AKINJIDE
Filing
27
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 10/13/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
OLUGESUN E. AKINJIDE
:
v.
:
Civil Action No. DKC 09-2595
:
UNIVERSITY OF MARYLAND EASTERN
SHORE, et al.
:
MEMORANDUM OPINION
Presently
employment
summary
pending
and
discrimination
judgment
filed
ready
action
by
for
is
an
Defendants
resolution
University
this
motion
unopposed
in
for
of
Maryland
Eastern Shore (“UMES”), Dr. Ronnie Holden, and Mr. Leon Bivens.
(ECF No. 22).
The relevant issues have been briefed, and the
court now rules pursuant to Local Rule 105.6, no hearing being
deemed
necessary.
For
the
reasons
that
follow,
the
following
Defendants’
motion will be granted.
I.
Background
A.
Factual Background
For
purposes
of
this
decision,
facts
are
uncontroverted unless otherwise stated.
In 1990, Plaintiff Olugesun Akinjide, a black male born in
Nigeria
and
subsequently
naturalized
as
an
American
citizen,
started his career at UMES as an engineer in the Physical Plant
with a salary of $31,000.
he
held
a
bachelor’s
Tuskegee University.
-
an
African-American
(ECF No. 22-4, at 4).1
degree
(Id.).
male,
in
electrical
At that time,
engineering
from
Plaintiff alleges that Dr. Holden
Vice
President
of
Administrative
Affairs at UMES, and the person primarily responsible for its
personnel actions - denied him salary increases from 1992 to
1995, even though several other employees, such as Dr. Maurice
Ngwaba - a Nigerian male who, like Plaintiff, later became an
American citizen - received raises during this time.
ECF No. 22-1, at 20).
(Id. at 5;
Dr. Holden asserts that Plaintiff did not
receive salary increases from 1991 to 1993 due to a coding error
in the payroll department’s internal system.
Holden Decl., ¶ 8).2
Lunnermon,
both
(ECF No. 22-8,
From 1993 to 1996, Mr. Bivens and Mr.
African-American
males
employed
by
UMES,
received promotions and salary increases even though Plaintiff’s
1
Plaintiff presents a statement of facts in his complaint
(ECF No. 1), which mirrors the facts set forth in a sworn
declaration attached to the charge of discrimination that he
filed with the Equal Employment Opportunity Commission (“EEOC”)
(ECF No. 22-4). Defendants have included this sworn declaration
in the record. Because the facts alleged therein were submitted
in the form of a sworn declaration, they have evidentiary value
and may be considered in resolving the present motion.
2
He additionally maintains that Plaintiff received pay
raises in all other years during which he was employed by UMES
except 2003 and 2004, when a budget crisis prevented any
employees from receiving cost of living adjustments and merit
increases. (Id. ¶¶ 6, 8).
2
promotion and pay raise requests during this period were denied.
(ECF No. 22-4, at 5-6; ECF No. 22-1, at 20; ECF No. 22-9, Holden
Dep., at 72).
The
Physical
Plant
personnel,
including
Plaintiff,
complained about these promotions to Dr. Holden, and they were
subsequently
Facilities
restructured
and
into
Operations,
two
headed
groups
in
Dr.
Ngwaba,
by
Physical Plant, headed by Mr. Lunnermon.
7).
1997:
and
(1)
(2)
(ECF No. 22-4, at 6-
All engineering staff reported to Dr. Ngwaba.
(Id. at 7).
The restructuring was not long-lived; less than two years later,
all Plant personnel were recombined, and Plaintiff’s title was
changed
from
Engineer.
Senior
(Id.).
Engineer
to
Construction
Electrical
When Plaintiff earned a Master’s degree in
2000, he requested both a promotion and a salary increase, but
Dr. Holden denied this request.
(Id.).
The following year,
Plaintiff had to absorb additional job responsibilities, without
a change in title or pay, when UMES’s mechanical engineer died
suddenly.
(Id.).
Although
UMES
mechanical
engineer
position
in
eventually
2003
and
advertised
2004,
Dr.
the
Holden
decided not to conduct interviews because there were not enough
candidates, and Plaintiff continued to perform these additional
duties.
(Id. at 7-8).
3
Around
Mr.
Lunnermon’s
retirement
in
2004,
Dr.
promoted Dr. Ngwaba, Mr. Bivens, and Plaintiff.
Holden
Dr. Ngwaba
became Director of Physical Plant, while Mr. Bivens became its
Associate Director and Plaintiff its Interim Assistant Director.
(Id. at 8; ECF No. 22-9, at 49).
Plaintiff received a merit
increase of $1,200 for assuming this position, while Mr. Bivens
allegedly received a significantly greater increase.
22-4, at 8).
(ECF No.
Plaintiff continued to perform the functions of
mechanical engineer as part of his role as Interim Assistant
Director.
(Id. at 8-9).
An external committee held interviews
for the mechanical engineer position from 2005 to 2006, but Dr.
Holden
ultimately
declined
recommended by the committee.
From
Plaintiff
2005
to
requested
2008,
to
hire
of
the
candidates
(Id. at 8).
after
that
any
Dr.
earning
Holden
a
doctorate
promote
him
by
degree,
making
permanent his interim appointment to Assistant Director, but Dr.
Holden denied this request.
(Id. at 8-9).
Plaintiff contends
that Mr. Bivens and unspecified “others like Mr. Bivens” did
receive promotions and accompanying pay raises during this time.
(Id.
at
violated
9).
Plaintiff
UMES
policy,
asserts
which
that
permits
interim position for only two years.
these
an
repeated
employee
(Id.).
to
denials
hold
an
Plaintiff found
himself overwhelmed by his job responsibilities in October 2007
4
and met with Dr. Holden to discuss a pay raise or workload
reduction, but Dr. Holden denied these requests.
(Id. at 9).
Around this time, Plaintiff sought medical care for fatigue and
depression
that
he
was
responsibilities at UMES.
At
a
Physical
experiencing
due
to
his
multiple
(Id.).
Plant
meeting
early
in
2008,
Plaintiff
informed Dr. Ngwaba that he could no longer perform his current
job responsibilities without another pay increase. (Id. at 10).
Dr. Ngwaba reported this complaint to Dr. Holden, but Dr. Holden
took no action.
(Id.).
In June 2008, Dr. Holden transferred
Dr. Ngwaba to the position of Assistant to the Vice President
for Administrative Affairs and Director of Planning, Facilities,
and Construction (ECF No. 22-8 ¶ 11), a move characterized by
Plaintiff as a demotion and by Dr. Holden as a promotion (ECF
No. 22-4, at 8; ECF No. 22-8 ¶ 11).
Dr. Holden then selected
Mr. Bivens as Director of Physical Plant.
(ECF No. 22-4, at
10).
Before his transfer, Dr. Ngwaba instructed the Operations
Department to correct certain deficiencies in UMES’s facilities
that had been identified by a thermal scan.
10).
(ECF No. 22-4, at
Plaintiff worked to repair the deficiencies following the
transfer and, in June or July 2008, he had a dispute with Mr.
Bivens about his handling of the deficiencies.
5
(Id. at 11).
According
to
described
himself
Israelites
Plaintiff,
to
make
as
Mr.
the
bricks
Bivens
came
“Biblical
with
no
to
his
Pharaoh
straw,”
work
ordering
and
site,
the
instructed
Plaintiff to find a way to repair the deficiencies that did not
require
assistance
from
other
UMES
personnel.
(Id.).
Mr.
Bivens also allegedly stated “one down and one more to go,” in
an
apparent
transferred.
reference
(Id.).
to
the
fact
that
Dr.
Ngwaba
had
been
Plaintiff contacted an outside company to
repair the deficiencies and reported the incident to Dr. Holden,
who “supported Mr. Bivens.”
(Id.).
A second dispute arose between Plaintiff and Mr. Bivens in
early August 2008.
When a UMES transformer lost power, Mr.
Bivens ordered a contractor to restore the transformer’s power
immediately, even though, according to Plaintiff, doing so would
have injured both UMES personnel and facilities.
(Id. ¶ 41).
The transformer failed, and a new transformer was ordered and
scheduled for delivery on August 5, 2008.
(Id. at 11-12).
The
new transformer could not be tested until August 11, 2008, and
Mr. Bivens came to Plaintiff’s office that morning to demand the
test report.
(Id. at 12).
Plaintiff alleges that Mr. Bivens
“threatened, bullied, harassed, and insulted” him in front of
other UMES staff, told him to “turn over the test report . . .
[or Mr. Bivens would] show [Plaintiff] who the boss [was],” and
6
sent
him
an
insulting
email.
(Id.).
Plaintiff
allegedly
reported this dispute to Dr. Holden, describing Mr. Bivens’s
actions
as
“mistreatment,
harassment,
intimidation,
[and
an]
unhealthy and hostile work environment,” but Dr. Holden once
again “supported Mr. Bivens.”
Plaintiff
never
complained
(Id.).
to
him
Dr. Holden maintains that
regarding
discrimination during his employment at UMES.
any
form
of
(ECF No. 22-8 ¶
18).3
Plaintiff submitted his resignation on August 18, 2008, and
took leave most of the following two weeks.
(ECF No. 22-12).
Plaintiff
on
2008.
resigned
(Id.).
his
with
UMES
September
2,
At that time, he was earning an annual salary of
approximately $80,000.
B.
employment
(ECF No. 22-8 ¶ 9).
Procedural Background
Plaintiff filed a charge of discrimination with the EEOC on
or about June 1, 2009.
In that complaint, he alleged that he
had suffered discrimination on the basis of race and national
origin
and
that
he
protected activity.”
3
had
faced
retaliation
(ECF No. 22-4, at 3).
“for
engaging
in
The EEOC mailed
Plaintiff alleges that Dr. Holden once told him that he
could end his employment with UMES if Plaintiff did not agree
with
Dr.
Holden’s
personnel
decisions.
(Id.
at
13).
Plaintiff’s sworn declaration does not specify when Dr. Holden
made this statement.
7
Plaintiff a right-to-sue letter on July 9, 2009.
(ECF No. 22-
5).
Plaintiff filed a complaint in this court on October 2,
2009, naming UMES, Dr. Holden, and Mr. Bivens as Defendants (ECF
No. 1).
the
In the complaint, Plaintiff alleges discrimination on
basis
of
race,
color,
and
national
origin
as
well
as
retaliation, in violation of Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981, and violations of the Equal Pay Act of 1963 (“Equal Pay
Act”), 29 U.S.C. § 206(d).
(ECF No. 1).4
Defendants answered
the complaint (ECF No. 4), and a scheduling order was issued on
October 30, 2009 (ECF No. 5).
Defendants filed the pending
motion for summary judgment on March 24, 2011 (ECF No. 22),
which Plaintiff has not opposed.
A court may enter summary judgment only if there is no
genuine issue as to any material fact and the moving party is
entitled
56(a);
4
to
judgment
Celotex
Corp.
as
a
matter
v.
Catrett,
of
477
law.
U.S.
See
317,
Fed.R.Civ.P.
322
(1986);
Plaintiff did not allege color discrimination in the
charge of discrimination that he filed with the EEOC.
Therefore, that allegation will not be considered in resolving
the present motion. See Bryant v. Bell Atlantic Maryland, Inc.,
288 F.3d 124, 132-33 (4th Cir. 2002) (declining to consider the
merits of a plaintiff’s color discrimination claim when he
alleged only race discrimination in his administrative complaint
to the EEOC).
8
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary
judgment is inappropriate if any material factual issue “may
reasonably be resolved in favor of either party.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co.
LLC v. Wash. Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001).
Plaintiff’s lack of opposition means that Defendants’
arguments remain uncontested, and the court must assume that
Defendants’ characterization of the complaint is correct.
II.
Analysis
Defendants present a series of arguments in their unopposed
motion for summary judgment:
(1) that the Eleventh Amendment to
the United States Constitution bars all of Plaintiff’s claims
against UMES; (2) that Plaintiff’s claims for failure to promote
and retaliation are time-barred, and, to the extent that they
are not time-barred, that Plaintiff fails to state a claim for
which relief can be granted and/or qualified immunity protects
Dr. Holden and Mr. Bivens from suit;5 and (3) that the Equal Pay
5
It is unclear whether Dr. Holden and Mr. Bivens raise
qualified immunity only as a defense to Plaintiff’s claims under
§ 1981 or whether they intend to raise that defense as to
Plaintiff’s Title VII claims as well.
Because the pending
motion is decided on other grounds, the scope of the individual
defendants’ qualified immunity argument need not be reached. To
the extent, however, that they intended to raise this defense as
to Plaintiff’s claims under Title VII, that effort would have
failed. “[T]here is no qualified immunity from liability under
9
Act claim is time-barred, and, to the extent it is not timebarred, that Plaintiff fails to state a claim for which relief
can be granted.
A.
These arguments will be addressed in turn.
Eleventh Amendment Immunity
Defendants contend that the Eleventh Amendment bars all of
Plaintiff’s
claims
against
UMES.
The
Eleventh
Amendment
provides that “[t]he Judicial power of the United States shall
not
be
construed
to
extend
to
any
suit
in
law
or
equity,
commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any
Foreign State.”
terms
of
citizens
United
the
U.S. Const. amend. XI.
Eleventh
against
States
their
has
long
Amendment
own
do
Although the literal
not
reference
state,
the
Supreme
construed
the
Amendment
suits
Court
to
of
by
the
prevent
citizens from bringing such suits in federal court unless the
state has waived its sovereign immunity.
Atascadero State Hosp.
v. Scanlon, 473 U.S. 234, 238 (1985) (citing Hans v. Louisiana,
134 U.S. 1 (1890)), overruled on other grounds by statute, 42
U.S.C. § 2000d-7.
It is well-established that the immunity
afforded by the Eleventh Amendment extends to state agencies,
including the University System of Maryland, and that the State
Title VII.”
2001).
Cutts v. Peed, 17 F.App’x 132, at *3 (4th Cir.
10
of Maryland has not waived its immunity.
Palotai v. Univ. of
Md. College Park, 959 F.Supp. 714, 716 (D.Md. 1997); Bishop v.
Lewis, No. WMN-10-3640, 2011 WL 1704755, at *2 (D.Md. May 4,
2011).6
Even where states have not waived their immunity to suit in
federal court, Congress may abrogate this immunity by enacting
legislation
pursuant
to
its
authority
under
the
Fourteenth
Amendment that permits federal courts to hear certain types of
claims against states.
Middlebrooks v. Univ. of Md. College
Park,
(D.Md.
980
F.Supp.
824,
1997)
Bitzer, 427 U.S. 445, 452-56 (1976)).
to
claims
under
both
Title
VII
(citing
Fitzpatrick
v.
It has done so in regard
and
the
Equal
Pay
Act.
Fitzpatrick, 427 U.S. at 453, 457 (abrogating immunity under
Title VII); Usery v. Charleston Cnty. Sch. Dist., 558 F.2d 1169,
1171-72 (4th Cir. 1977) (abrogating immunity under the Equal Pay
Act).
Congress has not, however, abrogated this immunity with
regard to claims under § 1981.
See Middlebrooks, 980 F.Supp. at
828 (“Plaintiff’s [§ 1981 claims] against the University, both
for equitable and monetary relief, are barred by the Eleventh
Amendment.”).
Thus, only Plaintiff’s § 1981 claims against UMES
are barred by the Eleventh Amendment.
6
UMES is part of the University System of Maryland.
Code Ann., Educ., § 12-101(5)(iv).
11
Md.
B.
Title VII
Plaintiff brings two claims against Defendants pursuant to
Title VII:
(1) failure to promote and (2) retaliation.
At the
outset, these claims cannot proceed against Dr. Holden and Mr.
Bivens because Plaintiff’s claims against these defendants are
in their personal capacities, and Title VII, which applies only
to employers, “foreclose[s] individual liability.”
Lissau v. S.
Food Serv., Inc., 159 F.3d 177, 180-81 (4th Cir. 1998).
As to
Plaintiff’s remaining Title VII claims, UMES maintains that the
claims are time-barred and, to the extent that they are not,
Plaintiff fails to state a claim for relief.
1.
Timeliness of Plaintiff’s Title VII Claims
“Timeliness requirements for an action alleging employment
discrimination are to be strictly enforced.”
Tangires v. Johns
Hopkins Hosp., 79 F.Supp.2d 587, 597 (D.Md. 2000).
UMES appears
to base its timeliness argument on two grounds: (1) the time
that passed between EEOC’s mailing of Plaintiff’s right-to-sue
letter and the filing of Plaintiff’s complaint in federal court;
and (2) the time that passed between Plaintiff’s resignation and
the filing of his complaint with the EEOC.
12
The appropriate date from which to measure the beginning of
the ninety-day period is the date that Plaintiff received the
right-to-sue letter, not the date that it was mailed.
Roberson
v. Bowie State Univ., 899 F.Supp. 235, 238 n.2 (D.Md. 1995).
Here, the record indicates only that the EEOC mailed the letter
on July 9, 2009.
Only eighty-five days passed between July 9,
2009, when the EEOC mailed the right-to-sue letter, and October
2,
2009,
court.
the
date
Plaintiff
filed
his
complaint
in
federal
And, by definition, fewer days must have elapsed between
the date that Plaintiff received the letter and the date that he
subsequently filed the present action.
Plaintiff thus commenced
this action within the ninety-day period mandated by Title VII.
See 42 U.S.C. § 2000e-5(f)(1).
UMES’s
argument
regarding
the
EEOC complaint is more persuasive.
timeliness
of
Plaintiff’s
Generally, claimants under
Title VII must file a charge of discrimination within 180 days
of the alleged discriminatory practice.
See Jones v. Calvert
Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
But a “300–day
period, rather than the 180–day period, applies where, as here,
state law also proscribes the alleged employment discrimination
and
the
plaintiff
files
with
a
state
or
local
employment
discrimination agency either before filing with the EEOC, or
concurrently therewith.”
White v. BFI Waste Servs., LLC, 375
13
F.3d 288, 292 (4th Cir. 2004).
Put differently, claimants in a
“deferral state” such as Maryland have 300 days to file their
Title VII claims with the EEOC.
See Valderrama v. Honeywell
Tech. Solutions, Inc., 473 F.Supp.2d 658, 662 (D.Md. 2007).
In this case, Plaintiff filed his charge of discrimination
with the EEOC between June 1 and June 3, 2009, and UMES received
notification of this charge on June 29, 2009.
(ECF No. 22-4).7
UMES maintains that the appropriate date from which to measure
the 300-day window is June 29, 2009, but this argument misstates
the law, which requires only that a plaintiff file his charge of
discrimination within 300 days of the allegedly discriminatory
action.
Using June 1, 2009 as the filing date, however, does
little to aid Plaintiff’s case.
The date 300 days prior to June
1, 2009 was August 5, 2008, and Plaintiff’s complaint alleges
only one incident that occurred after this date - a dispute with
Mr. Bivens regarding the test report for the new transformer.
Allegations related to incidents occurring prior to that date
7
Plaintiff listed June 1, 2009 as the date on his charge of
discrimination, while the date of the file-stamp appears to be
June 3, 2009.
This potential discrepancy is of no moment
because the two-day difference does not impact the incidents to
be considered in evaluating Plaintiff’s Title VII claims.
The
court accepts June 1, 2009 as the filing date.
14
are therefore time-barred, and only this single incident may be
considered in evaluating Plaintiff’s Title VII claims.8
2.
Failure to Promote
Plaintiff
alleges
that
UMES
unlawfully
discriminated
against him on the basis of race and national origin by failing
to promote him.
discrimination
intentional
evidence
There are two methods for proving intentional
in
employment:
discrimination,
under
the
(1)
or
through
(2)
burden-shifting
direct
through
scheme
set
evidence
of
circumstantial
forth
by
the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-05 (1973).
Plaintiff has produced no direct evidence of
discriminatory failure to promote.
Therefore, he must proceed
under the McDonnell Douglas burden-shifting framework.
Only if
Plaintiff sets forth a prima facie case does the burden shift to
8
Incidents that occurred before August 5, 2008 could be
considered if they related to an event occurring on or after
August 5, 2008, as a “series of separate but related acts
amounting to a continuing violation.”
Beall v. Abbott Labs.,
th
Cir. 1997) (internal quotation marks
130 F.3d 614, 620 (4
omitted), overruled on other grounds by Nat’l R.R. Passenger
Corp v. Morgan, 536 U.S. 101 (2002). Before invoking the theory
of
continuing
violations,
however,
the
plaintiff
must
demonstrate that there is a present violation, i.e., an actual
violation occurring within the requisite time period – here, on
or after August 5, 2008. Tinsley v. First Union Nat’l Bank, 155
F.3d 435 (4th Cir. 1998), overruled on other grounds by Nat’l
R.R. Passenger Corp, 536 U.S. 101; Hill v. AT&T Techs., Inc.,
731 F.2d 175, 180 (4th Cir. 1984). There is no basis for doing
so in the present action.
15
UMES to articulate a legitimate, non-discriminatory reason for
its actions.
Id. at 802.
To establish a prima facie case for
failure to promote, Plaintiff must show (1) that he applied for
a position, (2) that he was qualified for that position, and (3)
that he was denied the position under circumstances giving rise
to an inference of discrimination.
See Anderson v. Westinghouse
Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005).
Plaintiff fails to allege that he applied for any position
after August 5, 2008.
Indeed, the latest incident in which
Plaintiff alleges failure to promote occurred in June 2008 when
Dr. Holden promoted Mr. Bivens to be the Director of Physical
Plant.
Because Plaintiff does not allege that he applied for an
available
position
during
the
appropriate
time
period,
his
failure to promote claim under Title VII must fail.
3.
Retaliation
Plaintiff
additionally
alleges
that
UMES
retaliated against him in violation of Title VII.
unlawfully
To establish
a prima facie claim for retaliation, Plaintiff must demonstrate
(1) that he engaged in protected activity, (2) that he suffered
a
materially
sufficient
adverse
causal
employment
connection
action,
exists
and
between
activity and the materially adverse action.
(3)
the
that
a
protected
Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); Bryant v.
16
Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 543 (4th Cir. 2003).
UMES
asserts
matter
of
that
law
any
claim
because
the
for
only
retaliation
protected
must
fail
activity
in
as
a
which
Plaintiff engaged - the filing of a charge of discrimination
with
the
EEOC
-
did
not
occur
voluntarily resigned from UMES.
the
motion
for
summary
until
after
Plaintiff
had
Plaintiff, in failing to oppose
judgment,
has
not
contested
this
characterization of his retaliation claim.
Plaintiff did engage in protected activity when he filed
his
administrative
complaint
with
Thompson, 380 F.3d 209, 212 (4th
the
EEOC.
See
Price
v.
Cir. 2004) (finding that a
plaintiff had satisfied the first element of a prima facie claim
for
retaliation
because
the
“EEO
complaint
is
protected
activity”).
He did so, however, more than ten months after he
voluntarily
resigned
his
UMES
employment.
The
retaliatory
conduct alleged by Plaintiff, such as failure to promote, thus
occurred
before
Plaintiff’s
cannot
Plaintiff
retaliation
demonstrate
engaged
claim
a
must
causal
in
protected
therefore
connection
fail
activity.
because
between
he
his
administrative complaint and any adverse employment action that
he allegedly suffered.
See Gibson v. Old Town Trolley Tours of
Wash., D.C., 160 F.3d 177, 181 (4th
Cir. 1998) (reversing a
judgment in a plaintiff’s favor when the alleged retaliation
17
“fatally” occurred before the plaintiff filed his grievance with
the EEOC).9
C.
§ 1981
Plaintiff also brings his failure-to-promote claim under §
1981.
Dr. Holden and Mr. Bivens begin attacking this claim by
contending
that
no
contractual
relationship
existed
between
Plaintiff - apparently an at-will employee - and UMES, thereby
preventing Plaintiff from asserting any claim under § 1981.
The
Fourth Circuit, however, has repeatedly rejected this argument,
holding that “an at-will employment relationship is contractual
and may serve as a predicate contract for a § 1981 claim.”
Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th
Cir. 2000)
(citing Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018-19
(4th Cir. 1999)).
9
The elements of a prima facie claim for retaliation under
Title VII and § 1981 are identical. Pulley v. KPMG Consulting,
348 F.Supp.2d 388, 396 (D.Md. 2004) (setting forth the elements
of a § 1981 retaliation claim using a case from the United
States Court of Appeals for the Fourth Circuit that had applied
those same elements in the context of a Title VII retaliation
claim).
Because Plaintiff fails to set forth a prima facie
claim for retaliation under Title VII, his retaliation claim
under § 1981 must similarly fail.
For this reason, the
discussion of § 1981 below will consider only Plaintiff’s
failure-to-promote claim.
18
Although
initial
Plaintiff’s
argument,
it
§
fails
1981
on
claim
other
survives
Defendants’
grounds.
Plaintiff’s
complaint states that the discrimination underlying his failureto-promote claim was both race-based (“Black” or “African”) and
national-origin-based (“Nigerian”).
(ECF No. 1).
Section 1981
prohibits discrimination on the basis of race, but it “does not
bar
discrimination
purely
on
the
basis
of
national
origin.”
Schouten v. CSX Transp., Inc., 58 F.Supp.2d 614, 617 (E.D.Pa.
1999) (citing Bennun v. Rutgers State Univ., 941 F.2d 154, 172
(3d
Cir.
1991).
Although
this
proposition
may
appear
straightforward at first glance, the Supreme Court has construed
“race” broadly for purposes of § 1981, concluding that when
Congress
enacted
the
statute,
it
“intended
to
protect
from
discrimination identifiable classes of persons who are subjected
to intentional discrimination solely because of their ancestry
or ethnic characteristics,” even though § 1981 does not protect
against discrimination on the basis of national origin.
St.
Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987).
In
St.
Francis
College,
the
Court
evaluated
whether
a
plaintiff could sustain a § 1981 claim for race discrimination
given
that
he
had
allegedly
faced
discrimination
from
a
Caucasian supervisor due to his Arabian ancestry, rather than
his Iraqi origin.
Id. at 604.
Reasoning that § 1981, at a
19
minimum, reached “discrimination directed against an individual
because
he
.
.
.
is
genetically
part
of
an
ethnically
and
physiognomically distinctive sub-grouping of homo sapiens,” the
Court
undertook
an
in-depth
analysis
of
race
as
understood at the time of § 1981’s passage in 1866.
After
examining
considering
the
numerous
legislative
other
history
sources,
the
of
§
it
was
Id. at 607.
and
concluded
Court
1981,
that
persons of Arabian ancestry, while present-day Caucasians, were
not considered to be of the same race as other Caucasians in
1866.
Id. at 610.
proceed.
In
The plaintiff’s § 1981 claim could therefore
concurrence,
Justice
Brennan
acknowledged
that
drawing the line between “discrimination based on ancestry or
ethnic characteristics” and “discrimination based on place or
nation of . . . origin” could be difficult, but he emphasized
that “discrimination based on birthplace alone is insufficient
to state a claim under § 1981.”
concurring)
(emphasis
in
(Id. at 614 (Brennan, J.,
original)
(internal
quotation
marks
omitted)).
Lower
courts
distinction,
have
struggling
since
to
grappled
determine
with
whether
this
a
elusive
plaintiff’s
invocation of his “place or nation . . . of origin” creates a §
1981 claim for racial discrimination and requires a similarly
expansive
historical
analysis.
Two
20
guiding
principles
have
emerged from these decisions.
First, the plaintiff must prove
that he actually faced intentional discrimination based on his
ancestry or ethnic characteristics, rather than solely on his
place of origin, in order to invoke the broad construction of
race under § 1981.
Nagy v. Balt. Life Ins. Co., 49 F.Supp.2d
822, 831-32 (D.Md. 1999), vacated in part on other grounds, 215
F.3d 1320 (4th Cir. 2000) (unpublished table opinion); Saleh v.
Univ. of Va., No. Civ.A. 3:97-CV-460 R, 1999 WL 34798179, at *18
(E.D.Va. Feb. 25, 1999) (finding that a Nigerian plaintiff’s
discrimination claim against African-American supervisors failed
to invoke the broad construction of race under § 1981 where the
“best
evidence”
plaintiff’s
of
birthplace
discrimination
and
accent
–
–
statements
was
about
“indicative
only
the
of
foreign-born/national origin discrimination”), aff’d, 11 F.App’x
241 (4th Cir. 2001).
Second, where a plaintiff’s allegations
reference only his place of origin and do not focus on specific
ethnic characteristics associated with that place of origin, the
broad construction of race under § 1981 does not apply.
Compare
Padron v. Wal-Mart Stores, Inc., --- F.Supp.2d ---, 2011 WL
1760229, at *10-11 (N.D.Ill. May 9, 2011) (considering § 1981’s
legislative history and finding that plaintiffs of Cuban origin
could maintain a § 1981 claim stemming from interactions with
their Caucasian supervisors where the plaintiffs’ complaint had
21
identified specific Cuban ethnic characteristics for which they
faced discrimination), with Jadali v. Alamance Reg’l Med. Ctr.,
399
F.Supp.2d
complaint’s
675,
repeated
682
(M.D.N.C.
references
2005)
to
being
(noting
“foreign
that
a
born”
supported a conclusion that the plaintiff’s discrimination claim
related to his national origin, rather than his race).
Here, it is undisputed that Dr. Holden and Mr. Bivens are
both African-American males, and that Plaintiff is a Nigerianborn male who has since become a naturalized American citizen.
To
the
extent
that
Plaintiff’s
§
1981
claim
for
failure
to
promote derives from discrimination that he allegedly suffered
because he is “Black” or “African,” that claim fails at the
first step because Plaintiff cannot set forth a
case.10
10
prima facie
If, however, Plaintiff bases his § 1981 claim on the
The standard for analyzing failure-to-promote claims
under § 1981 is identical to that employed under Title VII. See
Causey v. Balog, 929 F.Supp. 900, 913 (D.Md. 1996) (applying the
same prima facie case for failure to promote under Title VII and
§ 1981).
Although Plaintiff’s § 1981 claim encompasses
incidents occurring between October 2, 2005, and August 18,
2008, a significantly greater time period than under his Title
VII claims, those additional incidents fail to aid Plaintiff’s
case.
See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,
383-84 (2004) (noting that a four-year statute of limitations
applies to § 1981 claims arising after formation of the contract
on which the claim is based); Williams v. Reliable Contracting
Co., No. JKB-09-484, 2010 WL 1713995, at *7-8 (D.Md. Apr. 27,
2010) (same).
Plaintiff’s complaint suggests that he requested promotion
from interim to permanent Assistant Director of Physical Plant
22
broad
construction
of
race,
in
essence
contending
that
he
suffered racial discrimination due to his Nigerian ancestry or
ethnicity – which Dr. Holden and Mr. Bivens do not appear to
share - the claim would require additional analysis.
There
is
no
evidence
in
the
record
that
this
construction of race should apply in the present case.
Plaintiff’s
“best
evidence”
of
discrimination,
broad
First,
i.e.,
two
statements made by Mr. Bivens in June 2008, fails to demonstrate
any animus related to Plaintiff’s Nigerian ethnicity (as opposed
to his Nigerian origin).
to
his
worksite
on
one
Plaintiff alleges that Mr. Bivens came
occasion,
described
himself
as
the
“Biblical Pharaoh ordering the Israelites to make bricks with no
straw,” and told Plaintiff “one down and one more to go,” an
apparent reference to Dr. Ngwaba’s transfer from the position of
from 2005 to 2008 and from this interim position to Director of
Physical Plant in 2008. These incidents, however, fail to give
rise to an inference of racial discrimination.
Indeed,
Plaintiff alleges that Mr. Bivens and Dr. Ngwaba, members of the
same race, received promotions around this time.
See Cutshall
v. Potter, 347 F.Supp.2d 228, 237 (W.D.N.C. 2004) (granting an
employer’s motion for summary judgment on a failure-to-promote
claim where the employer had offered promotions to members of
the same race as the plaintiff, thereby “creat[ing] a ‘powerful
inference’” that the failure to promote the plaintiff “was not
motivated by race discrimination” (quoting Proud v. Stone, 945
F.2d 796, 798 (4th Cir. 1991))); Sonpon v. Grafton Sch., 181
F.Supp.2d 494, 500 (D.Md. 2002) (“[C]ourts have held that a
plaintiff did not [set forth a claim for failure to promote]
where applicants of the same race . . . as the plaintiff filled
the positions for which he had applied.”).
23
Director of Physical Plant.
appears
only
to
decision
that
personnel
to
be
a
colorful
Plaintiff
repair
thermal scan.
(Id. § 39).
the
could
The first statement
description
no
longer
deficiencies
of
Mr.
employ
Bivens’s
other
during
identified
UMES
the
Although the second statement, which references
Dr. Ngwaba’s transfer, could potentially be construed to evince
some discriminatory animus, that animus most plausibly relates
to Plaintiff’s national origin, as Dr. Ngwaba and Plaintiff are
both from Nigeria.
Second, while Plaintiff mentions that he is from Nigeria in
his complaint, he never references any ethnic characteristics
associated with his Nigerian origin to suggest that application
of the broad definition of race is appropriate in the present
case.
On the whole, there is simply “an absence of evidence
pertaining to racial animus” resulting from Plaintiff’s Nigerian
ethnicity.
Saleh, 1999 WL 34798179, at *18.
Thus, to the
extent that Plaintiff seeks to base his § 1981 claim on racial
discrimination that he faced because of his Nigerian origin,
that claim must also fail, and there is no need to reach the
Defendants’
remaining
arguments
regarding
§
1981.
See
id.
(holding that a Nigerian plaintiff’s § 1981 claims against his
African-American
supervisors
could
not
proceed);
Shinwari
v.
Raytheon Aircraft Co., 25 F.Supp.2d 1206, 1209-10 (D.Kan. 1998)
24
(concluding that a plaintiff’s § 1981 retaliation claim could
not proceed on the basis of national origin).
D.
Equal Pay Act
Defendants’ final arguments address Plaintiff’s claim under
the Equal Pay Act.
Specifically, Defendants contend that the
incidents alleged in that claim are time-barred and that, even
if they are not, Plaintiff fails to state a claim upon which
relief could be granted.
There is no need to address the former
argument because the latter is dispositive in this case.
To establish a prima facie case under the Equal Pay Act,
“the
plaintiff
receives
bears
pay
lower
performing
the
than
work
burden
a
of
showing
substantially
equal
in
[he]
(1)
co-employee
[female]
that
(2)
for
effort,
and
skill,
responsibility under similar working conditions.”
Strag v. Bd.
of Trs., Craven Cmty. College, 55 F.3d 943, 948 (4th Cir. 1995).
In his complaint, however, Plaintiff fails to mention even a
single
female
Plaintiff
during
Plaintiff’s
disparity
co-employee
his
Equal
Pay
between
his
colleagues,
and
his
who
18-year
earned
higher
employment
argument
salary
a
focuses
and
complaint
the
at
salary
UMES.
solely
on
salaries
of
expressly
states
than
Indeed,
the
pay
his
male
that
the
discrimination he allegedly suffered arose due to his race and
national origin.
Because the Equal Pay Act targets only gender25
based
compensation
discrimination,
Diamond
v.
T.
Rowe
Price
Assocs., 852 F.Supp. 372, 389 (D.Md. 1994), and Plaintiff makes
no allegation related to gender discrimination in his complaint,
his claim under the Equal Pay Act must fail.
III. Conclusion
For the foregoing reasons, Defendants’ motion for summary
judgment will be granted.
A separate Order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
26
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