Sewell v. Strayer University
Filing
38
MEMORANDUM OPINION (c/m to Plaintiff 12/27/13 sat). Signed by Chief Judge Deborah K. Chasanow on 12/27/13. (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
in
this
employment discrimination case is Defendant Strayer University’s
(“Defendant” or “Strayer”) motion to strike and dismiss with
prejudice an amended complaint filed by pro se Plaintiff Starsha
Monet Sewell (“Plaintiff” or “Ms. Sewell”).
pending
are
Defendant’s
two
motions
motion
to
filed
strike
by
(ECF No. 29).
Plaintiff
(ECF
No.
to
33),
dismiss
and
Also
both
Defendant’s
request for sanctions in the motion to dismiss (ECF No. 34).
The issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
following
reasons,
Defendant’s
Local Rule 105.6.
motion
will
be
For the
granted
and
Plaintiff’s motions will be denied as moot.
I.
Background
On October 2, 2012, Plaintiff filed a complaint against
Strayer,
asserting
discrimination
and
claims
of
retaliation
race-,
under
color-,
Title
and
VII
gender-based
of
the
Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), as
well
as
under
claims
42
for
U.S.C.
§
race-based
1981
discrimination
(“Section
1981”).
and
retaliation
(ECF
No.
1).
Defendant subsequently moved to dismiss Plaintiff’s complaint
and a memorandum opinion and order issued on July 9, 2013.
No. 25).
(ECF
The relevant facts as alleged in Plaintiff’s complaint
are described in the prior opinion, but a brief background of
the underlying factual and procedural issues in the case is
necessary.
Strayer hired Plaintiff in February of 2006 to serve as a
Quality Assurance Specialist for a salary of $50,000 per year.
(ECF No. 27, at 2).1
Additionally, Plaintiff was hired to teach
classes as a part-time member of the adjunct faculty, for which
she was compensated an additional $18,000 per year.
(Id.).
Plaintiff was promoted to the role of Associate Campus Dean in
September of 2007 for an annual salary of $60,000 and continued
to
teach
classes
as
a
part-time
adjunct
faculty
member.
Plaintiff earned a combined annual salary of $78,000 for both
positions.
(Id.).
Kelley
Justice
(“Ms.
Justice”)
directly
supervised Plaintiff in her role as Associate Campus Dean.
(Id.
at 3).
1
Plaintiff asserts that her salary increased to $52,800
after her one year performance review.
2
In October 2007, Ms. Sewell filed an internal complaint of
racial and age discrimination against Ms. Justice alleging that
Ms. Justice subjected her to a hostile work environment because
of her race.
On November 21, 2007, Plaintiff received a letter
from Debora Clark, an employee relations manager at Strayer,
which provided that “[a]fter thoroughly reviewing information
provided
by
you
as
well
as
conducting
further
interviews,
Strayer is unable to substantiate your claim that Dean Justice
discriminated
against
you
or
violated
Strayer’s
regarding, ‘Other Forms of Illegal Harassment.’
Policy
Notably, you
did not provide any specific examples of conduct or statements
indicating racial or age-based animus.”
(ECF No. 27-8, at 1).2
Plaintiff asserts that she was then “financially demoted”
in March 2008 because Ms. Justice instructed Strayer’s human
resources department to stop compensating Ms. Sewell for her
position
as
an
adjunct
part-time
professor.
This
2
reduced
The letter also addressed Plaintiff’s subsequent October
31, 2007 email alleging that Dean Justice retaliated against her
for filing the October 2007 complaint. Ms. Clark stated that:
[Plaintiff’s] version of the conversation
with Dean Justice on October 30, 2007, is
quite different from Dean Justice’s version;
therefore we were unable to corroborate your
claim of retaliation.
Nevertheless, Dean
Justice has been counseled about employees
always having the right to contact the Human
Resource Department with concerns.
(ECF No. 27-8, at 1).
3
Plaintiff’s
salary
to
$60,000
and
allegedly
breached
her
contract with Strayer to teach as an adjunct professor.
On
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”).
the
August
retaliated
5,
2009
against
discrimination
Charge,
her
against
for
Ms.
Rights
Division,
(ECF No. 10, at 3).
Plaintiff
alleged
filing
an
internal
Justice
in
October
that
In
Strayer
complaint
2007
for
and
of
for
filing a discrimination complaint with the United States Equal
Employment Opportunity Commission (“EEOC”) on March 25, 2008.
Ms.
Sewell
cited
the
following
events
as
examples
of
the
purported retaliation: (1) her 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.
The July 9, 2013 memorandum opinion and order dismissed for
lack
of
subject
matter
jurisdiction
Ms.
Sewell’s
Title
VII
claims of race-, color-, and gender-based discrimination because
she failed to exhaust her administrative remedies as to those
claims because she failed to include them in the August 2009
Charge.
The opinion noted that even if the court had subject
4
matter jurisdiction over Plaintiff’s Title VII discrimination
claims,
such
reasons.
claims
First,
substantive
would
Plaintiff
arguments
supporting
her
be
Title
dismissed
failed
to
regarding
VII
abandoned such claims.
for
two
respond
the
additional
to
factual
discrimination
Strayer’s
allegations
claims,
and
thus
See Ferdinand-Davenport v. Children’s
Guild, 742 F.Supp.2d 772, 777 & 783 (D.Md. 2010).
Second, Ms.
Sewell’s
allegations
complaint
supporting
a
was
plausible
devoid
claim
of
of
any
factual
intentional
discrimination.
(See ECF No. 25, at 18-19 n.9).
Although
jurisdiction
the
over
court
found
that
Title
Plaintiff’s
there
VII
was
subject
retaliation
matter
claim
-
which she alleged in the August 2009 Charge – the complaint
clearly revealed that the allegations relating to Ms. Sewell’s
August
2008
termination
and
Strayer’s
provision
of
negative
references in August 2008 were time-barred because these acts
preceded the August 2009 Charge by more than 300 days.
23);
42
U.S.C.
§
2000e-5(e)(1);
29
U.S.C.
§
626
(Id. at
(d)(1)(B).3
Accordingly, Ms. Sewell’s Title VII retaliation claim, to the
extent
it
relied
on
either
of
these
two
discrete
acts,
was
dismissed with prejudice.
3
In deferral states such as Maryland, an employee has 300
days in which to file a charge with the EEOC. See 42 U.S.C. §
2000e-5.
5
Notably,
the
court
assumed
the
truth
of
Plaintiff’s
allegation that she filed an earlier complaint with EEOC on
March 25, 2008, and found it plausible that Ms. Sewell filed a
timely administrative complaint with respect to the March 2008
“financial demotion.”
Ms. Sewell maintained in her opposition
to Defendant’s motion that a causal connection existed between
the October 2007 charge and the alleged March 2008 demotion
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 undersigned
noted that Ms. Sewell’s complaint was deficient insofar as it
did not include any allegations that Ms. Sewell was on medical
leave for some or all of the five-month period at issue here.
Thus, the Plaintiff’s retaliation claim, relying on the March
2008 “financial demotion,” was dismissed without prejudice to
her right to file an amended complaint within twenty-one (21)
days.
The opinion provided that:
[i]f Ms. Sewell files an amended retaliation
claim,
she
must
include
additional
allegations regarding the causal connection
between her October 2007 complaint and her
March 2008 demotion, including but not
limited to the 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.
6
(ECF No. 25, at 28) (emphasis added).
Plaintiff’s Section 1981
claims were dismissed as untimely.4
Plaintiff
filed
an
amended
complaint
which included twenty-three (23) exhibits.
on
July
24,
2013,
(ECF No. 27).
One
of the exhibits is a “memorandum in support of the Plaintiff’s
amended complaint regarding EEOC timing requirement.”
27-18).
On
August
12,
2012,
Defendant
moved
(ECF No.
to
strike
Plaintiff’s amended complaint to the extent it includes claims
and
allegations
previously
dismissed
with
prejudice
and
also
moved to dismiss her complaint for failure to state a claim.
(ECF No. 29).
Plaintiff filed an opposition on August 14, 2013
(ECF No. 31), and Defendant replied on September 3, 2013 (ECF
No. 32).
Plaintiff then moved to dismiss Defendant’s motion to
strike on September 23, 2013 (ECF No. 33) and, on the same day,
filed a motion to dismiss Defendant’s motion to strike “along
with a motion to dismiss the opposing counsel’s request for
sanctions”
(ECF
No.
34).
Defendant
opposed
this
motion
on
September 27, 2013 (ECF No. 35), and Plaintiff did not reply.
4
The July 9, 2013 memorandum opinion noted that Plaintiff
abandoned her Section 1981 claims to the extent Plaintiff relied
on Strayer’s alleged refusal to provide her a reference for
other employment in June 2009. (ECF No. 25, at 31).
7
II.
Analysis
A.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,
464
F.3d
480,
483
(4th
Presley v. City of
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 (2009).
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.
8
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979).
B.
Plaintiff’s Amended Complaint
Defendant again argues that the retaliation claim premised
on the March 2008 demotion is untimely because it occurred more
than
300
days
before
Plaintiff’s
August
2009
Charge
and
Plaintiff has not put forth evidence showing that she timely
filed
an
Defendant
administrative
ignores
the
charge
court’s
with
holding
EEOC
in
in
the
March
July
2008.
9,
2013
opinion that dismissal on Rule 12(b)(6) is appropriate only to
the extent that “the face of the complaint clearly reveals that
Ms. Sewell’s claims are time barred,” (ECF No. 25, at 23), and
here
it
is
plausible
that
Plaintiff
filed
a
timely
administrative complaint given the reference to the March 2008
EEOC complaint in the August 2009 Charge.5
Thus, Defendant’s
statute of limitations defense is again unavailing with respect
to the March 2008 “financial demotion.”6
5
The opinion also noted that “[a]lthough 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 [the motion to dismiss] stage.”
(ECF No. 25, at 22).
6
Plaintiff includes as an exhibit to the amended complaint
a “memorandum in support of the Plaintiff’s amended complaint
regarding EEOC timing requirement” and several exhibits in
support thereof.
(See ECF Nos. 27-18 to 27-23).
Plaintiff
9
Nevertheless, Plaintiff does attempt to re-litigate claims
previously dismissed for procedural deficiencies.
For instance,
Plaintiff alleges in the amended complaint that Strayer took an
adverse employment action on September 4, 2008 by officially
terminating her from the adjunct faculty position.
Because this
alleged discrete act occurred more than 300 days before the
filing of the August 2009 Charge (and logically could not have
been included in the March 2008 EEOC charge), Plaintiff cannot
rely
on
the
September
4,
2008
termination
retaliation claim as it is time-barred.
to
support
the
Similarly, Plaintiff
again alleges in the amended complaint that Defendant retaliated
against her by providing “poor references to the Plaintiff’s
employers following her termination, specifically Tesst College
(Greenbelt, MD), and Vatterott College (St. Louis, MO).”
No. 27, at 3).
(ECF
Plaintiff submits a final investigative report
which includes an affidavit from Andrea M. DeGraffenreidt with
argues that she is “entitled to relief pursuant to the
‘equitable
tolling’
of
the
Title
VII’s
300-day
timing
requirement for her March 2008 complaint” because she allegedly
met the informal filing requirement upon completing an intake
questionnaire and by filing a formal charge of discrimination in
March of 2008.” (ECF No. 27-18, at 2). As stated in the July
9, 2013 memorandum opinion, the face of the complaint did not
clearly reveal that the March 2008 “financial demotion” claim
was time-barred; thus, it was found plausible that Ms. Sewell
filed a timely administrative complaint with respect to the
March 2008 “financial demotion.”
(See ECF No. 25, at 22).
Accordingly, Plaintiff’s request equitably to toll the 300-day
filing requirement related to the March 2008 EEOC charge is
moot.
10
Strayer
University,
who
provides
that
she
responded
reference request for Ms. Sewell in June 2009.
10).
to
a
(See ECF No. 27-
As indicated in the July 9, 2013 opinion, Ms. Sewell’s
Title VII retaliation claim was dismissed with prejudice to the
extent she relied on the June 2009 discrete act because she
abandoned
brief.
this
claim
by
failing
(ECF No. 25, at 25).
to
address
it
in
the
reply
The court specifically noted: “Ms.
Sewell fails to respond to Strayer’s 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.”
(Id. at 31).
Thus, Plaintiff is precluded from re-alleging in
the amended complaint the same claims previously dismissed with
prejudice.
Defendant argues that Plaintiff’s retaliation claim relying
on the March 2008 “financial demotion” is subject to dismissal
because the amended complaint still fails to allege facts to
establish
the
necessary
causal
connection
between
activity in 2007 and the March 2008 demotion.
1,
at
6).
Defendant
contends
that
protected
(See ECF No. 29-
“[d]espite
specific
instruction from the Court, Plaintiff did not assert any factual
allegations
that
transform
plausible claim for relief.
her
retaliation
claim
into
a
Rather, she merely makes vague
11
statements that she was financially demoted ‘as soon as she
returned
from
leave.’”
(Id.
(quoting
Plaintiff’s
is
that
Plaintiff’s
amended
complaint)).7
Defendant
does
not
correct
specifically
address
the
timing
amended
and
complaint
nature
of
any
medical leave Ms. Sewell took between the October 2007 grievance
and March 2008 financial demotion, nor does Ms. Sewell include
if and when Ms. Justice became aware of the protected activity.
Instead,
Plaintiff
states
that
“Kelley
Justice
financially
demoted the plaintiff, immediately upon her return to work from
FMLA
medical
leave,
because
Ms.
Sewell
engaged
in
protected
activity on October 2007” and that “Ms. Sewell was financially
demoted as soon as she returned to work from leave.”
27, at 6).
(ECF No.
A review of the record, however, sheds some light
into Plaintiff’s periods of leave from Strayer.8
As mentioned
above, Plaintiff submits twenty-three exhibits with her amended
7
To establish a prima facie retaliation claim, a plaintiff
must show that: (1) she engaged in a protected activity, (2) her
employer acted adversely against 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).
8
In deciding a motion to dismiss, a court may consider
matters of public record, items appearing in the record of the
case, as well as exhibits attached to the complaint.
Norfolk
Federation of Business Districts v. City of Norfolk, 103 F.3d
119 (Table), 1996 WL 671293, at *1 (4th Cir. Nov. 20, 1996)
(unpublished opinion); Alamria v. Telcor Intern., Inc., 920
F.Supp.2d 658, 668 n.10 (D.Md. 1996).
Thus, the twenty-three
(23) exhibits Plaintiff submits with the amended complaint are
properly considered.
12
complaint,
Stallard”),
including
an
Strayer’s
email
from
president,
Sondra
dated
Stallard
March
25,
(“Dr.
2008,
in
response to Plaintiff’s October 2007 grievance and additional
follow-up, in which Dr. Stallard notes:
Concerning other issues we discussed during
your grievance meeting on January 3, 2008 .
. . an action plan was developed to address
your myriad concerns. However, we could not
implement that plan due to your absence from
work between the date of our meeting and
March 3, 2008.
(ECF No. 27-13, at 1) (emphasis added).
Plaintiff also includes
as an exhibit a document, dated January 15, 2010, which Ms.
Sewell appears to have submitted as part of the administrative
process in connection with the August 2009 Charge.
In this
document, Ms. Sewell states that she “experienced some health
challenges
from
[her]
pregnancy
and
from
a
motor
vehicle
accident that [she] was involved in concurrently . . . my use of
medical leave was necessary and legally supported by licensed
physicians.”
decision
on
(ECF
No.
Plaintiff’s
27-9,
at
3).
reconsideration
Furthermore,
request
an
EEOC
reveals
that
Strayer certified Ms. Sewell’s leave from December 31, 2007 to
March 3, 2008, with a return to work date of March 4, 2008.
(ECF No. 18-3, at 1).9
The EEOC reconsideration decision further
9
The EEOC’s decision on Plaintiff’s reconsideration request
is subject to judicial notice. See, e.g., Muhammad v. N.Y. City
Transit Auth., 450 F.Supp.2d 198, 204 (E.D.N.Y. 2006) (finding
that an EEOC charge of discrimination and the agency’s
13
provides that Ms. Sewell “briefly returned to work on March 4,
2008 but was absent again starting March 26, 2008.”
(Id.).
Thus, based on the record, it appears that Ms. Sewell was on
leave from either December 31, 2012 or January 4, 2013 until
March 4, 2008, due to injuries from a motor vehicle accident
and/or
pregnancy
complications.
Ms.
Sewell
also
appears
to
allege that she suffered the adverse employment action (i.e.,
“financial demotion”) “as soon as she returned to work from
(ECF No. 27, at 6).10
leave,” presumably March 4, 2008.
The United States Court of Appeals for the Fourth Circuit
has held that “a causal connection for purposes of demonstrating
a
prima
facie
case
exists
where
the
employer
takes
adverse
employment action against an employee shortly after learning of
the protected activity.”
(4th Cir. 2004).
adverse
causal
Nowhere
action
“[T]he employer’s knowledge coupled with an
taken
connection
in
the
Price v. Thompson, 380 F.3d 209, 213
at
element
amended
the
of
first
the
complaint,
opportunity
prima
satisfies
facie
however,
case.”
does
the
Id.
Plaintiff
address the second part of the court’s directive regarding if
determination are both public records, of which this Court may
take judicial notice”).
10
Plaintiff wrote to Dr. Stallard in an email dated March
4, 2008 that “Dean Lee and Dean Justice are trying to decrease
my salary indicating that I should not have, and should no
longer receive compensation for teaching classes.” (ECF No. 2712, at 3).
14
and when Ms. Justice learned about Ms. Sewell’s October 2007
complaint
provides
of
discrimination.
some
Specifically,
–
albeit
the
A
review
minimal
November
21,
-
of
the
insight
2007
on
letter
record
this
from
again
point.
Ms.
Clark
dismissing the October 2007 grievance suggests that Ms. Justice
learned of Plaintiff’s grievance by that point.
The November
21, 2007 letter from Ms. Clark to Ms. Sewell provides:
Notably, you [Ms. Sewell] did not provide
any
specific
examples
of
conduct
or
statements indicating racial or age-based
animus.
At most, you described Dean
Justice’s failure to effectively delegate
job duties, less than optimal communication
skills and a lack of understanding of how
her management style is perceived . . .
Senior management is working closely with
Dean Justice to develop her managerial
skills.
(ECF No. 27-8, at 1).
October
31,
2007
The letter further references Plaintiff’s
email
alleging
that
against her for filing the grievance.
Ms.
Justice
retaliated
Ms. Clark explains that
Plaintiff’s account of a conversation she allegedly had with Ms.
Justice differed from Ms. Justice’s version.
The letter further
provides that “Dean Justice has been counseled about employees
always having the right to contact the Human Resource Department
with
concerns.
management
style
Moreover,
is
she
perceived
was
by
counseled
her
staff
progress in her management capabilities.”
Taking
a
liberal
reading
of
15
pro
se
about
and
how
how
her
she
can
(ECF No. 27-8, at 1).
Plaintiff’s
amended
complaint, this at least implies that Ms. Justice learned about
the October 2007 internal grievance by November 21, 2007.
The
record
reflects,
however,
that
Plaintiff
filed
the
internal grievance in October 2007, did not take leave until
December
31,
2007
or
January
4,
2008,
and
alleged
that
Ms.
Justice attempted to stop her salary for the adjunct faculty
position on or about March 4, 2008.
Thus, Plaintiff fails to
establish how the “financial demotion” took place at Defendant’s
“first opportunity,” given that Plaintiff remained at work at
least
until
internal
December
grievance
31,
and
Ms.
2007
Justice
activity by November 21, 2007.
extra-jurisdictional
cases
following
the
learned
of
October
the
2007
protected
Plaintiff repeatedly cites two
to
support
that
“the
causal
connection still exists because the complainant was on leave
during the five (5) month period,” but those cases are readily
distinguishable.
Colorado
Dep’t
established
a
For
of
instance,
Transp.,
causal
325
connection
the
F.3d
plaintiff
1205
between
in
(10th
her
Wells
Cir.
v.
2003),
complaint
and
internal grievance submitted in November 1995, and her transfer
and reassignment in April 1996 based on the following facts:
In November 1995, two days after she filed
her CEEO complaint and the day she filed her
internal
grievance,
Plaintiff
went
on
medical leave.
She returned to work for
five days in December, but then went back on
leave until Mr. Moston told her to return to
work in April 1996.
Seven days after her
16
return – five months after her complaints –
Plaintiff was transferred to Grant Junction
and immediately reassigned to the traffic
section.
325 F.3d at 1216-17 (emphasis added).
The court observed that
“[a] five-month gap between a protected activity and an adverse
action would ordinarily be too great a time lapse to support an
inference
of
causation
based
on
timing
alone,”
but
because
plaintiff in that case was on leave “during most of the time
between her filing the CEEO complaint and grievance, and her
transfer and reassignment,” the court found a causal connection.
Id. at 1217.
Similarly, in Richardson v. New York State Dep’t
of Correctional Servs., 180 F.3d 426 (2d Cir. 1999), the other
case on which Plaintiff relies, the court found that “because
the
transfer
and
reassignment
were
the
first
actions
that
[defendant] took after [plaintiff] returned from the leave on
which she filed her EEOC charge, there was sufficient evidence
that
the
transfer
and
reassignment
were
causally
[plaintiff’s] engagement in protected activity.”
related
to
180 F.3d at
444.
Here, Plaintiff has not shown, or even alleged, that she
was on leave for most of the time between the protected activity
in October 2007 and the March 2008 “financial demotion.”
Cf.
Templeton v. First Tennessee Bank, N.A., 424 F. App’x 249, 251
(4th
Cir.
2011)
(finding
two
17
year
lapse
sufficient
where
plaintiff
resigned
after
complaining
of
discrimination
but
sought to be rehired two years later); cf. Thurson v. Am. Press,
LLC,
497
F.Supp.2d
778,
783
(W.D.Va.
2006)
(plaintiff
not
selected for a position almost immediately after discussing his
EEOC history during an interview).
In fact, the record reflects
that Ms. Justice did not “financially demote” Plaintiff at the
first opportunity after the October 2007 grievance.
Cf. Ford v.
General Motors Corp., 335 F.3d 545, 552 (6th Cir. 2002) (finding
a causal connection where for a five-month period following his
EEOC filing, the plaintiff voluntarily worked in a different
position
and
was
not
within
his
supervisor’s
sphere
of
authority, but when the plaintiff was placed back under his
supervisor’s direction, the supervisor subjected his performance
to heightened scrutiny and threatened to terminate him).
Ms.
Sewell offers nothing to suggest a causal connection other than
self-serving conclusory averments.
Specifically, she asserts a
legal conclusion in the amended complaint without any factual
support:
[t]here is a causal connection between the
date for the protected activity that the
plaintiff
engaged
in
on
October
2007
(Complaint regarding racial discrimination
of Kelley Justice), and on March 17, 2008
(appeal
of
Kelly’s
retaliatory
salary
decrease of which the University President
Sandra Stallard affirmed (Exhibit 10); and
March 25, 2008 Dispute of reduction of
salary.
18
(ECF No. 27, at 4).
To the extent Plaintiff attempts to argue
that the protected activity continued through her “appeal” of
the November 21, 2007 decision to Dr. Stallard in March 2008,
such argument is unavailing because Plaintiff alleges nothing to
show that Ms. Justice knew about this appeal.11
See Finnegan v.
Dep’t of Pub. Safety & Corr. Servs., 184 F.Supp.2d 457, 463
(D.Md. 2002) (“a plaintiff must establish that when taking the
adverse action, an employer had knowledge that the plaintiff had
engaged in protected activity.”); Dowe v. Total Action Against
Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998)
(“[s]ince, by definition, an employer cannot take action because
11
Based on the record, it appears that Ms. Sewell met with
Dr. Stallard on January 3, 2008 “regarding issues experienced at
the Online Campus, Newington, VA with Kelley Justice.” (ECF No.
27-12, at 3 (email from Ms. Sewell to Dr. Stallard)). She then
sent an email, dated March 4, 2008, to Dr. Stallard following up
on the January 3, 2008 meeting and requesting Dr. Stallard’s
assistance because “Kelley conveyed [on March 4, 2008] that she
informed the Payroll department that [Ms. Sewell] should not be
compensated for teaching classes.”
(Id.).
After Dr. Stallard
responded on March 10, 2008 that Strayer is looking into Ms.
Sewell’s concerns, Plaintiff again emailed on March 17, 2008
stating that “[w]e are vastly approaching the start of the
Spring Quarter and I hope that we can get this payroll issue
resolved prior.” (Id. at 2). On March 25, 2008, Dr. Stallard
responded to Ms. Sewell, explaining that she could not be
compensated for the adjunct faculty position because her
promotion to Associate Campus Dean required her to teach two
classes for which she would not be separately compensated. (ECF
No. 27-13, at 1). Dr. Stallard further stated that with respect
to the grievance meeting on January 3, 2008, “an action plan was
developed to address [Ms. Sewell’s] myriad concerns.
However,
we could not implement that plan due to [Ms. Sewell’s] absence
from work between the date of our meeting and March 3, 2008.”
(Id.).
None of these exchanges suggest that Ms. Justice knew
about the pending appeal.
19
of a factor of which it is unaware, the employer’s knowledge
that the plaintiff engaged in a protected activity is absolutely
necessary to establish the third element of the prima facie
case.”).
Given the five-month time-span between the protected
activity and the March 2008 “financial demotion” and Plaintiff’s
failure to allege plausible facts reasonably to infer that the
adverse
action
was
taken
at
the
“first
opportunity,”
Ms.
Sewell’s retaliation claim will be dismissed with prejudice.
Plaintiff also newly alleges in the amended complaint that
“[o]n March 25, 2008, Dr. Stallard retaliated against Sewell for
electronically documenting her violation of University policy.
The adverse employment action is displayed in [Dr. Stallard’s]
decision to uphold the financial demotion that Kelley Justice
and Suk Lee requested, upon Sewell’s initial return to work from
FMLA
medical
activity.”
leave,
because
Ms.
(ECF No. 27, at 7).
Sewell
engaged
in
protected
To the extent Plaintiff relies
on the fact that Dr. Stallard violated university policy by
failing to respond to her March 4, 2008 email within fifteen
(15)
days
and
subsequently
retaliated
against
her
for
documenting this violation, this does not constitute protected
activity under Title VII and thus Plaintiff fails to establish a
prima
facie
retaliation
claim
based
on
this
discrete
act.
Plaintiff further argues that Dr. Stallard subsequently affirmed
the “financial demotion,” which Plaintiff believes to be “direct
20
evidence that the President . . . retaliated against [her] for
engaging
in
protected
activity
via
Strayer
University[‘s]
‘Personnel Conflict/grievance’ appeals process.”
(Id. at 6).
Direct evidence is “evidence of conduct or statements that both
reflect directly the alleged discriminatory attitude and that
bear directly on the contested employment decision.”
Warch v.
Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (internal
quotation
support,
marks
beyond
omitted).
conclusory
Plaintiff
statements,
includes
that
by
no
factual
affirming
the
“financial demotion,” Dr. Stallard retaliated against her for
engaging in the University’s appeals process.
See Brightwell v.
Hershberger, Civil Action No. DKC-11-3278, 2013 WL 709784, at *9
(D.Md. Feb. 26, 2013) (“[a] complaint which alleges retaliation
in
wholly
conclusory
terms
may
safely
be
dismissed
on
the
pleading alone” (quoting Gill v. Mooney, 824 F.2d 192, 194 (2nd
Cir. 1987))); Pierce v. King, 918 F.Supp. 932, 945 (E.D.N.C.
1996)
(conclusory
state
claim).
Stallard
allegations
Accordingly,
retaliated
against
plead a prima facie case.
of
retaliation
Plaintiff’s
her
is
insufficient
allegation
likewise
that
insufficient
to
Dr.
to
See, e.g., Agolli v. Office Depot,
Inc., No. 12-2458, 2013 WL 6645448, at *5 (4th Cir. Dec. 18,
2013) (noting that while pro se EEOC claimants are entitled to a
substantial amount of indulgence, “alleging the same speculative
21
and
conclusory
claims,
.
.
.
cannot
survive
Rule
8(a)(2)
scrutiny.”).
C.
Plaintiff’s motions
Because
Plaintiff’s
amended
complaint
will
be
dismissed
entirely, Plaintiff’s motion to dismiss the Defendant’s motion
to strike portions of her amended complaint, (see ECF No. 33),
will be denied as moot.
In the motion to dismiss, Defendant
requests “relief as the Court may deem appropriate, including
sanctions
claims.”
for
Plaintiff’s
efforts
(ECF No. 29-1, at 8).
request
for
sanctions.
to
re-litigate
dismissed
Plaintiff moved to dismiss this
(See
ECF
No.
34).
Plaintiff’s
litigation behavior does not rise to the level of abusive and
vexatious
conduct
that
warrants
sanctioning.
Cf.
Kalos
v.
Centennial Sur. Assocs., Inc., No. CCB-12-1532, 2012 WL 6210117,
at
*4
(D.Md.
Dec.
12,
2012)
(finding
Rule
11
sanctions
appropriate where plaintiff brought over a dozen cases against
the
defendants
or
related
parties
on
frivolous
grounds).
Accordingly, the court will not impose sanctions at this time
and Plaintiff’s motion (ECF No. 34) will be denied as moot.
22
III. Conclusion
For the foregoing reasons, Defendant’s motion to dismiss
Plaintiff’s
amended
complaint
motions will be denied as moot.
will
be
granted.
Plaintiff’s
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
23
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