Lewis v. MV Transportation, Inc.
Filing
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MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 9/27/2012. (c/m 9/28/2012 eb) (ebs2, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION
SHAWNETTA LEWIS,
Plaintiff,
v.
Civil Action No. 8:12-cv-00983-AW
MV TRANSPORTATION, INC.,
Defendant.
MEMORANDUM OPINION
Pro se Plaintiff Shawnetta Lewis (Lewis) brings this action against her former employer,
MV Transportation (MVT). Lewis asserts disability discrimination and retaliation claims under
the ADA, along with a disability discrimination claim under Maryland state law. Presently
outstanding is is Defendant’s Motion to Dismiss. The Court has reviewed the record and deems a
hearing unnecessary. For the reasons articulated herein, the Court GRANTS Defendant’s Motion
to Dismiss.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The Court draws the following facts primarily from Lewis’s Amended Complaint.
Although the Amended Complaint is technically correspondence as Lewis filed it improperly,
the Court treats it as an Amended Complaint in light of Lewis’s pro se status. This decision does
not prejudice Lewis because the Amended Complaint is a more detailed variant of the original
Complaint.
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Lewis’s Amended Complaint sounds in disability discrimination. Lewis started working
for MVT in 2005. In early August 2009, Lewis started having seizures. MVT ordered Lewis off
work due to her seizures. During her absence, Lewis saw her doctor. Lewis’s doctor gave her a
note stating that she was able return to work with “light duty work restrictions.” Doc. No. 14-1 ¶
15.
In the same month, Lewis presented the note to her immediate supervisor, James Wahu.
Wahu allegedly refused to accommodate Lewis’s request for light duty and ordered her to take
unpaid FMLA leave.
On August 10, 2010, MVT sent Lewis a letter “indicating the possibility of returning to
work.” Id. ¶ 20. However, MVT has yet to reemploy Lewis.
In early May 2011, Lewis filed a charge of discrimination with the EEOC.1 See Doc. No.
10-2. In the section of the charge in which employees must specify the type of discrimination
they experienced, Lewis checks in the box for disability only. The EEOC issued a right-to-sue
letter in late December 2011.
On March 29, 2012, Plaintiff filed her Complaint. Doc. No. 1. The Complaint is a slightly
less detailed version of the Amended Complaint. The Complaint asserts one claim: disability
discrimination under the ADA.
On the same day, Lewis moved for leave to proceed in forma pauperis. Doc. No. 2. The
Court granted this Motion on May 31, 2012. Doc. No. 5.
MVT filed a Motion to Dismiss on August 20, 2012. Doc. No. 10. MVT’s lead argument
is that Lewis failed to exhaust administrative remedies inasmuch as she failed to institute her
EEOC charge within 300 days of MVT’s allegedly discriminatory actions.
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In fact, Lewis filed the charge with the Maryland Commission on Human Relations (MCHR). The
distinction between the MCHR and the EEOC is irrelevant to the issues in this case. For simplicity’s sake,
the court refers to the MCHR as the EEOC.
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The Clerk of the Court sent Lewis a Rule 12/56 letter on August 21, 2012. Doc. No. 12.
The letter states in boldface that the Court may dismiss the case if Lewis fails to file a timely
written response. The letter specifies the time for responding as seventeen days from the date of
the letter. The seventeen days the letter prescribes expired on September 7, 2012.
Despite the Clerk’s issuance of the letter, Lewis has failed to respond to MVT’s Motion
to Dismiss. Instead, she filed a Second Motion for Leave to Proceed In Forma Pauperis (Second
IFP Motion) on August 29, 2012. Doc. No. 13. The Second IFP Motion is not a substantive
document and does not address MVT’s Motion to Dismiss.
On September 10, 2012, three days after the deadline for responding to MVT’s Motion to
Dismiss, Lewis filed her purported Amended Complaint. Although Lewis complied with neither
the Local Rules nor the Federal Rules of Civil Procedure in filing this document, the Court treats
this filing as an Amended Complaint.
II.
STANDARD OF REVIEW
A.
Motion to Dismiss for Lack of Subject Matter Jurisdiction—Rule 12(b)(1)
“There are two critically different ways in which to present a motion to dismiss for lack
of subject matter jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). “First, it
may be contended that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based.” Id. Where the defendant contends that the complaint fails to allege
facts sufficient to establish subject matter jurisdiction, “all the facts alleged in the complaint are
assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he
would receive under a Rule 12(b)(6) consideration.” Id. “Second, it may be contended that the
jurisdictional allegations of the complaint [are] not true.” Adams, 697 F.2d at 1219. In such
cases, “the court is free to consider exhibits outside the pleadings to resolve factual disputes
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concerning jurisdiction.” Zander v. United States, 843 F. Supp. 2d 598, 603 (D. Md. 2012)
(internal quotation marks omitted) (citing Smith v. Wash. Metro. Area Transit Auth., 290 F.3d
201, 205 (2002)).
B.
Motion to Dismiss for Failure to State a Claim—Rule 12(b)(6)
The purpose of a motion to dismiss is to test the sufficiency of the plaintiff’s complaint.
See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In two recent cases, the
U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions. Ashcroft v.
Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). These cases
make clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of entitlement to
relief.” Twombly, 550 U.S. at 556 n.3 (quoting Fed. R. Civ. P. 8(a)(2)). This showing must
consist of at least “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
In deciding a motion to dismiss, the court should first review the complaint to determine
which pleadings are entitled to the assumption of truth. See Iqbal, 129 S. Ct. at 1949–50. “When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. In so doing,
the court must construe all factual allegations in the light most favorable to the plaintiff. See
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). The Court
need not, however, accept unsupported legal allegations, Revene v. Charles County
Commissioners 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual
allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations
devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979).
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III.
LEGAL ANALYSIS
A.
Disability Discrimination
Lewis failed to exhaust administrative remedies on her disability discrimination claim.
“Prior to filing a law suit alleging violations of the ADA . . . , a plaintiff must first exhaust
administrative remedies.” Snead v. Bd. of Educ. of Prince George’s County, 815 F. Supp. 2d
889, 894 (D. Md. 2011) (citations omitted). “Under [the ADA], the exhaustion requirements and
filing procedures are identical to those applicable to claims under Title VII.” Id. (citations
omitted).
“In order to maintain an action under Title VII, a plaintiff must file an administrative
charge with the EEOC within 180 days of the alleged misconduct.” Williams v. Giant Food Inc.,
370 F.3d 423, 428 (4th 2004) (citation omitted). “This period is extended to 300 days in cases
such as this, when state law proscribes the alleged employment practice and the charge has
initially been filed with a state deferral agency.” Id. (citation and internal quotation marks
omitted); see also 29 C.F.R. § 1601.74 (designating the Maryland Commission on Human
Relations as a Fair Employment Practices Agency). Allegations based on incidents that take
place more than 300 days after the alleged discriminatory event are entitled to no weight for the
purposes of ruling on a motion to dismiss. See Tasciyan v. Med. Numerics, 820 F. Supp. 2d 664,
675 n.1 (D. Md. 2011) (citation omitted).
In this case, Lewis alleges that MVT discriminated against her in August 2009 when she
started experiencing seizures and MVT refused to allow her to return to work. Although Lewis
fails to specify the date on which MVT told her she could not return to work, the Amended
Complaint is amenable to only the inference that this event took place right around the time that
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Lewis started experiencing seizures (i.e., early August, 2012).2 In fact, Lewis specifically states
in her EEOC charge that Wahu told her she could not return to work on August 5, 2009. Doc.
No. 10-2 at 1.
Accordingly, construing the Amended Complaint favorably, the discriminatory act must
have occurred no later than August 31, 2009. Thus, for the August 2009 discriminatory act to be
entitled to weight, Lewis would have had to have filed her EEOC charge by June 27, 2010. But
Lewis’s EEOC charge unequivocally states that she filed it on March 15, 2011. Id. Therefore, the
August 2009 act receives no weight. As this is the sole discriminatory act that the Amended
Complaint alleges, it is necessarily devoid of any allegations creating a plausible inference of
disability discrimination.
Lewis might argue that the August 10, 2010 incident in which MVT sent her a letter
“indicating the possibility of [her] returning to work” constitutes a discriminatory act sufficient
to stave off dismissal. This argument would fail for two reasons. First, on its own, the assertion
that MVT issued a letter in August 2010 “indicating the possibility” of allowing Lewis to return
to work is insufficient to create a plausible inference of disability discrimination.
Second, insofar as the August 2010 letter is potentially probative of discrimination, it is
implausible that it constitutes a continuing violation. “The continuing violation theory (a type of
equitable tolling) applies where the plaintiff proves that it would have been impossible for a
reasonably prudent person to learn that [an employment action] was discriminatory.” Tasciyan v.
Med. Numerics, Civil Action No. 11–1467 AW, 2011 WL 6097977, at *5 (D. Md. Dec. 6, 2011)
(alterations in original) (citations and internal quotation marks omitted). “Generally, [s]uch
impossibility exists only where the plaintiff is unaware of the facts giving rise to the claim
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because the defendant has intentionally concealed them.” Id. (citation and internal quotation
marks omitted).
Here, according to Lewis’s own allegations, the MVT’s discrimination was on full
display in August 2009. Furthermore, the second allegedly discriminatory act stood in isolation
from the first. That is, the Amended Complaint contains no allegations creating a connection
between these two acts. Thus, even if MVT “indicated the possibility” of rehiring Lewis in
August 2010, this act would fail to constitute a continuing violation such that the August 2009
act would retain weight.
For these reasons, the Court dismisses Lewis’s ADA claim. This dismissal is with
prejudice considering that (1) Lewis failed to exhaust administrative remedies; (2) failed to
respond to MVT’s Motion to Dismiss; and (3) failed to state a cognizable ADA claim in both her
Complaint and Amended Complaint.
B.
Retaliation
Lewis’s retaliation claim fails as a matter of law for three reasons. First, as with her
disability discrimination claim, Lewis failed to exhaust administrative remedies. Assuming one
could plausibly construe MVT’s August 2009 refusal to reinstate Lewis as opposition, this act is
entitled to no weight. For its part, the August 2010 incident in which MVT supposedly suggested
the possibility of permitting Lewis to return to work is insufficient to state a facially plausible
retaliation claim.
Second, Lewis failed to exhaust administrative remedies because she neglected to file an
administrative charge for retaliation. Federal courts generally lack subject matter jurisdiction
over employment discrimination claims concerning which the plaintiff has failed to file a charge
of discrimination. See Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300–01 (4th Cir. 2009). The
contents of the charge determine the scope of the plaintiff’s right to file a federal lawsuit. See
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Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). Usually, “[o]nly those
discrimination claims stated in the initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of the original complaint may be
maintained in a subsequent [employment discrimination] lawsuit.” Evans v. Techs. Applications
& Serv. Co., 80 F.3d 954, 963 (4th Cir. 1996). Thus, plaintiffs typically may not bring claims
where the EEOC charge alleges discrimination on one basis and the complaint alleges
discrimination on a separate basis. See Bryant, 288 F.3d at 132–33.
In this case, whereas the EEOC charge alleges discrimination on the basis of disability
discrimination, the Amended Complaint alleges retaliation. Furthermore, there is no indication
that the EEOC undertook an investigation for retaliation in response to Lewis’s charge. This is
unsurprising in view of the charge’s sparse allegations, which mirror the Amended Complaint’s.
In short, the allegations in the charge fail to create a reasonable inference of retaliation.
As the Fourth Circuit has held, there is no presumption that evidence of retaliation will surface
from the investigation of discrimination claims, or that retaliation claims otherwise fall within
the scope of discrimination. See id.; cf. Jenkins v. Gaylord Entm’t Co., 840 F. Supp. 2d 873, 883
(D. Md. 2012) (citation omitted) (noting that, depending on the circumstances, evidence of
retaliation may lack probative value for discrimination claims). Accordingly, Lewis failed to
exhaust administrative remedies on her retaliation claim.
Lewis’s retaliation claim also fails because it is facially implausible per se. To state a
prima facie case of retaliation under Title VII, a plaintiff must establish: “(1) that she engaged in
protected activity; (2) that her employer took an adverse employment action against her; and (3)
that a causal connection exist[s] between the protected activity and the adverse employment
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action.” Tasciyan, 820 F. Supp. 2d at 675 (citing Davis v. Dimensions Health Corp., 639 F.
Supp. 2d 610, 616–17 (D. Md. 2009)).
In this case, Lewis alleges that Wahu would not allow her to return to work after she
presented a doctor’s note stating that she was fit for light duty. Had Lewis not failed to exhaust
administrative remedies concerning this allegation, it might support the inference that Lewis
engaged in opposition.
Still, the Amended Complaint would fail to create a plausible inference that MVT took an
adverse employment action in reprisal for this opposition. The allegedly adverse action of being
ordered off of work took place before Lewis presented her doctor’s note. Therefore, it is illogical
to say that Lewis’s submission of the doctor’s note caused this action.
Alternatively, Lewis might argue that MVT’s alleged 2009 and 2010 refusals to allow her
back to work constitute adverse actions. This argument would fail for similar reasons. The
adverse action must be in reprisal for the opposition. However, no opposition preceded these
actions and, therefore, they cannot conceivably constitute adverse employment actions. To the
extent Lewis alleges that the 2010 refusal is in retaliation for the 2009 opposition, this allegation
would fail to create a plausible inference of causation due to the one-year gap between these
incidents.
The preceding discussion demonstrates that Lewis failed to exhaust administrative
remedies on her retaliation claim on two separate grounds. The discussion also shows that the
retaliation claim is not cognizable. Consequently, the Court dismisses this claim with prejudice.
C.
State-law Discrimination
Plaintiff also asserts a disability discrimination claim under §§ 2-601 et seq. of the
Maryland Fair Employment Practices Act (FEPA). This claim fails. It is well-established that
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FEPA does not create a private right of action for disability discrimination. See, e.g., Childers v.
Chesapeake and Potomac Tel. Co., 881 F.2d 1259, 1265–66 (4th Cir. 1989) (citing cases).
Although Childers references the since-repealed Article 49B, § 16 of the Maryland Code, this
law was later recodified, without substantive change, in §§ 20-601 et seq. of the State
Government Article. See Meade v. Shangri-La P’ship, 36 A.3d 483, 494 n.9 (Md. 2012).
Therefore, Lewis’s FEPA disability discrimination claim is not cognizable.
Even though Lewis asserts no such claim, the Court will explore the possibility whether
she has stated a cognizable disability discrimination claim under § 20-1202 of the State
Government Article. Section 20-1202 applies to Howard, Montgomery, and Prince George’s
Counties. Md. Code Ann., State Gov’t § 20-1202(a). In contrast to §§ 20-601 et seq., it provides
that “a person that is subjected to a discriminatory act prohibited by the county code may bring
and maintain a civil action against the person that committed the alleged discriminatory act for
damages, injunctive relief, or other civil relief.” Id. § 12-1202(b).
Section 2-222 of the Administration Subtitle of the Prince George’s County Code (PG
Code) generally prohibits employers from discriminating against employees. PG Code, Admin. §
2-222 (2003). The definition of discrimination includes discrimination based on “physical or
mental handicap.” Id. § 2-186(a)(3).
The Administration Subtitle contains a set of provisions creating a Human Relations
Commission (PGHRC). See id. §§ 2-185 et seq. One of the PGHRC’s purposes is to eliminate
discriminatory practices in the area of employment. Id. § 2-185(b). To this end, the
Administrative Subtitle sets forth a series of investigation and enforcement procedures. See id.
§§ 2-194 to 2-209. Among these procedures is the requirement that employees must file a
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discrimination charge with the PGHRC within 180 days of the date of the alleged violation. See
id. § 2-201.
In this case, Lewis failed to exhaust administrative remedies under the PG Code. The
record leaves no trace that Lewis filed a complaint with the PGHRC.
Lewis’s filing of the EEOC charge also fails to salvage her state law disability
discrimination claim. Concededly, § 2-185 of the Administrative Subtitle suggests that the filing
of an EEOC charge may excuse plaintiffs from filing a complaint with the PGHRC. Cf. id. § 2185(c). But this provision takes two factors for granted. One is that the parallel process is
“substantially similar” to the PGHRC’s procedures. Cf. id. The second is that plaintiffs have
made a good faith effort to exhaust the parallel procedures. Otherwise, a halfhearted effort to
comply with the parallel process would satisfy the PGHRC’s procedures, thereby short-circuiting
them.
Here, even though the EEOC’s procedures share sufficient overlap with the PGHRC’s,
Lewis failed to properly exhaust administrative remedies under the ADA. Lewis failed to comply
with the federal requirement that she lodge her charge within 300 days of the underlying
discrimination, which is more generous than § 2-201’s 180-day requirement. Therefore, it
forcibly follows that Lewis failed to exhaust administrative remedies under § 2-201.
For good measure, it also appears that Lewis’s § 20-1202 claim is time-barred. Section
20-1202 requires plaintiffs to assert discrimination claims based on county codes “within two
years after the occurrence of the alleged discriminatory act.” Md. Code Ann., State Gov’t § 201202(c)(1). In this case, the discriminatory act occurred in August 2009. Yet Lewis did not
commence the instant action until March 29, 2012, which is over two and a half years from the
date on which the alleged discrimination occurred.
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The Court held above that FEPA creates no private right of action for violations of §§ 20601 set seq. of the State Government Article. Further, the Court held that Lewis’s colorable
disability discrimination claim under § 20-1202 of the State Government Article fails as a matter
of law. Therefore, the Court dismisses Lewis’s state law disability discrimination claim with
prejudice.
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS MVT’s Motion to Dismiss. A separate
Order follows.
September 27, 2012
Date
/s/
Alexander Williams, Jr.
United States District Judge
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