Thomas v. Delmarva Power and Light
Filing
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MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 2/1/2016. (jnls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
AUGUSTA THOMAS, JR.,
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Plaintiff,
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v.
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DELMARVA POWER & LIGHT
COMPANY,
Civil Action No. RDB-15-0433
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Defendant.
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MEMORANDUM OPINION
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Plaintiff Augusta Thomas, Jr. (“Thomas” or “Plaintiff”) brings this employment
discrimination action against Defendant Delmarva Power & Light Company (“Delmarva” or
“Defendant”) alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e, et seq. (“Title VII”), 42 U.S.C. § 1981 (“§ 1981”), and Title 20 of the State
Government Article, Md. Code Ann., State Gov’t § 20-101, et seq. (“Title 20”).
Pending before this Court are the Defendant’s Motion to Dismiss (ECF No. 6), and
Plaintiff’s Motion for Leave to File Amended Complaint (ECF No. 17). The parties’
submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md.
2014). For the reasons that follow, Plaintiff’s Motion for Leave to File Amended Complaint
(ECF No. 17) is GRANTED, and the Defendant’s Motion to Dismiss (ECF No. 6) is thus
DENIED as MOOT.1
1 The pending Motion to Dismiss addresses Plaintiff’s initial Complaint (ECF No. 1), and not the Amended
Complaint that is the subject of this Memorandum Opinion. Delmarva has not filed a motion to dismiss the
Amended Complaint. As this Court is granting Plaintiff’s Motion for Leave to file an Amended Complaint,
Delmarva’s Motion to Dismiss the original Complaint is thus moot. Defendant’s arguments in opposition to
Plaintiff’s Motion mirror some, but not all, of its arguments in favor of dismissing the original Complaint.
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BACKGROUND
Due to the deficiencies of the original Complaint, the following facts are drawn from
the Amended Complaint.
In 1983, Delmarva hired Plaintiff Augusta Thomas, Jr., an African-American male.
Amend. Compl. ¶ 11, ECF No. 17-2. While an employee of Delmarva, Thomas alternately
worked as a Groundsman, Lineman, Journeyman Lineman, Lead Lineman and Serviceman.
Id. ¶ 11.
Thomas alleges that he was subject to various incidents of discrimination,
harassment, and retaliation by Delmarva. Id. ¶¶ 13-40. These alleged incidents include:
Caucasian male co-workers sought to intimidate him and other African-Americans by
hanging a noose from a door handle in 2008, id. ¶ 13; supervisors failed to appropriately
respond to this noose incident, id. ¶ 13-20; a picture of three monkeys with the names of
three African-American employees was displayed at Delmarva’s workplace in Centerville,
Maryland, id. ¶ 21; African-American employees were treated less favorably by Delmarva as
compared to Caucasian employees with regard to safety rule enforcement; and finally,
African-American employees were denied promotions in favor of Caucasian employees,
even when Caucasians were engaged in the same misconduct as African-American
employees or were less qualified than the African-American employees, id. ¶ 22.
The bulk of the subject Amended Complaint arises out of an incident that began in
April 2013. That month, Thomas alleges that an employee of Delmarva, Amy Swagger
(“Swagger”), informed Delmarva that Thomas had made sexually inappropriate comments
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during a service call to Shelia Bednar (“Bednar”),2 who was asked by a Delmarva customer
to escort Thomas to the basement of a building. Id. ¶ 23-24. After being notified of the
incident, Paul Simon (“Simon”), Delmarva’s Human Resources Business Partner, and
Edward Bennett (“Bennett”),3 Thomas’s Supervisor, began an investigation. Id. ¶ 26.
Thomas admitted he made the reported remarks during the investigation. Id. ¶ 27. Delmarva
continued to investigate the incident, allegedly discovering that four Caucasian females
accused Thomas of workplace misconduct between 2000 to 2011, id. ¶ 29-30, and that a
customer called Delmarva in 2011 regarding Thomas, id. ¶ 32. Before the investigation
concluded, Delmarva suspended Thomas on April 14, 2013. Id. ¶ 33. On June 12, 2013,
Delmarva sent a letter to Thomas terminating his employment for making inappropriate
comments and inappropriate conduct with employees. Id. ¶ 33. At some point between
suspension and termination, Simon and Bennett met with Thomas’s unnamed union
representative, and reportedly stated that Thomas was “old enough to retire.” Id. Thomas
was discharged without affording him the benefits of Delmarva’s discipline policy, wherein
an employee first received a verbal warning and written reprimand prior to suspension and
discharge. Id. ¶ 34.
In September 2013, Thomas timely filed a charge of discrimination with the United
States Equal Employment Opportunity Commission (“EEOC”) against Delmarva in
September of 2013, alleging age, sex and race discrimination. Id. ¶ 35. The EEOC issued a
Dismissal and a Notice of Right to sue on November 17, 2014. Thomas also filed a
Thomas alleges that Bednar had maintenance duties for the building where Delmarva’s customer was
located, but was not a customer herself. Id. ¶ 23.
3 Bennett was involved in the investigation of the alleged noose incident in 2008.
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grievance through his union, which obtained Thomas’s reinstatement, without back pay, on
June 16, 2014. Id. ¶ 36-37.
Thomas timely filed the subject action pro se on February 13, 2015. Compl., ECF No.
1. Thomas alleges various acts of discrimination throughout this incident. He first asserts
that Caucasians accused of similar misconduct were afforded more favorable treatment. Id. ¶
39. He specifically names another employee, a Caucasian male, who was disciplined less
harshly than Thomas for sexual misconduct at the workplace. Id. ¶ 39. Thomas also alleges
that Delmarva failed to inform him of the accusations of the four Caucasian females and to
permit him to give his version of the events, while Caucasian male employees involved in the
noose incident were both notified of the investigation and afforded the opportunity to offer
their version of the incident. Id. ¶ 40. In response, Delmarva filed a Motion to Dismiss (ECF
No. 6). Subsequently, Thomas obtained counsel, and filed a Motion for Leave to File an
Amended Complaint (ECF No 17) and the Amended Complaint (ECF No. 17-2).
STANDARD OF REVIEW
Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to file an amended
complaint “shall be freely given when justice so requires.” A trial judge has discretion to
grant or deny leave to amend a complaint. Foman v. Davis, 371 U.S. 178, 182 (1962). A judge
may not, however, exercise that discretion arbitrarily or in a way that undermines the liberal
policy of the rule. Davis v. Piper Aircraft Co., 615 F.2d 606, 613 (4th Cir. 1980); Laber v. Harvey,
438 F.3d 404, 426 (4th Cir. 2006) (“This liberal rule gives effect to the federal policy in favor
of resolving cases on their merits instead of disposing of them on technicalities.”).
Therefore, when facts averred by a plaintiff in a complaint “may be a proper subject of
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relief,” the court should allow him “an opportunity to test his claim on the merits.” Foman,
371 U.S. at 182. Rule 15(a) also ensures that plaintiffs have an opportunity to cure formal
defects in their pleadings. Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir. 1999) (quoting
5A Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (2d ed. 1990)).
A court may deny leave to amend if the plaintiff seeks to amend his complaint after
undue delay, in bad faith, or with dilatory motive. Foman, 371 U.S. at 182. Additionally, the
court may deny leave to amend if amendment causes undue prejudice to the opposing party
or the amendment is futile. Id.; see also Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.
1986). Futility may only serve as a basis for denying a complaint where the proposed
amendment is clearly insufficient or frivolous on its face. Oroweat Foods, 785 F.2d at 510
(citing Davis, 615 F.2d at 613; Ostrzenski, 177 F.3d at 253 (“Amendment should be refused
only if it appears to a certainty that plaintiff cannot state a claim.”).
Rule 15(a)’s liberal standard is even more broadly construed for pro se litigants. Gordon
v. Leeke, 574 F.2d 1147 (4th Cir. 1978) (holding that pro se civil rights litigants should be
permitted to amend their complaints even if their motion for leave to amend does not state
how the amendment cures deficiencies in an earlier pleading); see generally Haines v. Kerner, 404
U.S. 519 (1972) (holding that pleadings by pro se litigants should be held to a less stringent
standard than litigants represented by counsel).
DISCUSSION
In his moving for leave to file the Amended Complaint, Thomas argues that this
Court should grant the requested leave because he was pro se when he filed the initial
Complaint. Since filing the initial Complaint, Thomas retained counsel, who subsequently
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drafted the proffered Amended Complaint (ECF No. 17-2) on his behalf. The Amended
Complaint, according to the Plaintiff, presents a “stronger set of factual allegations than
were apparent on the face of his pro se Complaint.” Moreover, Thomas contends that
granting leave to amend would hardly prejudice Delmarva given that this action is merely in
its early stages.
In response, Delmarva argues that Thomas should not be permitted to amend his
Complaint because his proposed amendment would be futile. Specifically, Delmarva
contends that Plaintiff’s proposed Amended Complaint, like the initial Complaint, fails to
assert sufficient facts to state a claim, and would not survive a motion to dismiss pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. Thomas disputes this argument in his
reply brief, stating that he plausibly raises a prima facie claim of employment discrimination
under Title VII.
Although a court may deny leave to amend a complaint if the amendment is futile,
the liberal policy behind Rule 15 strongly favors resolving a case on its merits. See Laber, 438
F.3d at 426 (stating that Rule 15 reflects a policy that encourages resolving cases on their
merits instead of disposing of them on technicalities). Indeed, the United States Court of
Appeals for the Fourth Circuit has held that an amended complaint is futile only when the
amendment is “clearly insufficient or frivolous on its face.” Oroweat Foods, 785 F.2d at 510.
Thomas’s Amended Complaint is not “clearly insufficient or frivolous on its face.”
The Amended Complaint corrects formal deficiencies in his original pro se Complaint, and
states Thomas’s claims with greater clarity. While Thomas’s Amended Complaint includes
some vague allegations of less favorable treatment of African-Americans by Delmarva, he
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also alleges names, dates, and facts not contained in his original Complaint which support
his claim of discriminatory discipline. In fact, as Thomas’s Amended Complaint is
significantly more detailed and thorough, permitting the filing of the Amended Complaint
would be beneficial to the efficient resolution of his case. See Fox v. Portico Reality Services
Office, 739 F. Supp. 2d. 912, 927 (E.D. Va. 2010) (holding that the plaintiff should be granted
leave to file amended complaint drafted with the aid of counsel because it clarified his claims
and would “facilitate the timely resolution of this matter”). Given the newly added details,
this Court cannot conclude that the Amended Complaint is futile. With the newly-acquired
aid of counsel, he should be afforded an opportunity to proceed with discovery with respect
to his claims.
No other considerations warrant denial of Thomas’s Motion. This Court can find no
evidence of prejudice, undue delay, or bad faith. Thomas, now represented by counsel, will
thus be permitted to file the proffered Amended Complaint.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Leave to File an Amended
Complaint (ECF No. 17) is GRANTED, and the Defendant’s Motion to Dismiss (ECF No.
6) the original Complaint is MOOT.
A separate Order follows.
Dated:
February 1, 2016
______/s/_____________________
Richard D. Bennett
United States District Judge
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