.” Id. ¶ 11. Also, Caucasian
7
Plaintiff presumably intended to write February 11, 2010 instead of February 11, 2011,
because he claims he was “effectively discharged in the Spring of 2010. Complaint at ¶¶ 14-15.
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Department officers and line staff began to refer to him as “black son of a bitch” and to
command him to “get his black ass on the truck.” Id. In particular, Lieutenant Keith Thomas
told Mr. Price to “‘take [his] black ass and drive’ a snow plow.” Id. ¶ 14. Mr. Price also alleges
that in an effort to “embarrass and mock” him, Caucasian members of the Department would
photograph themselves “in stereotypical urban, gang member style.” Id. ¶ 13.
In the Spring of 2010, Mr. Price filed a Charge of Discrimination (“Charge”) with the
Equal Employment Opportunity Commission (“EEOC”). Id. at ¶ 14. Mr. Price alleges that once
the Department received notice of the Charge in or around May 2010, Mr. Price’s equipment
necessary to respond to fires went missing. Id. He claims that Lieutenant Keith Thomas
“bragged to others that ‘we took that nigger’s gear and put it in a locker and that is where it is
going to stay.’” Id. Without his equipment, Mr. Price was unable to respond to fires. Id. ¶ 15.
According to Mr. Price, Chief Anthony also refused to provide a pager to Mr. Price, despite his
repeated requests for a new one. Id. Mr. Price has alleged, inter alia, that “[t]he officers and line
staff’s actions have effectively discharged Mr. Price from membership without affording him
any due process.” Id. ¶ 15.
According to plaintiff, the EEOC “found cause that Plaintiff was terminated because of
his race and was retaliated against for protected activity, i.e., the reporting of the racist comments
and seeking protection under Title VII of the Civil Rights Act of 1964.” Id. ¶ 17. Plaintiff
attached the EEOC “Determination” as an exhibit to the Complaint. See ECF 1-3. In his
Complaint, Price quotes from the EEOC’s determination, Complaint ¶ 17 (emphasis in
Complaint):
“Evidence obtained during the Commission’s investigation revealed that since at
least 2009 and continuing through [Mr. Price’s] active membership with [the
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Department] in 2010, [Mr. Price] was subjected to racial harassment in the form
of offensive race-based comments made by the President and various officers, as
well as finding his gear removed from his locker and placed in the back of the fire
house. I find that this conduct was severe and pervasive and that because the
harassers were supervisors, [the Department] may be held liable for their
conduct.”
On or around March 19, 2014, the EEOC mailed plaintiff a Notice of Right to Sue
(“Letter”). Complaint ¶ 18; ECF 1-4. Plaintiff alleges that he received the Letter on or around
March 21, 2014. Complaint ¶ 18. He filed suit in this Court on June 19, 2014. See id. at 1.
Initially, defendant sought dismissal of plaintiff’s claims pursuant to Rule 12(b)(6) on the
grounds that the suit was not timely. See Motion ¶ 8-11. The Department added that Price was
never an employee of the Department. Reply ¶ 1.
Additional facts will be included in the Discussion.
Discussion
A. Standard of Review
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) tests the adequacy of a complaint. To
survive a Rule 12(b)(6) motion, a complaint must satisfy the pleading standard articulated in Fed.
R. Civ. P. 8(a)(2), which requires a “short and plain statement of the claim showing that the
pleader is entitled to relief.” The purpose of the rule is to provide the defendant with “fair
notice” of the claim and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555-56 & n.3 (2007). That showing must consist of more than “a formulaic recitation
of the elements of a cause of action” or “naked assertion[s] devoid of further factual
enhancement.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted); see
Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
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To defeat a motion under Rule 12(b)(6), a complaint “must plead facts sufficient to show
that [the] claim has substantive plausibility.” Johnson v. City of Shelby, Miss., ____ U.S. ____,
135 S. Ct. 346, 347 (2014) (per curiam); see Iqbal, 556 U.S. at 684 (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . . .”) (citation omitted); Twombly, 550
U.S. at 570; see also Epps v. JP Morgan Chase Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012);
Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011).
Dismissal “is inappropriate unless, accepting as true the well-pled facts in the complaint
and viewing them in the light most favorable to the plaintiff, the plaintiff is unable to ‘state a
claim to relief . . . .’” Brockington v. Boykins, 637 F.3d 503, 505-06 (4th Cir. 2011) (citation
omitted).
If the “well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,” the complaint has not shown that “‘the pleader is entitled to relief.’”
Iqbal, 556 U.S. at 679 (citation omitted).
In reviewing a Rule 12(b)(6) motion, a court “‘must accept as true all of the factual
allegations contained in the complaint,’” and must “‘draw all reasonable inferences [from those
facts] in favor of the plaintiff.’” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d
435, 440 (4th Cir. 2011) (citations omitted); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir.
2011), cert. denied, ____ U.S. ____, 132 S. Ct. 402 (2011). The complaint must contain
sufficient factual detail to “nudge[ ] [the plaintiff's] claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570; accord Iqbal, 556 U.S. at 680. And, the court need not
accept unsupported or conclusory factual allegations devoid of any reference to actual events.
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Nor must it accept legal conclusions couched as
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factual allegations, Iqbal, 556 U.S. at 678; Papasan v. Allain, 478 U.S. 265, 286 (1986); Monroe
v. City of Charlottesville, 579 F.3d 380, 385-86 (4th Cir. 2009), cert. denied, 559 U.S. 992
(2010).
“Ordinarily, a defense based on the statute of limitations must be raised by the defendant
through an affirmative defense, see Fed. R. Civ. P. 8(c), and the burden of establishing the
affirmative defense rests on the defendant.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc). Generally, courts do not “resolve contests surrounding the facts, the merits
of a claim, or the applicability of defenses” through a Rule 12(b)(6) motion. Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). However, “in the relatively rare circumstances
where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense
may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman, 494 F.3d at 464;
accord Pressley v. Tupperware Long Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009).
However, because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint,”
Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his
principle only applies … if all facts necessary to the affirmative defense ‘clearly appear[ ] on the
face of the complaint.’”
Goodman, 494 F.3d at 464 (quoting Richmond, 4 F.3d at 250)
(emphasis added in Goodman).
In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a
court ordinarily “may not consider any documents that are outside of the complaint, or not
expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557
(4th Cir. 2013); see Bosiger, 510 F.3d at 450.
However, a court may properly consider
documents incorporated into the complaint or attached to the motion to dismiss “so long as they
-8-
are integral to the complaint and authentic.’” U.S. ex rel. Oberg v. Pennsylvania Higher Educ.
Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v. Pitt Cty Memorial
Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see Anand v. Ocwen Loan Servicing, LLC, 754 F.3d
195, 198 (4th Cir. 2014); Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212, 234
(4th Cir. 2004); Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999)); Sammarco v. Bd. of
Educ. of Prince George’s Cty., Civil No. CCB-13-1079, 2013 WL 5274277, at *1 n. 1 (D. Md.
Sept. 16, 2013). To be “integral,” a document must be one “that by its ‘very existence, and not
the mere information it contains, gives rise to the legal rights asserted.’” Chesapeake Bay
Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (citation
omitted) (emphasis in original).
In the Complaint, plaintiff refers to the Letter notifying him of his right to sue. See
Complaint ¶ 18. He also appended the Letter to the Complaint. ECF 1-4. Defendant did not
append this document to the Motion, although it forms the basis of defendant’s Motion. Because
there is no dispute as to the authenticity of the Letter, and it is seemingly integral to the
Complaint and the Motion, I may consider it.8
In his Surreply, plaintiff relies on certain Maryland statutes to establish that, in exchange
for his volunteer services to the Department, he was entitled to certain benefits that amount to
compensation. Surreply at 8. “It is well established that ‘[a court] may properly take judicial
notice of matters of public record,’ including statutes.” Oberg, supra, 745 F.3d at 136 (4th Cir.
2014) (quoting Philips, supra, 572 F.3d at 180). See note 5, supra; cf. Clatterbuck, supra, 708
F.3d at 557-58 (stating that an “ordinance itself and its legislative history [are] ‘legislative facts,’
8
As noted in his Surreply (ECF 19), plaintiff refers to his own Affidavit. I have not
considered it, however, based on the principles outlined above.
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. . . and are ‘not a matter beyond the pleadings but . . . an adjunct to the ordinance which may be
considered by the court as a matter of law,’ ” under “a narrow exception to the principle
embodied in Rule 12(d) that allows a court to consider facts and documents subject to judicial
notice without converting the motion into one for summary judgment”) (citation omitted).
Therefore, I will take judicial notice of the Maryland statutes cited in plaintiff’s Surreply.
B. Defendant’s Motion to Strike
Plaintiff attached to his Complaint two photographs. ECF 1-2. One allegedly depicts
members of the Department posing in a “stereotypical urban, gang member style.” Complaint ¶
13; ECF 1-2. The other exhibits a black and white photograph of several nude men, who appear
to be clinging to a fence. See ECF 1-2. A handwritten note on the second photograph states:
“Asst. Chief Steve McCombs Facebook.” Id.
Plaintiff also states in his Complaint:
“Dawn Anthony protested President Sharp’s
actions and was physically assaulted for her opposition. President Sharp was subsequently found
guilty of second degree assault in connection with his attack.” Complaint ¶ 7. In his Opposition,
plaintiff attached as exhibits a record of Sharp’s conviction, see ECF 10-2, and an online article
by Chris Knauss from the news website MyEasternShoreMD, discussing Sharp’s conviction. See
ECF 10-3.
Pursuant to Fed. R. Civ. P. 12(f), defendant has moved to strike from the Complaint the
references to Sharp’s assault of Dawn Anthony, as well as the photographic exhibits. Motion,
ECF 5 ¶¶ 14-18. Defendant argues that the description of President Sharp’s conviction and
exhibits are “inflammatory, impertinent, and scandalous….” Id. ¶¶ 14, 17.
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In response, plaintiff argues that the materials in question “directly relate to Plaintiff’s
claims of discrimination.” Opposition at 5. Moreover, he explains that the assault is already a
matter of public record. Id. As to his photographic exhibits, plaintiff contends “they are direct
evidence of the hostile environment to which the plaintiff was subjected.” Id.
Rule 12(f) of the Federal Rule of Civil Procedure states, in pertinent part: “The court
may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or
scandalous matter.” Nonetheless, the Fourth Circuit has made clear that Rule 12(f) motions are
generally viewed with disfavor “because striking a portion of a pleading is a drastic remedy and
because it is often sought by the movant simply as a dilatory tactic.” Waste Mgmt. Holdings,
Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001) (quoting 5A Charles Alan Wright & Arthur R.
Miller, FEDERAL PRACTICE & PROCEDURE § 1380, 647 (2d ed. 1990)) (internal citations omitted)
(noting that a defense that might confuse the issues in the case should be deleted).
The Department’s quarrel with the allegations in the Complaint concerning Sharp’s
conviction for assault is specious. Sharp, the President of the Department, was found guilty of
second-degree assault as a result of his interaction with Ms. Anthony. He allegedly assaulted
Ms. Anthony because she was defending plaintiff’s right to vote, as the only African-American
member of the Department. This is central to plaintiff’s discrimination claims. Moreover, the
assault conviction is a matter of public record.
As to the documentation about Sharp’s conviction attached to the Opposition (ECF 10-2;
10-3), such additional materials, which are outside the four corners of the Complaint, may not be
considered to resolve a motion to dismiss. As noted, in evaluating the sufficiency of a complaint
in connection with a Rule 12(b)(6) motion to dismiss, a court ordinarily “may not consider any
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documents that are outside of the complaint, or not expressly incorporated therein ” unless they
are integral. Clatterbuck, supra, 708 F.3d at 557. Because these materials are extraneous and
not integral to the Complaint, I may not consider them.
The pictorial exhibit, ECF 1-2, graphically represents the racially charged environment in
which plaintiff allegedly found himself. Indeed, the photos are direct evidence of the hostile
environment to which the plaintiff allegedly was subjected. Therefore, ECF 1-2 is relevant to
plaintiff’s claims.9 Moreover, as indicated, documents attached to the Complaint, ECF 1-1
through ECF 1-4, may be considered by the court in connection with a Rule 12(b)(6) Motion.
Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cnty., Md., 684 F.3d 462, 467 (4th Cir.
2012) (citation omitted).
C. Timeliness of Plaintiff’s Suit under Title VII
As noted, three of plaintiff’s four claims are brought pursuant to Title VII: Count One
alleges employment discrimination on the basis of race; Count Two alleges a racially hostile
work environment; and Count Four alleges retaliation.
Title VII prohibits employment discrimination on the basis of race and other
considerations. Under Title VII, a “person aggrieved” by an alleged unlawful discriminatory
employment practice must file a “charge” of discrimination with the EEOC or an appropriate
state or local agency within a specified time “after the alleged unlawful employment practice
occurred,” 42 U.S.C. § 2000e-5(e)(1), and “cannot file suit until [he] has exhausted the
administrative process.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir.
2013) (citing 42 U.S.C. § 2000e–5(b)); see Chacko v. Patuxent Inst., 429 F.3d 505, 509. (4th Cir.
9
This Memorandum Opinion does not constitute a ruling as to the admissibility of any
evidence at trial.
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2005). Upon completion of the administrative process, the EEOC must give notice to the
complainant of the complainant’s right to file suit. See 42 U.S.C. § 2000e-5(f)(1). This notice is
commonly called a “right-to-sue letter.” See, e.g., Laber v. Harvey, 438 F.3d 404, 416 (4th Cir.
2006). Upon receipt of the right to sue notice, a complainant has ninety days to file suit in
federal or state court. See 42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28.
The EEOC Letter to Mr. Price, notifying him of his right to sue the Department on the
basis of his Title VII claims, is dated March 19, 2014. Complaint ¶ 18; ECF 1-4. Plaintiff
allegedly received the Letter on or around March 21, 2014. Id. He filed suit in this Court on
June 19, 2014, ninety-two (92) days after the date of the Letter and ninety (90) days after he
claims the Letter was received. See id.
In seeking dismissal, defendant argues that plaintiff’s claims are time-barred because
plaintiff failed to file his civil suit within ninety days of when the right-to-sue letter was sent to
plaintiff. ECF 5 ¶ 10. According to defendant, plaintiff’s suit was initiated ninety-two days after
the issuance and mailing of the letter, exclusive of the date of issuance, and thus it was not
timely. Id.10
The ninety-day time limit is not a jurisdictional requirement. See Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 398 (1982); Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 & n.2
(4th Cir. 2009); Prelich v. Med. Resources, Inc., 813 F. Supp. 2d 654, 662-63 (D. Md. 2011).
Instead, the time limit is treated “‘like a statute of limitations.’” Chacko, 429 F.3d at 513 n.5
10
The argument that Mr. Price failed to file a civil suit within ninety days of when the
Letter was sent does not apply to plaintiff’s § 1981 claim because the EEOC does not enforce §
1981. See 42 U.S.C. § 2000e-4 (2006); Workplace Laws Not Enforced by the EEOC, U.S. Equal
Emp. Opportunity Commission, http:// www.eeoc.gov/laws/other.cfm (last visited Dec. 4, 2014)
(providing a list of federal employment laws not enforced by the EEOC).
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(quoting Zipes, 455 U.S. at 393).
Nevertheless, the ninety-day limit is strictly enforced. See
Harvey v. City of New Bern Police Dept., 813 F.2d 652 (4th Cir. 1987) (affirming dismissal of
complaint alleging employment discrimination filed one day late).
In the absence of evidence of the date of receipt of a right-to-sue letter, a right-to-sue
letter is presumed to be sent the day it was issued and presumed to have been received three days
after it was issued and mailed, pursuant to Fed. R. Civ. P. 6(d). See Baldwin County Welcome
Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984) (applying presumption that notice is received three
days after issuance, and citing former Fed. R. Civ. P. 6(e)); see also Sherlock v. Montefiore Med.
Ctr., 84 F.3d 522, 526 (2d Cir. 1996) (“[N]ormally it may be assumed, in the absence of
challenge, that a notice provided by a government agency has been mailed on the date shown on
the notice.”) (citing Baldwin, 466 U.S. at 148 n.1). These presumptions “are convenient and
reasonable in the absence of evidence to the contrary,” but they are not “irrebuttable.” Sherlock,
84 F.3d at 526.
Moreover, the Fourth Circuit does not adhere to an “actual notice” rule. Rather, a
plaintiff is deemed to have received notice when the right-to-sue letter is received by a member
of the plaintiff’s household of suitable age and discretion, see Harvey v. City of New Bern Police
Dept., 813 F.2d 652, 654 (4th Cir. 1987), or “when the Postal Service delivers notice to a
plaintiff that the right-to-sue letter is available for pickup,” even if the plaintiff does not actually
take possession of the letter until a later date. Watts–Means v. Prince George's Family Crisis
Ctr., 7 F.3d 40, 42 (4th Cir. 1993).
In this case, plaintiff’s Letter is dated March 19, 2014. Complaint ¶ 18; Letter at 1.
Plaintiff alleges he received it on or about March 21, 2014. Id. This is consistent with the three- 14 -
day presumption established by Fed. R. Civ. P. 6(d). See Opposition at 10. As noted, plaintiff
filed suit on June 19, 2014.
Defendant erroneously calculates ninety days from the date the Letter was sent, March
19, 2014, and not from the date it was received, March 21, 2014. As indicated, a complainant
has ninety days to file suit in federal or state court upon receipt of the right-to-sue letter.
Contrary to defendant’s assertion, the ninety-day period commences upon receipt of the notice.
42 U.S.C. § 2000e-5(f)(1); 29 C.F.R. § 1601.28. In fact, plaintiff’s Letter explicitly stated that
plaintiff must file a complaint “within ninety (90) days of the date [he] receive[d] the letter.” See
Letter.
In his Motion, defendant quotes this very language. Motion ¶ 8. As plaintiff points out,
“[n]inety days from the date of receipt (March 21, 2014) is June 20, 2014.” Opposition at 2.
Thus, at least for purposes of the Motion, the Complaint was timely filed on June 19, 2014.11
D. Employment Status
In seeking dismissal, defendant suggests that plaintiff cannot recover for his claims
because he is not an employee of the Department. In particular, defendant states: “The within
action has been styled an action for discrimination whereby the plaintiff Oscar Price claims that
he ‘worked’ for the defendant (Volunteer Fire Company with no employees).” Reply ¶ 1. In the
Reply, defendant offers no further argument or citations to authority in support of this position.
11
Defendant did not make clear whether he argues untimeliness as to Count III, racial
discrimination in violation of § 1981. He states: “[P]laintiff’s rights to bring the within action
are barred and accordingly, the action should be dismissed.” Motion ¶ 10. As indicated, the 90day rule does not apply to the claim under § 1981 because the EEOC does not enforce § 1981
claims. See 42 U.S.C. § 2000e-4. Indeed, § 1981 is governed by its own four-year statute of
limitations, which begins to run once the discrimination has occurred. See Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 382-83 (2004).
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See id. But, the basis for its argument appears to be that plaintiff received no compensation from
the Department. In defendant’s Response to Plaintiff’s Motion for Leave to File Surreply, ECF
18, it states “plaintiff need only to have produced a W2 or 1099 . . . to support the assertion by
the plaintiff that he was an employee.” ECF 18, ¶ 4.
Before reaching the merits of this argument, I first address whether I can consider it,
given that defendant raised the issue of plaintiff’s employment status for the first time in its
Reply, filed on July 25, 2014. Id. at ¶ 1. The Fourth Circuit has stated: “It is a well settled rule
that contentions not raised in the argument section of the opening brief are abandoned.” United
States v. Al-Hamdi, 356 F.3d 564, 571 n. 8 (4th Cir. 2004) (declining to consider argument first
raised in reply brief); see also United States v. Williams, 445 F.3d 724, 736 n. 6 (4th Cir. 2006)
(declining to consider an argument raised for the first time in the reply brief); Hanlin-Cooney v.
Frederick Cnty., Md., 2014 WL 576373, at *11 n. 32 (D. Md. Feb. 11, 2014) (declining to
consider an argument first raised in reply brief). The rationale behind this general principle is
that that the opposing party would be prejudiced by a consideration of the argument absent an
opportunity to respond. See Clawson v. FedEx Ground Package Sys., Inc., 451 F. Supp. 2d 731,
735 (D. Md. 2006) (citing United States v. Head, 340 F.3d 628, 630 n. 4 (8th Cir. 2003)).
Here, concern about plaintiff’s inability to respond is not an issue. Upon his request,
plaintiff was granted leave to file a surreply for this explicit purpose—to address the argument
that he is not an employee, raised for the first time in defendant’s Reply. See ECF 15. As
explained by Judge Quarles, such “[s]urreplies may be permitted ‘when the moving party would
be [otherwise] unable to contest matters presented to the court for the first time in the opposing
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party's reply.’” Fluxo-Cane Overseas Ltd. v. E.D. & F. Man Sugar Inc., 599 F. Supp. 2d 639,
647 (D. Md. 2009) (quoting Khoury v. Meserve, 268 F. Supp. 2d 600, 605 (D. Md. 2003)).
Moreover, use of the court’s authority to decline consideration of an argument raised for
the first time in a reply is discretionary. “Courts are not precluded from considering such issues
in appropriate circumstances.”
Clawson, 451 F. Supp. 2d at 734 (citations omitted); see
Prowess, Inc. v. RaySearch Labs. AB, 2013 WL 1976077, at *1 (D. Md. May 9, 2013) (quoting
Clawson, 451 F. Supp. at 734). In view of the foregoing, I will evaluate the argument.
As noted, defendant argues that plaintiff cannot recover for employment discrimination
because he was a volunteer, not an employee of the Department. See Reply ¶ 1. Defendant
asserts that Title VII only protects “employees” against discrimination, and suggests that because
plaintiff did not receive any monetary compensation for his services, he was not an employee
under the statute. See ECF 18, ¶ 4-5; see Garrett v. Phillips Mills, Inc., 721 F.2d 979, 981 (4th
Cir.1983) (citations omitted) (concluding that Title VII’s use of the word individual refers to an
employee).
In considering what precisely constitutes an employee, the language of Title VII provides
little guidance. Title VII states: “It shall be an unlawful employment practice for an employer to
fail or refuse to hire . . .any individual . . . because of such individual’s . . . race.” 42 U.S.C. §
2000e–2(a)(1). The statute defines an “employer” as a “person engaged in an industry affecting
commerce who has fifteen or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar year. . . .” § 2000e(b).
“employee” is defined as “an individual employed by an employer.” § 2000e(f).
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In turn, an
The Fourth Circuit has adopted a two-part test to determine whether an individual is an
employee in a discrimination case. Haavistola v. Cmty. Fire Co. of Rising Sun, Inc., 6 F.3d 211,
219-221 (4th Cir. 1993); see Stewart v. Morgan State Univ., 2014 WL 4385744, at *3 (D. Md.
Sept. 3, 2014). First, the employee must establish the existence of an employment relationship.
Bender v. Suburban Hosp., 998 F. Supp. 631, 634 (D. Md. 1998) (noting that it is “axiomatic that
a plaintiff must allege the existence of an employment relationship in order to state a Title VII
claim.”). In particular, the individual must show that in exchange for the service provided to the
employer, the individual received compensation.
Haavistola, 6 F.3d at 221-22; Graves v.
Women’s Prof’l Rodeo Ass’n, Inc., 907 F.2d 71, 73 (8th Cir. 1990) (“Central to the meaning of
[employee] is the idea of compensation in exchange for services: an employer is someone who
pays, directly or indirectly, wages or a salary or other compensation to the person who provides
services-that person being the employee.”).
Once the threshold issue of remuneration is established, the inquiry shifts to “analyzing
the facts of each employment relationship under a standard that incorporates both the common
law test derived from principles of agency and the so-called ‘economic realities’ test.”
12
Haavistola, supra, 6 F.3d at 219-220 (quoting Garrett, supra, 721 F.2d at 981). “[U]nder the
general common law of agency, we consider the hiring party’s right to control the manner and
means by which the product is accomplished.” Cmty. for Creative Non–Violence v. Reid, 490
U.S. 730, 751. Once control is established, in the final step, the court assesses the “economic
12
Defendant has not argued that plaintiff has failed to allege employment under the
common-law agency or economic realities prongs. As noted, the focus of its challenge seems to
be that plaintiff received no monetary compensation. See ECF 18, ¶ 4 (requesting that plaintiff
produce tax forms to prove employment status). As a result, I only address the question of the
adequacy of plaintiff’s remuneration and do not reach the last two prongs of the inquiry.
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realities.” Haavistola, 6. F.3d at 220. Simply stated, “employees are those who as a matter of
economic reality are dependent upon the business to which they render service.” Id. (quoting
Bartels v. Birmingham, 332 U.S. 126, 130 (1947)).
Haavistola v. Ctny Fire Co., supra, 6. F.3d 211 (4th Cir. 1993), is the leading Fourth
Circuit case on the question of whether a volunteer may qualify as an employee under Title VII.
The case presented the question of whether a volunteer member of a fire fighting company in
Maryland, who received no direct compensation, was an employee covered under Title VII as
well as the ADEA. Id. at 220-221. As a volunteer, the plaintiff did not receive a salary but did
receive benefits pursuant to certain Maryland statutes, including a state-funded disability
pension; survivors’ benefits for dependents; scholarships for dependents upon disability or death;
bestowal of a state flag to the family upon death in the line of duty; benefits under the Federal
Public Safety Officers’ Benefits Act when on duty; group life insurance; tuition reimbursement;
coverage under Maryland’s Workers Compensation Act; tax-exemptions for unreimbursed travel
expenses; ability to purchase, without paying extra fees, a special commemorative registration
plate; and access to certification as a paramedic. Id. at 221.
The district court held the benefits received by the plaintiff were insufficient to make her
an employee. Id. On appeal, the Fourth Circuit reversed, concluding that the district court had
made an impermissible finding of fact. Id. at 221-22. The Haavistola Court explained, id.:
Because compensation is not defined by statute or case law, . . . it cannot be
defined as a matter of law. The district court must leave to a factfinder the
ultimate conclusion whether the benefits represent indirect but significant
remuneration as [the plaintiff] contends or inconsequential incidents of an
otherwise gratuitous relationship as the [defendant] argues.
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Thus, the Fourth Circuit determined that whether certain remuneration could convert a
volunteer into an employee is a question of fact. Id.; see Stewart v. Morgan State Univ., 2014
WL 4385744, at *4 (D. Md. Sept. 3, 2014) (denying summary judgment because the
employment status of an intern based on the extent of compensation was an issue of fact, and
evidence that plaintiff was not on state payroll did not disqualify him from status of employee);
German v. Akal Sec., Inc., 2011 WL 5974619, at *8 (D. Md. Nov. 29, 2011) (holding issue of
whether security guard was an employee of government agency under Title VII was a question
of fact).
A similar issue was addressed by Judge Titus in Evans v. Wilkinson, 609 F. Supp. 2d 489
(D. Md. 2009). He considered, on summary judgment, whether a volunteer paramedic and
emergency medical technician of the Park Volunteer Rescue Squad was an employee. Id. at 492497. In exchange for their service, volunteers of the Park Volunteer Rescue Squad received
potential enrollment in: (1) a length of service program, which provided volunteers who had,
among other things, completed at least 20 years of “certified active volunteer service,” with
monthly payments for life; (2) a first-time homeowner’s assistance program, through which
eligible volunteers were given up to $12,500 toward the purchase of their first home; and (3) a
scholarship program, whereby Volunteer Rescue Squad volunteers who satisfied the length of
service program requirements were eligible to apply for—but not guaranteed—a scholarship. Id.
at 494-96.
Judge Titus found Haavistola was factually distinguishable from Evans based on the
nature of benefits received by the plaintiff. Id. at 496-97. In evaluating whether these benefits
transformed the plaintiff from a volunteer to an employee, Judge Titus noted that the plaintiff
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was not paid a salary, she did not receive annual leave, medical benefits, or a retirement plan;
and she was not covered by a workers’ compensation insurance policy. Id. at 497. Moreover,
Judge Titus found it significant that the benefits available were not guaranteed. Id. at 495.
Plaintiff would have to render at least twenty years of service to become eligible for the length of
service benefits or the scholarship programs. Id. And, prior to her termination, she had only
served four years. Id. at 490-91. Given that the benefits were predicated on such an “attenuated
temporal nexus,” id. at 495, Judge Titus concluded they did not constitute the sort of guaranteed
remuneration contemplated by Haavistola. Id. at 496-97.
In contrast, in Finkle v. Howard Cnty. Md., 12 F. Supp. 3d 780, 784-86 (D. Md. 2014),
Judge Bredar ruled a volunteer auxiliary police officer was an employee for purposes of Title
VII. In Finkle, plaintiff received numerous “line-of duty” or “insurance-type” benefits. Id. at
785-86. In denying defendant’s motion to dismiss, Judge Bredar said: “At first blush it may
seem that a volunteer, i.e. one who does not receive wages or a salary, is not in an employment
relationship.” Id. at 784. However, he found indirect but significant remuneration sufficient to
transform a volunteer to an employee. Id. at 786. The benefits at issue were consistent with the
benefits received by the plaintiff in Haavistola and, according to Judge Bredar, constituted
substantial enough remuneration to render the volunteer an employee under Title VII. Id. at 78586.
In the course of his analysis, Judge Bredar conceded that other courts in other circuits
have held that “line-of duty benefits” are not guaranteed forms of remuneration. Id. at 786
(citing Holder v. Town of Bristol, 2009 WL 3004552, at *5 (N.D. Ind. Sept. 17, 2009); Scott v.
City of Minco, 393 F. Supp. 2d 1180, 1190 (W.D. Okla. 2005)). Nonetheless, he explained that
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because of the Fourth Circuit’s decision in Haavistola, he could not find, “as a matter of law, that
the ‘significant remuneration benefits available upon injury or death’ Plaintiff would have
received . . . are insufficient to bring her under the ambit of Title VII.” Id. at 786 (quoting
Haavistola, 6 F.3d at 222).
Turning to the case at bar, I have noted that, in his Complaint, Price failed to allege any
facts suggesting that he received any remuneration sufficient to render him an employee under
the protection of Title VII. However, in his Surreply, relying on various Maryland statutes, he
contends he is entitled to and received certain benefits in exchange for his service as a firefighter,
and these benefits render him an employee under the ambit of Title VII. Surreply at 8 (citing to
Md. Code (2003 Repl. Vol., 2010 Supp.), §§ 7-202-7-205 of the Public Safety Article (“P.S”);
Md. Code (2008 Repl. Vol., 2010 Supp.), § 18-603 of the Education II Article (“Edu.”); Md.
Code (2008 Repl Vol., 2010 Supp.), § 9-234 of the Labor and Employment Article (“L.E.”); Md.
Code (2010 Repl. Vol., 2011 Supp.), §§ 10-207-10-208 of the Tax-General Article (“T.G.”); Md.
Code (2009 Repl Vol., 2010 Supp.), § 13-618 of the Transportation Article (“Trans.”). As
indicated, I will take judicial notice of these statutes.13
As Price indicates, Surreply at 8, under Maryland law, he is entitled to receive certain
remuneration in exchange for his service as a firefighter, including disability benefits, see P.S. §
7-202; survivor benefits, see P.S. § 7-203; scholarships for dependents upon disability or death,
see P.S. § 7-204; certain federal benefits under the Federal Public Safety Officers’ Benefits Act,
see P.S. § 7-205; tuition reimbursement for courses in fire service technology, see Edu. § 18-603;
workers compensation, see L.E. § 9-234; tax exemptions, see T.G. § 10-207-10-208; and the
13
Plaintiff did not include the applicable year of the Code Volumes.
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ability to purchase a commemorative license registration plate for a private vehicle without
paying certain fees, see Transp. § 13-618.
This package of benefits is largely comprised of “line-of duty” benefits available upon
injury or death and is comparable to the ones at issue in Haavistola. In Haavistola, as discussed,
plaintiff, who was also a volunteer firefighter in Maryland, was entitled to a disability pension,
survivors’ benefits, scholarships for dependents, tuition reimbursement, workers’ compensation
benefits, and tax-exemptions for work-related travel. Haavistola, supra, 6 F.3d at 221. Given
the factual parallels with Haavistola, I cannot say, as a matter of law, that Mr. Price was not an
employee of the Department for purposes of Title VII.
In my view, plaintiff has alleged facts, coupled with Maryland law, that are sufficient to
state plausible claims under Title VII on the basis of his employment status. However, the court
will grant leave to plaintiff to amend and clarify the Complaint, for the reasons previously stated.
Conclusion
For the foregoing reasons, defendant’s Motion (ECF 5) is denied. An Order follows.
Date: December 29, 2014
/s/
Ellen Lipton Hollander
United States District Judge
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