Finlay v. Fortis Institute-Towson

Filing 15

MEMORANDUM. Signed by Judge James K. Bredar on 10/8/2015. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

KIRK A. FINLAY

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Plaintiff

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v.

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FORTIS INSTITUTE-TOWSON

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Defendant
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CIVIL NO. JKB-15-1184

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MEMORANDUM

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I. Background
This action is brought by Plaintiff Kirk A. Finlay against Defendant Fortis
Institute-Towson (“Fortis”)1 and alleges racially discriminatory discharge and hostile work
environment in violation of 42 U.S.C. § 1981 (Count I), racially discriminatory discharge and
hostile work environment in violation of Title VII (Count II), racially discriminatory discharge in
violation of 42 U.S.C. § 1981 (Count III), hostile work environment in violation of 42 U.S.C.
§ 1981 (Count IV), discriminatory discharge based on disability in violation of the Americans
with Disabilities Act (“ADA”) (Count V),2 and termination in violation of the Family and
Medical Leave Act (“FMLA”) (Count VI). (Compl., ECF No. 1.)3
Now pending before the Court is Fortis’s Motion to Dismiss for lack of subject-matter
jurisdiction and for failure to state a claim or, in the alternative, for summary judgment under

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According to Defendant’s Motion to Dismiss, Fortis Institute-Towson is a trade name used by EFC Trade, Inc.,
Plaintiff’s former employer and the proper entity for this suit. (See Def.’s Mot. to Dismiss Supp. Mem. 1 n.1.) The
Clerk will be directed to amend the docket to reflect the proper party name.

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Plaintiff seeks to voluntarily dismiss this claim in his Opposition. (See Pl.’s Opp’n, ECF No. 6 at 1 (“Plaintiff will
voluntarily dismiss his claim under the ADA (Count V) . . . .”).) The Court will dismiss Count V without prejudice.
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Plainly, Finlay’s complaint includes some overlapping counts.

Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure. (Def.’s Mot. to
Dismiss, ECF No. 4.) Also pending before the Court is Finlay’s Motion for Leave to File
Surreply. (ECF No. 13.) The issues have been briefed (ECF Nos. 4, 6, 12-14), and no hearing is
required, Local Rule 105.6 (D. Md. 2014). For the reasons discussed infra, Defendant’s motion
will be granted in part and denied in part, and Plaintiff’s motion will be granted.
II. Standard of Dismissal for Lack of Subject-Matter Jurisdiction
A motion under Federal Rule of Civil Procedure 12(b)(1) challenges a court’s
subject-matter jurisdiction. This challenge proceeds “in one of two ways.” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.
1982)). “First, the defendant may contend ‘that a complaint simply fails to allege facts upon
which subject matter jurisdiction can be based.’” Id. (quoting Adams, 697 F.2d at 1219). “In the
alternative, the defendant can contend . . . ‘that the jurisdictional allegations of the complaint
[are] not true.’” Id. (alteration in original). The first case represents a “facial” challenge, where
the plaintiff enjoys “the same procedural protection as . . . under a Rule 12(b)(6) consideration,”
and the second presents a “factual” challenge, where a trial court may go beyond the complaint
without converting the motion to one for summary judgment. Id. A court may also raise this
issue sua sponte and must dismiss the action if it determines that it lacks subject-matter
jurisdiction. See Fed. R. Civ. P. 12(h)(3); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 506
(2006).
When a defendant challenges a court’s subject-matter jurisdiction by arguing that the
plaintiff’s claims are outside the scope of the plaintiff’s EEOC charge, the defendant is bringing
a factual challenge. See Bowie v. Univ. of Md. Med. Sys., Civil Action No. ELH-14-03216, 2015
WL 1499465, at *3 (D. Md. Mar. 31, 2015). In a factual challenge, “‘the district court is entitled
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to decide disputed issues of fact with respect to subject matter jurisdiction.’” Id. (quoting Kerns,
585 F.3d at 192). This latitude allows a court to examine the scope of an EEOC charge without
converting the motion to one for summary judgment. See id.
III. Standard of Dismissal for Failure to State a Claim
The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to
test the sufficiency of the complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th
Cir. 1999). This analysis involves “‘[t]wo working principles.’” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “First, although
a court must accept as true all factual allegations contained in a complaint, such deference is not
accorded to legal conclusions stated therein.” Id. Therefore, “[t]he mere recital of [the] elements
of a cause of action, supported only by conclusory statements, is not sufficient . . . .” Id.
“Second, to survive such a motion, a complaint must state a ‘plausible claim for relief.’” Id.
(quoting Iqbal, 556 U.S. at 678). Plausibility means “that the factual allegations in the complaint
are ‘enough to raise a right to relief above the speculative level[.]’” Andrew v. Clark, 561 F.3d
261, 266 (4th Cir. 2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007)). This is a
“‘context-specific task’” that allows the court “‘to draw on its judicial experience and common
sense.’” Vitol, S.A. v. Primerose Shipping Co. Ltd., 708 F.3d 527, 543 (4th Cir. 2013) (quoting
Iqbal, 556 U.S. at 679).
IV. Standard for Summary Judgment
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
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genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to
be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
Fed. R. Civ. P. 56(c)(1). Supporting and opposing affidavits are to be made on personal
knowledge, contain such facts as would be admissible in evidence, and show affirmatively the
competence of the affiant to testify to the matters stated in the affidavit. Fed. R. Civ. P. 56(c)(4).
V. Allegations of the Complaint
Finlay is an African-American citizen of Maryland. (Compl. ¶ 3.) He was first employed
as a part-time instructor by Fortis on or about November 2012 (id. ¶ 9), and was later promoted
to a full-time position after excelling in that role (id. ¶ 9.)
On or about February 2015,4 Fortis hired Mark McGinnis, a Caucasian, as its new
Director of Education. (Compl. ¶ 11.) Immediately after starting, McGinnis began to show
signs of distrust towards Finlay. (Id.) Finlay had been given keys to the building by his previous
supervisor with the responsibility of closing it down. (Id. ¶¶ 9, 12.) In contrast, McGinnis

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The year “2015” appears to be in error. The Court presumes Finlay intended to refer to “February 2014.”

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followed Finlay around as he performed this duty. (Id.) This made Finlay uncomfortable, but he
was respectful because McGinnis was his supervisor. (Id.)
One night while following Finlay around the building, McGinnis began to tell a story
about his experiences in Boston. (Id. ¶ 13.) He said that on one occasion he had gotten off at the
wrong bus stop and ended up in the “wrong neighborhood.” (Id.) He had implied that it was
undesirable, and he later said it was a “black neighborhood.” (Id.) McGinnis also told Finlay
about a man who yelled at him asking, “Do you know what neighborhood you’re in?” (Id.)
Finlay felt uncomfortable by this story, particularly in light of McGinnis’s distrustful shadowing.
(Id.)
On or about March 25, 2014, Finlay felt a sharp pain in his abdomen and was very sick.
(Id. ¶ 14.) He eventually checked into a hospital and notified his supervisor, Melissa Willet, that
he could not go into work that night. (Id.) After being informed by his doctors that he required
surgery that same night for appendicitis, Finlay told Willet that he would need to take the night
off. (Id. ¶ 15.) The surgery was successful, but his doctors prohibited him from driving for
several days. (Id. ¶ 16.) Under his doctors’ advice, Finlay then informed Willet that he could
not work on March 26 or March 27, 2014. (Id.)
On March 31, 2014, when Finlay returned to work on schedule, he was terminated by
Campus President Sean London. (Id. ¶ 17.) One of London’s reasons for terminating Finlay was
that he “didn’t know how long [Plaintiff] [was] going to be out for,” referring to his surgery.
(Id.) Another reason was that London was told by McGinnis that Finlay was leaving regardless,
which was untrue. (Id.)
Finlay filed a timely charge with the Equal Employment Opportunity Commission
(“EEOC”), alleging he had been subject to race discrimination. (Id. ¶ 7.) The EEOC closed

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Finlay’s case on or about January 22, 2015, and issued a right-to-sue letter. (Id. ¶ 8.) Finlay then
filed suit on April 27, 2015, within ninety days of receiving this letter. (Id.)
VI. Analysis
A. Exhaustion as to Title VII Claim of Hostile Work Environment
Finlay brings two claims for hostile work environment against Fortis, one under Title
VII, and the other under 42 U.S.C. § 1981.5 Fortis moves to dismiss the Title VII claim for lack
of subject matter jurisdiction, asserting that the judicial complaint is outside the precedent EEOC
charge’s scope. (See Def.’s Mot. to Dismiss Supp. Mem. 2.) For the reasons explained below,
this portion of Defendant’s motion will be granted.
Title VII prevents an employer from “discharg[ing] any individual . . . because of such
individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). In order to
bring suit in federal court under Title VII, the “person claiming to be aggrieved” must file a
charge with the EEOC and receive a right-to-sue letter. § 2000e-5(f)(1). This is the “exhaustion
requirement,” which “ensures that the employer is put on notice of the alleged violations so that
the matter can be resolved out of court if possible.” Miles v. Dell, Inc., 429 F.3d 480, 491 (4th
Cir. 2005). “An individual cannot bring suit until he has exhausted the administrative process.”
Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005).
“Even after a plaintiff has exhausted his administrative remedies, [however,] the
administrative framework plays a substantial role in focusing the formal litigation it precedes.”
Id. Thus, “‘[t]he allegations contained in the administrative charge of discrimination generally
operate to limit the scope of any subsequent judicial complaint.’” Id. (quoting Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996)). When claims exceed the scope

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The Section 1981 hostile work environment claim in Count I is duplicated in Count IV.

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of the EEOC charge, they are procedurally barred because “federal courts lack subject matter
jurisdiction over Title VII claims for which a plaintiff has failed to exhaust administrative
remedies.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013).
A judicial complaint may contain three kinds of claims derived from a precedent EEOC
charge. These are “‘claims stated in the initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of the original complaint.’” Chacko,
429 F.3d at 506 (quoting Evans, 80 F.3d at 963). “[P]laintiff’s claim generally will be barred if
his charge alleges discrimination on one basis—such as race—and he introduces another basis in
formal litigation—such as sex.” Id. at 509 (citing Bryant v. Bell Atl. Md., Inc., 288 F.3d 124,
132-33 (4th Cir. 2002)). “A claim will also typically be barred if the administrative charge
alleges one type of discrimination—such as discriminatory failure to promote—and the claim
encompasses another type—such as discrimination in pay and benefits.” Id. (citing Evans, 80
F.3d at 963-64). It is worth noting, however, that “lawyers do not typically complete the
administrative charges, and so courts construe them liberally.” Id. (citing Alvarado v. Bd. of Trs.
of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir. 1988)).
The particulars of Finlay’s EEOC charge are as follows:
I.

I began my employment with the above listed employer on November 19,
2012, as Dental Assistant Instructor. On March 31, 2014, I was
discharged because my dental license expired. Almost immediately after
my discharge, I was advised that Linda Einoff [sic] (white), Dental
Assistant Instructor was hired, however, she is not licensed.

II.

I have not been provided with an explanation for the employer’s unequal
treatment towards me.

III.

I believe I was discharged because of my race (black), in violation of Title
VII of the Civil Rights Act of 1964, as amended.

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(Def.’s Mot. to Dismiss, Ex. 1-D.)

Elsewhere on the form, the only box checked for

“discrimination based on” is “race,” without any checkmarks for “retaliation,” “disability,” or
“other.” (Id.) Also, the “[e]arliest” and “[l]atest” dates that the “discrimination took place” were
both “March 31, 2014,” the date of Finlay’s termination, and the box for “continuing action” is
left unchecked. (Id.)
Based on the limited allegations in Finlay’s EEOC charge, his hostile work environment
claim in his complaint in this Court is outside its scope. A claim of hostile work environment is
simply not the same as a discriminatory discharge. Nor is it necessarily reasonably related to a
discriminatory discharge. And given the only date supplied by Finlay to the EEOC, his claim of
hostile work environment prior to his termination was not likely to be included in a reasonable
investigation of his claim of discriminatory discharge. See Chacko, 429 F.3d at 509 (“Similarly,
we have held that the allegation of a discrete act or acts in an administrative charge is insufficient
when the plaintiff subsequently alleges a broader pattern of misconduct.” Id. (citing Dennis v.
County of Fairfax, 55 F.3d 151, 153, 156-57) (4th Cir. 1995))). “[A] plaintiff fails to exhaust
administrative remedies where . . . his administrative charges reference different time frames,
actors, and discriminatory conduct than the central factual allegations in his formal suit.” Id.,
429 F.3d at 506. Not only is the time frame different from Finlay’s EEOC charge to his judicial
complaint—the March 31, 2014, termination versus McGinnis’s earlier practice of following
Finlay around while he locked the building and the one night McGinnis told his “wrong
neighborhood” story—but also the conduct is different from EEOC charge to judicial
complaint—instantaneous termination rather than a prolonged environmental exposure. Further,
McGinnis is nowhere mentioned in the EEOC charge. Although EEOC charges are to be
construed liberally, Finlay’s charge does not present even the slightest hint of a potentially

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hostile work environment to allow the EEOC to conduct the appropriate investigation. The
Court concludes Finlay’s hostile work environment claim was not included in his EEOC charge,
is not reasonably related to his racially discriminatory discharge claim, was not likely to be
developed by reasonable investigation of the original complaint, and was, therefore, not
administratively exhausted prior to suit. For this reason, Fortis’s motion to dismiss the Title VII
claim of hostile work environment for lack of subject matter jurisdiction will be granted. The
hostile work environment claim pursuant to 42 U.S.C. § 1981 does not require exhaustion. See
Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460 (1975).
B. Sufficiency of claims under Rule 12(b)(6)
Although Finlay’s § 1981 claim of hostile work environment need not be exhausted, the
Court must yet consider its sufficiency as a claim for relief. Without repeating the allegations
here, the Court concludes Finlay’s allegations about McGinnis following him around while
Finlay locked up the building at night and McGinnis’s one story about being in the “wrong
neighborhood” in Boston do not constitute either severe racial harassment or a pervasive, hostile
work environment. Finlay has failed to plausibly allege that McGinnis’s “distrustful shadowing”
was due to racial animus. And the “wrong neighborhood” story, while perhaps unfortunate, does
not rise to the level of a severe affront based on race. See Boyer-Liberto v. Fontainebleau Corp.,
786 F.3d 264, 277-78 (4th Cir. 2015) (en banc) (isolated incident, if extremely serious, can
amount to discriminatory change in terms and conditions of employment). Finlay’s claim of
hostile work environment fails to state a claim for relief. The corresponding portions of Counts I
and II and all of Count IV will be dismissed.

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C. Racially Discriminatory Discharge in Violation of Title VII and Section 1981
Fortis seeks summary judgment on Finlay’s racially discriminatory discharge claims
because it asserts he was terminated for a legitimate, nondiscriminatory reason, i.e., Finlay failed
to have a current dental assistant license. (See Def.’s Mot. to Dismiss Supp. Mem. 15-19.) The
evidence offered in support of this nondiscriminatory reason for termination is deficient,
however. Fortis has provided evidence showing Finlay’s replacement renewed her license after
she was hired. (See Def.’s Mot. Dismiss. Ex. 1-H (showing a lapse in licensure between
February 17, 2007, and May 7, 2014).) Defendant’s argument is curious because the critical
issue is what, if any, license Finlay’s replacement had at the time she was hired. Fortis’s
evidence, in itself, creates a genuine dispute of material fact, thereby preventing the rendering of
summary judgment. Further, because no discovery has occurred, it would be inappropriate for
the Court to rule on summary judgment at this juncture. Therefore, Defendant’s motion for
summary judgment on Finlay’s racially discriminatory discharge claims will be denied without
prejudice.
D. Retaliation for Using Protected Leave under the Family and Medical Leave Act
Fortis also requests summary judgment in its favor on Finlay’s FMLA retaliation claim
because, Fortis contends, Finlay has not plausibly alleged causation between his allegedly
protected leave and Fortis’s alleged retaliation. (See Def.’s Mot. to Dismiss Supp. Mem. 19-21.)
Fortis argues, even assuming Finlay can prove causation, he cannot prove but-for causation
because Fortis had a legitimate, nondiscriminatory reason for terminating him. For the reasons
explained below, Defendant’s motion will be denied.
Although Fortis has not contended that Finlay has failed to state a claim for relief, the
Court nevertheless observes that Finlay has adequately pled causation on his FMLA retaliation

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claim at this stage of the litigation. In considering Fortis’s motion for summary judgment as to
this count, the Court refers to the burden-shifting approach of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). “To establish a prima facie retaliation claim for discriminatory
discharge under Title VII or the FMLA, the plaintiff must show: (1) protected activity;
(2) ‘materially’ adverse employment action; and (3) a causal connection between the protected
activity and materially adverse action.” Taylor v. Rite Aid Corp., 993 F. Supp. 2d 551, 566 (D.
Md. 2014) (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). “If the
employer takes the action ‘shortly after’ learning about the protected activity, courts may infer a
causal connection between the two.” Id. (quoting Price v. Thompson, 380 F.3d 209, 213 (4th
Cir. 2004)). The temporal proximity of Finlay’s taking leave for a serious medical condition and
his termination satisfy this prima facie element of causation.
Fortis relies on Taylor for the proposition that “[t]emporal proximity between the use of
leave and termination is not enough,” and that Finlay has failed to prove “but-for” causation on
his FMLA claim because Fortis demonstrated a legitimate, nondiscriminatory reason for
terminating him. (See Def.’s Mot. to Dismiss Supp. Mem. 20-21.) The same deficiency in
Fortis’s proof on its claimed legitimate, nondiscriminatory reason in the context of Finlay’s
racial discrimination claim is equally applicable to this argument. Because of this evidentiary
deficiency, Fortis has failed to demonstrate the absence of a genuine dispute of material fact and
is not entitled to summary judgment as to the FMLA claim.
E. Motion for Leave to File Surreply

Finlay also moves for leave to file a surreply claiming that Fortis raised new arguments in

its reply. (See Pl.’s Mot. Surreply, ECF No. 13.) Defendant contends that leave should be

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denied because Finlay had a full opportunity to address Fortis’s arguments and that no new
arguments were raised in its reply. (Def.’s Opp’n, ECF No. 14.)
“Unless otherwise ordered by the Court, surreply memoranda are not permitted to be
filed.” Local Rule 105.2(a) (D. Md. 2014). However, “[s]urreplies may be permitted when the
moving party would be unable to contest matters presented to the court for the first time in the
opposing party’s reply.” Khoury v. Meserve, 268 F. Supp. 2d 600, 605 (D. Md. 2003) (citing
Lewis v. Rumsfeld, 154 F. Supp. 2d 56, 61 (D.D.C. 2001)), aff’d, 85 F. App’x 960 (4th Cir. 2004)
(unpublished). The Court notes Defendant’s proffer in its reply of new exhibits pertaining to
Einolf’s hiring and the alleged requirement of having a license for the instructor position. (See
Def.’s Reply, Ex. 1.) It is appropriate to give Finlay an opportunity to respond to this new
evidence. His motion will be granted.
VII. Conclusion
Accordingly, for the reasons discussed supra, Defendant’s Motion to Dismiss or, in the
alternative, for Summary Judgment, will be granted in part and denied in part. It will be granted
as to Finlay’s hostile work environment claims and otherwise denied. At his request, Finlay’s
ADA claim will be dismissed without prejudice. Finally, Finlay’s motion for leave to file a
surreply will be granted. A separate order follows.
DATED this 8th day of October, 2015.

BY THE COURT:

______________/s/____________________
James K. Bredar
United States District Judge

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