Marshall v. Marshall's TJX Companies, Inc.
Filing
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MEMORANDUM AND ORDER granting Plaintiff time to file an amended complaint. Signed by Judge William M Nickerson on 12/2/2015. (dass, Deputy Clerk) (c/m 12/2/15-das)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
MICHAEL L. MARSHALL
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v.
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MARSHALL’S TJX COMPANIES, INC.*
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Civil Action No. WMN-15-555
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MEMORANDUM AND ORDER
Plaintiff Michael Marshall, proceeding pro se, filed this
action on February 26, 2015, against his former employer, TJX
Companies, Inc. (TJX). 1
Using a court-provided form complaint
for employment discrimination claims, Plaintiff indicated that
he was bringing his claim under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq. (Title
VII), but failed to identify the protected class to which he
belongs.
See Compl. ¶ 5 (leaving unchecked all boxes asking for
the alleged basis of the discriminatory conduct).
Elsewhere on
the form he indicates that he was terminated on June 17, 2013,
Id. ¶ 4, but he also indicates that he is complaining about
events that occurred between 2008 and 2013.
Id. ¶ 8.
The facts Plaintiff offers in support of his claims are, in
toto, the following:
I had been complaining about being discriminated
against by my store manager since 2008 but in 2010 I
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Plaintiff refers to Defendant as “Marshall’s TJX Companies,
Inc.” but its correct name is TJX Companies, Inc.
was transferred against my will to a failing store
over an hour away and outside of my district after
proving that I was being falsely accused. I was then
willfully and with malice targeted for harassment and
termination. I was repeatedly given out of policy
correctives, written warnings and evaluations. Many
of the written correctives were administered by
persons who were not my direct supervisor and had no
firsthand knowledge of my performance; as a result
they were for responsibilities that were not under my
authority.
Id. ¶ 6.
In his Complaint, Plaintiff seeks back pay and two
million dollars in monetary damages.
A summons was issued on March 31, 2015, and Plaintiff
attempted to serve Defendant in May of 2015.
Defendant moved to
dismiss the Complaint on June 15, 2015, arguing that service was
insufficient for a number of reasons.
The Court agreed that
service was improper, but treated the motion to dismiss as a
motion to quash service, granted it as such, and gave Plaintiff
30 additional days in which to effect proper service.
11.
ECF No.
Plaintiff apparently attempted to effect service again, but
with a Complaint that differed somewhat from the Complaint that
was filed in this Court.
The most significant difference
between the Complaint, as filed, and the Complaint, as served,
is that in the served Complaint, Plaintiff identifies “race” as
the basis of discrimination.
See ECF No. 13-3 ¶ 5.
Defendant has now filed a motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure for failure to
state a claim and under Rule 12(b)(5) for insufficient service
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of process.
ECF No. 13.
Uncertain whether Plaintiff was
bringing a Title VII claim under a theory of disparate
treatment, harassment, or retaliation, Defendant attacked the
Complaint under each theory.
Noting that the Complaint that was
served with the summons was not exactly the same as the
Complaint that was filed with the Court, Defendant argues that
Plaintiff has still failed to properly effect service. 2
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must contain sufficient factual matter, accepted as
true, to “‘state a claim to relief that is plausible on its
face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Although
a court must accept as true all well-pleaded factual
allegations, the same is not true for legal conclusions.
556 U.S. at 678.
Iqbal,
“Threadbare recitals of the elements of a
2
The Court will deny the motion to the extent it is premised on
Plaintiff’s failure to effect proper service. Unlike the
previous challenge, where Plaintiff simply mailed a copy of the
summons, without any complaint, to one of Defendant’s stores,
the violation of the service rules here is less significant.
The difference between the copy of the Complaint as filed and as
served is minor and Defendant clearly has notice of the nature
of Plaintiff’s claim. See Armco, Inc. v. Penrod–Stauffer Bldg.
Sys., Inc., 733 F.2d 1087, 1089 (4th Cir. 1984) (“When there is
actual notice, every technical violation of the rule or failure
of strict compliance may not invalidate the service of
process.”). Given that the Court will require Plaintiff to file
an amended complaint, see infra, that minor difference will have
no import going forward.
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cause of action, supported by mere conclusory statements, do not
suffice.”
Id.
The Complaint, as filed with the Court, clearly does not
state a Title VII claim under any theory of recovery.
To
establish a prima facie case of disparate treatment, a plaintiff
must show that (1) he is a member of a protected class; (2) he
was performing at a level that met his employer's legitimate
expectations at the time of the adverse employment action; (3)
he suffered an adverse employment action; and (4) his employer
treated similarly situated employees outside his protected class
more favorably.
Md. 2013).
Dones v. Donahoe, 987 F. Supp. 2d 659, 667 (D.
As noted above, the Complaint, as filed, does not
identify Plaintiff as a member of any protected class and, thus,
also says nothing about the treatment of those outside of his
class.
Furthermore, while his termination would be considered
an adverse employment action, Plaintiff provides no information
about his termination other than the date on which it occurred.
The actions to which he does attribute discriminatory animus,
the transfer and negative evaluations, generally are not
considered actionable “ultimate employment decisions.”
See
Newman v. Giant Food, Inc., 187 F. Supp. 2d 524, 528-29 (D. Md.
2002).
Regardless, much of that conduct appears to fall outside
of the applicable limitations period.
See Jones v. Calvert, 551
F.3d 297, 300 (4th Cir. 2009) (noting that a charge with the
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EEOC or Maryland Human Relations Commission must be filed within
300 days of the alleged discriminatory conduct).
Plaintiff
alleges that he filed his charge with the Maryland Human
Relations Commission on July 12, 2013, and thus his
discrimination claim would generally be limited to events that
occurred on or after September 15, 2012.
To establish a plausible harassment or hostile work
environment claim under Title VII, a plaintiff must show that:
(1) he experienced unwelcome harassment, (2) the harassment was
based on race, (3) the harassment was sufficiently severe or
pervasive to alter the conditions of his employment and to
create an abusive atmosphere, and (4) there is some basis for
imposing liability on the employer.
F.3d 733, 745–46 (4th Cir. 2006).
See Baqir v. Principi, 434
To be severe or pervasive,
for purposes of Title VII, the harassment must meet a “high
bar.”
2013).
Mallik v. Sebelius, 964 F. Supp. 2d 531, 547 (D. Md.
“Title VII does not mandate civility in the workplace.
Further, a supervisor's strict management style or degree of
supervision is not evidence of actionable harassment.”
Engler
v. Harris Corp., Civ. No. GLR–11–3597, 2012 WL 3745710, at *5
(D. Md. Aug. 28, 2012) (internal citations omitted).
In the
Complaint, as filed, Plaintiff complains about conduct such as
being negatively evaluated by supervisors that had no firsthand
knowledge of his performance and for areas outside the scope of
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responsibilities.
This is not the type of conduct that gives
rise to a hostile environment claim.
See EEOC v. Sunbelt
Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (holding
that “callous behavior by one's superiors, or a routine
difference of opinion and personality conflict with one's
supervisor, are not actionable under Title VII”).
To state a plausible retaliation claim, a plaintiff must
show that (1) he engaged in protected activity, (2) his employer
took an adverse employment action against him, and (3) there was
a causal link between the two.
Murphy-Taylor v. Hoffmann, 968
F. Supp. 2d 693, 720 (D. Md. 2013).
To establish that third
element, there must ordinarily be “some degree of temporal
proximity to suggest a causal connection.”
Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501 (4th
Cir. 2005).
Plaintiff’s allegation that he “had been
complaining about being discriminated against by my store
manager since 2008” could constitute protected activity, but, if
the adverse employment action is his termination in 2013, the
length of time between the two would undermine any causal
connection.
In addition, because there is no information in the
Complaint regarding the circumstances of his termination, it is
not apparent that the decision-maker who terminated Plaintiff’s
employment was even aware of his prior complaints of
discrimination.
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For these reasons, the Court will dismiss the Complaint as
filed.
The question remains as to whether the dismissal should
be with or without prejudice, i.e., whether Plaintiff will be
given the opportunity to amend his complaint.
In his Opposition
to the motion to dismiss, Plaintiff provided a lengthy narrative
in support of his Title VII claim, ECF No. 15, and also attached
to his Opposition a “Table of Contents,” which appears to be a
listing of documents he would present at trial.
ECF No. 15-1.
While a plaintiff “cannot, through the use of motion briefs,
amend the complaint,” Zachair. Ltd. v. Driggs, 965 F. Supp. 741,
748 n.4 (D. Md. 1997), the Court can permit, when appropriate, a
plaintiff to file an amended complaint that includes the
additional allegations.
Johnson v. SecTek, Inc., Civ. No. ELH-
13-3798, 2014 WL 1464378, at *2 (D. Md. April 11, 2014).
Defendant contends that amendment would be futile in that
the additional allegations recited in the Opposition are still
insufficient to state a claim.
While much of the narrative in
the Opposition is confusing, and some of it is irrelevant or
actually undermines Plaintiff’s claims, the Court will permit
amendment in light of Plaintiff’s pro se status and the
admonition that courts “should freely grant leave when justice
so requires,” and should deny amendment only if the opposing
party would be subject to undue prejudice, the movant acted with
bad faith, or the amendment would be futile.
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IGEN Int'l Inc. v.
Roche Diagnostics GmbH, 335 F.3d 303, 311 (4th Cir. 2003).
Defendant’s only expressed opposition to amendment is futility
and the Court cannot conclude at this stage that Plaintiff will
not be able to state a claim under Title VII.
His Opposition
relates a history of discriminatory treatment through 2013 which
led “directly to my termination which is a direct result of
retaliation for my complaints of discrimination.”
ECF No. 15 at
7-8.
In granting Plaintiff leave to amend, the Court is
cognizant of some serious potential weaknesses in Plaintiff’s
claims.
While Plaintiff identifies one of his supervisors, Don
Retenhour, as the initial instigator of the discriminatory
treatment under which he suffered, he also alleges that
Defendant terminated Retenhour for his alleged racist activity.
Id. at 10.
In addition, the individual in management that
appears to have been the primary decision maker in bringing
about Plaintiff’s termination of employment, District Manager
Regie Coleman, is black.
The bar of limitations will also
likely bar some aspects of Plaintiff’s claims.
Nevertheless, Plaintiff shall be granted 20 days in which
to file his amended complaint containing the facts alleged in
his original complaint, the facts alleged in his Opposition, and
any other facts in support of his Title VII claim.
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Plaintiff
should also specify if he is bringing a hostile environment
claim, a disparate treatment claim, and/or a retaliation claim.
Accordingly, IT IS this 2nd day of December, 2015, by the
United States District Court for the District of Maryland,
ORDERED:
1) That Defendant’s Motion to Dismiss, ECF No. 13, is
GRANTED;
2) That Plaintiff is granted 20 days from the date of this
Memorandum and Order in which to file an amended complaint;
3) That should Plaintiff not file an amended complaint
within that 20 days, this case shall be CLOSED; and
4) That the Clerk of the Court shall mail or transmit a
copy of this Memorandum and Order to Plaintiff and all counsel
of record.
_______________/s/________________
William M. Nickerson
Senior United States District Judge
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