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