Sewell v. Strayer University
Filing
25
MEMORANDUM OPINION (c/m to Plaintiff 7/9/13 sat). Signed by Chief Judge Deborah K. Chasanow on 7/9/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STARSHA MONET SEWELL
:
:
v.
:
Civil Action No. DKC 12-2927
:
STRAYER UNIVERSITY
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
employment discrimination case are several motions:
in
this
the motion
for recusal filed by pro se Plaintiff Starsha Monet Sewell (ECF
No.
23);
the
motion
to
dismiss
filed
by
Defendant
Strayer
University, Inc. (“Strayer”)1 (ECF No. 7); and the motion for
summary judgment filed by Ms. Sewell (ECF No. 16).
The court
now rules pursuant to Local Rule 105.6, no hearing being deemed
necessary.
For the reasons that follow, Ms. Sewell’s motion for
recusal will be denied, Strayer’s motion to dismiss will be
granted, and Ms. Sewell’s motion for summary judgment will be
denied as moot.
1
In a recent filing, Strayer indicated its intent to file a
notice regarding a recent change to its corporate name.
(ECF
No. 21, at 1 n.1).
If and when such a notice is filed, the
clerk will be instructed to make any necessary changes to the
docket.
I.
Background
A.
Factual Background
Except as otherwise noted, the following facts are alleged
by Ms. Sewell in her complaint.
(ECF No. 1).
In February 2006,
Strayer hired Ms. Sewell, an African American woman, to serve as
a Quality Assurance Specialist.
Ms. Sewell initially earned an
annual salary of $50,000 and received a raise of approximately
5%, to $52,800, after her one-year performance review.
Strayer
also hired Ms. Sewell to teach classes as a part-time member of
the adjunct faculty.
Ms. Sewell received approximately $18,000
per year as an adjunct professor, bringing her total annual
compensation to $70,800.
In September 2007, Strayer promoted
Ms. Sewell to the role of Associate Campus Dean, a position that
paid an annual salary of $60,000.
also
continued
to
teach
According to Ms. Sewell, she
classes
as
a
part-time
adjunct
professor, bringing her total annual compensation to $78,000.
In October 2007, Ms. Sewell filed an internal complaint of
racial
discrimination
Justice.
Ms.
Sewell
against
her
generally
direct
alleges
supervisor,
that
Ms.
Kelley
Justice
subjected her to a hostile work environment because of her race,
although the complaint contains no specifics about the nature of
the
alleged
discrimination.
In
March
2008,
Ms.
Justice
“financially demoted” Ms. Sewell by instructing Strayer’s human
2
resources
adjunct
department
part-time
to
stop
compensating
professor.
According
Ms.
to
Sewell
Ms.
as
Sewell,
an
Ms.
Justice’s instructions had the effect of reducing Plaintiff’s
annual compensation from $78,000 to $60,000 and also breached
the terms of her contract with Strayer to teach as an adjunct
professor.
Ms. Sewell conclusorily contends that Ms. Justice
demoted
because
her
of
her
race,
color,
and
gender,
and
in
retaliation for complaining of discrimination.
Ms.
Sewell
discriminated
terminating
references.”
also
against
her
alleges
her
and
employment
and
that
Strayer
engaged
“upon
in
intentionally
retaliation
furnishing
by
negative
The complaint does not specify when either of
these events took place.
B.
On
Procedural Background
August
5,
2009,
Ms.
Sewell
filed
a
charge
of
discrimination (“the August 2009 Charge”) with the Office of
Human
Rights
&
Equity
Programs,
Human
Fairfax County, Virginia (“the FCHRC”).
2
Rights
Division,
(ECF No. 10, at 3).2
for
In
Whether Ms. Sewell had contact with the FCHRC or the
United States Equal Employment Opportunity Commission (“EEOC”)
at some earlier date is unclear. The only administrative charge
referenced by Ms. Sewell in her complaint is Charge No. 10D2009-00493, the formal charge filed on August 5, 2009.
(See
generally ECF No. 1).
In the narrative portion of that charge
(attached as an exhibit to Strayer’s motion to dismiss), Ms.
3
the
August
retaliated
2009
Charge,
against
discrimination
her
against
for
Ms.
Ms.
Sewell
alleged
that
complaint
filing
an
internal
Justice
in
October
2007
Strayer
and
of
for
filing a discrimination complaint with the United States Equal
Employment Opportunity Commission (“EEOC”) on March 25, 2008.
Ms.
Sewell
purported
cited
a
retaliation,
number
of
including:
events
(1)
as
her
examples
of
this
August
18,
2008
termination from Strayer after she returned from medical leave;
(2) her belief that, beginning in August 2008, Strayer provided
negative references to other prospective employers; and (3) the
refusal
of
Ms.
Deepali-Kala,
Strayer’s
director
of
quality
assurance, to provide Ms. Sewell with a reference in July 2009.3
Sewell alleged that she filed an earlier complaint with the EEOC
on March 25, 2008. (ECF No. 10). In later filings submitted in
connection with her motion for summary judgment, Ms. Sewell
again represents that she filed a charge with the EEOC in March
2008, at which time she was assigned an EEOC investigator and a
charge number of 846-2008-1542N.
(ECF No. 22, at 1).
Ms.
Sewell
further
represents
that
she
“remained
under
the
impression that [the] EEOC was investigating her Charge,” but
the “charge was never processed.”
(Id.).
The EEOC, in turn,
maintains that it “has no record reflecting” an EEOC charge
titled Sewell v. Strayer University with the number 846-200815424 because “the charge was never formalized.” (ECF No. 19-3,
at 3).
3
In the August 2009 Charge, Ms. Sewell also cites Strayer’s
rejection of, and failure to respond to, several of her posttermination applications for employment as acts of retaliation.
Because Ms. Sewell does not reference these events in her
4
The August 2009 Charge did not reference Ms. Sewell’s purported
financial demotion.
On August 12, 2009, Ms. Sewell cross-filed
her complaint with the EEOC.
On July 9, 2012, the EOOC adopted the findings of the FCHRC
and issued a right to sue notice to Ms. Sewell.
(ECF No. 1-2).
On October 2, 2012, Ms. Sewell filed a complaint against Strayer
in this court, asserting claims of race-, color-, and genderbased
discrimination
and
retaliation
under
Title
VII
of
the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”),
as
well
as
claims
for
race-based
discrimination
retaliation under 42 U.S.C. § 1981 (“Section 1981”).
1).4
and
(ECF No.
Concomitantly with her complaint, Plaintiff filed a motion
for leave to proceed in forma pauperis (ECF No. 2), which was
granted on October 25 (ECF No. 6).
On October 26, 2012, Strayer moved to dismiss Ms. Sewell’s
complaint,
asserting
that
Ms.
Sewell
failed
to
exhaust
her
administrative remedies as to the Title VII claims she raises
here; that Ms. Sewell’s claims are time-barred; and that the
complaint fails to state a plausible claim for relief.
(ECF
complaint, it will be assumed that Ms. Sewell is no longer
seeking relief based on these allegations.
4
Although Ms. Sewell’s briefs refer to her “medical leave”
on several occasions, the complaint does not specifically
reference the Family and Medical Leave Act, 29 U.S.C. § 2601 et
seq., nor can it be read to assert a claim under that statute.
5
Nos. 7 & 7-1).
Strayer attached a copy of the August 2009
Charge as an exhibit to its motion.
(ECF No. 10).
Ms. Sewell
filed an opposition on October 31 (ECF No. 14), to which she
attached an informational brochure published by the FCHRC (ECF
No.
14-1)
and
several
email
chains
between
her
and
Strayer
employees about her financial demotion (ECF Nos. 14-2 & 14-3).
On November 14, Strayer replied.
Two
judgment
days
later,
pursuant
to
memoranda or exhibits.
Ms.
(ECF No. 15).
Sewell
Rule
filed
56(c),
(ECF No. 16).
a
motion
without
any
for
summary
supporting
On November 30, Strayer
filed an opposition, arguing that Ms. Sewell’s conclusory motion
fails to satisfy her burden under Rule 56 and is premature in
light of its pending motion to dismiss.
(ECF No. 17).
On
December 11, Ms. Sewell filed a memorandum in support of her
motion for summary judgment that attaches certain documents from
the administrative proceedings as well as documents relating to
Ms. Sewell’s requests to the EEOC pursuant to the Freedom of
Information Act (“FOIA”).
(ECF No. 18).
On December 14, Ms.
Sewell filed additional documents relating to her FOIA requests.
(ECF No. 19).
Strayer then filed an amended opposition to Ms.
Sewell’s summary judgment motion (ECF No. 21), and Ms. Sewell
replied (ECF No. 22).
On March 26, 2013, Plaintiff moved for
6
the
undersigned’s
recusal.
response in opposition.
II.
(ECF
No.
23).
Strayer
filed
a
(ECF No. 24).
Ms. Sewell’s Motion for Recusal
A.
Standard of Review
Ms. Sewell seeks recusal of the undersigned pursuant to 28
U.S.C.
'
455(a).5
Section
455(a)
provides
that
a
judge
or
justice “shall disqualify himself in any proceeding in which his
impartiality
might
reasonably
be
questioned.”
The
critical
question presented by this sub-section “is not whether the judge
is impartial in fact.
It is simply whether another, not knowing
whether or not the judge is actually impartial, might reasonably
question
his
impartiality
on
5
the
basis
of
all
the
Plaintiff does not rely on 28 U.S.C. § 144 as a basis for
recusal, nor could she. Section 144 requires a party to, inter
alia, file an affidavit with facts to support that judicial bias
exists and submit “a certificate of counsel of record stating
that [the affidavit] is made in good faith.”
See Molinaro v.
Watkins–Johnson CEI Div., 359 F.Supp. 474, 476 (D.Md. 1973).
Here, Plaintiff does not submit a formal affidavit, and she
cannot supply the required certificate of counsel because she is
proceeding pro se. See Morse v. Lewis, 54 F.2d 1027, 1032 (4th
Cir. 1932) (interpreting predecessor statute to Section 144 to
require certificate to be signed by an attorney regularly
admitted to practice before that court and concluding that the
purpose of the requirement is “to insure as far as possible that
no affidavit of prejudice will be made except in good faith”),
cert. denied, 286 U.S. 557 (1932); Green v. Stevenson, No. 12432, 2012 WL 2154123, at *2 (E.D.La. June 13, 2012) (holding
that “a pro se litigant may not use 28 U.S.C. § 144 as a means
to seek recusal”); Murray v. Nationwide Better Health, No. 103262, 2012 WL 698278, at *1 (C.D. Ill. Mar. 1, 2012) (concluding
that a pro se plaintiff cannot proceed under Section 144).
7
circumstances.”
United States v. DeTemple, 162 F.3d 279, 286
(4th Cir. 1998), cert. denied, 526 U.S. 1137 (1999) (internal
quotation marks omitted).
The Fourth Circuit has thus adopted
an objective standard that asks whether the judge’s impartiality
might be questioned by a reasonable, well-informed observer who
assesses
quotation
“all
the
marks
facts
and
omitted);
circumstances.”
see
also
Sao
Id.
Paulo
(internal
State
of
the
Federative Republic of Brazil v. Am. Tobacco Co., Inc., 535 U.S.
229, 232-33 (2002) (per curiam) (reaffirming that Section 455(a)
“requires judicial recusal if a reasonable person, knowing all
the circumstances, would expect that the judge would have actual
knowledge
of
his
interest
or
bias
in
the
case”)
(internal
quotation marks and emphasis omitted).
Generally,
to
recusal
(1994)).
In
other
United
words,
it
from
States,
must
an
the
See Belue v. Leventhal, 640 F.3d 567, 572-73 (4th Cir.
v.
stem
455(a),
source.
Liteky
must
Section
bias
(citing
prejudice
under
alleged
2011)
or
warrant
extrajudicial
510
U.S.
arise
from
proceedings, or experiences outside the courtroom.”
Grant, 158 F.3d 768, 781 (4th Cir. 1998).
540,
545
“events,
Sales v.
Thus, on their own,
prior judicial rulings “almost never constitute a valid basis
for a bias or partiality motion,” nor do opinions formed by a
judge during prior proceedings.
United Sates v. Lentz, 524 F.3d
8
501,
(4th
530
Cir.
2008)
(citing
Liteky,
510
U.S.
at
550)
(internal quotation marks omitted).
A judge is not required to
recuse
unsupported,
herself
“simply
because
of
irrational
or
highly tenuous speculation,” nor “simply because [she] possesses
some tangential relationship to proceedings.”
United States v.
Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (internal citations and
quotation marks omitted).
B.
Analysis
Ms. Sewell argues that recusal is warranted because she
“has
been
prejudiced
litigation,”
such
that
by
the
case alone is prejudicial.”
[the
undersigned]
undersigned’s
in
“assignment
(ECF No. 23, at 3).
another
to
this
Ms. Sewell is
apparently referring to the disposition of an unrelated lawsuit
over which the undersigned presided.
Sewell
removed
Department
of
Services”)
to
a
lawsuit
Social
this
against
Services
court
George’s County, Maryland.
from
On August 13, 2012, Ms.
the
(“the
the
Prince
George’s
Department
Circuit
Court
County
of
Social
for
Prince
See Notice of Removal, Sewell v.
Prince George’s Cnty. Dep’t of Social Servs., No. 12-cv-2402-DKC
(D.Md. remanded Aug. 15, 2012), ECF No. 1.
The undersigned
remanded Ms. Sewell’s case to state court, citing the domestic
relations exception to federal court jurisdiction and the fact
that removal is not available to a party plaintiff.
9
Remand
Order, Sewell, No. 12-cv-2402-DKC, ECF No. 3.
The undersigned
later denied Ms. Sewell’s motion for reconsideration, observing
that district courts lack authority to reconsider remand orders.
Order Denying Reconsideration, Sewell, No. 12-cv-2402-DKC, ECF
No. 5.
On February 1, 2013, the Fourth Circuit dismissed Ms.
Sewell’s notice of appeal.
See Sewell v. Prince George’s Cnty.
Dep’t of Social Servs., Nos. 12-2009, 12-2140, 2013 WL 388050,
at *1 (4th Cir. Feb. 1, 2013) (unpublished).6
Ms. Sewell’s motion for recusal is without merit because,
at bottom, she fails to allege any bias or prejudice stemming
from
an
extrajudicial
source.
Instead,
she
attempts
to
establish bias based solely on the undersigned’s involvement in
an unrelated civil action against a different defendant.7
involvement
–
which
was
limited
to
an
order
This
remanding
6
The Fourth Circuit consolidated Ms. Sewell’s appeal of the
undersigned’s remand ruling with her appeal of an order issued
by Judge Williams dismissing a second action against the
Department of Social Services, Sewell v. Prince George’s Cnty.
Dep’t of Social Servs., No. 12-cv-2522-AW.
The Fourth Circuit
affirmed Judge Williams’s ruling because Ms. Sewell did not
address the dispositive issue of subject matter jurisdiction in
her appellate brief. See Sewell, 2013 WL 388050, at *1.
7
In her motion, Ms. Sewell also represents that “[a] judge
receiving a bribe from an interested party over which he is
presiding does not give the appearance of justice.”
(ECF No.
23, at 2). This statement is best construed as an illustrative
example of conduct that might warrant recusal under Section
455(a) rather than an accusation about the undersigned.
10
Plaintiff’s case to state court based on certain jurisdictional
and procedural defects – does not come close to the type of
egregious judicial conduct that requires recusal.
See, e.g.,
Belue, 640 F.3d at 573 (observing that “the only cases where
courts have granted recusal motions based on in-trial conduct
tend to involve singular and startling facts,” such as where the
judge
noted
that
German-Americans
have
hearts
“reeking
with
disloyalty”; where the judge made clear from the beginning of
the case that his goal was to “recover funds that the defendants
had taken from the public”; and also where the judge “directed
profanities at Plaintiffs or Plaintiffs’ counsel over fifteen
times and refused to allow the plaintiffs to present argument at
the sanctions hearing”).
Moreover, a reasonable, well-informed
observer could not question the undersigned’s impartiality based
on the court’s limited involvement in Ms. Sewell’s unrelated
case against the Department of Social Services.
Accordingly,
Ms. Sewell’s motion for recusal will be denied.
III. Strayer’s Motion to Dismiss
1.
Standards of Review
The arguments raised by Strayer in its motion to dismiss –
i.e.,
failure
to
exhaust
administrative
remedies,
failure
to
state a claim, and untimeliness – implicate several standards of
review.
First, Strayer’s arguments that Ms. Sewell failed to
11
raise
certain
analyzed
allegations
under
before
Fed.R.Civ.P.
the
EEOC
12(b)(1)
or
FCHRC
because
a
must
Title
be
VII
plaintiff’s failure to exhaust administrative remedies deprives
the
federal
claims.
court
of
subject
matter
jurisdiction
over
such
Jones v. Calvert Group, Ltd., 551 F.3d 297, 300–01 &
n.2 (4th Cir. 2009).
Generally, “questions of subject matter
jurisdiction must be decided ‘first, because they concern the
court’s very power to hear the case.’”
Owens–Illinois, Inc. v.
Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (quoting 2 James Wm.
Moore et al., Moore’s Federal Practice § 12.30[1] (3d ed. 1998)).
The
plaintiff
always
bears
the
burden
of
demonstrating
that
subject matter jurisdiction properly exists in federal court.
See Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp.,
166 F.3d 642, 647 (4th Cir. 1999).
matter
jurisdiction
is
Dismissal for lack of subject
appropriate
“only
if
the
material
jurisdictional facts are not in dispute” and the defendant is
“entitled to prevail as a matter of law.”
Id. (internal marks
omitted).
should
pleadings
In
as
its
mere
analysis,
evidence
the
on
court
the
issue,
and
“regard
may
the
consider
evidence outside the pleadings without converting the proceeding
to one for summary judgment.”
Second,
Strayer’s
Evans, 166 F.3d at 647.
arguments
that
the
complaint
fails
to
state a plausible claim for relief are governed by Fed.R.Civ.P.
12
12(b)(6).
The
purpose
of
a
motion
to
dismiss
under
12(b)(6) is to test the sufficiency of the complaint.
Rule
Presley
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n. 3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff,
see
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, unsupported legal
allegations
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cnty.
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
13
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604
F.2d
844,
(4th
847
Cir.
1979);
see
also
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Francis
v.
Ultimately, a
complaint must “‘permit[] the court to infer more than the mere
possibility of misconduct’ based upon ‘its judicial experience
and common sense.’”
Coleman v. Md. Court of Appeals, 626 F.3d
187, 190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
To
this end, “while a plaintiff [in an employment discrimination
case] is not required to plead facts that constitute a prima
facie case in order to survive a motion to dismiss, [f]actual
allegations must be enough to raise a right to relief above the
speculative level.”
Id. (citing Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 510–15 (2002); Twombly, 550 U.S. at 555).
Finally, Strayer argues that some of Ms. Sewell’s claims
should be dismissed under Rule 12(b)(6) because they are timebarred,
charge
either
within
because
the
she
required
failed
to
timeframe
file
(as
an
to
administrative
her
Title
VII
claims) or because the applicable statute of limitations has
expired
(as
to
her
Section
1981
claims).
The
statute
of
limitations is an affirmative defense that a party typically
must raise in a pleading under Fed.R.Civ.P. 8(c) and is not
usually an appropriate ground for dismissal.
14
See Eniola v.
Leasecomm Corp., 214 F.Supp.2d 520, 525 (D.Md. 2002); Gray v.
Mettis,
203
F.Supp.2d
426,
428
(D.Md.
2002).
Nevertheless,
dismissal under Rule 12(b)(6) may be proper “when the face of
the complaint clearly reveals the existence of a meritorious
affirmative defense.”
Brooks v. City of Winston–Salem, N.C., 85
F.3d 178, 181 (4th Cir. 1996).
B.
Analysis
1.
Title VII Claims
Strayer
argues
discrimination
and
three reasons.
to
exhaust
that
Ms.
Sewell’s
retaliation
are
Title
subject
VII
to
claims
dismissal
of
for
First, Strayer contends that Ms. Sewell failed
her
administrative
remedies
with
respect
to
the
allegations she raises in her complaint, depriving this court of
subject matter jurisdiction over her claims.
Second, Strayer
asserts that Ms. Sewell’s claims are time-barred because she did
not
file
her
administrative
alleged retaliatory events.
charge
within
300
days
of
the
Third, Strayer contends that the
complaint fails to state a plausible claim for relief under
either the anti-discrimination or anti-retaliation provisions of
Title VII.
Each of these arguments will be addressed, in turn.
15
Failure to Exhaust Administrative Remedies8
a.
Title
VII
requires
a
plaintiff
to
file
a
charge
of
discrimination with the EEOC prior to filing suit in federal
court.
Jones, 551 F.3d at 300–01.
Although the EEOC charge
defines the scope of the right to file a subsequent civil suit,
the
initial
administrative
complaint
does
not
create
impenetrable limits on those subsequent rights.
strict,
Rather, the
scope of the civil action is confined to “those discrimination
claims stated in the initial charge, those reasonably related to
the
original
investigation
complaint,
[of
that
and
those
complaint].”
developed
Thorn
F.Supp.2d 585, 596 (D.Md. 2011) (quoting
300),
aff’d,
465
F.App’x
(4th
274
Cir.
by
v.
reasonable
Sebelius,
766
Jones, 551 F.3d at
2012)
(unpublished
opinion).
Civil suits may not, however, present entirely new factual
bases or entirely new theories of liability from those set forth
in the initial EEOC complaint.
See Evans v. Techs. Applications
8
As noted, because the failure to exhaust administrative
remedies by a Title VII plaintiff deprives a federal court of
subject matter jurisdiction, it is appropriate to consider
evidence outside of the pleadings in deciding whether dismissal
of Ms. Sewell’s claims is warranted under Rule 12(b)(1) without
converting Strayer’s motion into one for summary judgment.
Evans, 166 F.3d at 647 & n.3. Accordingly, all of the exhibits
submitted to date – including those submitted by Ms. Sewell in
connection with her motion for summary judgment – will be
considered in this section.
16
& Serv. Co., 80 F.3d 954, 963–64 (4th Cir. 1996) (concluding that
a plaintiff was barred from litigating a sexual harassment claim
where
her
EEOC
charge
included
only
a
claim
for
failure
to
promote based on gender); Lawson v. Burlington Indus., Inc., 683
F.2d 862, 863–64 (4th Cir. 1982) (where a plaintiff had alleged
only a discriminatory layoff claim in his EEOC complaint, the
court lacked jurisdiction over his discriminatory failure-torehire
claim).
charges
Thus,
reference
where
a
different
plaintiff’s
time
“administrative
frames,
actors,
and
discriminatory conduct than the central factual allegations in
[her] formal suit,” there is no subject matter jurisdiction.
Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005).
Here,
as
to
Ms.
Sewell’s
claims
of
intentional
discrimination, Strayer correctly observes that the August 2009
Charge focuses exclusively on retaliation and does not expressly
mention race-, color-, or gender-based discrimination.
No. 10, at 2-4).
Complaint
–
(See ECF
Indeed, under the heading “Classification of
Basis,”
Ms.
Sewell
checked
only
the
box
for
“Retaliation” and left the boxes for “Color,” “Race,” and “Sex”
unchecked.
(Id.).
Although Ms. Sewell conclusorily asserts in
her opposition that “[d]ue to the ongoing acts of discrimination
of staff at Strayer University, additional facts were presented
to [the FCHRC] during its investigation and additional claims
17
were
raised,
investigation”
prior
(ECF
to
the
No.
completion
14,
at
2),
the
of
[the
FCHRC]’s
portions
of
the
administrative record submitted by the parties confirm that the
FCHRC’s and EEOC’s investigation was limited to the issue of
whether Strayer retaliated against Ms. Sewell for engaging in
protected activity (see ECF No. 18-3, at 1-2; ECF No. 18-4 at
12-21).
Nothing in these documents indicates that Ms. Sewell
asserted a claim for intentional discrimination at a later date,
or
that
the
FCHRC
or
EEOC
ever
investigated
such
a
claim.
Moreover, given that it is Ms. Sewell’s burden to establish
subject matter jurisdiction, her unsubstantiated references to
an earlier EEOC complaint filed in March 2008 is not enough to
demonstrate that she exhausted her remedies with respect to her
claims of intentional discrimination.
Accordingly, Ms. Sewell’s
claims of race-, color-, and gender-based discrimination under
Title
VII
will
be
dismissed
for
lack
of
subject
matter
jurisdiction.9
9
Even if the court did have subject matter jurisdiction
over Ms. Sewell’s Title VII discrimination claims, such claims
would be subject to dismissal for two other reasons. First, in
her opposition, Ms. Sewell does not respond to Strayer’s
substantive arguments about the adequacy of the factual
allegations supporting her Title VII discrimination claims.
(See ECF No. 14). In failing to do so, Ms. Sewell has abandoned
such claims.
See Ferdinand-Davenport v. Children’s Guild, 742
F.Supp.2d 772, 777 & 783 (D.Md. 2010). Second, even if she had
18
Strayer
also
contends
that
the
court
lacks
jurisdiction
over Ms. Sewell’s retaliation claim because the allegations in
her
complaint
are
markedly
different
than
conduct alleged in the August 2009 Charge.
5).
the
retaliatory
(ECF No. 7-1, at 4-
As Strayer observes, the allegations in the complaint focus
on Strayer’s purported pre-termination financial demotion of Ms.
Sewell in March 2008, while the allegations in the August 2009
Charge
relate
primarily
to
her
August
2008
termination
and
Strayer’s subsequent interference with her attempts to secure a
new job.
(Compare ECF No. 1 with ECF No. 10).
exists, however.
Some overlap
For example, both the August 2009 Charge and
the complaint allege that Strayer provided negative references
in retaliation for Ms. Sewell’s protected activity.
Moreover,
the administrative record indicates that the FCHRC and EEOC did,
in fact, investigate whether retaliatory animus motivated the
March 2008 demotion or the August 2008 termination.
ECF No. 18-4, at 13).
matter
jurisdiction
over
(See, e.g.,
Accordingly, there is federal subject
Ms.
Sewell’s
Title
VII
retaliation
responded to this portion of Strayer’s motion to dismiss, Ms.
Sewell’s arguments would have been unavailing because the
complaint is devoid of any factual allegations that support a
plausible claim of intentional discrimination. Thus, her Title
VII discrimination claims would also be subject to dismissal
under Rule 12(b)(6).
19
claim, including the alleged March 2008 financial demotion and
her August 2008 termination.
b.
Untimeliness10
Title
VII
requires
a
plaintiff
to
within a prescribed limitations period.
5(e)(1); 29 U.S.C. § 626(d)(1)(B).
file
an
EEOC
charge
42 U.S.C. § 2000e–
In deferral states such as
Virginia,11 that limitations period is 300 days from the date of
10
In
contrast
to
the
analysis
of
subject
matter
jurisdiction under Rule 12(b)(1), the universe of documents that
may be considered in ruling on Strayer’s arguments under Rule
12(b)(6) is more limited.
Generally, “[i]f on a motion under
Rule 12(b)(6) . . . matters outside the pleadings are presented
to and not excluded by the court, the motion shall be treated as
one for summary judgment and disposed of as provided in Rule
56.” Fed.R.Civ.P. 12(d). At the same time, however, documents
attached to a motion to dismiss may be considered without
converting a motion to dismiss into one for summary judgment “so
long as they are integral to the complaint and authentic.”
Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009).
Applying these principles here, it is appropriate to
consider the August 2009 Charge in ruling on Strayer’s arguments
under Rule 12(b)(6) because it is integral to the administrative
history of Ms. Sewell’s civil complaint and its authenticity is
not challenged.
See, e.g., Avery v. Astrue, No. WDQ–11–2612,
2012 WL 1554646, at *1, n.4 (D.Md. Apr. 27, 2012); Cuffee v.
Verizon Commc’ns, Inc., 755 F.Supp.2d 672, 676 & n.2 (D.Md.
2010).
By contrast, the documents that Ms. Sewell attaches to
her opposition (ECF Nos. 14-1 through 14-3) and those submitted
in connection with her motion for summary judgment (ECF Nos. 181 through 18-4, 19-1 & 19-2) are not integral to her complaint
and will not be considered in ruling on Strayer’s arguments
relating to untimeliness and pleading deficiencies.
11
Deferral states are those that have “a State or local
agency with authority to grant or seek relief from [unlawful
employment] practice[s] or to institute criminal proceedings
20
the
allegedly
discriminatory
or
retaliatory
act.
42
U.S.C.
§ 2000e–5(e)(1); 29 U.S.C. § 626(d)(1)(B); see also Jones, 551
F.3d at 300; Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
114 (2002) (explaining that “[e]ach incident of discrimination
and
each
alleged
retaliatory
within
represents
the
adverse
employment
appropriate
actionable
conduct).
decision”
timeframe
The
because
timely
must
each
filing
of
be
one
an
administrative complaint “is not a jurisdictional prerequisite
to suit in federal court, but a requirement that, like a statute
of limitations, is subject to waiver, estoppel, and equitable
tolling.”
Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982); accord Zografov v. V.A. Med. Ctr., 779 F.2d 967, 969
(4th Cir. 1985).
applied
The “equitable exceptions” should, however, be
“sparingly”
because
“the
certainty
and
repose
the
provisions confer will be lost if their application is up for
grabs in every case.”
Moret v. Geren, 494 F.Supp.2d 329, 337
(D.Md. 2007).
Here, Ms. Sewell filed her formal charge of discrimination
with the FCHRC on August 5, 2009.
Strayer thus contends that
Ms. Sewell’s Title VII claims are time-barred to the extent they
rely
on
discrete
acts
of
retaliation
that
occurred
with respect thereto[.]” 42 U.S.C. § 2000e–5 (e)(1).
is one such local agency.
21
before
The FCHRC
October 9, 2008 (i.e., three-hundred days before August 5, 2009)
– including the alleged financial demotion of March 2008; the
August
2008
termination;
and
Strayer’s
provision
of
negative
references.12
What Strayer ignores, however, is the allegation in the
August 2009 Charge that Ms. Sewell filed an earlier complaint
with the EEOC on March 25, 2008.
allegation
and
plausible
that
affording
Ms.
it
Sewell
Assuming the truth of this
liberal
filed
a
construction,
timely
it
is
administrative
complaint with respect to the March 2008 financial demotion.
Although Ms. Sewell has not provided any documentary evidence
confirming that she filed a formal or informal charge with the
EEOC on March 25, 2008, she is not obligated to do so at this
stage.13
Strayer raises its statute of limitations defense in a
12
The complaint itself does not specifically allege when
Strayer
furnished
negative
references
to
Ms.
Sewell’s
prospective employers. The August 2009 Charge, however, asserts
that Strayer provided negative references to prospective
employers in August 2008 and then, in July 2009, refused to
provide any reference for Ms. Sewell. (ECF No. 10).
13
As noted, Ms. Sewell submits a document in support of her
motion for summary judgment indicating that the EEOC denied Ms.
Sewell’s FOIA request relating to her March 25, 2008 charge
because “that charge was never formalized.”
(ECF No. 19-3, at
3).
This document is not properly considered for purposes of
Strayer’s untimeliness arguments under Rule 12(b)(6).
Even if
it were considered, however, it would not be dispositive because
22
Rule
12(b)(6)
judgment,
motion
meaning
that
rather
than
dismissal
in
is
a
motion
for
summary
appropriate
only
to
the
extent that “the face of the complaint clearly reveals” that Ms.
Sewell’s claims are time-barred.
Brooks, 85 F.3d at 181.
Here,
the complaint clearly reveals only that the allegations relating
to Ms. Sewell’s August 2008 termination and Strayer’s provision
of negative references in August 2008 are time-barred, because
these are the only discrete acts of retaliation that occurred
both
(1)
after
the
alleged
March
25,
2008,
charge
of
discrimination (and, as a matter of logic, could not have been
exhausted thereby); and (2) more than 300 days before the filing
of the August 2009 Charge.14
Accordingly, Ms. Sewell’s Title VII
informal filings with the EEOC – including intake questionnaires
– can satisfy the 300-day filing requirement if they contain the
information required by 29 C.F.R. § 1601.12.
See, e.g.,
Valderrama v. Honeywell Tech. Solutions, Inc., 473 F.Supp.2d
658, 662 (D.Md. 2007); Fed. Express Corp. v. Holowecki, 552 U.S.
389, 402 (2008).
14
Separately, in her opposition, Ms. Sewell appears to
contend that Strayer should be equitably estopped from relying
on Title VII’s 300-day filing requirement because, according to
an FCHRC informational brochure attached as ECF No. 14-1, the
state agency “allows any individual who believes that he or she
has been subjected to unlawful discrimination to file a
complaint . . . within 365 days of the alleged discrimination.”
(ECF No. 14, at 2). The doctrine of equitable estoppel applies
only “where, despite the plaintiff’s knowledge of the facts, the
defendant engages in intentional misconduct to cause the
plaintiff to miss the filing deadline.”
English v. Pabst
Brewing Co., 828 F.2d 1047, 1049 (4th Cir. 1987).
Such
23
retaliation claim will be dismissed with prejudice to the extent
it relies on the either of these two discrete events.
What
remains of Ms. Sewell’s retaliation claim – the alleged March 4,
2008 demotion and June 2009 refusal to provide a reference –
must be analyzed under Rule 8(a).
c.
Title
Failure to State a Claim
VII
makes
it
unlawful
for
“an
employer
to
discriminate against any of [its] employees . . . because [s]he
circumstances are not present here, as Ms. Sewell’s argument
focuses on representations made by FRHRC, an entity that was not
her employer and is not a party here.
To the extent that Ms. Sewell seeks equitable tolling of
Title VII’s 300-day timing requirement, such relief is available
to a plaintiff who “(1) diligently pursued h[er] claim; (2) was
misinformed or misled by the administrative agency responsible
for processing h[er] charge; (3) relied in fact on the
misinformation or misrepresentations of that agency, causing
h[er] to fail to exhaust his administrative remedies; and
(4) was acting pro se at the time.”
Walton v. Guidant Sales
Corp., 417 F.Supp.2d 719, 721 (D.Md. 2006). Here, the complaint
contains no allegations establishing the type of “extraordinary
circumstances” necessary to invoke equitable tolling.
Anderson
v. Lockheed Martin Corp., No. RWT-11-2655, 2012 WL 933215, at *3
(D.Md. Mar. 15, 2010) (holding that, to rely on the doctrine of
equitable tolling, a plaintiff must allege the existence of
extraordinary circumstances in her complaint). Even if it were
appropriate to look beyond the four corners of the complaint,
nothing in the record establishes that Ms. Sewell acted
diligently or that she relied, in fact, on any purported
misrepresentations or misleading statements by the FCHRC in
deciding when to file her administrative charge.
In addition,
the informational brochure Ms. Sewell attaches to her opposition
appears to reference the timing requirements for filing a claim
pursuant to the Fairfax County Human Rights Ordinance of 1974
and makes no mention of Title VII. (See ECF No. 14-1, at 2).
24
has
opposed
subchapter,
any
or
practice
because
made
[s]he
an
unlawful
has
made
a
practice
charge,
by
this
testified,
assisted, or participated in any manner in an investigation,
proceeding,
or
§ 2000e–3(a).
hearing
under
this
subchapter.”
42
U.S.C.
To establish a prima facie retaliation claim, a
plaintiff
must
activity,
(2)
show
her
that:
(1)
employer
she
acted
engaged
adversely
in
a
against
protected
her,
and
(3) the protected activity was causally connected to the adverse
action.
See Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th
Cir. 2007).
Strayer
causation,
between
Ms.
focuses
arguing
exclusively
that
Sewell’s
on
the
the
five-plus
internal
charge
third
months
of
element
that
of
elapsed
discrimination
in
October 2007 and any of the alleged retaliatory acts is not
enough to establish the requisite causal connection under Fourth
Circuit precedent.
(ECF No. 7-1, at 6-7).
In her opposition,
Ms. Sewell fails to respond to this argument with respect to her
allegations about Strayer’s refusal to provide her a reference
(see generally ECF No. 14) and thus has abandoned her Title VII
retaliation clam to the extent it relies on such allegations,
see Ferdinand-Davenport v. Children’s Guild, 742 F.Supp.2d 772,
777 & 783 (D.Md. 2010).
Ms. Sewell maintains, however, that a
causal connection exists between the October 2007 complaint and
25
the March 2008 financial demotion notwithstanding the passage of
five months because Ms. Justice “retaliated against Sewell at
the first opportunity that she had, upon Sewell’s return to work
from her medical leave absence.”
(ECF No. 14, at 3).
The burden of showing a causal nexus is “not onerous.”
Tex.
Dep’t
of
Cmty.
Affairs
v.
Burdine,
450
U.S.
248,
253
(1981); see also Karpel v. Inova Health Sys. Servs., 134 F.3d
1222, 1229 (4th Cir. 1998) (explaining that “little is required”
to establish a causal connection).
As the parties observe,
“temporal proximity between a protected activity and an adverse
employment
action
has
causal connection.”
been
found
sufficient
to
is
the
a
Finnegan v. Dep’t of Pub. Safety & Corr.
Servs., 184 F.Supp.2d 457, 463 (D.Md. 2002).
proximity
establish
only
evidence
of
causation,
Where temporal
however,
“the
temporal proximity must be very close.”
Clark Cnty. Sch. Dist.
v. Breeden, 532 U.S. 268, 273 (2001).
The Fourth Circuit has
expressly declined to determine “how close a temporal connection
must [there be] for . . . a causal nexus [to exist].”
Brockman
v. Snow, 217 F.App’x 201, 207 (4th Cir. 2007) (unpublished).
Moreover,
a
lengthy
period
of
time
between
a
plaintiff’s
protected activity and the adverse employment action may not be
dispositive where the employer engages in retaliation upon its
first “opportunity to do so.”
Templeton v. First Tenn. Bank,
26
N.A., 424 F.App’x 249, 2011 WL 1525559, at *2 (4th Cir.
Apr. 22,
2011) (unpublished) (where the plaintiff alleged that she had
resigned
shortly
after
complaining
of
harassment,
a
causal
connection could plausibly be inferred despite the passage of
time because her reapplication two years later presented the
first chance for her employer to retaliate).15
In light of this precedent, Ms. Sewell’s argument – i.e.,
that the five-month period of time is not necessarily fatal to
her
retaliation
opportunity
when
because
she
Strayer
returned
demoted
from
her
leave
matter, more persuasive than Strayer’s.
–
at
is,
its
as
earliest
a
legal
The problem is that the
complaint does not include any allegations that Ms. Sewell was
on medical leave for some or all of the five-month period at
15
This
principle
is
reflected
in
the
two
extrajurisdictional cases cited by Ms. Sewell in her opposition. See
Richardson v. N.Y. State Dep’t of Corr. Serv., 180 F.3d 426, 444
(2d Cir. 1999) (where plaintiff filed her EEOC complaint during a
period of leave and then was transferred upon her return to work
nine months later, there was a sufficient causal connection
between her protected activity and the adverse employment
actions), abrogated on other grounds by Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53 (2006); Wells v. Colo. Dep’t of
Transp., 325 F.3d 1205, 1217 (10th Cir. 2003) (where the
plaintiff was on leave when she filed her EEOC complaint and
then was fired “immediately” upon her return, there was
sufficient evidence of a causal connection notwithstanding the
passage of three months).
27
issue here.16
Absent such allegations, the causal connection
between Ms. Sewell’s complaint in October 2007 and the March
2008 demotion is simply not plausible because it depends solely
on temporal proximity of five months – a period of time that is
not “very close.”
Thus, the current version of the complaint
fails to state a claim for retaliation based on the March 2008
financial demotion.
Accordingly, to the extent it relies on the alleged March
2008 financial demotion, Ms. Sewell’s retaliation claim will be
dismissed without prejudice to her right to file an amended
complaint within twenty-one (21) days.
amended
retaliation
claim,
she
If Ms. Sewell files an
must
include
additional
allegations regarding the causal connection between her October
2007 complaint and her March 2008 demotion, including but not
limited to allegations about (1) the timing and nature of any
medical leave Ms. Sewell took during this period; and (2) if and
when
Ms.
Justice
learned
about
Ms.
Sewell’s
October
2007
complaint of discrimination.
16
Ms. Sewell’s attempt to raise this allegation in her
opposition is unavailing because a plaintiff may not amend her
complaint via opposition papers.
Zachair, Ltd. v. Driggs, 965
F.Supp. 741, 748 n.4 (D.Md. 1997), aff’d, 141 F.3d 1162 (4th Cir.
1998) (unpublished table opinion).
28
2.
Section 1981 Claims
Strayer next asserts that Ms. Sewell’s discrimination and
retaliation claims under Section 1981 must be dismissed because
they
are
time-barred
and
suffer
from
deficiencies as her Title VII claims.
Section
1981,
originally
the
same
pleading
(ECF No. 7-1, at 8-9).
enacted
by
Congress
in
1866,
pertinently provided that all people shall enjoy “the same right
. . . to make and enforce contracts.”
See Civil Rights Act of
1866 § 1, 14 Stat. 27, 27 (codified as amended at 42 U.S.C.
§ 1981).
claims
Substantively, the evidentiary standards for analyzing
of
race-based
discrimination
and
retaliation
under
Section 1981 are identical to those employed under Title VII.
See Jenkins v. Gaylord Entm’t Co., 840 F.Supp.2d 873, 880 (D.Md.
2012);
Causey
v.
Balog,
929
F.Supp.
900,
913
(D.Md.
1996).
Procedurally, however, Section 1981 claims are not subject to
the
same
exhaustion
and
timeliness
asserted pursuant to Title VII.
claims
is
instead
as
those
White v. BFI Waste Servs., LLC,
375 F.3d 288, 291–92 (4th Cir. 2004).
1981
requirements
governed
The timeliness of Section
either
by
state
law
(as
to
allegations of misconduct during the formation of an employment
contract) or by the four-year statute of limitations established
by 28 U.S.C. § 1658 (as to allegations of misconduct after the
formation of the employment relationship).
29
See Jones v. Circuit
City
Stores,
Mandengue
v.
Inc.,
ADT
370
Sec.
F.3d
Sys.,
417,
Inc.,
420-21
No.
(4th
Cir.
ELH–09–3103,
2004);
2012
WL
892621, at *1, n.3 (D.Md. Mar. 14, 2012).
Here, all of Ms. Sewell’s allegations relate to misconduct
that occurred after the formation of her employment relationship
with Strayer.
Accordingly, the four-year statute of limitations
set forth in Section 1658 applies, meaning that only those facts
alleged to have occurred during the four years prior to October
2, 2012, the date when Ms. Sewell filed the instant lawsuit, may
be considered for purposes of her Section 1981 claims.
the
complaint
(as
supplemented
by
the
August
2009
Thus,
Charge)
clearly establishes that Ms. Sewell’s Section 1981 claims must
be dismissed as time-barred to the extent they rely on any of
the following events:
her alleged financial demotion in March
2008,
in
her
termination
August
2008,
and
Strayer’s
alleged
provision of negative references in August 2008.17
17
In
her
opposition,
Ms.
Sewell
states
that
she
“respectfully challenges opposing counsel’s computation of time
on her retaliation claims under [S]ection 1981, and request[s]
exceptions for the filing of her claims, because . . . Sewell[]
was not legally entitled to file her [T]itle VII complaint in
this honorable court until EEOC first issued its right to sue
letter.”
(ECF No. 14, at 4-5).
Contrary to Ms. Sewell’s
argument, the pendency of an EEOC investigation is not a valid
basis for tolling the statute of limitations for Section 1981
claims.
See McNeal v. Montgomery Cnty., 307 F.App’x 766, 2009
WL 122607, at *4 (4th Cir. Jan. 20, 2009) (affirming district
30
Even
when
liberally
construed,
the
only
allegation
that
remains is Strayer’s alleged refusal in June 2009 to provide Ms.
Sewell
with
a
substantive
complaints of discrimination.
respond
to
Strayer’s
reference
in
retaliation
for
her
As discussed, Ms. Sewell fails to
arguments
regarding
the
dearth
of
allegations indicating that this event is causally connected to
her protected activity.
Ms. Sewell therefore has abandoned her
Section 1981 claims to the extent it relies on Strayer’s refusal
to provide her with a reference in June 2009.
See Ferdinand-
Davenport, 742 F.Supp.2d at 777 & 783.
Because each of Ms. Sewell’s claims will be dismissed, her
motion for summary judgment will be denied as moot.
IV.
Conclusion
For the foregoing reasons, Ms. Sewell’s motion for recusal
will be denied; Strayer’s motion to dismiss will be granted; and
court’s conclusion that a plaintiff’s pursuit of administrative
remedies under the Title VII regime “does not toll the statute
of limitations for claims that ‘although related, and although
directed to most of the same ends, are separate, distinct, and
independent’”) (unpublished); see also Johnson v. Ry. Express
Agency, Inc., 421 U.S. 454, 461 (1975) (affirming that “the
remedies available under Title VII and under [Section] 1981,
although related, and although directed to most of the same
ends, are separate, distinct, and independent”).
Moreover, as
Strayer notes in its reply (ECF No. 15, at 5), Ms. Sewell could
have requested a right to sue letter from the EEOC as early as
180 days after the she cross-filed her charge.
See 29 CFR
§ 1601.28.
31
Ms. Sewell’s motion for summary judgment will be denied as moot.
Ms. Sewell will have twenty-one (21) days to file an amended
complaint pursuant to the instructions above.
A separate Order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
32
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