Gomer v. Home Depot U.S.A., Inc.
Filing
62
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 10/4/2016. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANTHONY GOMER,
:
Plaintiff,
:
v.
:
HOME DEPOT U.S.A., INC.,
et al.,
:
Civil Action No. GLR-16-356
:
Defendants.
:
MEMORANDUM OPINION
THIS MATTER is before the Court on Plaintiff Anthony Gomer’s
Motion for Leave to File Second Amended Complaint (ECF No. 25) and
Motion to Remand (ECF No. 35).
Also pending before the Court are
Defendants’, Home Depot U.S.A., Inc. (“Home Depot”) and Christopher
Cote (collectively, “Defendants”), Motions to Dismiss (ECF Nos. 17,
38) and Home Depot’s Motion to Compel Discovery Responses and for an
Order Deeming Facts in Defendant’s First Requests for Admission to be
Admitted as True1 (ECF No. 31).
No hearing is necessary.
The Motions are ripe for disposition.
See Local Rule 105.6 (D.Md. 2016).
For the reasons outlined below, the Court will deny Gomer’s
Motion to Remand; grant in part and deny in part Gomer’s Motion for
Leave to File Second Amended Complaint; accept Gomer’s proposed Second
Amended Complaint, but only with respect to Counts III and IV; grant
in part and deny in part as moot Home Depot’s Motion to Dismiss; and
grant Cote’s Motion to Dismiss.
1
Under Local Rule 104.4 (D.Md. 2016), “discovery shall not
commence . . . until a scheduling order is entered.” Because the
Court has not entered a scheduling order in this case, the Court will
deny Home Depot’s Motion without prejudice.
I.
BACKGROUND
Gomer, a middle-aged African-American male, is a former Home
Depot employee.
(First Am. Compl. ¶¶ 13, 21, 34, ECF No. 11-1). He
began as a part-time associate, but later obtained a full-time
position.
(Id.
¶ 13).
Home Depot promoted Gomer to the role of
supervisor, and in this role, Gomer earned $14 per hour and supervised
two
departments
between
2012
and
2014.
(Id.
¶¶
13,
34,
53).
Defendants Bradley Ferraro2 and Cote were Gomer’s supervisors.
The most senior supervisors at the Home Depot store where Gomer
worked maintained a practice of granting lower-level supervisors the
privilege of carrying keys to open and close the store.
(Id. ¶ 47).3
The senior supervisors extended this privilege based on seniority of
the lower-level supervisors.
(Id.).
employment,
the
Gomer
attained
privilege of carrying keys.
On several occasions during his
seniority
(Id. ¶ 48).
necessary
to
earn
the
Nonetheless, Gomer’s
supervisors withheld the privilege from Gomer, while extending it to
white supervisors, even those who had less seniority than Gomer.
(Id.).
On multiple occasions, Gomer demanded that his supervisors
permit him to carry keys, but they refused, explaining that Gomer
2
On September 16, 2016, the Court ordered Gomer to show cause
why the First Amended Complaint should not be dismissed against
Ferraro without prejudice because the Court had no record that Ferraro
had been served. (ECF No. 52). The parties responded on September
21, 2016. (ECF Nos. 60, 61). Because the Court will dismiss Counts I
and II -- the only Counts asserted against Ferraro -- the Court will
terminate Ferraro as a Defendant in this action.
3
For consistency and ease of reference, the Court has renumbered
allegation numbers 1 through 8 on pages 9 through 10 of the First
Amended Complaint as 44 through 51.
2
would
have to successfully complete probation before they would extend that
privilege.
(Id. ¶ 49).
Gomer was the only supervisor who was
required to serve probation. (Id.).
Gomer
alleges
that
after
he
“protest[ed]” his supervisors’
refusal to allow him to carry keys, his supervisors and another
employee “retaliat[ed]” against him by “conspir[ing]” to carry out an
elaborate plot that would culminate in Gomer’s termination.
35).
First,
Defendants
Ferraro
and
Cote,
as
well
as
(Id. ¶
Criss
Butterbaugh, Mike Fillipone, and Gary Templar, “conspired” to transfer
Gomer to the Tools Rental Department.
(Id.).
These individuals knew
Gomer had no experience in this department, and they refused to
provide him training or a staff to help him run the department.
(Id.).
While Gomer was supervising the Tools Rental Department, Templar
brought some customers to Gomer and introduced them as “gentlemen from
the church nearby” (the “Church Customers”) who needed to rent a
generator.
(Id.).
(Id. ¶ 37).
Templar asked Gomer to perform the rental.
Because Gomer had never received training on how to rent a
generator, Ryan Kane, a veteran of the department, executed the rental
contract.
(Id. ¶ 38).
The Church Customers did not return the
generator to the store by the deadline identified in the rental
contract.
(Id. ¶ 39).
“[I]n playing out their script,” Gomer’s
supervisors chose not to pursue recovery of the generator through law
enforcement agents, instead electing to accuse Gomer of stealing the
3
generator.
(Id.).
Gomer’s supervisors then used the false allegation
of theft to terminate Gomer’s employment.4
(Id. ¶ 40).
Before Gomer’s termination, on December 31, 2012 and November 19,
2014, Defendants “said and wrote a statement to the hearing of several
persons that [Gomer] has shoplifted a generator” from the store.5 (Id.
¶
14).
Defendants
transmitted
this
false
allegation
to
their
corporate attorneys and the staff of the store and corporate office.
(Id. ¶¶ 15, 16).
corporate
generator
attorneys
and
prosecution.
Also
After learning of this allegation, Home Depot’s
contacted
threatening
Gomer,
legal
demanding
action,
payment
including
for
the
criminal
(Id. ¶ 15).
prior
to
his
termination,
in
October
2014,
Gomer’s
department and the entire store were short-staffed, causing Gomer to
work “several overtime hours.”
(Id. ¶ 54).
but he was “ignored” and “never paid.”
Gomer demanded payment,
(Id. ¶ 55).
In November 2014, Gomer filed a charge of discrimination with the
Howard County Office of Human Rights and the United States Equal
Employment Opportunity Commission.
(Id. ¶ 11).
After receiving a
right to sue letter, Gomer filed suit in the Circuit Court for
Baltimore City, Maryland on November 20, 2015.
(ECF No. 2).
Gomer
named only Home Depot as a defendant and raised claims for defamation
(Count I) and civil conspiracy (Count II).
(Id.).
Home Depot timely
removed the matter to this Court on February 8, 2016.
4
(ECF No. 1).
Gomer does not allege when Home Depot terminated his
employment.
5
It appears Gomer may have intended to allege Ferraro and Cote
4
On February 16, 2016, Home Depot filed a Motion to Dismiss
Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6).
(ECF No. 8).
Gomer filed a First Amended Complaint on
March 8, 2016, in which he added Ferraro and Cote as defendants and
raised new claims for (1) disparate treatment in violation of Title
VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42
U.S.C. §§ 2000e et seq. (2012) (Count III), and (2) unpaid overtime in
violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201
et seq. (2012), and the “Maryland Fair Labor Practices Act”6 (Count
IV).
(First Am. Compl.).
Gomer asserts Count I against Home Depot,
Ferraro, and Cote; Count II against Ferraro and Cote; and Counts III
and IV against Home Depot.
(Id.).
On March 18, 2016, the Court
denied Home Depot’s Motion to Dismiss as moot without prejudice.
(ECF
No. 16).
On
March
22,
2016,
Home
Depot
filed
a
Plaintiff’s First Amended Complaint. (ECF No. 17).
Motion
to
Dismiss
On April 30, 2016,
Gomer filed a Motion for Leave to File Second Amended Complaint,
maintaining his four claims, but adding new factual allegations.
No. 25).
(ECF
After serving several discovery requests on Gomer, on June
7, 2016, Home Depot filed a Motion to Compel Discovery Responses and
for an Order Deeming Facts in Defendant’s First Requests for Admission
to be admitted as True.
(ECF No. 31).
Gomer filed a Motion to Remand
“defamed” Gomer on November 9, 2014 and December 31, 2014.
6
Maryland does not have a “Fair Labor Practice Act.” In his
proposed Second Amended Complaint, Gomer correctly identifies the
Maryland analog to the FLSA as the Maryland Wage and Hour Law
(“MWHL”), Md.Code Ann., Lab. & Empl. §§ 3-401 et seq. (West 2016).
5
on July 19, 2016 (ECF No. 35), and Cote filed a Motion to Dismiss
Amended Complaint on July 26, 2016 (ECF No. 38).
All pending Motions
are fully briefed and ripe for disposition.
II.
A.
DISCUSSION
Motion to Remand
The Court begins with the threshold issue of whether it has
subject-matter jurisdiction over this case.
The Court will deny
Gomer’s Motion to Remand because the Court had diversity jurisdiction
over the action when Home Depot removed it to this Court.
Gomer argues remand is warranted because the Court no longer has
diversity jurisdiction over this case.
He contends his First Amended
Complaint defeats the complete diversity of citizenship required under
28 U.S.C. § 1332 (2012) because it adds Cote and Ferraro, who, like
Gomer, are Maryland citizens.
The party seeking removal carries the burden of establishing
federal jurisdiction.
Mulcahey v. Columbia Organic Chems. Co., 29
F.3d 148, 151 (4th Cir. 1994) (citing Wilson v. Republic Iron & Steel
Co., 257 U.S. 92 (1921)).
jurisdiction
because
federalism concerns.
The Court must strictly construe removal
removal
jurisdiction
raises
significant
Id. (citing Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100 (1941)).
Accordingly, if federal jurisdiction is
doubtful, the Court should grant a motion to remand.
Id. (citation
omitted).
A defendant may remove a state court action to federal court if
the federal court would have original subject-matter jurisdiction over
6
the action.
28 U.S.C. § 1441(a) (2012).
Federal district courts have
original jurisdiction over civil actions that arise under federal law,
28 U.S.C. § 1331, or have an amount in controversy exceeding $75,000,
exclusive
of
interests
and
costs,
citizenship, 28 U.S.C. § 1332(a).
and
complete
diversity
of
There is complete diversity of
citizenship if “no party shares common citizenship with any party on
the other side.” Cunningham v. Twin City Fire Ins. Co, 669 F.Supp.2d
624, 627 (D.Md. 2009) (quoting Mayes v. Rapoport, 198 F.3d 457, 461
(4th Cir. 1999)).
For purposes of diversity jurisdiction, a corporation is a
citizen of every State in which it is incorporated or maintains its
principal place of business.
28 U.S.C. § 1332(c)(1).
A corporation’s
principal place of business is “the place where [the] corporation’s
officers direct, control, and coordinate the corporation’s activities.
Hertz Corp. v. Friend, 559 U.S. 77, 92–93 (2010).
In practice, a
corporation’s principal place of business “should normally be the
place where the corporation maintains its headquarters.”
Id. at 93.
An individual is a citizen of the state of his domicile, “i.e. the
state he considers his permanent home.”
Dyer v. Robinson, 853 F.Supp.
169, 172 (D.Md. 1994).
When a plaintiff amends his complaint after removal, the court
considers the original complaint rather than the amended complaint in
determining whether removal was proper.
Pinney v. Nokia, Inc., 402
F.3d 430, 443 (4th Cir. 2005); see Pullman Co. v. Jenkins, 305 U.S.
534, 537 (1939) (explaining that in determining whether removal was
7
proper, the court considers the plaintiff’s pleading at the time of
the removal petition).
This rule “is grounded not only in well over a
half-century of precedent, but also in sound policy.
If parties were
able to defeat jurisdiction by way of post-removal [amendments], they
could unfairly manipulate judicial proceedings.”
Dotson v. Elite Oil
Field Servs., Inc., 91 F.Supp.3d 865, 874 (N.D.W.Va. 2015) (quoting
Hatcher v. Lowe’s Home Centers, Inc., 718 F.Supp.2d 684, 688 (E.D.Va.
2010)).
Here, the Court concludes it would have original jurisdiction
over this matter under 28 U.S.C. § 1332.
In his original Complaint,
Gomer names only Home Depot as a Defendant, and he alleges Home Depot
is headquartered in Atlanta, Georgia.
(Compl. ¶ 3, ECF No. 2).
Because Gomer alleges he lives only in Maryland, (id. ¶ 2), Gomer and
Home Depot are completely diverse.
controversy of $435,000.
concludes
removal
was
And, Gomer alleges an amount in
(Id. ¶¶ 22, 33).
proper
jurisdiction over this case.
and
the
The Court, therefore,
Court
has
subject-matter
Accordingly, the Court will deny Gomer’s
Motion to Remand.
B.
Motion for Leave to Amend
Next, the Court considers whether to accept Gomer’s proposed
Second Amended Complaint. The Court will grant Gomer’s Motion for
Leave to Amend as to his claims for disparate treatment and unpaid
overtime wages because the Court finds no prejudice, bad faith, or
futility.
But, the Court will deny Gomer’s Motion with respect to his
claims for defamation and civil conspiracy because amendment would be
8
futile.
1.
Legal Standard
Rule 15(a)(1) provides that a party may amend its pleading once
as a matter of course within twenty-one days after service of a motion
under Rule 12(b).
Because Gomer filed his proposed Second Amended
Complaint after this deadline, Rule 15(a)(2) applies.
Under Rule 15(a)(2), “[t]he court should freely give leave [to
amend a complaint] when justice so requires.” Fed.R.Civ.P. 15(a)(2).
“This directive gives effect to the federal policy in favor of
resolving
cases
technicalities.”
on
the
merits
instead
of
disposing
of
them
on
Mayfield v. Nat’l Ass’n for Stock Car Auto Racing,
Inc., 674 F.3d 369, 379 (4th Cir. 2012) (quoting Matrix Capital Mgmt.
Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009)).
This
federal
policy
“requires
that
plaintiff
be
opportunity to cure a formal defect in his pleading.”
given
every
Ostrzenski v.
Seigel, 177 F.3d 245, 252–53 (4th Cir. 1999) (citation omitted).
The
decision whether to grant leave to amend a complaint lies within the
sound discretion of the district court.
Medigen of Ky., Inc. v. Pub.
Serv. Comm’n of W.Va., 985 F.2d 164, 167–68 (4th Cir. 1993) (citation
omitted).
In the Fourth Circuit, “delay alone is not sufficient reason to
deny leave to amend.”
(4th Cir. 1986).
Johnson v. Oroweat Foods Co., 785 F.2d 503, 509
Leave to amend is properly denied when amendment
would prejudice the opposing party, the moving party has exhibited bad
faith, or amendment would be futile. Edell & Assocs., P.C. v. Law
9
Offices of Peter G. Angelos, 264 F.3d 424, 446 (4th Cir. 2001) (citing
Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999)).
Leave to amend would be futile when an amended complaint could
not survive a motion to dismiss for failure to state a claim.
See
U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376
(4th Cir. 2008).
the
ground
of
“Leave to amend, however, should only be denied on
futility
when
the
proposed
insufficient or frivolous on its face.”
amendment
is
clearly
Johnson, 785 F.2d at 510
(citing Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir.
1980)); see TFFI Corp. v. Williams, No. DKC 13-1809, 2015 WL 5008708,
at *2 (D.Md. Aug. 20, 2015) (“Although the viability of Plaintiff’s
claims
will
be
tested
by
the
anticipated
dispositive
motions,
Plaintiff’s motion for leave to amend alleges enough plausible facts
against the remaining defendants to not be futile.”).
In determining whether an amendment is prejudicial, the Court
considers the nature of the amendment and its timing.
Harvey, 438 F.3d 404, 427 (4th Cir. 2006).
Laber v.
The further a case has
progressed, the more likely it is that amendment will be prejudicial.
Mayfield, 674 F.3d at 379.
“A common example of a prejudicial
amendment is one that ‘raises a new legal theory that would require
the gathering and analysis of facts not already considered by the
[defendant, and] is offered shortly before or during trial.’”
Laber,
438 F.3d at 427 (quoting Johnson, 785 F.2d at 510).
By contrast, an amendment is not prejudicial “if it merely adds
an additional theory of recovery to the facts already pled and is
10
offered before any discovery has occurred.”
Id. (citing Davis, 615
F.2d at 613); see Kalos v. Law Offices of Eugene A. Seidel, P.A., No.
1:09CV833 (JCC), 2009 WL 4683551, at *3 (E.D.Va. Dec. 3, 2009)
(“Because the trial date is not yet set and no discovery has been
taken, the Court finds that allowing leave to amend the Amended
Complaint
would
not
be
unduly
prejudicial
to
Defendants.”).
Additionally, an amendment is not prejudicial if the plaintiff does
not add new claims or parties.
See Heavener v. Quicken Loans, Inc.,
No. 3:12-CV-68, 2013 WL 1314563, at *3 (N.D.W.Va. Mar. 26, 2013)
(“Defendants will not be prejudiced by the amendments as Plaintiff has
only added more facts to support his claim—he has not alleged new
claims or added new parties.”).
Furthermore, “[a]lthough there is nothing improper in shoring up
a complaint’s allegations to address deficiencies identified in a
motion
to
dismiss,
‘repeated
failure
to
cure
deficiencies
by
amendments previously allowed’ is a sufficient basis to deny amendment
of pleadings.”
Young v. Giant Food Stores, LLC, 108 F.Supp.3d 301,
323 (D.Md. 2015) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962));
see Heavener, 2013 WL 1314563, at *3 (finding no prejudice when the
plaintiff filed only one motion for leave to amend and had not
exhibited a repeated failure to cure deficiencies in the complaint).
2.
Analysis
a.
Prejudice and Bad Faith
Gomer does not add new claims in his proposed Second Amended
Complaint.
Rather, he adds many new factual allegations in attempt to
11
bolster the claims in his First Amended Complaint.
Gomer contends his
new allegations are necessary to “flesh out” his Complaint.
25).
(ECF No.
Gomer explains that his inability to locate vital case-related
documents and his counsel’s poor health have prevented him from
presenting the new allegations until now.
Home Depot argues that because all of Gomer’s new allegations
were within his exclusive knowledge when he commenced this lawsuit,
Gomer should have included them in his previous Complaints.
Home
Depot contends Gomer’s piecemeal approach to presenting his Complaint
“is delaying the progress of this case and forcing [Home Depot] to
waste its resources responding to each iteration of the complaint.”
(ECF No. 27).
Gomer’s
Also, Home Depot argues that if the Court accepts
proposed
Second
Amended
Complaint,
Home
Depot
will
be
prejudiced because it has already served discovery requests based on
the First Amended Complaint.
Most, if not all, of the new allegations in Gomer’s proposed
Second
Amended
Complaint
appear
to
be
attempts
to
rectify
the
purported deficiencies in the First Amended Complaint that Home Depot
identified in its Motion to Dismiss.
While the Court agrees that
Gomer’s conduct is delaying the progress of this case, delay alone is
not sufficient reason to deny Gomer’s Motion.
509.
Johnson, 785 F.2d at
Moreover, there is nothing improper about Gomer using his Second
Amended Complaint to attempt to shore up his allegations in response
to Home Depot’s Motion to Dismiss, as long as Gomer has not repeatedly
failed to remedy deficiencies by amendments the Court previously
12
allowed.
182).
See Young, 108 F.Supp.3d at 323 (quoting Foman, 371 U.S. at
As this is the first instance in which Gomer has moved for
leave to amend, the Courts finds no such repeated failure and no bad
faith because Gomer is using his Motion for Leave to Amend for a
permissible purpose.
The Court is not persuaded by Home Depot’s assertion that it is
“wast[ing] its resources” in responding to each iteration of Gomer’s
Complaint.
This case remains in its initial stages and the Court has
not scheduled a trial.
To be sure, Home Depot already sent discovery
requests to Gomer, but as the Court previously indicated, those
requests were premature because the Court has not issued a scheduling
order.
Accordingly, the Court concludes that accepting Gomer’s Second
Amended Complaint would not unduly prejudice Home Depot.
b.
Futility
i.
Defamation
Under Maryland law, “a defamatory statement is one which tends to
expose a person to public scorn, hatred, contempt or ridicule, thereby
discouraging others in the community from having a good opinion of, or
from associating or dealing with, that person.”
Batson v. Shiflett,
602 A.2d 1191, 1210 (Md. 1992) (citation omitted).
To sustain a
defamation claim, a plaintiff, like Gomer, who is not a public figure
must demonstrate four elements: “(1) the defendant made a defamatory
communication to a third person; (2) that the statement was false; (3)
that the defendant was at fault in communicating the statement; and
(4) that the plaintiff suffered harm.”
13
Ziemkiewicz v. R+L Carriers,
Inc.,
996
F.Supp.2d
378,
393
(D.Md.
2014)
(quoting
Samuels
v.
Tschechtelin, 763 A.2d 209, 241–42 (Md.Ct.Spec.App. 2000)).
A plaintiff cannot prove the third element of a defamation claim
if the allegedly defamatory statements are privileged.
See Szot v.
Allstate Ins. Co., 161 F.Supp.2d 596, 607–09 (D.Md. 2001) (granting
summary judgment for defendant on plaintiff’s defamation claim because
although statements were defamatory per se, they were privileged).
Communications arising out of the employer-employee relationship
enjoy a qualified privilege.
767 A.2d 321, 328 (Md. 2001)).
Id. at 607 (quoting Gohari v. Darvish,
Statements fall into this category if
they are made for a reasonable employment-related purpose, such as
communicating the circumstances and alleged misconduct that served as
the basis for terminating an employee.
See id. (applying Maryland
law); see also Happy 40, Inc. v. Miller, 491 A.2d 1210, 1216–17
(Md.Ct.Spec.App.
qualified
1985)
immunity
when
(recognizing
explaining
employer
to
was
remaining
protected
employees
employer discharged plaintiff for suspicion of theft).
by
that
Statements
also fall into this category if they are made “in furtherance of a
protection of the employer’s property.”
(quoting
Exxon
Corp.,
USA
v.
Szot, 161 F.Supp.2d at 607
Schoene,
508
A.2d
142,
147
(Md.Ct.Spec.App. 1986)); see Jacron Sales Co. v. Sindorf, 350 A.2d
688, 700 (Md. 1976) (recognizing that employer’s statements suggesting
that former employee had stolen inventory was entitled to qualified
privilege).
14
In the context of defamation, a defendant will lose its qualified
privilege if the plaintiff proves:
(1) the publication is made with malice, that
is, with knowledge of falsity or reckless
disregard for truth; (2) the statement was not
made in furtherance of the interest for which
the privilege exists; (3) the statement is made
to a third person other than one ‘whose hearing
is reasonably believed to be necessary or useful
to the protection of the interest [,]’ and (4)
the statement includes defamatory matter not
reasonably believed to be in line with the
purpose for which the privilege was granted.
Szot, 161 F.Supp.2d at 608 (quoting Mareck v. Johns Hopkins Univ., 482
A.2d 17, 21 (Md.Ct.Spec.App. 1984)).
Gomer alleges Defendants made a defamatory communication when
they told their “corporate attorneys,” “employees,” and “affiliates”
that Gomer stole a generator.
ECF No. 25-1).
(Proposed Second Am. Compl. ¶¶ 15, 31,
Even assuming, without finding, Defendants actually
made this communication to these recipients, it was protected by a
qualified privilege because it was made for a reasonable employmentrelated purpose -- communicating the reason for Gomer’s eventual
termination -- and made in furtherance of protecting Home Depot’s
property.
privilege.
Gomer fails to allege any facts that would overcome this
Thus, the Court concludes Gomer’s failure to allege
Defendants were at fault makes amendment futile.
Accordingly, the
Court will deny Gomer’s Motion as to his defamation claim.7
7
A plaintiff cannot sustain a claim for tortious civil
conspiracy unless the plaintiff proves other tortious injury.
Marshall v. James B. Nutter & Co., 758 F.3d 537, 541 (4th Cir. 2014)
(quoting Alleco Inc. v. Harry & Jeanette Weinberg Found., Inc., 665
A.2d 1038, 1045 (Md. 1995)); see Crussiah v. Inova Health Sys., No.
15
ii.
Disparate Treatment under Title VII
The elements of a disparate treatment claim are: “(1) membership
in a protected class; (2) satisfactory job performance; (3) an adverse
employment action; and (4) different treatment of similarly situated
employees outside the protected class.”
Hawkins v. Leggett, 955
F.Supp.2d 474, 491 (D.Md. 2013).
“An adverse employment action is a discriminatory act that
‘adversely
affect[s]
the
plaintiff’s employment.’”
terms,
conditions,
or
benefits
of
the
Holland v. Wash. Homes, Inc., 487 F.3d 208,
219 (4th Cir. 2007) (quoting James v. Booz-Allen & Hamilton, Inc., 368
F.3d 371, 375 (4th Cir. 2004)).
“Although conduct ‘short of ultimate
employment decisions can constitute adverse employment action,’ there
still must be a ‘tangible effect on the terms and conditions of
employment.’”
Geist v. Gill/Kardash P’ship, 671 F.Supp.2d 729, 737
n.6 (D.Md. 2009) (quoting James, 368 F.3d at 371, 377).
employee’s
opportunities
for
promotion
is
an
adverse
Reducing an
employment
action. See Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999).
As an African-American, Gomer is a member of a protected class.
See Gbenoba v. Montgomery Cty. Dep’t of Health & Human Servs., 209
F.Supp.2d 572, 576 (D.Md. 2002) (recognizing that African-Americans
are a protected class), aff’d, 57 F.App’x 572 (4th Cir. 2003). Gomer
also alleges he attained the seniority necessary to carry keys, but
his
supervisors
denied
him
that
privilege,
while
extending
the
TDC-14-4017, 2016 WL 3098836, at *2 (D.Md. June 1, 2016) (dismissing
civil conspiracy claim because plaintiff did not sufficiently plead
fraud claim). Thus, the Court will also deny Gomer’s Motion as to his
16
privilege
to
white
supervisors
with
less
seniority
than
Gomer.
(Proposed Second Am. Compl. ¶ 53). Gomer further alleges that by
denying him the privilege of carrying keys, Gomer’s supervisors
reduced his opportunities for promotion because a supervisor cannot
take the Regional Assistant Management Test if the supervisor does not
carry keys.
(Id. ¶¶ 52, 55).
Without deciding whether the disparate treatment allegations in
Gomer’s proposed Second Amended Complaint are sufficient to survive a
Rule 12(b)(6) motion to dismiss, the Court concludes Gomer states
enough plausible facts that amendment would not be futile.
The Court
will, therefore, grant Gomer’s Motion as to his disparate treatment
claim and deny Home Depot’s Motion to Dismiss (ECF No. 17) as moot as
to this claim.
See Venable v. Pritzker, No. GLR-13-1867, 2014 WL
2452705, at *5 (D.Md. May 30, 2014) (“When a plaintiff files an
amended complaint, it generally moots any pending motions to dismiss
because the original complaint is superseded.”) aff’d, 610 F.App’x 341
(4th Cir. 2015).
iii. Failure to Pay Overtime in Violation of FLSA and
MWHL
The MWHL is “the State parallel” to the FLSA, Friolo v. Frankel,
819 A.2d 354, 361 (Md. 2003), and the requirements to state a claim
under the MWHL “mirror those of the [FLSA,]” Turner v. Human Genome
Scis., Inc., 292 F.Supp.2d 738, 744 (D.Md. 2003).
To state a claim
for unpaid overtime under these statutes, a plaintiff must allege:
“(1) that he worked overtime hours without compensation; and (2) that
civil conspiracy claim.
17
the employer knew or should have known that he worked overtime but
failed to compensate him for it.”
Butler v. DirectSat USA, LLC, 800
F.Supp.2d 662, 667 (D.Md. 2011) (citation omitted).
To state a plausible claim for relief sufficient to survive a
motion to dismiss, a plaintiff need not allege the exact number of
overtime hours he worked.
See id. at 668 (concluding plaintiffs
stated a plausible claim for relief without estimating the number of
overtime hours they worked); see also Hawkins v. Proctor Auto Serv.
Ctr., LLC, No. RWT 09CV1908, 2010 WL 1346416, at *1 (D.Md. Mar. 30,
2010) (same).
Gomer alleges he worked “several overtime hours” in July through
October 2014.
(Proposed Second Am. Compl. ¶ 24).
He goes on to
specify that during this period, he “consistently exceeded his regular
hours on [a] daily basis by at least two . . . extra hours, by getting
off work at 4:00 P.M. and beyond, instead of 2:00 P.M.”
(Id. ¶ 61).
Gomer describes the activities he performed during the overtime hours,
such as attending to customers and labeling tools.
(Id. ¶ 62).
He
alleges Home Depot not only knew he worked overtime hours between July
and October 2014, but also refused to pay Gomer for the overtime
hours, despite his requests. (Id. ¶ 63).
Without determining whether the FLSA and MWHL allegations in
Gomer’s Second Amended Complaint are sufficient to survive a Rule
12(b)(6) motion to dismiss, the Court concludes Gomer states enough
plausible facts that amendment would not be futile.
18
The Court will,
therefore, grant Gomer’s Motion as to his FLSA and MWHL claims and
deny Home Depot’s Motion to Dismiss as moot as to these claims.
C.
Motions to Dismiss
Defendants’ Motions to Dismiss are moot as to Gomer’s Title VII,
FLSA, and MWHL claims.
But, these Motions are not moot as to Gomer’s
defamation and civil conspiracy claims because, for the reasons
discussed above, the Court will deny Gomer’s Motion for leave to
further amend these claims.
Hence, the Court now reviews whether
Gomer’s defamation and civil conspiracy claims, as alleged in Gomer’s
First Amended Complaint, survive Defendants’ Motions to Dismiss.
The
Court concludes they do not and will grant Defendants’ Motions as to
these claims.
1.
Standard of Review
“The purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint,” not to “resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.” Edwards v. City
of Goldsboro, 178 F.3d 231, 243–44 (4th Cir. 1999) (quoting Republican
Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
A complaint
fails to state a claim if it does not contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief,” Fed.R.Civ.P. 8(a)(2), or does not “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)).
A claim is facially plausible “when the plaintiff pleads factual
19
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 555 U.S. at 556).
“Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”
Id. (citing Twombly, 550 U.S. at 555).
Though the
plaintiff is not required to forecast evidence to prove the elements
of the claim, the complaint must allege sufficient facts to establish
each element.
Goss v. Bank of Am., N.A., 917 F.Supp.2d 445, 449
(D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012)), aff’d sub nom. Goss v. Bank of Am., NA, 546 F.App’x 165 (4th
Cir. 2013).
In considering a Rule 12(b)(6) motion, a court must examine the
complaint
as
a
whole,
consider
the
factual
allegations
in
the
complaint as true, and construe the factual allegations in the light
most favorable to the plaintiff.
Albright v. Oliver, 510 U.S. 266,
268 (1994); Lambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266,
268 (4th Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)).
But, the court need not accept unsupported or conclusory
factual allegations devoid of any reference to actual events, United
Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or
legal conclusions couched as factual allegations, Iqbal, 556 U.S. at
678.
2.
Analysis
a.
Defamation
In his First and Second Amended Complaints, Gomer identifies the
20
same allegedly defamatory statement: Defendants told their employees,
affiliates, and corporate attorneys that Gomer stole a generator.
Gomer, however, neither identifies the employees or affiliates who
allegedly received the defamatory communication, nor specifies when
these
individuals
Compl.).
received
this
communication.
(See
First
Am.
The Court need not accept these unsupported and conclusory
allegations as true.
See Hirst, 604 F.2d at 847.
But even if the
Court did accept that Defendants told Home Depot’s employees and
affiliates that Gomer stole Home Depot property, Gomer fails to allege
any facts to overcome the qualified privilege Defendants enjoy.
See
Szot, 161 F.Supp.2d at 607 (discussing the qualified privilege).
And,
this privilege also applies to the alleged defamatory communication to
Defendants’ corporate attorneys because Defendants made it for a
reasonable employment-related purpose and in furtherance of protecting
Home Depot’s property.
The Court, therefore, concludes Gomer fails to
sufficiently allege defamation.
Accordingly, the Court will grant
Defendants’ Motions as to this claim.8
III. CONCLUSION
For the foregoing reasons, the Court will DENY Gomer’s Motion to
Remand (ECF No. 35); DENY without prejudice Home Depot’s Motion to
Compel
Discovery
Responses
and
for
an
Order
Deeming
Facts
in
Defendant’s First Requests for Admission to be Admitted as True (ECF
No. 31); GRANT in part and DENY in part Gomer’s Motion for Leave to
8
Because Gomer fails to state a plausible defamation claim, the
Court will also dismiss his claim for tortious civil conspiracy. See
Marshall, 758 F.3d at 541 (quoting Alleco, 665 A.2d at 1045).
21
File Second Amended Complaint (ECF No. 25); ACCEPT Gomer’s proposed
Second Amended Complaint, but only with respect to Counts III (Title
VII) and IV (FLSA and MWHL); GRANT in part and DENY in part as moot
Home Depot’s Motion to Dismiss (ECF No. 17); and GRANT Cote’s Motion
to Dismiss (ECF No. 38).
Counts I (defamation) and II (tortious civil
conspiracy) are DISMISSED; Counts III and IV remain.
A separate Order
follows.
Entered this 4th day of October, 2016
/s/
____________________________
George L. Russell, III
United States District Judge
22
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