Johnson v. United Parcel Service, Inc. et al

Filing 30

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 6/30/2015. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KHALILAH JOHNSON,

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Plaintiff,

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v.

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UNITED PARCEL SERVICE, INC.,
INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, and TEAMSTERS
LOCAL UNION NO. 355
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Defendants.
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Civil Action No. RDB-14-4003

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MEMORANDUM OPINION

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Plaintiff Khalilah Johnson (“Ms. Johnson” or “Plaintiff”) brings this action against
Defendants United Parcel Service, Inc. (“UPS”), International Brotherhood of Teamsters
(“International Union”), and Teamsters Local Union No. 355 (“Local 355”) (collectively,
“Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e, et seq., the Maryland Fair Employment Practices Act, Md. Code Ann., State Gov’t, §
20-606, and various state law claims sounding in contract. Plaintiff claims that, as an
employee of UPS, she suffered discrimination and retaliation by UPS and the Baltimore
chapter of the International Brotherhood of Teamsters, Local 355.
Currently pending before this Court are Defendant International Union’s Motion to
Dismiss (ECF No. 8); Defendant Local 355’s Motion to Dismiss (ECF No. 10); Defendant
UPS’s Motion to Dismiss (ECF No. 13); and Defendant UPS’s Corrected Motion to Dismiss
(ECF No. 14). The parties’ submissions have been reviewed and no hearing is necessary. See
Local Rule 105.6 (D. Md. 2014). For the following reasons, Defendant International Union’s
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Motion to Dismiss (ECF No. 8) is GRANTED; Defendant Local 355’s Motion to Dismiss
(ECF No. 10) is GRANTED; Defendant UPS’s Motion to Dismiss (ECF No. 13) is
MOOT;1 and Defendant UPS’s Corrected Motion to Dismiss (ECF No. 14) is GRANTED
IN PART and DENIED IN PART. Specifically, UPS’s Motion to Dismiss is GRANTED as
to Counts I-VI, and DENIED as to Count VII.
BACKGROUND
In a ruling on a motion to dismiss, this Court must accept the factual allegations in
the plaintiff’s complaint as true and construe those facts in the light most favorable to the
plaintiffs. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).
On May 28, 2008, Defendant UPS hired Plaintiff Khalilah Johnson, an AfricanAmerican woman, as a part-time (“temp”) driver. Amend. Compl. ¶¶ 67, 91, ECF No. 3. At
some point thereafter, Ms. Johnson became a full-time driver. Id. ¶ 11. As an employee of
UPS, Ms. Johnson also joined Defendant Local 355, the Baltimore chapter of Defendant
International Union. Id. ¶¶ 9, 16. Like all members of Local 355, a collective bargaining
agreement (“CBA”) between UPS and Local 355 governed the terms of Ms. Johnson’s
employment. Id. ¶ 12. The CBA, which was effective from December 19, 2007 through July
31, 2013, covered, inter alia, “discrimination, seniority and grievance and arbitration
procedures between the parties[.]” Id.

As UPS explains, it realized immediately after filing its original Motion to Dismiss (ECF No. 13) that certain text
was mistakenly omitted from the supporting memorandum. Mem. in Supp. of UPS’s Reply, 1 n.1, ECF No. 29-1.
UPS then filed the Corrected Motion to Dismiss (ECF No. 14) to rectify this error. Consequently, this Court will
consider only UPS’s Corrected Motion to Dismiss, and the original Motion to Dismiss is hereby MOOT.

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The subject action arises from a series of alleged incidents of discrimination,
harassment, and retaliation by Defendants.2 Id. ¶¶ 18-24. Plaintiff claims that she was
assigned difficult and overloaded driving routes, id. ¶¶ 42-44; denied pay raises appropriate
for her seniority, id. ¶¶ 60-67; sent sexually explicit images, id. ¶ 95; sexually harassed by male
colleagues, id. ¶¶ 92-94; and denied an accommodation for her religious beliefs as a Seventh
Day Adventist Christian. Id. ¶¶ 104-108. Ms. Johnson also alleges that unknown coworkers
placed bags of tampons and a bag of urine in her truck in an effort to harass and ridicule her.
Id. ¶¶ 97, 100.
In response to this alleged harassment, Ms. Johnson claims that she has filed sixteen
grievances since March of 2013, all of which remain unheard. Id. ¶ 135. During the course of
filing the grievances, Ms. Johnson alleges that Local 355 representatives warned other
employees to “be careful around [Plaintiff],” as “no one should get involved with Plaintiff,
especially other Black females.” Id. ¶¶ 127-128. Despite this alleged discrimination, Plaintiff
asserts that she continued to perform her duties satisfactorily. Id. ¶ 17.
Ms. Johnson filed her first charge with the Equal Employment Opportunity
Commission (“EEOC”) on April 3, 2013 (the “2013 Charge”), alleging sex discrimination
related to UPS’s denial of a raise on March 25, 2013. Pl.’s Resp. in Opp. to Defs.’ Mots. to
Dismiss Ex. 3, 2, ECF No. 25-3. On February 7, 2014, Ms. Johnson filed a second charge
with the EEOC (the “2014 Charge”).3 Pl.’s Resp. in Opp. to Defs.’ Mots. to Dismiss Ex. 4,

Although Plaintiff names International Union as a defendant, International Union is neither a party to the
contract, Samosky v. Teamsters Local 175, 944 F. Supp. 2d 479, 514 (S.D. W. Va. 2013), nor does Plaintiff include any
allegations specific to this defendant.
3 Plaintiff presents a third charge, No. 531-2014-00847, as containing “additional discrimination claims.” Amend.
Compl. ¶ 4; see also Pl.’s Resp. in Opp. to Defs.’ Mots. to Dismiss Ex. 5, ECF No. 26-5. This charge, for which the
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ECF No. 25-4. The 2014 Charge levied failure to accommodate and retaliation claims related
to Ms. Johnson’s religious beliefs. Id. at 2. The EEOC issued “Right to Sue” Notices for
both charges on June 25, 2014. Pl.’s Resp. in Opp. to Defs.’ Mots. to Dismiss Exs. 3-4, ECF
Nos. 25-3, 25-4.
Plaintiff filed the subject action on June 16, 2014 in the Circuit Court for Baltimore
City. Compl., ECF No. 2. Three months later, she filed an Amended Complaint (ECF No.
3) in state court. Defendants jointly removed the case to this Court pursuant to 28 U.S.C. §
1331.4 Notice of Removal, ECF No. 1. Defendants subsequently filed separate Motions to
Dismiss (ECF Nos. 8, 10, 14), asking this Court to dismiss the Amended Complaint under
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The Motions are fully
briefed and ripe for consideration.
STANDARDS OF REVIEW
A. Motion to Dismiss Under Rule 12(b)(1) of the Federal Rules of Civil Procedure
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for
lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought
by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This
challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the
allegations in the complaint are insufficient to establish subject matter jurisdiction, or a
factual challenge, asserting “that the jurisdictional allegations of the complaint [are] not

EEOC issued “Right to Sue” notice on March 13, 2014, is an exact duplicate of the 2014 Charge. This Court will
thus refer only to the two charges that present different claims of discrimination – the 2013 and 2014 Charges.
4 To the extent that Ms. Johnson’s Response in Opposition to Defendants’ Motions to Dismiss (ECF No. 25)
mounts an informal motion to remand, this motion is DENIED. This Court’s jurisdiction is proper due to the
federal questions raised by Plaintiff’s claims. 28 U.S.C. § 1331.

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true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). A plaintiff
carries the burden of establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d
648, 654 (4th Cir. 1999).
With respect to a facial challenge, a court will grant a motion to dismiss for lack of
subject matter jurisdiction “where a claim fails to allege facts upon which the court may base
jurisdiction.” Davis, 367 F. Supp. 2d at 799. Where the challenge is factual, “the district
court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.”
Kerns, 585 F3d at 192. “[T]he court may look beyond the pleadings and ‘the jurisdictional
allegations of the complaint and view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists.’” Khoury v. Meserve, 268 F. Supp.
2d 600, 606 (D. Md. 2003) (citation omitted). The court “may 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.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398
(4th Cir. 2004); see also Sharafeldin v. Maryland Dept. of Public Safety & Correctional Services, 94 F.
Supp. 2d 680, 684-85 (D. Md. 2000).
B.

Motion to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil

Procedure
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. The
purpose of Rule 12(b)(6) is “to test the sufficiency of a complaint and not to resolve contests
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surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be
alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citation omitted). In the employment discrimination context, this
pleading standard should not be “onerous.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d
761, 764 (4th Cir. 2003). The Supreme Court has indicated that an employment
discrimination plaintiff need not plead particular facts conclusively satisfying each element of
a prima facie case. Swierkiewicz v. Sorema, 534 U.S. 506 (2002).5 Swierkiewicz, however, did not
abrogate the requirement that the plaintiff allege “facts sufficient to state all the elements of
her claim.” Bass, 324 F.3d at 765 (emphasis added); see Coleman v. Maryland Court of Appeals,
626 F.3d 187, 190 (4th Cir. 2010) (explaining that Swierkiewicz does not nullify the heightened
pleading requirements of Twombly and Iqbal); Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th
Cir. 2002) (“[T]he Supreme Court’s holding in Swierkiewicz v. Sorema did not alter the basic
pleading requirement that a plaintiff set forth facts sufficient to allege each element of his
claim.” (internal citation omitted)).
Even with the degree of flexibility arguably given to employment discrimination
plaintiffs, the court must consider whether plaintiff’s complaint has met the plausibility
requirement of Twombly and Iqbal. See Miller v. Carolinas Healthcare System, 561 F. App’x 239,
Although the general 12(b)(6) standard used in Swierkiewicz was overruled by Twombly, see Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009), the analysis cited here remains good law. Reed v. Airtran Airways, 531 F. Supp. 2d
660, 666 (D. Md. 2008) (“The Twombly Court made clear that its holding did not contradict the Swierkiewicz rule that
‘a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case
of discrimination.’” (citations omitted)).
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241 (4th Cir. 2014) (explaining that, in the Fourth Circuit, “Swierkiewicz left untouched the
burden of a plaintiff to allege facts sufficient to state all elements of her claim.” (internal
quotation marks and citation omitted)). In making this assessment, a court must “draw on its
judicial experience and common sense” to determine whether the pleader has stated a
plausible claim for relief. Iqbal, 556 U.S. at 679. “At bottom, a plaintiff must nudge [its]
claims across the line from conceivable to plausible to resist dismissal.” Wag More Dogs, LLC
v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal quotation marks omitted).
ANALYSIS
Defendants filed separate motions to dismiss, yet their arguments for dismissal reflect
common themes. Given this general unity of opinion, this Court will consider each Count of
the subject Amended Complaint in turn, as applied to the relevant defendant.
A. Count I – Breach of Contract (UPS)
In Count I, Ms. Johnson alleges that UPS breached the collective bargaining
agreement (“CBA”) by “den[ying] Plaintiff opportunities for advancement and pay, and
adversely affect[ing] the terms and conditions of her employment[.]” Amend. Compl. ¶ 26.
Plaintiff further contends that UPS discriminated against her and “proscribed her right to
due process,” in violation of Article 36 of the CBA.6 This state law contract claim, however,
is preempted by Section 301 of the Labor Management Relations Act of 1947, 29 U.S.C. §
185.
Section 301 of the Labor Management Relations Act provides:
Although Plaintiff does not provide the full text of Article 36, she explains that this article, labeled “NonDiscrimination, mandates that both UPS and Local 355 agree to refrain from discriminating against employees with
respect to hiring, compensation and terms and conditions of employment.” Amend. Compl. ¶ 13 (emphasis in
original).
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Suits for violation of contracts between an employer and a labor
organization representing employees in an industry affecting
commerce as defined in this chapter, or between any such labor
organizations, may be brought in any district court of the
United States having jurisdiction of the parties, with respect to
the amount in controversy or without regard to the citizenship
of the parties.
29 U.S.C. § 185(a). Through Section 301, the United States Congress established “a federal
policy . . . that federal law be applied in addressing disputes arising out of labor contracts.”
Clark v. Newport News Shipbuilding & Dry Dock Co., 937 F.2d 934, 937 (4th Cir. 1991) (citing
Allis-Chalmers v. Lueck, 471 U.S. 202, 209 (1985) (internal citation omitted)). In an effort to
ensure uniformity in that federal policy, the “pre-emptive force of § 301 is so powerful as to
displace entirely any state cause of action for violation of contracts between an employer and
a labor organization.” McCormick v. AT&T Technologies, Inc., 934 F.2d 531, 534 (4th Cir. 1991)
(quoting Franchise Tax Bd. V. Construction Laborers Vacation Trust, 463 U.S. 1, 23 (1983)); see
also Ashe v. Giant of Maryland, LLC, Civ. A. No. AW-06-1293, 2007 WL 7020451, *6-7 (D.
Md. July 17, 2007) (dismissing the plaintiff’s state law breach of contract claim due to
preemption by Section 301).
To determine whether Section 301 preempts a state law claim, a court must consider
if the “resolution of a state-law claim is substantially dependent upon analysis of the terms of
an agreement made between the parties in a labor contract.” Clark, 937 F.2d at 937 (quoting
Allis-Chalmers, 471 U.S. at 202). If such interpretation is required, then the claim is
preempted by federal law. Clark, 937 F.2d at 937; see also Lingle v. Norge Div. of Magic Chef, 486
U.S. 499, 412 (1988). When, however, the state law claim presents only “nonnegotiable
rights conferred on individual employees as a matter of state law,” then preemption is not
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triggered. Davis v. Bell Atlantic-West Virginia, Inc., 110 F.3d 245, 247 (4th Cir. 1997) (quoting
Livadas v. Bradshaw, 512 U.S. 107, 123 (1994)). Such an exception, however, is the rare
instance where the dispute does not require the court to interpret the agreement between the
parties. Davis, 110 F.3d at 247 (citing Lingle, 486 U.S. at 413). Moreover, a plaintiff may not
evade the preemptive power of Section 301 through artful pleading. See Davis, 110 F.3d at
247 (citing Allis-Chalmers, 471 U.S. at 211).
In this case, Ms. Johnson’s breach of contract claim is preempted by Section 301. A
breach of contract claim, unlike separate, nonnegotiable rights, necessarily requires
interpretation of the contract at issue. Int’l Union, United Mine Workers of America v. Covenant
Coal Corp., 977 F.2d 895, 899 (4th Cir. 1992). Plaintiff is asking this Court to consider UPS’s
alleged actions, such as its purported denial of “opportunities for advancement and pay” and
infringement on “the terms and conditions of her employment,” as evidence that such
actions violated the terms of the CBA. Amend. Compl. ¶ 26. This claim is nothing if not an
exercise in contract interpretation. Even the alleged discrimination is merely a ground upon
which Ms. Johnson contends that UPS breached the CBA.7 Any attempt to artfully plead
otherwise does not defeat the preemptive force of Section 301.
Accordingly, where, as here, the state law claim is “inextricably intertwined with
consideration of the terms of the labor contract,” Section 301 preempts the state law claim.8
Davis, 110 F.3d at 247. Count I is thus DISMISSED.

Counts V-VII, in which Ms. Johnson alleges discrimination and retaliation in violation of state and federal law,
further emphasize that the claim of discrimination in Count I is offered to support a breach of contract claim.
Counts V-VII are examples of separate, nonnegotiable rights under federal and state law that do not require the
interpretation of the underlying contract.
8 Even if this Court considered Count I as a Section 301 claim, such claim would be untimely. A Section 301 claim
must be filed within a six-month limitations period. DelCostello v. Int’l Brotherhood of Teamsters, 462 U.S. 151, 171-72
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B. Counts II-IV – Breach of Contract (International Union and Local 355)
Counts II-IV present hybrid claims of breach of contract and breach of the duty of
fair representation related to Articles 36, 48, and 7 of the CBA.9 See, e.g., Amend. Compl. ¶¶
30, 51, 57, 77, 81. Specifically, Ms. Johnson alleges that International Union10 and Local 355,
in “entering into a collective bargaining agreement, stripped Plaintiff of the traditional form
of seeking redress, and breached the collective bargaining agreement by acting in a
discriminatory fashion, in bad faith and in an arbitrary and capricious manner so as to
deprive Plaintiff of his [sic] rights under the agreement.” Id. ¶ 49. Although unclear, it
appears that Plaintiff further contends that the alleged breach of the duty of fair
representation contributed to the breach of the CBA. Id. ¶ 53.
Once again, Ms. Johnson’s claims are preempted by Section 301 of the Labor
Management Relations Act. Counts II-IV, like Count I, are contract claims that require the
interpretation of the CBA to determine whether the Union Defendants alleged actions
violated the agreement. From the face of the Amended Complaint, the duty of fair

(1983); see also Foy v. Gian Food Inc., 298 F.3d 284, 291 (4th Cir. 2002) (explaining that a “six-month statute of
limitations applies to actions under [the LMRA] brought by an employee against his employer for breach of a
collective bragining agreement.”). The limitations period is triggered when the plaintiff discovers, or reasonably
should have discovered, the alleged violations. Bruce v. Int’l Longshoremen’s Assoc., 715 F. Supp. 2d 609, 614 (D. Md.
1998), aff’d 182 F.3d 907 (4th Cir. 1999). Ms. Johnson filed this action in state court on June 16, 2014. Relevant
violations must have occurred on or after December 16, 2013. None of the dates included in Count I, however,
fall within this statutory period.
9 Again, Plaintiff does not provide the full text of Article 48 or Article 7. Instead, she states that Article 48,
“Seniority, mandates that seniority, as measured by length of continuous service, shall prevail at all times.” Amend.
Compl. ¶ 14 (emphasis in original). Article 7, “Grievance & Arbitration Procedure, governs disputes conserning the
application or interpretation of the Agreement.” Id. ¶ 15 (emphasis in original).
10 Although Plaintiff names both International Union and Local 355 in Counts II-IV, she omits any allegations
specific to International Union. International Union is not a party to the CBA. Mem. in Supp. of International
Union’s Motion to Dismiss, 5, ECF No. 8-1. As International Union is not a party to the CBA, it cannot breach
the agreement, nor does it owe a duty of fair representation to Ms. Johnson. See Samosky, 944 F. Supp. 2d at 514
(explaining that the “mere fact of affiliation does not render the International liable for the acts of the Local.”
(quoting Taylor v. Roadway Express, No. 85-2309-MA, 1986 WL 1250412, *6 (W.D. Tenn. Aug. 19, 1986))). Counts
II-IV are thus DISMISSED against International Union.

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representation is included merely as a ground upon which Plaintiff argues that a breach of
the CBA occurred. To resolve the claim, this Court must consider, for example, whether
Local 355’s alleged refusal to pursue her grievances violated the terms of the contract.
Amend. Compl. ¶ 50. Such an inquiry necessitates the interpretation of the CBA, as a breach
of contract claim may not be resolved without considering the contract. As in Count I,
Counts II-IV are DISMISSED due to the preemptive force of Section 301.11
C. Count V – Race and Gender Discrimination under Title VII and Maryland
Fair Employment Practices Act (All Defendants)
In Count V, Ms. Johnson contends that Defendants discriminated against her on the
basis of her race and gender, in violation of Title VII of the Civil Rights of 1964, 42 U.S.C.
§§ 2000e et seq. (“Title VII”), and the Maryland Fair Employment Practices Act (“FEPA”),
Md. Code Ann., State Gov’t, § 20-606.12 Among other incidents, Plaintiff claims that she was
denied a raise, assigned to less desirable driving routes, shown sexual images, and subjected
to “texting, stalking and humiliating acts” due to her gender. Although Ms. Johnson never
identifies the precise nature of her claim, she appears to allege a claim of sex-based disparate
treatment.
11 Were this Court to consider Counts II-IV as hybrid Section 301-duty of fair representation claims, any such
claims are untimely. As in Count I, a Section 301-duty of fair representation claim must be filed within a six-month
limitations period. DelCostello, 462 U.S. at 170-71. The limitations period is triggered when the plaintiff discovers,
or reasonably should have discovered, the alleged violations. Bruce, 715 F. Supp. 2d at 614. Ms. Johnson filed this
action in state court on June 16, 2014. Relevant violations must have occurred on or after December 16, 2013. Any
dates included in Counts II-IV, and relevant to Plaintiff’s claims in the subject Counts, however, are not within the
requisite limitations period.
12 Title VII and FEPA are analyzed as one because “[t]he Maryland Court of Appeals has deemed FEPA to be the
state law analogue of Title VII, and has noted that Maryland courts ‘traditionally seek guidance from federal cases
in interpreting Maryland’s [FEPA].” Linton v. Johns Hopkins Univ. Applied Physics Lab., LLC, No. JKB-10-276, 2011
WL 4549177, at *4 n.3 (D. Md. Sept. 28, 2011) (internal citation omitted). The parties agree that federal law applies
to Plaintiff’s FEPA claims in Counts V-VII. See generally Mem. in Supp. of International Union’s Mot. to Dismiss,
at 10-11; Mem. in Supp. of Local 355’s Mot. to Dismiss, 9-11, ECF No. 10-1; Mem. in Supp. of UPS’s Corrected
Mot. to Dismiss, 16-47, ECF No. 14-1; Mem. in Supp. of Pl.’s Resp. in Opp. to. Defs.’ Mots. to Dismiss, 20-25,
ECF No. 25-2.

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A plaintiff in a federal employment discrimination action must overcome two hurdles
to survive a motion to dismiss. First, the plaintiff must exhaust administrative remedies by
filing administrative charges with the EEOC or an authorized state agency. Johnson v. State of
Maryland, 940 F. Supp. 873, 875 (D. Md. 1996) (citing 42 U.S.C. § 2000e-5(e)-(f); Mickel v.
S.C. State Employment Serv., 377 F.2d 239, 242 (4th Cir. 1967); Maxey v. M.H.M., Inc., 828 F.
Supp. 376, 377 (D. Md. 1993)). The exhaustion requirement ensures that the charged party
receives notice of the claims it faces. Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir.
2005). A subsequent lawsuit thus must limit its claims to those included in the administrative
charge, unless the non-exhausted claim is “reasonably related” to the claims described in the
administrative charge. Evans v. Technologies Applications & Servs. Co., 80 F.3d 954, 962-63 (4th
Cir. 1996).
Title VII establishes two potential limitations periods within which a charge of
discrimination must be filed with the EEOC. Edelman v. Lynchburg Coll., 228 F.3d 503, 506
(4th Cir. 2000).

The general limitations period is 180 days after the alleged unlawful

employment practice. Id. If, however, state law proscribes the alleged employment practice
and the charge is first filed with a state deferral agency, then the limitations period is
extended to 300 days. Id.; see also Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 439 (4th Cir.
1998). Maryland is a “deferral state” in which the 300-day limitations period applies. See, e.g.,
Prelich v. Medical Resources, Inc., 813 F. Supp. 2d 654, 661-62 (D. Md. 2001). Accordingly, a
plaintiff in Maryland has 300 days to file a charge with the EEOC. Moreover, “[t]imeliness
requirements for an action alleging employment discrimination are to be strictly enforced.”
Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587, 597 (D. Md. 2000).
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Second, a disparate treatment plaintiff, like all employment discrimination plaintiffs,
must plead facts “sufficient to state all the elements of her claim.” Bass, 324 F.3d at 765.
Under Title VII of the Civil Rights Act, an employer may not “fail or refuse to hire or to
discharge . . . or otherwise discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual’s .
. . sex.” 42 U.S.C. § 2000e-2(a)(1). In the disparate treatment context, if a plaintiff does not
have “direct evidence” of discrimination, she must show “(1) membership in a protected
class; (2) satisfactory job performance; (3) adverse employment action; and (4) different
treatment from similarly situated employees outside the protected class.” Coleman v. Maryland
Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010); see also White v. BFI Waste Servs., LLC, 375
F.3d 288, 295 (4th Cir. 2004).
In this case, Ms. Johnson filed two charges with the Equal Employment Opportunity
Commission (“EEOC”) – the first charge on April 3, 2013 (“2013 Charge”) and the second
on February 7, 2014 (“2014 Charge”).13 Pl.’s Resp. in Opp. to Defs.’ Mots. to Dismiss Exs.
3-4. The EEOC issued “Right to Sue” Notices for both charges on June 25, 2014. Id. The
2013 Charge alleges only sex discrimination by UPS,14 referring to one incident on March 25,
2013 in which Plaintiff claims she was denied a raise due to her gender. Pl.’s Resp. in Opp.
to Defs.’ Mots. to Dismiss Ex. 3, at 2. The 2014 Charge purports to raise claims of race and
religious discrimination and retaliation by UPS and Local 355, but includes allegations only
of religious discrimination and retaliation.
As previously noted, the third charge offered by Plaintiff is an exact duplicate of the 2014 Charge. This Court
will thus consider only the 2013 and 2014 Charges.
14 The 2013 Charge names neither International Union nor Local 355 as offending parties. Pl.’s Resp. in Opp. to
Defs.’ Mots. to Dismiss, at 2.
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a. UPS
In moving to dismiss Count V, UPS argues that Ms. Johnson failed to exhaust
administrative procedures for her claims of gender and race discrimination. Even if some
claims are properly exhausted, UPS contends that she has failed to state a claim for which
relief may be granted. This Court will examine each argument in turn.
As administrative exhaustion is a prerequisite to any federal employment
discrimination action, this Court will first consider whether Ms. Johnson properly exhausted
her claims of race and gender discrimination. Neither the 2013 Charge nor the 2014 Charge
includes any allegations of discrimination due to race. Although Ms. Johnson alleges that she
is a “Black female” in the subject Amended Complaint, she omits any such facts from her
administrative charges. Merely checking the race “box” in the 2014 Charge does not suffice,
as Plaintiff’s description of the alleged discrimination refers only to religious discrimination
and retaliation. Due to Ms. Johnson’s failure to exhaust her race claim, UPS received no
notice of any race discrimination allegations when it received the 2014 Charge.
Ms. Johnson did satisfy the administrative exhaustion prerequisite for her claim of sex
discrimination, but only regarding the alleged incident on March 25, 2013.15 Count V and the
incorporated preceding allegations, however, list several alleged acts of sex discrimination
that are unrelated to UPS’s purported denial of a raise on March 25, 2013. Although a
plaintiff may add some unexhausted claims to her subsequent lawsuit, the claims must, at the
very least, be “reasonably related” to the properly exhausted claims. See Chacko, 429 F.3d at

Admittedly, Ms. Johnson did not include the March 25, 2013 incident in Count V. This Count, however,
incorporates all preceding paragraphs, and allegations referring to the March 25, 2013 incident are found in Count
III. Amend. Compl. ¶¶ 65-68.
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506; Evans, 80 F.3d at 963. Alleged acts of harassing “texting, stalking, and humiliating acts
(graphic pictures and comments),” or the discovery of tampons in her truck in November
2013, bear no reasonable relationship to the March 25, 2013 raise denial. See Amend. Compl.
¶¶ 93, 97. The March 25, 2013 incident thus remains the only properly exhausted claim of
sex discrimination.
Despite this satisfaction of the administrative exhaustion prerequisite, Ms. Johnson’s
claim of sex discrimination fails to state a claim for which relief may be granted. She does
not offer direct evidence of discrimination, thus she must allege facts sufficient to show: “(1)
membership in a protected class; (2) satisfactory job performance; (3) adverse employment
action; and (4) different treatment from similarly situated employees outside the protected
class.” Coleman v. Maryland Court of Appeals, 626 F.3d at 190. Plaintiff does provide sufficient
facts to make the first, third, and fourth elements of her disparate treatment claim plausible.
First, as a female, she is a member of a protected class. Regarding the third element, the only
specific incident alleged – the March 25, 2013 denial of a raise – does constitute an “adverse
employment action” within the meaning of Title VII. See James v. Booz-Allen & Hamilton, Inc.,
368 F.3d 371, 375-76 (4th Cir. 2004) (explaining that an “adverse employment action” is a “a
discriminatory act which adversely affect[s] the terms, conditions, or benefits of the
plaintiff’s employment”); see also Mallik v. Sebelius, 964 F. Supp. 2d 531, 542-43 (D. Md. 2013)
(holding that an “adverse employment action” does not require termination). Further, her
description of the “two male drivers” with allegedly later seniority dates are sufficient to
satisfy the fourth element at this preliminary stage. For purposes of a motion to dismiss,

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Plaintiff need not prove that the male drivers are similarly situated, as long as she pleads facts
sufficient to state the element at issue. See Bass, 324 F.3d at 765.
Plaintiff’s claim fails, however, under the second element, as she does not allege any
facts showing that she performed her job satisfactorily. Although she alleges that, “[d]uring
all relevant times of the Complaint, Plaintiff performed her duties in a satisfactory manner,”
such conclusory statements do not permit the plaintiff’s claim to “rise above speculation.”
Coleman, 626 F.3d at 191. Absent any such facts, Plaintiff cannot satisfy the second element,
even at the pleading stage. Although a plaintiff need not prove each element conclusively in
the complaint, she must meet the plausibility standard of Iqbal.
In sum, Plaintiff’s claims of race and gender discrimination may not proceed. Ms.
Johnson failed to exhaust the requisite administrative procedures for any alleged race
discrimination and all sex discrimination unrelated to the March 25, 2013 incident. The
March 25, 2013 sex discrimination claim, while properly exhausted, does not state a claim for
which relief may be granted. Count V is thus DISMISSED as to UPS.
b. International Union
Count V must be dismissed against Defendant International Union, as Ms. Johnson
failed to exhaust administrave remedies. A Title VII action “may be brought only against the
respondent named in the charge.” Causey v. Balog, 162 F.3d 795, 800 (4th Cir. 1998) (quoting 42
U.S.C. § 2000e-5(f)(1)) (emphasis added); see also Talbot v. U.S. Foodservice, Inc., 204 F. Supp.
2d 881, 883 (D. Md. 2002). Neither the 2013 Charge nor the 2014 Charge names
International Union as a discriminating party, thus it had no notice of any charges levied by
Ms. Johnson. As International Union is not even a party to the CBA, its inclusion as a
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defendant in the present action thus is not “reasonably related” to any claims levied in the
2013 and 2014 Charges. Accordingly, Count V is DISMISSED as to International Union.
c. Local 355
Plaintiff has also failed to satisfy the administrative exhaustion prerequisite as to
Defendant Local 355, thereby requiring the dismissal of her claims in Count V. Local 355 is
named as an offending party solely in the 2014 Charge. Any allegations of sex discrimination
raised by the 2013 Charge are thus not exhausted as to Local 355. See Causey, 162 F.3d at 800.
The 2014 Charge, in which Local 355 is named, purports to levy a claim of race
discrimination. As discussed with regards to Defendant UPS, the 2014 Charge includes no
facts, allegations, or even conclusory statements related to race. Failing to satisfy this
exhaustion prerequisite precludes Ms. Johnson from raising a claim of race discrimination in
the subject action. Count V is thus DISMISSED as to Local 355.
D. Count VI – Religious Discrimination under Title VII and Maryland Fair
Employment Practices Act (All Defendants)
In Count VI, Plaintiff claims that Defendants failed to provide her with requested
religious accommodations, in violation of Title VII and FEPA. Ms. Johnson, a Seventh Day
Adventist Christian, alleges that she requested an accommodation in May 2013 that would
permit “absence from work before sundown on Fridays, which is the start of her Sabbath.”
Amend. Compl. ¶¶ 104-105. On some later date, UPS allegedly granted Ms. Johnson’s
request for the period running from the end of October up to, but not including, the first of

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April. Id. ¶ 108. UPS then denied the accommodation for the period of April 1 through
October.16 Id.
Like claims of sex and race discrimination under Title VII, a plaintiff raising a failure
to accommodate claim under Title VII must fulfill the administrative exhaustion prerequisite.
A plaintiff then must plead facts sufficient to state, not to prove conclusively, all elements of
a religious accommodation claim: “(1) he or she has a bona fide religious belief that conflicts
with an employment requirement; (2) he or she informed the employer of this belief; [and]
(3) he or she was disciplined for failure to comply with the conflicting employment
requirement.” Chalmers v. Tulon Co. of Richmond, 1010 F.3d 1012, 1019 (4th Cir. 1996) (quoting
Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985)); see also Booth v. State of
Maryland, 337 F. App’x 301, 308-309 (4th Cir. 2009). The reasonableness of the
accommodation, if indeed feasible and provided, is a question reserved for a later stage. See
Philbrook, 757 F.2d at 481; see also Williams v. Harvey, Civ. A. No. 4:05CV161, 2006 WL
2456406, *11 (E.D. Va. Aug. 21, 2006).
a. UPS
In this case, only the 2014 Charge presents allegations of failure to accommodate Ms.
Johnson’s religious beliefs. The 2014 Charge, which names UPS as an offending party,
mirrors Plaintiff’s allegations in the Amended Complaint. Compare Pl.’s Resp. in Opp. to
Defs.’ Mots. to Dismiss Ex. 4, at 2, with Amend. Compl. ¶¶ 104-108. While Plaintiff does not
provide the specific date on which UPS granted in part and denied in part her request, the

As described above, Ms. Johnson’s supervisors allegedly informed her that, for the period for which the reigious
accommodation was denied, she could apply her leave to her religion-related absences. Id. ¶ 108. When Plaintiff
had exhausted her leave, UPS allegedly would not compensate her for any further absences. Id.
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decision occurred at some point after her May 2013 request. Ms. Johnson filed the 2014
Charge on February 7, 2014, within the applicable 300-day limitations period. Ms. Johnson
thus has cleared the administrative exhaustion hurdle of a Title VII claim.
Yet, Plaintiff’s failure to accommodate claim founders at the second hurdle, as she
does not state a claim for which relief may be granted. She does provide sufficient facts to
make the first and second elements plausible. First, this Court does not question Ms.
Johnson’s bona fide religious beliefs as a Seventh Day Adventist Christian. Moreoever, the
observation of her Sabbath on Saturday plausibly conflicts with her shift requirements.
Second, Ms. Johnson states that she informed UPS of her religious beliefs when requesting
the accommodation at issue.
Plaintiff’s claim fails, however, under the final element. To defeat a motion to
dismiss, Ms. Johnson must plead sufficient facts that she was “disciplined for failure to
comply with the conflicting employment requirement.” Chalmers, 1010 F.3d at 1019 (quoting
Philbrook, 757 F.2d at 481). Ms. Johnson alleges that she requested a specific religious
accommodation, which was granted in part and denied in part. She does not, however, allege
that she failed to comply with an employment requirement due to her religious beliefs.
Rather, she merely states that her duties may conflict with the observation of her Sabbath.
Further, she presents no facts indicating that she was disciplined for any alleged failure to
comply. Ms. Johnson claims that, after making her request for accommodation, she was
assigned to longer, more burdensome driving routes. This alleged re-assignment may qualify
as an “adverse employment action” within the meaning of Title VII, James, 368 F.3d at 37576, but it is not causally linked to any plausible failure to comply with employment
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requirements.17 Indeed, Plaintiff claims she performed her duties satisfactorily throughout
her employment. Ms. Johnson thus has failed to plead any facts to satisfy the third element
of a failure to accommodate claim. Given this deficiency, Count VI fails to state a claim for
which relief may be granted and is DISMISSED as to UPS.
b. International Union
As in Count V, Count VI must be dismissed against Defendant International Union
for failure to exhaust administrave remedies. International Union is not named in either
EEOC charge, nor is it even referenced in the allegations. Consequently, it had no notice of
any potential liability stemming from Ms. Johnson’s claims. Count VI is thus DISMISSED
as to International Union.
c. Local 355
Although Local 355 is named as a party to the 2014 Charge, Plaintiff does not present
any facts specific to Local 355. Each fact provided to support her failure to accommodate
claim is an alleged action or inaction by UPS, not by Local 355. Local 355 thus had notice of
the charges pending against UPS, but no notice of how its own conduct contributed to Ms.
Johnson’s claim. Yet, even if this Court assumed that Plaintiff had fulfilled the administrative
exhaustion prerequisite as to Local 355, her claim fails to state a claim for which relief may
be granted. Plaintiff simly alleges no facts, in the Amended Complaint or the 2014 Charge,
linking Local 355 to this claim. Count VI is thereby DISMISSED as to Local 355.
E. Count VII – Retaliation under Title VII and Maryland Fair Employment
Practices Act (All Defendants)
As will be discussed in Count VII, such an adverse employment action is properly considered as relevant to a
retaliation claim.

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In Count VII, Plaintiff claims that Defendants retaliated against her in violation of
Title VII and FEPA. Essentially, Ms. Johnson alleges that Defendants “targeted [her]
because of her complaints concerning breaches of the terms and conditions of her
employment” and her race, gender, and religion. Amend. Compl. ¶ 110. Among other
alleged acts of retaliation, Ms. Johnson claims that UPS assigned her to “overloaded” and
burdensome routes and advised other employees to avoid her, while Local 355 has failed to
pursue sixteen grievances filed by her. Id. ¶¶ 106, 112, 120, 135.
Under Title VII, an employer may not discriminate against an employee who “has
opposed any . . . unlawful employment practice” covered by the statute. 42 U.S.C. § 2000e3(a). To state a claim of retaliation under Title VII, a plaintiff first must exhaust
administrative remedies. After satisfying this prerequisite, the plaintiff must show that “(1)
she engaged in protected activity: (2) the employer acted adversely against her; and (3) there
was a causal connection between the protected activity and the asserted adverse action.”
Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) (citing Holland v. Washington Homes, Inc., 487
F.3d 208, 218 (4th Cir. 2007)). A plaintiff may not conclusorily assert the existence of a
“causal connection.” The presence of a “close” temporal relationship between the protected
activity and the alleged adverse action, however, can be sufficient to establish a causal
connection at the pleading stage. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (holding that alleged “temporal proximity” must be “very close” to satisfy this third
element). If the employer did not know of the protected activity, then even temporal
proximity cannot save a plaintiff’s claim. See Price v. Thompson, 380 F.3d 209, 213 (4th Cir.

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2004) (explaining that the employer must know the employee engaged in protected activity
as a prerequisite to establishing a causal connection).
a. UPS
Once again, only the 2014 Charge raises a claim of retaliation under Title VII.
Specifically, Ms. Johnson claims that the retaliation stems from her request for a religious
accommodation. Pl.’s Resp. in Opp. to Defs.’ Mots. to Dismiss Ex. 4, at 2-3. This retaliation
took the form of assignment to less desirable and more burdensome routes.18 Id. Other
incidents raised in Count VII, however, such as the presence of bags of tampon and urine in
her truck, are unrelated to her request for religious accommodation. In fact, Ms. Johnson
argues that such retaliation, and other alleged instances of harassment, occurred in response
to her complaints of gender discrimination. She has thus exhausted administrative remedies
solely for the religious accommodation-related retaliation raised in the 2014 Charge, and not
for any unrelated retaliation. Evans, 80 F.3d at 963.
This Court will thus evaluate the sufficiency of Count VII solely with regards to the
religious accommodation-related retaliation. Viewing the alleged facts in the light most
favorable to Ms. Johnson, she has sufficiently plead a claim of retaliation. First, Ms. Johnson
engaged in protected activity by requesting an accommodation for her religious beliefs in
May 2013. Second, she alleges that her employer, UPS, acted adversely against her by
reassigning her to longer, heavier routes. Third, Plaintiff sufficiently plead a causal link
between the reassignment and her accommodation request. Although Ms. Johnson does not
Ms. Johnson refers to the more burdensome routes in Count VII, but does not explicitly discuss her request for
a religious accommodation. Yet, she incorporates all preceding allegations in Count VII, including those facts
related to the accommodation request of Count VI. This Court may thus consider such allegations in examining
whether this Count will survive Defendants’ respective Motions to Dismiss.

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provide an exact date on which this reassignment occurred, an employment discrimination
plaintiff need not conclusively prove each element of her claim at the motion to dismiss
stage. Bass, 324 F.3d at 765. Instead, Ms. Johnson demonstrates close temporal proximity by
alleging that she requested her accommodation in May 2013, and the reassignment soon
followed. As the Supreme Court explained in Burlington Northern and Santa Fe Ry. Co. v. White,
548 U.S. 53, 70-71 (2006), assignment of an employee to “less desirable . . . [and] more
arduous duties” is “one good way to discourage [that] employee from bringing
discrimination charges[.]” Ms. Johnson’s reassignment thus plausibly had a chilling effect on
her willingness to pursue her claims of discrimination. This causal link is sufficient to survive
a motion to dismiss.
In sum, Ms. Johnson exhausted only her claim of retaliation related to her request for
a religious accommodation. Any other claims of retaliation are unrelated and thus
unexhausted. Not only did Ms. Johnson properly exhaust her claim of religious
accommodation-related retaliation, but she also alleged facts sufficient to state all elements
of the claim. Accordingly, UPS’s Motion to Dismiss Count VII is DENIED.
b. International Union
Like Counts V and VI, Count VII must be dismissed against Defendant International
Union for failure to exhaust administrave remedies. Neither the 2013 Charge nor the 2014
Charge names International Union as a discriminating party, either formally as a defendant,
or by reference in the descriptions of the alleged violations. For the foregoing reasons,
Count VII is DISMISSED as to International Union.
c. Local 355
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Count VII, as applied to Local 355, faces the same deficiencies as Count VI. As
previously discussed, Local 355 is named as a party to the 2014 Charge, but Ms. Johnson
does not make any allegations of religious accommodation-related retaliatory conduct by
Local 355. Plaintiff’s claims of retaliation pertain to actions by UPS, not Local 355. Apart
from the inclusion of Local 355 as a party, the 2014 Charge simply omits any reference to
this defendant. Defendant thus had notice of the charges pending against UPS, but no notice
of how its own conduct contributed to Ms. Johnson’s claim. Given this failure to exhaust
her claim of retaliation against Local 355, this Court lacks subject matter jurisdiction over
Count VII as to this defendant. Accordingly, Count VII is DISMISSED against Local 355.
CONCLUSION
For the reasons stated above, Defendant International Union’s Motion to Dismiss
(ECF No. 8) is GRANTED; Defendant Local 355’s Motion to Dismiss (ECF No. 10) is
GRANTED; Defendant UPS’s Motion to Dismiss (ECF No. 13) is MOOT; and Defendant
UPS’s Corrected Motion to Dismiss (ECF No. 14) is GRANTED IN PART and DENIED
IN PART. Specifically, UPS’s Motion to Dismiss is GRANTED as to Counts I-VI, and
DENIED as to Count VII.
A separate Order follows.

Dated:

June 30, 2015

/s/______________________________
Richard D. Bennett
United States District Judge

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