Gaines v. Baltimore City Sheriff's Office

Filing 16

MEMORANDUM OPINION. Signed by Judge Richard D. Bennett on 3/5/2018. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JUANITA GAINES,

*

Plaintiff,

*

v.

*

SHERIFF JOHN ANDERSON,
Defendant.
*

*

Civil Action No. RDB-17-2755

*

*
*

*

*

*
*
*
*
*
MEMORANDUM OPINION

*

*

*

Plaintiff Juanita Gaines (“Plaintiff” or “Gaines”) brings this action against John W.
Anderson (“Defendant” or “Anderson”), in his official capacity as Sheriff of Baltimore City,
alleging that he retaliated against her in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000-e et seq.1 Anderson asserts that res judicata bars this action
because this Court dismissed with prejudice Gaines’ prior Title VII claims against various
defendants including Anderson. See Gaines v. Martin, No. JKB-12-1126, 2014 WL 1622316
(D. Md. Apr. 23, 2014) (“Gaines I”). Anderson further asserts that this Court should deny
Plaintiff’s Motion to File a Second Amended Complaint (ECF No. 13) because even if
amended, res judicata bars her suit. The parties’ submissions have been reviewed and no
hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the following reasons,
Defendant’s Motion to Dismiss (ECF No. 6) is DENIED and Plaintiff’s Motion to file a
Second Amended Complaint (ECF No. 13) is GRANTED.2

Plaintiff initially filed suit against the Baltimore City Sheriff’s Office. (ECF No. 1.) Plaintiff subsequently
filed an Amended Complaint, substituting Anderson as the Defendant. (ECF No. 5.)
2 Also pending is the prior defendant Baltimore City Sheriff Office’s Motion to Dismiss. (ECF No. 3.) As
1

1

BACKGROUND
When reviewing a motion to dismiss, this Court accepts as true the facts alleged in
the plaintiff’s complaint. See Q Intern. Courier Inc. v. Smoak, 441 F.3d 214, 216 (4th Cir. 2006).
When a defendant moves to dismiss on the ground of res judicata, a court may also take
judicial notice of facts from a prior judicial proceeding so long as the res judicata defense does
not raise disputed issues of fact. Id. (citing Andrews v. Daw, 201 F.3d 521, 524 n. 1 (4th Cir.
2000)). Plaintiff Gaines began working as a Deputy Sheriff with the Baltimore City Sheriff’s
Office (“BCSO”) on September 27, 2001. (Second Am. Compl., ECF No. 13-1 at ¶ 2.) On
July 9, 2010, Gaines filed a Charge of Discrimination with the U.S. Equal Employment
Opportunity Commission (“EEOC”) against Anderson and Baltimore City, alleging that she
was passed over for a promotion and denied overtime because she was a female (“First
Charge”). (Id. at ¶ 18.) The First Charge further alleged that she was retaliated against for
following complaint protocols. (Id.)
On February 4, 2011, Gaines reported to work wearing dark pants, a white collared
button-down shirt, hooded jacket, and vest. (Id. at ¶ 21.) Gaines asserts that she had worn
similar clothes before, and as recently as that day, her supervisor did not object to her attire.
(Id. at ¶¶ 21-22.) Later that day, however, Gaines’ captain sent her home for violating dress
code. (Id. at ¶ 23.) Gaines alleges that other male employees with similar assignments and
wearing similar attire were not sent home. (Id. at ¶ 24.) When she left work, Gaines went to
the EEOC office to incorporate what happened that day into her First Charge. (Id. at ¶ 26.)
Four days later on February 8, 2011, her Captain sent her home again for violating dress

Plaintiff substituted Anderson as the Defendant, this Motion is MOOT.

2

code. (Id. at ¶¶ 29-34.) After leaving work, Gaines again went to the EEOC office to update
her Charge. (Id. at ¶ 36.) On February 17, 2011, she was placed on a performance
improvement plan and kept on probationary status through the fall. (Id. at ¶ 38.) On August
8, 2011, she was “notified of formal internal affairs charges against her for unsatisfactory
performance, conduct unbecoming a Sheriff’s Deputy, failure to obey orders, unauthorized
absence, and insubordination; all relating to what transpired at work on February 4 and 8,
2011.” (Id. at ¶ 39.)
On January 13, 2012, Gaines received a Right to Sue letter from the EEOC related to
her First Charge, indicating that the EEOC was unable to conclude that there was
reasonable cause to believe discrimination occurred.3 (Id. at ¶ 42.) On April 12, 2012, Gaines
filed suit in this Court against the State of Maryland, Anderson, and three other individual
defendants, alleging violations of Title VII, 42 U.S.C. § 1983, and the Fourteenth
Amendment (“Gaines I”). (Id.; Gaines v. Martin, No. JKB-12-1126, 2014 WL 1622316 (D. Md.
Apr. 23, 2014)). The complaint alleged conduct going back to 2008 when the Plaintiff was
working as a Deputy Sheriff in the Special Operations Unit. Gaines, 2014 WL 1622316 at *1.
On September 15, 2008, she was involved in the execution of a search warrant where a
fellow deputy sheriff was shot in the face. Id. at *1. Although an investigation into the
incident concluded that the deputy was shot by the subject of the warrant, Gaines developed
reason to believe that he had been shot by a fellow deputy. Id. The complaint then asserted
that her supervisors intended to remove her from the Special Operations Unit because of
Although Plaintiff did not attach this Notice of Right to Sue letter, the EEOC only issues Notice of Right to
Sue letters if it is unable to conclude that there is reasonable cause to believe discrimination occurred. If the
EEOC had concluded that there was reasonable cause to believe discrimination occurred, the parties would
have received Letters of Determination. https://www.eeoc.gov/employers/process.cfm.

3

3

her contention that the deputy had been shot by a fellow deputy. Id. at *2. From these facts,
Plaintiff brought, among other claims, a claim for retaliation under Title VII, asserting she
was retaliated against “for among other things complaining about adverse personnel and
disciplinary actions, complaining to the Inspector General and filing a charge of
discrimination with the EEOC.” Id. at *5.
Five days after Gaines filed her suit, on April 17, 2012, she was notified that she
needed to attend an internal trial board hearing for charges relating to the dress code
incidents that had occurred over a year before on February 4 and 8, 2011. (ECF No. 13-1 at
¶ 43.) She was subsequently found guilty of the charges and the board recommended a
thirty-day suspension. (Id. at ¶ 44.) Despite the recommendation, on June 22, 2012,
Anderson fired Gaines. (Id. at ¶ 45.) On July 18, 2012, Gaines filed a Second Charge of
Discrimination with the EEOC (“Second Charge”), asserting that her termination from
employment was in retaliation for her earlier claim of retaliation in violation of Title VII. (Id.
at ¶ 7; ECF No. 1-1.)
On May 13, 2013, Gaines filed an amended complaint in Gaines I, adding her
termination as a retaliatory act. (Gaines I, Am. Compl., ECF No. 25.) The amended
complaint did not, however, allege any facts detailing the internal trial board hearing, the
incidents on February 4 and 8, or any circumstances surrounding her termination. (Id.)
Further, the amended complaint only referenced and attached Plaintiff’s First Charge of
Discrimination and Right to Sue Notice. (Id.) The defendants moved to dismiss Plaintiff’s
amended complaint, arguing in part that she had failed to properly exhaust her Title VII
claims. (Gaines I, Mot., ECF No. 31.) On April 23, 2014, this Court issued a memorandum
4

opinion dismissing all of Plaintiff’s claims with prejudice. Gaines v. Martin, No. JKB-12-1126,
2014 WL 1622316 (D. Md. Apr. 23, 2014). The memorandum opinion only referenced
Plaintiff’s First Charge filed on July 9, 2010 and did not reference Plaintiff’s termination. Id.
at *2. As to Gaines’ retaliation claim, this Court found that Gaines failed to state a claim for
retaliation under Title VII.4 Id. at *5. Specifically, this Court held that Gaines’ had not met
the first element of a retaliation claim, engaging in a protected activity, explaining:
Ultimately, the conduct that Plaintiff opposed was not discrimination under
Title VII. Rather, the picture that emerges from Plaintiff’s own pleadings is
that she was discriminated against for arguing that Deputy Lane was shot by a
fellow Deputy and contradicting the Sheriff Department’s conclusion that
Deputy Lane was shot by a suspect.
Id. at *5.
Nearly three years after this Court’s opinion in Gaines I, on March 31, 2017, Gaines
received a Letter of Determination from the EEOC concerning her Second Charge. (ECF
No. 13-1 at ¶ 15; ECF No. 1-2.) The EEOC found that the Sheriff’s Office violated Title
VII by terminating Gaines. (ECF No. 1-2.) The EEOC then referred the matter to the
Department of Justice, which notified Gaines on June 22, 2017 that the DOJ would not be
pursuing charges and Gaines had the right to file suit under Title VII. (ECF No. 1-3.) On
September 15, 2017, Plaintiff filed the instant suit against Defendant John Anderson in his
official capacity as the Sheriff of Baltimore City. (ECF No. 13-1 at 2.) The Second Amended
Complaint details the 2011 incidents concerning her dress code, her suit in Gaines I, and her

The elements of a Title VII retaliation claim are: “(1) engagement in a protected activity; (2) adverse
employment action; and (3) a causal link between the protected activity and the employment action.” Coleman
v. Maryland Court of Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010). A plaintiff can satisfy the first element by
showing that she opposed a practice that Title VII prohibits, as long as the plaintiff has “a reasonable and
good faith belief that the conduct that she opposes constitutes unlawful discrimination under Title VII.”
Tasclyan v. Medical Numerics, 820 F.Supp.2d 665, 675 (D.Md. 2011).
4

5

termination. She asserts that “[b]ut for [her] complaints of discrimination and retaliation
made internally and to the EEOC, the allegations of discrimination and retaliation under
Title VII she made in the lawsuit she filed on April 12, 2012, and her opposition to gender
discrimination, retaliation, and sexual harassment, Sheriff Anderson would not have fired
her, thereby escalating the Trial Board’s recommendation.” (Id. at ¶ 45.) To support her
claim, Gaines alleges that there were various other officers who committed similar or more
serious infractions than Gaines, but never filed complaints or asserted their rights, and were
not fired. (Id. at ¶ 57.)
STANDARD OF REVIEW
I.

Motion to Amend
A plaintiff may amend his or her complaint once as a matter of course before a

responsive pleading is served, or within twenty-one days of service of a responsive pleading
or motion under Federal Rule of Civil Procedure 12(b), (e), or (f), whichever is earlier. Fed.
R. Civ. P. 15(a). While Rule 15(a) requires that leave “shall be freely given when justice so
requires,” id., a district court may deny leave to amend “when the amendment would be
prejudicial to the opposing party, the moving party has acted in bad faith, or the amendment
would be futile.” Equal Rights Center v. Niles Bolton Assocs., 602 F.3d 597, 603 (4th Cir. 2010).
“Whether an amendment is prejudicial will often be determined by the nature of the
amendment and its timing.” Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006). An
amendment is futile “when the proposed amendment is clearly insufficient or frivolous on
its face.” Johnson v. Oroweat Foods Co., 785 F.2d 503, 510 (4th Cir. 1986).
II.

Motion to Dismiss
6

A motion to dismiss on the ground of res judicata is properly brought under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim when the defense “clearly appears
on the face of the complaint.” Andrews v. Daw, 201 F.3d 521, 524 n. 1 (4th Cir. 2000). Rule
12(b)(6) authorizes the dismissal of a complaint if it fails to state a claim upon which relief
can be granted. Fed. R. Civ. P. 12(b)(6). The purpose of Rule 12(b)(6) is “to test the
sufficiency of a complaint and not to resolve contests 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); see also Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). The
sufficiency of a complaint is assessed by reference to the pleading requirements of Rule
8(a)(2), which provide that 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). To survive a
motion under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to
relief that is plausible on its face.” Bell Atl., Corp. v. Twombly, 550 U.S. 544, 570 (2007);
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Although a motion to dismiss on the ground of res
judicata is properly considered under Rule 12(b)(6) when the defense “clearly appears on the
face of the complaint,” a court may also take judicial notice of facts from a prior judicial
proceeding when the res judicata defense does not raise disputed issues of fact. Andrews, 201
F.3d at 524 n. 1.
ANALYSIS
I.

Motion to Amend

On September 27, 2017, Gaines filed an Amended Complaint as a matter of course.
(ECF No. 5.) She now seeks to file a Second Amended Complaint, asserting that in response
7

to Defendant’s Motion to Dismiss, “the further proposed amendments simply add Sheriff
Anderson’s response to the EEOC charge underlying this complaint as an exhibit to the
complaint, and point out that Sheriff Anderson never raised res judicata as a defense while the
charge was pending at the EEOC.” (ECF No. 13 at ¶ 6.) Accordingly, Plaintiff seeks to add
factual allegations supporting her argument that an exception to the res judicata doctrine
applies. Defendant asserts that the amendment should be denied on futility grounds because
even considering the additional information, the exception does not apply.
“‘Leave to amend should only be denied on the ground of futility when the proposed
amendment is clearly insufficient or frivolous on its face.’” Tawwaab v. Virginia Linen Service,
Inc., 729 F.Supp.2d 757, 770 (D. Md. 2010) (quoting Johnson v. Oroweat Foods Co., 785 F.2d
503, 510 (4th Cir. 1986)). An amendment is insufficient or frivolous if it would not survive a
motion to dismiss. Id. (citing Perkins v. United States, 55 F.3d 910, 916 (4th Cir. 1995)). As
explained below, this Court does not find that res judicata bars Gaines’ suit, and she may
proceed with her second claim against Anderson for retaliation, arising from her termination
of employment. The Second Amended Complaint, therefore, is not futile and Plaintiff’s
Motion to Amend (ECF No. 13) is GRANTED.
II.

Motion to Dismiss
A. Effect of the Second Amended Complaint

“As a general rule, ‘an amended pleading ordinarily supersedes the original and
renders it of no legal effect.’” Young v. City of Mount Ranier, 238 F.3d 567, 572 (4th Cir. 2001)
(quoting Crysen/Montenay Energy Co. v. Shell Oil Co., 226 F.3d 160, 162 (2d Cir. 2000)).
Accordingly, a court may then deny a motion to dismiss the original pleading as moot. Turner
8

v. Knight, 192 F.Supp.2d 391, 397 (D. Md. 2002). Notwithstanding this general rule:
[D]efendants should not be required to file a new motion to dismiss simply
because an amended pleading was introduced while their motion was pending.
If some of the defects raised in the original motion remain in the new
pleading, the court simply may consider the motion as being addressed to the
amended pleading. To hold otherwise would be to exalt form over substance.
6 Charles Alan Wright et al., Federal Practice and Procedure § 1476 (3d ed. 2014); see also Buechler
v. Your Wine & Spirits Shoppe, Inc., 846 F.Supp.2d 406, 415 (D. Md. 2012), aff’d, 479 Fed.
App’x. 497 (4th Cir. 2012); Holliday v. Bd. of Educ. for Anne Arundel County, No. RDB-17-0847,
at *3-4 (D. Md. Dec. 13, 2017).
Anderson moves to dismiss the Amended Complaint on the ground that res judicata
bars Plaintiff’s claim. Plaintiff does not seek to amend the Amended Complaint to add
allegations contradicting that res judicata applies. Rather, the Second Amended Complaint
seeks to add allegations supporting her argument that although res judicata applies, an
exception to the doctrine also applies. As explained below, this Court does not find that res
judicata applies and accordingly does not reach the secondary issue of whether the exception
to the doctrine applies. Accordingly, this Court will apply Defendant’s res judicata arguments
raised in the Motion to Dismiss to the Second Amended Complaint.
B. Plaintiff’s Title VII claim
Anderson moves to dismiss Gaines’ retaliation claim under the doctrine of res judicata
in light of this Court’s previous dismissal of Plaintiff’s claims in Gaines v. Martin, No. JKB12-1126, 2014 WL 1622316 (D. Md. Apr. 23, 2014) (“Gaines I”). In Maryland, res judicata
“bars a party from re-litigating a claim that was decided or could have been decided in an
original suit.” Laurel Sand & Gravel Inc. v. Wilson, 519 F.3d 156, 161 (4th Cir. 2008)
9

(citing Pueschel v. United States, 369 F.3d 345, 355 (4th Cir. 2004)). This judge-made doctrine
of res judicata serves “to promote judicial efficiency and foster reliance on adjudications by
putting an end to a cause of action once litigated.” United States v. Tatum, 943 F.2d 370, 381
(4th Cir. 1991); see also Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597 (1948) (res
judicata is “judicial in origin”). The doctrine of res judicata, or claim preclusion, applies if
there is: “‘(1) a final judgment on the merits in a prior suit; (2) an identity of the cause of
action in both the earlier and the later suit; and (3) an identity of parties of their privies in the
two suits.’” SAS Institute, Inc. v. World Programming Ltd., 874 F.3d 370, 378 (4th Cir. 2017)
(quoting Pueschel, 369 F.3d at 354-55). The United States Court of Appeals for the Fourth
Circuit has emphasized that claim preclusion is a “practical” doctrine and “is ultimately
governed by whether the present case has already been decided, and whether the party has
previously had a fair shot with respect to the claims raised in the present action.” Id. Gaines
does not argue that res judicata does not apply. Rather, she invokes an exception to the
doctrine covering situations where a defendant consents to claim-splitting. See Keith v.
Aldridge, 900 F.2d 736, 740 (4th Cir. 1990) (“Since a principal purpose of the general rule
of res judicata is to protect the defendant from the burden of relitigating the same claim in
different suits, consent, ‘in express words or otherwise,’ to the splitting of the claim prevents
the defendant from invoking claim preclusion.”). Despite Plaintiff’s concession that res
judicata applies, this Court finds that all three elements of the doctrine are not present.
The second element of res judicata requires “an identity of the cause of action in both
the earlier and the later suit.” SAS Institute, 874 F.3d at 378. To meet this element, a plaintiff
need not have presented the same legal theory in the earlier suit. Ohio Valley Envtl. Coal. v.
10

Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009). Rather, the inquiry is whether the
second suit “‘arises out of the same transaction or series of transactions as the claim resolved
by the prior judgment.’” Id. (quoting Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir. 1990)).
This requires courts to consider whether the instant claims, though not actually brought in
the original suit, “were available to the plaintiff at the time of the first suit.” Id.
Before discussing the identity of the claims between Gaines I and the instant action,
this Court briefly summarizes the statutory requirements a plaintiff must meet prior to
bringing a Title VII discrimination claim in federal or state court. First, Title VII requires
that a plaintiff file a “charge” of discrimination with the EEOC or appropriate agency before
proceeding to court. 42 U.S.C. § 2000e-5(e)(1). The charge must be filed within a specified
time “after the alleged unlawful employment practice occurred.” Id. In Maryland, a deferral
state,5 a Title VII claim of discrimination must be filed with the EEOC within 300 days of
the alleged discriminatory action. EEOC v. R & R Ventures, 244 F.3d 334, 338 n.1 (4th Cir.
2001). If the EEOC dismisses the charge, a plaintiff has ninety days from receiving his or her
notice of dismissal and right to sue letter to file an action in court. 42 U.S.C. § e-5(f)(1).
Finally, a plaintiff’s suit is limited to the grounds asserted in the underlying EEOC charge.
Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Failing to exhaust administrative
remedies deprives this Court of subject matter jurisdiction over the claims. Id.
Gaines filed her First EEOC Charge against Anderson and Baltimore City on July 9,
2010. (ECF No. 13-1 at ¶ 18.) The Charge alleged that she was discriminated against based
A deferral state is one with “a State or local agency with authority to grant or seek relief from such practice
or to institute criminal proceedings with respect thereto upon receiving notice thereof.” 42 U.S.C. § 2000e5(e)(1); 29 U.S.C. § 626(d)(2). Maryland is classified as a deferral state due to the Maryland Commission on
Human Relations (MCHR), a state agency that is capable of providing relief from discrimination.

5

11

on her sex, that she was retaliated against, and that the discrimination was continuing. (ECF
No. 6-2 at 23.) She continued to work as a Deputy Sheriff after filing the Charge. About a
year and a half later, she received a Right to Sue letter from the EEOC, indicating that the
EEOC had not found reasonable cause to believe that the defendants had violated Title VII.
(Gaines I, ECF No. 16-1.) After receiving her Right to Sue letter, Plaintiff filed suit against
Anderson and the other defendants on April 12, 2012. She asserted that she was retaliated
against for “complaining about adverse personnel and disciplinary actions, complaining to
the Inspector General and filing a charge of discrimination with the EEOC.” Gaines I, 2014
WL 1622316, at *5. The defendants in Gaines I moved to dismiss the action, arguing in part
that Gaines had not properly exhausted her administrative remedies. Id. at *3. Despite
finding that Plaintiff had exhausted her administrative remedies, this Court ultimately
dismissed all of her claims with prejudice for failure to state a claim. Id.
Nearly three years after this Court ruled in Gaines I, on March 31, 2017, Plaintiff
received a Letter Determination from the EEOC relating to her Second Charge. (ECF No.
1-2.) The Determination stated that Gaines had alleged that she was discharged in retaliation
for engaging in protected activity, and evidence gathered showed that male employees who
committed similar or more severe infractions but did not engage in protected activity were
not terminated. (Id.) On June 22, 2017, she then received a Right to Sue letter from the
Department of Justice, informing her that because the DOJ would not be filing suit related
to her Charge, she had the right to file suit in court. (ECF No. 1-3.)
Defendant argues that res judicata bars Gaines’ claim because although Gaines filed
her complaint in Gaines I before her termination, she filed an amended complaint after her
12

termination. Count II of the amended complaint in Gaines I alleged retaliation in violation of
Title VII, and explicitly referred to Gaines’ termination. “Thus, she brings the same claim in
Gaines II based on the same legal theory – that her termination was retaliatory.” (ECF No. 61 at 7.) Defendant further argues that the underlying facts of Gaines I and the instant suit are
essentially the same. (Id. at 8.) It is clear from the record, however, that res judicata does not
bar Gaines’ instant suit for two reasons: First, because Gaines could not have brought the
instant retaliation claim during Gaines I given that she had not yet exhausted her
administrative remedies, and second, because the retaliation claim in Gaines I was based on a
different set of facts than Plaintiff’s current retaliation claim.
At the time Plaintiff filed Gaines I and subsequently amended her complaint, she
could not have alleged that her termination was retaliatory because Gaines had not yet
exhausted her administrative remedies. In Blakes v. Gruenberg, No. 16-cv-00240, 2016 WL
8731784 (E.D. Va. July 29, 2016), the plaintiff alleged that she was discriminated against
based on a Performance Management and Recognition evaluation she received in 2013. Id. at
*2. After receiving a Final Agency Decision (“FAD”) from the Federal Deposit Insurance
Corporation (“FDIC”), the plaintiff filed suit against the defendant, which the United States
District Court for the Eastern District of Virginia labeled “Blakes I.” Id. The court ultimately
granted summary judgment in favor of the defendant. Id. The plaintiff then filed a
subsequent suit arising from a Performance Management and Recognition Evaluation she
received in 2014, “Blakes II.” Id. When the defendant tried to argue that res judicata barred the
second suit, the court explained:
Plaintiff alleges discrimination based on conduct that occurred following her
filing of Blakes I. Similar to Young-Henderson [v. Spartanburg Area Mental Health
13

Ctr., 945 F.2d 770 (4th Cir. 1991)], Plaintiff’s claim regarding her low 2014
PMR occurred after she filed Blakes I, meaning that Plaintiff could not have
brought her allegations regarding her low 2014 PMR in Blakes I because a
plaintiff seeking relief from an agency must first exhaust all her administrative
remedies. Id.; see 42 U.S.C. § 2000(e)-16(c). In light of this, Plaintiff did not
receive the FDIC’s FAD regarding her 2014 PMR until January 5, 2015, more
than two weeks after this Court issued a decision in Blakes I. Id. Therefore,
Plaintiff’s 2014 PMR and her 2013 PMR are two separate transactions and
thus Plaintiff’s claims cannot be treated as claims arising out of the same core
of operative facts. See Pueschel [v. United States, 369 F.3d 345, 355 (4th Cir.
2004)]. Because res judicata does not preclude claims that did not exist and
could not have been raised in a Plaintiff’s first Complaint, res judicata does not
bar Plaintiff’s current claim. See Young-Henderson, 945 F.2d at 775.
Id. at *6.
Gaines received her Right to Sue letter regarding her First Charge on January 13,
2012, prior to her termination. The Right to Sue letter indicated that the EEOC had finished
investigating the Charge’s allegations, did not find Title VII violations, and Gaines could file
suit in court. Gaines then filed suit on April 12, 2012. Five days later, she told that she
needed to attend an internal Trial Board hearing for events that had occurred over a year
earlier. She was subsequently found guilty and terminated. About a month after she was
terminated, Gaines filed a separate, Second Charge alleging that she was terminated in
violation of Title VII. Although she subsequently amended her complaint in Gaines I to
indicate that she had been terminated, Plaintiff had not yet exhausted her administrative
remedies as to her Second Charge. In fact, Plaintiff did not receive a Right to Sue letter
regarding the Second Charge until June 22, 2017, over three years after this Court ruled in
Gaines I. Accordingly, Plaintiff could not have brought the instant claim during Gaines I, and
this Court would not have had jurisdiction over the claim because she had not exhausted her

14

administrative remedies.6 See Robinson v. Middleton, No. 13-CV-02389-JMC, 2015 WL
1218371, at *11 (D.S.C. Mar. 16, 2015) (adopting the magistrate judge’s recommendation
that summary judgment not be granted for the defendant “[b]ecause Plaintiff is asserting a
cause of action for continued deliberate indifference to his medical care,” and “Plaintiff had
not exhausted his administrative remedies at the time he filed [the previous] complaint”).
Therefore, res judicata does not bar Gaines’ instant retaliation claim.
Further, the record shows that Gaines did not pursue the instant retaliation claim in
Gaines I. First, this Court’s opinion in Gaines I referred only to Plaintiff’s Charge filed on July
9, 2010—prior to her termination—and did not even indicate that Plaintiff had been
terminated or filed a Second Charge. See Gaines I, 2014 WL 1622316, at *1 (“Plaintiff is a
deputy sheriff with the Baltimore City Sheriff’s Office.”) (emphasis added). Second, although
the facts alleged in Gaines’ Second Amended Complaint reallege some facts from Gaines I,
Plaintiff additionally alleges that she was retaliated against for her EEOC Charge, bringing
suit in Gaines I, and “her opposition to gender discrimination, retaliation, and sexual
harassment.” (ECF No. 12 at 1.) As the Fourth Circuit explained in Young-Henderson v.
Spartanburg Area Mental Health Ctr., 945 F.2d 770, 774 (4th Cir. 1991):
The alleged discrimination in the Henderson I complaint related to the
defendants’ refusal to promote Young–Henderson and their actions in
disciplining, suspending, and eventually discharging her in 1984—of course all
claims were based on conduct which occurred prior to the date she filed
the Henderson I complaint. While the complaint in Henderson II realleged these
claims, it also alleged additional unlawful conduct. Henderson II added charges
of retaliatory harassment for filing EEOC charges and for bringing
the Henderson I lawsuit. The Henderson II complaint additionally alleged
As explained above, failure to exhaust administrative remedies strips this Court of jurisdiction to hear the
claim. In fact, the defendants, including Anderson, moved to dismiss Gaines’ claims in Gaines I for failure to
exhaust administrative remedies. See Gaines I, 2014 WL 1622316.
6

15

discrimination in the form of the March 12, 1986, termination for
abandonment of position following a period of sick leave for which she
provided a doctor’s pass.
See also Blakes, 2016 WL 8731784, at *6 (“Although Defendant argues that Plaintiff alleges
nearly identical supporting facts in Blakes I and Blakes II, the statute of limitations does not
‘bar an employee from using the prior acts as background evidence in support of a timely
claim.’” (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002))). Third, the
retaliation claim presented in Gaines I depended on a completely different set of facts than
the Second Amended Complaint currently alleges. In Gaines I, Plaintiff claimed that she was
retaliated against because had contradicted the Sheriff Department’s conclusion that the
deputy was shot by the target of the search, and argued instead that he was shot by a fellow
deputy. Gaines I, 2014 WL 1622316 at *5. This Court dismissed her claim because such
activities are not protected under Title VII. Id. On the other hand, Plaintiff currently claims
that she was retaliated against for pursuing her Charge with the EEOC and filing Gaines I.
(ECF No. 13-1.) She supports her retaliation claim by alleging that on April 17, 2012—just
five days after she filed Gaines I—she was told that she would need to attend an internal Trial
Board hearing for the dress code incidents that occurred over a year prior on February 4 and
8, 2011. She alleges that there were other male employees who had worn similar dress and
were never sent home for dress code violations. She further alleges, by name, that there were
“numerous other officers who committed similar or more serious infractions than Ms.
Gaines, but who had not made complaints or asserted their rights, [and] were not fired.”
(ECF No. 13-1 at ¶ 57.) Given that Plaintiff’s instant claim is not identical to claims raised in

16

Gaines I, res judicata does not bar Plaintiff’s retaliation claim, and Defendant’s Motion to
Dismiss (ECF No. 6) is DENIED.
CONCLUSION
For the reasons stated above, Defendant’s Motion to Dismiss the Amended
Complaint (ECF No. 6) is DENIED and Plaintiff’s Motion to Amend (ECF No. 13) is
GRANTED.
A separate order follows.

Dated:

March 5, 2018
/s/
Richard D. Bennett
United States District Judge

17