Murphy v. Adams et al
Filing
77
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/4/14. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ANTOINETTE MURPHY
:
v.
:
Civil Action No. DKC 12-1975
:
SHIRLEY ADAMS, PRESIDENT
OF THE AMERICAN FEDERATION OF
STATE, COUNTY, AND MUNICIPAL
EMPLOYEES LOCAL 2250, ET AL.
:
:
MEMORANDUM OPINION
Presently
employment
pending
and
discrimination
ready
case
is
for
resolution
the
motion
for
in
this
summary
judgment filed by Defendants Shirley Adams, President of the
American Federation of State, County, and Municipal Employees
Local 2250, and the Executive Board of the American Federation
of State, County, and Municipal Employees Local 2250 (“AFSCME
2250”).
(ECF No. 59).
Also pending are the third motion to
compel filed by Plaintiff Antoinette Murphy (ECF No. 60), the
amended motion for extension of time filed by Plaintiff (ECF No.
63), and the motion to strike filed by Defendants (ECF No. 69).
The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
For the
following reasons, the motion to compel will be denied.
The
motion for an extension of time will be granted, but the motion
to strike will be denied.
The motion for summary judgment will
be granted in part and denied in part.
I.
Background1
Plaintiff
was
a
bus
driver
for
Prince
George’s
County
public schools.
She was a member of Defendant AFSCME 2250, of
which
Adams
Defendant
Plaintiff’s
file
collective
grievances
on
is
the
President.
bargaining
her
behalf.
agent
AFSCME
and
Plaintiff
is
designated
is
2250
to
alleges
that
Mr.
Bernard Palmer, an employee of the school system and Plaintiff’s
supervisor,
subjected
harassment.
Specifically, Mr. Palmer forced Plaintiff to meet
with
him
on
supervision
a
to
Plaintiff
to
quid
pro
quo
daily
basis
throughout
the
course
control
and
intimidate
her
and
sexual
of
his
threatened
Plaintiff with termination if she did not give in to his sexual
advances.
He reprimanded her and pulled her off assignments.
Mr. Palmer would tell other men on the job that he wanted to
have sex with Plaintiff.
President
of
AFSCME
2250,
Plaintiff informed Mr. Faith Jones,
about
Mr.
Palmer’s
behavior.2
On
September 24, 2009, Mr. Jones told Plaintiff that “if she gave
1
Unless otherwise noted,
construed in the light most
nonmoving party.
2
the facts outlined here
favorable to Plaintiff,
are
the
Plaintiff designates both Mr. Jones and Ms. Adams as the
President of AFSCME. It is not clear whether one succeeded the
other or whether Plaintiff is correct as to the status of Mr.
Jones or Ms. Adams.
2
him
what
hands.”
some.”
he
wanted,
then
Mr.
Palmer
would
be
putty
in
her
Mr. Jones laughed and told Plaintiff to just “give him
(ECF No. 2 ¶ 14; ECF No. 59-3, letter from Plaintiff to
Mr. Richard Putney, AFSCME 2250’s Executive Director).
That
same day, Plaintiff had a meeting with Mr. Putney and Ms. Adams
to discuss a variety of complaints, including her foremen not
giving her proper work, her coworkers constantly lying to her,
and the harassment she was experiencing.
(ECF No. 59-2, at 19-
20, Trans. 114:19 – 115:8, Plaintiff Dep.).
Plaintiff stated
that she did not characterize Mr. Palmer’s behavior as sexual,
only that he constantly wanted to be with her in an abnormal
manner that made her feel very uncomfortable and constituted
harassment in her mind.
(Id. at 21, Trans. 116:1-9).
Mr.
Putney stated that Plaintiff needed to file harassment charges
and Ms. Angela Thomas (an employee of AFSCME 2250) needed to get
the paperwork ready.
Plaintiff was unsure exactly what the
union was planning to do, however.
She told Mr. Putney “to file
a harassment”; she did not ask him to file a sexual harassment
grievance, and Mr. Putney did not indicate he was going to file
such a grievance.
Plaintiff states that AFSCME 2250 would not
take or file a grievance on Plaintiff’s behalf.
The school
system
intentional
and
discrimination
against
AFSCME
were
resulted
Plaintiff,
in
in
including
concert
many
adverse
suspension
3
and
the
employment
without
pay,
actions
verbal
reprimand,
consisted
consistently
of
sitting
poor
in
Mr.
evaluations,
Palmer’s
and
training
division
all
that
day
and
reading a manual.
On January 12, 2010, Plaintiff, attempting to get help from
her union, explained to Mr. Jones that she had been sent home
unfairly by Mr. Palmer before she started her run.
Mr. Jones
laughed and told her that she needed to calm down.
Plaintiff
responded that she was tired of the constant harassment from her
supervisors and that the union needed to step in and properly
represent her.
Palmer
likes
Plaintiff
Mr. Jones then told Plaintiff that “I told you
you,
responded
just
that
give
she
it
to
was
responded that he was not kidding.
him
not
and
it
kidding.
will
Mr.
stop.”
Jones
Later that day, Mr. Jones
kept suggesting “that I [Plaintiff] give into Mr. Palmer and
just fix him up.
This will all go away.”
(ECF No. 59-3, at 2).
Plaintiff states that she would call AFSCME 2250 whenever
Mr. Palmer wanted to meet with her alone.
She states that Ms.
Thomas and Mr. James Spears would tell her just to go ahead and
meet with him alone, and whatever he gives you or whatever he
tells you, then bring that back to the union and they will deal
with it.
(ECF No. 66-2, at 13-14, Trans. 252:13 – 253:18).
At
some point AFSCME 2250 informed Plaintiff that it would not file
a grievance on behalf of Plaintiff in regard to Mr. Jones’s
comments.
Ms. Wanda Newman and Ms. Shirley Breeze, members of
4
the union’s executive board, were given responsibility for the
matter,
but
told
Plaintiff
approach this matter.
On
July
3,
that
they
did
not
know
how
to
(Id. at 16-17, Trans. 281:1 – 282:4)
2012,
Plaintiff
filed
a
complaint
against
Defendants Adams, AFSCME 2250, and the Board of Education of
Prince
George’s
County.
The
complaint
contains
a
claim
of
“Sexual Harassment – Hostile Work Environment – Retaliation” in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2.
take
action
second
count
Vicarious
alleges
Plaintiff alleges that Defendants refused to
following
of
her
Liability”
that
Mr.
Plaintiff’s
complaint
in
numerous
alleges
violation
Palmer
would
not
of
complaints.
“Sexual
Title
have
Harassment
VII.
taken
The
–
Plaintiff
the
tangible
employment actions against her had Defendants interceded on her
behalf.
Defendants Adams and AFSCME 2250 filed a motion to
dismiss, which this court denied by Memorandum Opinion and Order
on January 31, 2013.
(ECF Nos. 14 and 15).
Defendant Board of
Education of Prince George’s County filed a motion to dismiss
for improper service, which was granted on March 1, 2013.
Nos.
25
and
26).
On
January
17,
2014,
after
a
(ECF
period
of
discovery, Defendants Adams and AFSCME 2250 filed a motion for
summary judgment.
3, 2014.
(ECF No. 59).
A response was due by February
On February 2, 2014, Plaintiff filed a motion for
extension of time.
That motion was denied without prejudice
5
subject to renewal for failure to comply with Local Rule 105.9.
On
February
20,
2014,
Plaintiff
renewed
her
motion
for
extension of time to file her response to March 1, 2014.
No. 63).
(ECF
Defendants opposed this motion on March 10, 2014.
(ECF No. 67).
summary
an
Plaintiff filed her opposition to Defendant’s
judgment
motion
on
March
1,
2014.
(ECF
No.
65).
Defendants filed a motion to strike Plaintiff’s opposition on
March 14, 2014.
(ECF No. 69).
Plaintiff responded on April 1,
2014 (ECF No. 72), and Defendants replied on April 18, 2014 (ECF
No. 76).
February
Plaintiff filed a motion to compel depositions on
2,
2014.
February 21, 2014.
II.
(ECF
No.
60).
Defendants
responded
on
(ECF No. 64).
Analysis
A.
Motion to Compel
Plaintiff filed a motion to compel Defendants to produce
witnesses for depositions and to impose sanctions on Defendants.
Discovery in this case was originally scheduled to close on July
15, 2013.
Plaintiff requested an extension which was granted,
setting the new deadline at September 5, 2013.
Plaintiff filed
a motion to compel Defendants to produce an investigative report
prepared
by
Defendants’
counsel
concerning
Plaintiff’s
allegations and filed a second motion to extend discovery to
allow her to depose certain individuals that she learned about
from
documents
Defendants
produced.
6
Following
a
telephone
conference, the court ordered the parties to consult on the
documents
Plaintiff
desires
and,
if
the
documents
concern
matters at issue in this case, then the depositions of James
Spears and Angela Thomas will be conducted, limited to inquiry
about those documents.
resolve
whether
Furthermore, a hearing was scheduled to
Plaintiff
report.
(ECF No. 53).
produce
the
was
Defendants
to
the
investigative
The Defendants subsequently agreed to
investigative
unnecessary.
entitled
report,
represent
rendering
that
they
the
hearing
conferred
with
Plaintiff about the need for depositions of Ms. Thomas or Mr.
Spears, but could not come to an agreement.
noted
these
depositions.
Only
after
Plaintiff has never
Defendants
filed
their
motion for summary judgment did Plaintiff file this motion to
compel.
Plaintiff argues that now that the report has been
produced, she needs to depose some union members mentioned in
the report in order to obtain discoverable evidence concerning
Plaintiff’s request for aid from ASCFME 2250.
Plaintiff’s motion will be denied.
who
she
needs
to
depose
or
why
she
She fails to identify
only
learned
of
their
identities now, given that she had previously seen a copy of the
investigation.
If Plaintiff seeks to depose Ms. Thomas or Mr.
Spears, she certainly knew of their identities, as evidenced by
her September 2013 deposition.
252:11-19).
(See ECF No. 66-2, at 13, Trans.
Plaintiff also does not explain the months-long
7
delay in filing a motion to compel once the report was produced
or why she failed to notice any depositions.
Her motion to
compel and to impose sanctions will be denied.
B.
Motion for Extension of Time
Plaintiff
opposition
first
to
request
opposition,
renewal.
requested
an
Defendants’
was
but
filed
it
Seventeen
was
extension
motion
within
denied
days
later,
for
the
of
time
summary
deadline
without
to
her
judgment.
Her
for
her
prejudice
Plaintiff
file
filed
filing
subject
her
to
renewed
motion, stating that her counsel had a trial that was originally
scheduled for September 30, 2013 pushed back to January 10,
2014.
This case, combined with Plaintiff’s counsel’s additional
case load and the holiday season, posed a real time management
hardship.
the
day
Defendants represent that Plaintiff contacted them on
the
court
denied
Plaintiff’s
extension
of
time
to
determine whether Defendants would consent to such an extension.
That day, Defendants responded that they would not so consent.
Plaintiff’s counsel explains that a personal family emergency in
the last two weeks caused the delay in renewing her motion.
Rule 6 of the Federal Rules of Civil Procedure provides
different standards for a court when considering a request for
extension of time, depending on whether the request is filed
before or after the original time expires.
When made before the
original time expires, the court need only find good cause to
8
extend the deadline.
Fed.R.Civ.P. 6(b)(1)(A).
By contrast,
when the request is made after the original deadline, the court
may grant the motion only when the requesting party demonstrates
good cause that it failed to act because of excusable neglect.
Id. 6(b)(1)(B).
demonstrate
Defendants argue that Plaintiff is required to
“excusable
neglect”
under
6(b)(1)(B)
because
she
filed her request for extension of time on February 20, 2014,
after the original February 2, 2014 deadline.
Defendants’ argument will be rejected.
They point to no
authority that states that a motion for extension of time filed
before
the
deadline,
denied
without
prejudice
subject
to
renewal, and then refiled after the deadline is now subject to
Rule
6(b)(1)(B)’s
requirement.
more
demanding
“excusable
neglect”
Plaintiff’s original explanation for her need for
an extension is sufficient under Rule 6(b)(1)(A) and her motion
will be granted.
C.
Motion to Strike
Defendants move to strike documents included in Plaintiff’s
opposition.
principal
In their motion for summary judgment, Defendants’
argument
is
that
Plaintiff
failed
to
exhaust
her
administrative remedies because she failed to file her charge
with the EEOC within 300 days of the allegedly discriminatory
act.
42 U.S.C. § 2000e-5(e)(1).
Plaintiff’s EEOC charge form
lists the latest date of discrimination as April 15, 2010, but
9
the form was filed on July 28, 2011, well outside the 300 day
window.
(ECF
No.
59-4).
In
her
opposition
to
Defendants’
motion, however, Plaintiff provides a letter dated November 8,
2010 from Plaintiff’s counsel to the EEOC’s Baltimore office
outlining the alleged discrimination committed by the Board of
Education and AFSCME 2250.
Also provided is a completed EEOC
Intake Questionnaire dated November 20, 2010.
Plaintiff argues
that these documents demonstrate that a charge was filed within
300 days of the alleged discriminatory acts.
that
this
despite
is
the
the
fact
first
that
time
the
they
have
document
Defendants respond
seen
these
request
documents
propounded
upon
Plaintiff during discovery specifically requested “a copy of any
and all documents or communications concerning the EEOC charge
referenced in . . . your Amended Complaint.”
5).
(ECF No. 69-2, at
Furthermore, Defendants also requested “a copy of any and
all documents or communications you [Plaintiff] intend to rely
on in support of the claims you make against the Union in your
Amended
Complaint.”
interrogatories,
(Id.).
Defendants
In
asked
their
Plaintiff
first
to
set
“[p]rovide
of
an
explanation of what steps you took to ‘timely file a charge of
discrimination
against
defendant
with
the
Equal
Employment
Opportunity Commission (EEOC)’ as alleged in Paragraph 4 of your
Amended
Complaint.”
(ECF
No.
69-3,
at
7).
According
to
Defendants, despite these multiple requests, Plaintiff failed to
10
identify
or
produce
opposition
to
the
documents
Defendants’
she
motion
now
for
relies
on
summary
in
her
judgment.
Defendants contend that Plaintiff should not be permitted to
rely upon this evidence pursuant to Rule 37(c)(1).
Rule 37(c)(1) provides that “[i]f a party fails to provide
information . . . as required by Rule 26(a) or (e), the party is
not allowed to use that information . . . to supply evidence on
a motion . . . unless the failure was substantially justified or
is harmless.”
show
that
It is the burden of the party facing sanctions to
the
failure
to
2006).
was
either
substantially
Carr v. Deeds, 453 F.3d 593, 602 (4th
justified or harmless.
Cir.
comply
District
courts
have
broad
discretion
in
determining whether a nondisclosure is substantially justified
or harmless.
See id.
In Southern States Rack and Fixture, Inc.
v. Sherwin–Williams Co., 318 F.3d 592, 597 (4th Cir. 2003), the
United States Court of Appeals for the Fourth Circuit set forth
several
factors
determination.
party
against
to
guide
district
courts
in
making
this
A court may consider “(1) the surprise to the
whom
the
evidence
would
be
offered;
(2)
the
ability of that party to cure the surprise; (3) the extent to
which allowing the evidence would disrupt the trial; (4) the
importance of the evidence; and (5) the nondisclosing party’s
explanation
for
its
failure
to
disclose
the
evidence.”
District courts need not expressly consider each Southern States
11
factor
when
evaluating
discovery
violations.
See
Hoyle
v.
Freightliner, LLC, 650 F.3d 321, 330 (4th Cir. 2011).
Plaintiff
acknowledges
that
these
documents
were
not
produced in response to Defendants’ discovery requests because
at the time Plaintiff believed they were privileged.
provides
her
requests
where,
documents
or
answers
in
to
Defendant’s
response
communications
to
the
first
set
of
demand
for
Plaintiff
any
concerning
her
EEOC
document
and
all
charge,
she
responded “Objection, parts of the communication is privileged.
The
non-privilege
is
produced.”
(ECF
No.
72-1,
at
2).
Plaintiff submits that the original charge and a letter from the
EEOC reopening the charge were produced as part of discovery.
Plaintiff contends that the discovery period is now closed and
Defendants
documents
never
and,
moved
in
to
compel
addition,
Plaintiff
“there
have
to
produce
these
been
several
phone
conferences with the Court concerning discovery dispute and the
issue of the Charge not being produced was never raised by the
Defendant.”
Defendants
because
(ECF No. 72, at 2).
have
EEOC
employer.
not
sends
been
a
Finally, Plaintiff argues that
prejudiced
notice
and
copy
or
of
negatively
the
impacted
charge
to
the
See 42 U.S.C. § 2000e-5(b) (“Whenever a charge is
filed by or on behalf of a person claiming to be aggrieved, the
[EEOC] shall serve a notice of the charge . . . on such employer
[or]
labor
organization
within
12
ten
days.”);
29
C.F.R.
§
1601.14(a) (“Within ten days after the filing of a charge in the
appropriate [EEOC] office, the [EEOC] shall serve respondent a
copy of the charge.”).
any
contention
that
Defendants reply by pointing out that
they
slept
on
their
rights
concerning
discovery is ridiculous given that they were completely ignorant
of these documents until they appeared in Plaintiff’s opposition
to summary judgment, despite having asked for them.
Even if
they were privileged, Plaintiff never produced a privilege log
as required.
Finally, to Plaintiff’s argument that her failure
to produce was harmless because the EEOC would have sent it to
Defendants, Defendants argue that the federal discovery rules do
not contain a “you should have already had this” exception.
Plaintiff
will
be
permitted
to
rely
upon
the
documents
submitted as part of her opposition.
Plaintiff’s behavior is by
no
point
means
justified:
believed
the
protected
by
intake
an
as
Defendants
questionnaire
evidentiary
out,
submitted
privilege,
she
to
was
if
the
she
truly
EEOC
obligated
was
at
least to create a privilege log, in order to alert Defendants to
the existence of such a document to allow them to challenge the
asserted
privilege.
But
as
Plaintiff
points
out,
albeit
inconsistently, federal law requires the EEOC to serve a charge
upon the employer or union within ten days of filing and, “in
the absence of clear evidence to the contrary, courts presume
that
they
have
properly
discharged
13
their
official
duties.”
United
States
v.
Chemical
Found.,
Inc.,
272
U.S.
1,
14-15
(1926).
It is hard to fathom how a document slated for release
by
EEOC
the
can
be
privileged.
Nevertheless,
under
the
circumstances, Plaintiff’s failure to produce the EEOC intake
questionnaire is not sufficiently prejudicial.
See Russell v.
Bronson Heating & Cooling, 345 F.Supp.2d 761, 777-78 (E.D.Mich.
2004)
(finding
failure
to
disclose
intake
questionnaire
harmless); Tolerico v. Home Depot, 205 F.R.D. 169, 177 (M.D.Pa.
2002) (same).
D.
Motion for Summary Judgment
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
party
is
entitled
to
judgment
as
a
matter
of
law.
See
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);
Anderson
v.
Liberty
Lobby,
Inc.,
477
(1986).
The moving party bears the burden of showing that there
is no genuine dispute as to any material fact.
U.S.
242,
250
However, no
genuine dispute of material fact exists if the nonmoving party
fails to make a sufficient showing on an essential element of
his or her case as to which he or she would have the burden of
proof.
Celotex, 477 U.S. at 322–23.
Therefore, on those issues
on which the nonmoving party has the burden of proof, it is his
or her responsibility to confront the summary judgment motion
14
with an affidavit or other similar evidence showing that there
is a genuine issue for trial.
Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material
fact,
and
the
moving
party
is
plainly
judgment in its favor as a matter of law.
Liberty
Lobby,
Inc.,
the
Supreme
Court
In
entitled
to
Anderson v.
explained
that,
in
considering a motion for summary judgment, the “judge’s function
is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
trial.”
477 U.S. at 249 (1986).
A dispute about a material
fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id.
Thus,
“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”
Id. at 252.
In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”
Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting
United
States
v.
Diebold,
Inc.,
369
U.S.
654,
655
(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
The mere existence of a “scintilla” of
15
evidence
in
support
of
the
non-moving
party's
case
is
sufficient to preclude an order granting summary judgment.
not
See
Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”
Shin v.
Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,
this
court
has
an
affirmative
obligation
to
prevent
factually unsupported claims and defenses from going to trial.
See
Drewitt
v.
Pratt,
999
F.2d
774,
778–79
(4th
Cir.
1993)
(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
Defendants first argue that Plaintiff’s claims are barred
because she has failed to exhaust her administrative remedies.
“[F]ederal courts lack subject matter jurisdiction over Title
VII
claims
for
which
administrative remedies.”
a
plaintiff
has
failed
to
exhaust
Balas v. Huntington Ingalls Indus.,
Inc., 711 F.3d 401, 406 (4th Cir. 2013).
The burden of proving
subject-matter jurisdiction rests with the plaintiff.
See Evans
v. B.F. Perkins Co., A Div. of Standex Int’l Corp., 166 F.3d
642, 647 (4th Cir. 1999).
The Fourth Circuit has explained that
[i]n
any
subsequent
lawsuit
alleging
unlawful employment practices under Title
VII, a federal court may only consider those
allegations included in the EEOC charge.
See Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 962-63 (4th Cir. 1996)
(“The
allegations
contained
in
the
16
administrative
charge
of
discrimination
generally operate to limit the scope of any
subsequent judicial complaint.”).
If the
plaintiff’s Title VII claims “exceed the
scope of the EEOC charge and any charges
that would naturally have arisen from an
investigation thereof, they are procedurally
barred.”
Chacko [v. Patuxent Inst.], 429
F.3d [505,] 506 [(4th Cir. 2005)] (quoting
Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156
(4th Cir. 1995).
Balas, 711 F.3d at 407-08; see also Evans, 80 F.3d at 963 (“Only
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 lawsuit).
Consistent
with
these
principles,
“a
claim
in
formal
litigation will generally be barred if the EEOC charge alleges
discrimination
litigation
claim
such as sex.”
(4th
on
one
basis,
alleges
such
as
race,
discrimination
on
a
and
the
formal
separate
basis,
Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300
Cir.
2009).
complaint
allege
Likewise,
the
same
where
type
the
of
EEOC
claim
charge
(e.g.,
and
the
race-based
discrimination), the formal litigation claim may still be barred
if the central factual allegations supporting it were not raised
in the EEOC charge.
F.3d
505,
506
discrimination
reference
See, e.g., Chacko v. Patuxent Inst., 429
(4th
claim
different
Cir.
2005)
barred
where
time
frames,
17
(national
origin-based
“administrative
actors,
and
charges
discriminatory
conduct than the central factual allegations in [her] formal
suit”); Jones v. Republic Servs., No. AW–10–cv-1999, 2011 WL
6000761,
at
*2–3
(D.Md.
Nov.
29,
2011)
(where
EEOC
charge
alleged race-based disparate treatment based on the plaintiff’s
suspension
and
termination,
claim
for
race-based
disparate
treatment based on employer’s refusal to grant an alternative
work schedule was barred).
“At the same time, however, if the
factual allegations in the administrative charge are reasonably
related to the factual allegations in the formal litigation, the
connection
between
the
charge
and
the
claim
is
sufficient.”
Chacko, 429 F.3d at 509; see also Sydnor v. Fairfax Cnty., Va.,
681 F.3d 591, 595 (4th Cir. 2012) (although the administrative
charge and the judicial complaint alleged different facts in
support of a disability discrimination claim, they involved the
same
place
of
work,
the
same
actor,
the
same
type
of
fails
to
discrimination, and the same disability).
Defendants
submit
that
Plaintiff’s
EEOC
charge
reference in any way the allegations that provide the basis for
Plaintiff’s complaint in this case.
Plaintiff’s EEOC charge
makes no reference to Mr. Palmer or a claim that he was sexually
harassing her, yet the allegations with respect to Mr. Palmer’s
purported
conduct
form
counts in this court.
the
entire
basis
of
Plaintiff’s
two
Defendants also point to Plaintiff’s
deposition testimony where she states that her EEOC charge had
18
nothing to do with Mr. Palmer, but was instead directed against
AFSCME 2250 and Mr. Jones and, in addition, that her letter to
Mr. Putney did not concern Mr. Palmer’s actions, but was only
based on union matters.
Plaintiff’s EEOC charge is against only one entity: AFSCME
2250.
The Board of Education is not listed.
Plaintiff states
that the discrimination is based on sex and retaliation in the
form
of
a
hostile
work
environment.
She
spells
out
three
particulars:
(1) Despite numerous attempts
representation, regarding several
concern[s] against my employer,
Respondent
has
failed
to
represent my interests and has
intervene on my behalf.
to obtain
employment
the above
adequately
failed to
(2) I have not been provided with a reason
for the Respondent’s lack of action on my
behalf or a valid explanation as to why I
have not been adequately represented.
(3) The President of the Union (local 2250)
told me that sex with my supervisor to stop
him harassing me and threatening me with
suspension and termination.
I believe I
have been discriminated against in violation
of Title VII of the Civil Rights Act of
1964, as amended, regarding failure to
provide union representation based on my
sex, female.
(ECF No. 59-4).
Defendants’ arguments will be rejected.
It is
understandable that the bulk of Plaintiff’s complaint in this
court refers to Mr. Palmer’s actions because at one point the
Board of Education was a Defendant.
19
The complaint does allege
that she spoke with Mr. Jones about Mr. Palmer’s behavior and
was advised to have sex with Mr. Palmer and that AFSCME 2250
would not take or file a grievance on Plaintiff’s behalf or take
other actions to remedy the problem.
27).
(ECF No. 2 ¶¶ 14-15, 23,
These allegations track those made to the EEOC.
Mr.
Palmer’s alleged actions, while not explicitly spelled out in
the EEOC charge, could be expected to come out of a reasonable
investigation of Plaintiff’s claims given that they form the
underlying basis for Plaintiff’s complaint that her union did
not intervene when requested to stop alleged harassment by her
supervisor.
Finally, what Plaintiff said or did not say in her
letter to Mr. Putney is immaterial to this issue, which is only
concerned with whether Plaintiff – through her EEOC charge –
exhausted administratively her claims.
She has done so.
Defendants next contend that the claims against AFSCME 2250
are untimely.
Title VII requires a plaintiff to file an EEOC
charge within a prescribed limitations period.
2000e–5(e)(1).
In
deferral
states
such
as
42 U.S.C. §
Maryland,
that
limitations period is 300 days from the date of the allegedly
discriminatory act.
Id.3
limits
allow
and
rarely
“Courts strictly adhere to these time
equitable
3
tolling
of
limitations
A “deferral state” is one that has its own state or local
agency with authority to grant or seek relief from employment
discrimination or to institute criminal proceedings on behalf of
the alleged victim. 42 U.S.C. § 2000e-5(e)(1).
20
periods.”
Khoury v. Meserve,
268 F.Supp.2d 600, 606 (D.Md.
2003), aff’d, 85 F.App’x 960 (4th Cir. 2004).
The
first
charge.”
question
Defendants
concerns
provided
a
what
counts
charge
made
as
to
the
the
“EEOC
Prince
George’s County Human Relations Commission, cross-filed with the
EEOC.
The charge was filed on July 28, 2011, but lists the
latest date that discrimination occurred as April 15, 2010, well
outside the 300-day window.
summary
judgment
motion,
In her opposition to Defendants’
however,
as
noted
above,
Plaintiff
produced a letter dated November 8, 2010, written to the EEOC’s
Baltimore
office
requesting
that
the
letter
constitute
the
filing of a formal charge of discrimination against the Board of
Education and AFSCME 2250.
Plaintiff represents that a charge
questionnaire was mailed to Plaintiff.
Plaintiff completed this
questionnaire on November 20, 2010, where she alleges that she
complained to the union but nothing was done about it.
document is attached to Plaintiff’s opposition.
This
The EEOC then
prepared a final charge form which was sent to Plaintiff, signed
by her, and returned to the EEOC.
It is this final charge form
that Defendants rely upon.
Title VII requires that a charge “contain such information
and be in such form as the [EEOC] requires.”
5(b).
42 U.S.C. § 2000e–
Pertinent EEOC regulations state that a charge shall
contain the following information: (1) the full name, address,
21
and telephone number of the person making the charge; (2) the
full name and address of the person against whom the charge is
made; (3) a clear and concise statement of the facts, including
relevant dates, regarding the alleged unlawful practices; (4) if
known, the approximate number of employees of the respondent;
and (5) a statement disclosing whether any proceedings regarding
the
alleged
unlawful
practices
state or local agency.
have
been
commenced
29 C.F.R. § 1601.12(a).
before
a
Notwithstanding
these specific requirements, however, the EEOC regulations also
contain a catchall clause, which provides that “a charge is
sufficient when the [EEOC] receives from the person making the
charge a written statement sufficiently precise to identify the
parties,
and
to
complained of.”
the
EEOC
describe
generally
Id. § 1601.12(b).
regulations,
a
filing
the
action
or
practices
In addition to satisfying
must
also
“be
reasonably
construed as a request for the agency to take remedial action to
protect
the
employee’s
rights
or
otherwise
settle
a
dispute
between the employer and the employee” before it can be deemed a
charge.
Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402
(2008).4
4
Holowecki addressed the question of whether an intake
questionnaire constitutes a charge for purposes of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 621.
Numerous courts in this district and elsewhere have applied
Holowecki’s objective test in cases arising under Title VII.
22
Plaintiff’s counsel’s November 8th letter to the EEOC states
that it is being filed on behalf of Plaintiff and is a formal
charge of discrimination against AFSCME 2250 and the Board of
Education.
The name and address of Plaintiff are provided.
letter states that there are over 5,000 employees employed.
The
It
goes on to state that Plaintiff has “been sexually harassed by
my supervisor and told by another management official that in
order to stop the sexual harassment all I had to do was ‘give
the supervisor some sex.’”
(ECF No. 66-4, at 3).
Plaintiff was
told this on two separate occasions: September 24, 2009 and
January 12, 2009.
to
a
hostile
physically
Plaintiff states that she has been subjected
work
ill.
environment
“The
that
supervisor”
has
led
to
constantly
her
becoming
followed
her
around, used his authority to force her to meet with him on a
daily basis and subjected her to disciplinary action that other
employees were not subjected to.
retaliated
against
because
supervisor’s sexual advances.
were
discriminated
against.
she
She states that she has been
has
not
given
into
the
She writes: “Why you believe you
I
am
being
sexually
harassed,
retaliated against and subjected to a hostile work environment.”
(Id.).
Plaintiff’s
information.
When
intake
asked
questionnaire
which
gives
organizations
her
contact
discriminated
See, e.g., Grice v. Balt. Cnty., No. JFM 07-1701, 2008
4849322, at *4 n.3 (D.Md. Nov. 5, 2008) (collecting cases).
23
WL
against her, she checks boxes for “Employer” and “Union,” but
only provides contact information for the Board of Education.
Under the bases for her claim of discrimination, she checks
boxes for “Sex,” “Age,” “Religion,” and “Retaliation.”
Under
“other basis for discrimination” she writes in “Hostile Work
Environment.”
Under the question “What happened to you that you
believe
discriminatory?”,
was
she
writes
“See
Attached
Statement,” while also writing “Faith Jones” and “Mr. Palmer” as
the persons responsible and “Mr. Palmer” responsible for sexual
harassment.
were
For the question “Why do you believe these actions
discriminatory?”
statement.
alleged
she
refers
again
to
the
attached
When asked whether there are any witnesses to the
discriminatory
incidents,
Plaintiff
lists
Defendant
Adams and states that she will tell the EEOC “[h]ow the union
and employer responded to the allegations.”
Plaintiff stated
that she filed a charge previously with the EEOC or another
agency, explaining that “I file[d] a complaint with employer and
union – nothing was done except an investigation took place and
a report was prepared.”
Finally, the questionnaire provides a
choice as to what the preparer wants the EEOC to do with this
information: Box 1 states that the preparer wants to talk with
an EEOC employee before deciding whether to file a charge.
2
states
that
discrimination
the
and
preparer
wants
authorizes
the
24
to
EEOC
file
to
a
charge
look
into
Box
of
the
discrimination described above.
Plaintiff checked Box 2.
While
Plaintiff’s intake questionnaire and attached statement are far
from a model of clarity, they do list AFSCME 2250, check the box
for sex discrimination, discuss the statements of September 24,
2009, and January 12, 2010, and hint at the fact that the union
did not fulfill its duties to investigate her allegations of
discrimination.
WDQ-12-0569,
(concluding
See, e.g., Dixon v. Shasta Beverages, Inc., No.
2012
that
WL
4774808,
intake
at
*4
questionnaire
(D.Md.
was
a
Oct.
charge
5,
2012)
where
it
named the parties involved, checked the racial discrimination
box, described the relevant incident and ongoing harassment, and
defendant was informed of the general nature of the actions or
practices); Enoch v. Becton, Dickinson & Co., No. ELH-11-3551,
2012
WL
2371049,
at
*6
(D.Md.
June
22,
2012)
(intake
questionnaire was sufficient to constitute a charge where it
identified complainant with contact information, employer with
contact
information,
discrimination).
EEOC
charge
dated
and
the
basic
outline
of
the
alleged
These were later transformed into a formal
July
28,
2011.
Consequently,
Plaintiff’s
November 2010 communications with the EEOC are sufficient to
constitute a charge for purposes of timeliness.
Defendants also argue that even if some of the alleged
discrimination occurred within 300 days of filing a charge with
the
EEOC,
Plaintiff
has
not
demonstrated
25
that
the
alleged
discrimination at issue here – Defendants’ failure to act on
Plaintiff’s request for intervention – fell within the 300 day
window.
Failure to intervene is a discrete act for which the
“continuing violation” theory does not apply.
See Szedlock v.
Tenet, 61 F.App’x 88, 93 (4th Cir. 2003) (“The Supreme Court’s
ruling in Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101
(2002),
[]
makes
clear
that
unless
the
plaintiff
alleges
a
hostile work environment . . . , each instance of discrimination
is a discrete act.”).
Consequently, Plaintiff may only proceed
and recover on deliberate discrimination that occurred within
the limitations period, Lewis v. City of Chicago, Ill., 560 U.S.
205, 214-215 (2010), although she is not barred from using prior
acts as background evidence in support of a timely claim, Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see
also id. at 114 (rejecting the concept of “serial violations,”
i.e., “so long as one act falls within the charge filing period,
discriminatory
and
retaliatory
acts
that
are
plausibly
or
sufficiently related to that act may also be considered for the
purposes of liability.”).
In her deposition, Plaintiff states that Mr. Palmer forced
Plaintiff
to
meet
allegedly
sexually
with
him
harassing
on
a
her.
daily
basis
Before
while
these
he
was
meetings,
Plaintiff would call AFSCME 2250 and ask for assistance, but the
union would tell her to go into the room, listen to what Mr.
26
Palmer had to say, and bring it back to them.
11,
Trans.
64:7-18;
id.
at
13-14,
Trans.
(ECF No. 66-2, at
252:5
–
252:22).
Plaintiff’s EEOC charge states that the latest discriminatory
action occurred on April 15, 2010.
Plaintiff can proceed, but
only on those alleged discriminatory acts that occurred within
300 days of her November 8, 2010 letter to the EEOC (January 12,
2010), although she is free to use acts that fall beyond that
timeframe as background evidence.
The
next
timeliness
argument
submitted
concerns Plaintiff’s right-to-sue letter.
by
Defendants
Title VII requires a
plaintiff to bring a discrimination claim within 90 days from
the date of receipt of the right-to-sue letter.
2000e-5(f).
42 U.S.C. §
When the actual date of receipt is confirmed by
evidence, that date governs.
See Dixon v. Digital Equip. Corp.,
976 F.2d 725, 1992 WL 245867, at *1 (4th Cir. Sept. 30, 1992)
(table).
If the date of the receipt is unknown or in dispute,
the court applies the presumption in Rule 6(e) that service is
received
within
three
days.
See,
e.g.,
Nguyen
v.
Inova
Alexandria Hosp., 187 F.3d 630, 1999 WL 556446, at *3 (4th Cir.
July 30, 1999) (table).
Plaintiff’s amended complaint did not provide the date on
which
the
stating
right-to-sue
that
receiving
a
the
letter
complaint
notice
of
the
was
was
filed
right
27
received,
to
“within
sue
instead
90
from
days
the
merely
after
EEOC.”
Defendants argue that Plaintiff failed to provide any evidence
through discovery that she filed her lawsuit within the 90-day
window and dismissal is warranted.
Plaintiff has since come
forth with her right-to-sue letter from the EEOC.
dated March 30, 2012.
April 3, 2012.
The letter is
The envelope it arrived in is postmarked
An affidavit provided by Plaintiff’s counsel
does not state when Plaintiff received the letter.
Using Rule
6(e)’s presumption, the letter was received on April 6, 2012.
90 days from April 6, 2012 is July 5, 2012.
complaint
in
this
court
on
July
3,
Plaintiff filed her
2012.
Therefore,
her
Plaintiff
has
complaint will be considered timely.
Defendants
cleared
all
finally
the
argue
procedural
that,
hurdles
even
to
if
filing
a
claim
of
discrimination in federal court, she can point to no evidence to
support a finding of liability as to either Defendant for either
of the two counts in her complaint.
judgment
should
supervisor
violations.
and,
if
proper
be
cannot
entered
be
held
for
They first argue that
Defendant
individually
Adams
liable
because
for
Title
anything,
seems
defendant,
to
writing
acknowledge
at
one
that
point
Adams
that
is
not
“[t]he
is
cannot
established
that
individuals
be
liable
a
only
(ECF No. 65, at 10).
Title VII.
VII
Plaintiff does not respond to Defendants’ argument
Defendant at issue here is the Union.”
well
a
It
under
See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180
28
(4th Cir. 1998).
Thus, Plaintiff’s Title VII claims against
Defendant Adams cannot continue.
Title VII prohibits labor unions such as AFSCME 2250 from
engaging in certain types of discriminatory conduct. Relevant
here, Section 2000e–2(c) provides:
It shall be an unlawful employment practice
for a labor organization—
(1) to exclude or to expel from its
membership, or otherwise to discriminate
against, any individual because of his race,
color, religion, sex, or national origin;
. . .
(3) to cause or attempt to cause an employer
to discriminate against an individual in
violation of this section.
42 U.S.C. § 2000e–2(c)(1), (3).
labor
union
can
be
liable
Under Subsection 2(c)(1), a
where
it
directly
engages
in
discrimination by, for example, deliberately refusing to pursue
a sexual harassment grievance on behalf of a plaintiff.
See,
e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 667 (1987) (the
phrase
“otherwise
to
discriminate”
encompasses
a
union’s
“deliberate choice not to process grievances” initiated by black
employees alleging racial discrimination), superseded on other
grounds by statute, 28 U.S.C. § 1658, as recognized in Jones v.
R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004); Agosto v.
Correctional Officers Benevolent Ass’n, 107 F.Supp.2d 294, 303
29
(S.D.N.Y.
2000)
(explaining
that
a
labor
union
“otherwise
discriminate[s]” in violation of Title VII when it fails to
represent one of its members in the grievance process because of
that member’s race, color, religion, sex, or national origin);
EEOC v. Regency Architectural Metals Corp., 896 F.Supp. 260, 269
(D.Conn. 1995) (holding that Goodman “applies equally to sex
discrimination”).
Pursuant to Subsection 2(c)(3), a labor union
can also be held liable for discrimination perpetrated by the
plaintiff’s
employer
support[s]’”
World
the
Kitchen,
if
the
employer’s
LLC,
717
union
“‘instigat[es]
discriminatory
F.Supp.2d
494,
acts.
501
or
actively
Hubbell
(W.D.Pa.
v.
2010)
(quoting Anjelino v. N.Y. Times Co., 200 F.3d 73, 95 (3d Cir.
1999)); see also McCollum v. Int’l Brotherhood of Boilermakers,
No. 03CV00355, 2004 WL 595184, at *3 (M.D.N.C. Mar. 10, 2004) (a
claim under Subsection 2(c)(3) requires “active participation”
by the union; “passive acquiescence” is not enough) (internal
quotation
marks
omitted).
Plaintiff,
in
her
opposition,
presents her claims thusly: “Defendant also seems confused about
the allegations in the complaint and who the parties are.
only Defendant at issue here is the Union.
The
Plaintiff argues
that the Union discriminated against her in violation of Title
VII when it rejected her request to file a sexual harassment
grievance against the Board.
A union’s deliberate refusal to
file grievable discrimination claims violates Title VII.”
30
(ECF
No. 65, at 10).
Consequently, Plaintiff brings a claim under
subsection (c)(1), because her argument is not that AFMSCE 2250
instigated or actively supported discriminatory acts perpetrated
by others, but instead itself discriminated against Plaintiff, a
member of the union.
The Fourth Circuit has not opined on the elements of a
Title VII claim against a union for failure to file grievable
discrimination claims.
Where the plaintiff is not alleging a
policy of failure to file discrimination grievances, but instead
asserts a discrete refusal, courts outside this district have
required
a
meritorious
requested
plaintiff
to
claim
discrimination;
that
of
her
demonstrate
union
intervene
that:
(2)
to
(1)
she
she
had
a
affirmatively
remedy
the
alleged
discrimination; and (3) her union deliberately refused or failed
to act on that request for discriminatory reasons.
Young-Smith
v. Bayer Health Care, LLC, 788 F.Supp.2d 792, 806 (N.D.Ind.
2011);
Hubbell,
717
F.Supp.2d
at
502-03;
Hout
v.
City
of
Mansfield, 550 F.Supp.2d 701, 728-29 (N.D.Ohio 2008); Rainey v.
Town of Warren, 80 F.Supp.2d 5, 18-19 (D.R.I. 2000); Regency
Architectural, 896 F.Supp. at 268-70; Catley v. Graphic Commc’ns
Intern. Union, Local 277-M, 982 F.Supp. 1332, 1340-43 (E.D.Wis.
1997);
cf.
York
v.
AT&T,
95
F.3d
948,
957
(10th
Cir.
1996)
(granting summary judgment for union where plaintiff offered no
evidence
establishing
that
the
31
union
knew
of
intentional
discrimination by employer).
Where the union knows of actual
discrimination and deliberately ignores a member’s request, the
inference that the union acted with a discriminatory motive can
be
drawn
without
F.Supp.2d
at
807
comparator
n.10
evidence.
(citing
Rainey,
Hubbell, 717 F.Supp.2d at 504 n.5 (same).
a
grievance
is
not
based
on
an
Young-Smith,
80
F.Supp.2d
at
788
18);
By contrast, “[w]here
underlying
claim
of
discrimination, an inference of discriminatory motive cannot be
drawn in the absence of evidence that individuals outside of
plaintiff’s class were more favorably treated.”
F.Supp.2d at 506 n.7.
Hubbell, 717
Where a plaintiff establishes a prima
facie case, the familiar McDonnell Douglas framework applies,
with
the
burden
articulate
actions.
a
of
production
legitimate,
shifting
to
nondiscriminatory
the
employer
reason
for
to
its
If that reason is credible, the ultimate burden lies
with the plaintiff to demonstrate that that reason is actually
pretext for discrimination.
Neither side shows much enthusiasm for arguing the merits
of Plaintiff’s claim, but taking the limited evidence produced
in
the
light
most
favorable
to
the
Plaintiff,
she
has
demonstrated a genuine dispute of material fact concerning the
circumstances
of
AFSCME
2250’s
refusal
to
grieve
discrimination claims against the Board of Education.
her
In her
deposition, Plaintiff testifies that Mr. Palmer was constantly
32
bothering Plaintiff.
He would occasionally touch her, follow
her to her bus, and get close up and talk to her.
Any time they
had a meeting, he would want to sit “real close” to her.
She
made it known to Mr. Palmer that she did not like him, but still
he worked to be close to her.
members
about
her
concerns
and
She informed multiple union
requested
that
they
file
a
grievance and provide someone to accompany her on any meetings
with Mr. Palmer, but the union did neither.
Taking the evidence
in the light most favorable to Plaintiff, she had a colorable
claim of sexual harassment, approached the union and requested
assistance, which the union ignored or refused to assist.
Defendant does not mount any sort of defense or provide any
explanation
for
these
allegations,
except
for
the
conclusory
statement – buried in a footnote – that “there is no record
evidence
to
support
a
finding
of
liability
against
the
Defendants for either of the two counts in Plaintiff’s amended
complaint.”
(ECF
No.
59-1,
at
8
n.5).
Consequently,
Defendants’ motion for summary judgment will be denied as to
AFSCME 2250.
III. Conclusion
For the foregoing reasons, the motion for summary judgment
filed by Defendants will be granted in part and denied in part.
The motion for an extension of time will be granted.
33
The motion
to compel and the motion to strike will be denied.
A separate
order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
34
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