Gamble v. The Examiner

Filing 6

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 4/30/2013. (kns, Deputy Clerk)(c/m 4/30/13)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

KEVIN D. GAMBLE,
Plaintiff,
v.

Civil Action No. 8:13-cv-00787-AW

THE EXAMINER,
Defendant.

MEMORANDUM OPINION
I.

FACTUAL AND PROCEDURAL BACKGROUND
On March 14, 2013, pro se Plaintiff Kevin D. Gamble, a resident of Oxon Hill, Maryland,

filed a Complaint sounding in employment discrimination, as well as a Motion for Leave to
Proceed IFP (Motion for Leave). Plaintiff alleged that he worked for the Examiner newspaper. In
this capacity, “Mack,” his apparent supervisor, engaged in a series of actions that Plaintiff
believed constituted “[r]acial and sexual discrimination in the workplace.” Doc. No. 1-2.
Specifically, Plaintiff alleges that Mack told him he would fire him if Plaintiff did not answer
Plaintiff’s phone. Plaintiff further alleges that Mack would call him names like stupid, dumb, or
“do you have a girlfriend.” Doc. No. 1 at 2. Furthermore, Plaintiff avers that Mack would
intimidate him and berate him in the subway station, which scared Plaintiff and sometimes
would make him feel like he was going to have a stroke or a heart attack. Based on these sparse
allegations, Plaintiff requests damages in the amount of one million dollars.

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On April 1, 2013, the Court issued an Order granting Plaintiff’s Motion for Leave. In
reaching this decision, the Court noted that Plaintiff had failed to allege or show that he had
exhausted administrative remedies by filing a charge of discrimination before the EEOC
Commission or the Maryland Commission on Civil Rights (MCCR). Therefore, the Court
ordered Plaintiff to supplement his Complaint to cure said deficiency. The Court’s Order
explicitly cautioned Plaintiff that the failure to properly supplement his Complaint could result in
the dismissal of his Complaint.
On April 22, 2013, in an apparent bid to comply with the Court’s Order, Plaintiff filed a
Supplement. Doc. No. 5. In his Supplement, Plaintiff does not allege that he filed an
administrative charge with the EEOC, MCCR, or any other appropriate federal or state agency.
Nor does he include a right-to-sue letter with his Supplement. Rather, Plaintiff simply alleges
that his supervisor, presumably Mack, would talk to him abusively. For instance, Plaintiff alleges
that Mack would abusively tell him to move the papers. Plaintiff also states that Mack would not
let him leave early for work at least once and chided him for coming to work late one time
because Plaintiff could not find his bus pass. Lastly, Plaintiff alleges that he has a witness who
will testify about such abuse.
II.

STANDARD OF REVIEW

A.

Subject Matter Jurisdiction
“There are two critically different ways in which to present a motion to dismiss for lack

of subject matter jurisdiction.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). “First, it
may be contended that a complaint simply fails to allege facts upon which subject matter
jurisdiction can be based.” Id. Where the defendant contends that the complaint fails to allege
facts sufficient to establish subject matter jurisdiction, “all the facts alleged in the complaint are

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assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he
would receive under a Rule 12(b)(6) consideration.” Id. “Second, it may be contended that the
jurisdictional allegations of the complaint [are] not true.” Adams, 697 F.2d at 1219. In such
cases, “the court is free to consider exhibits outside the pleadings to resolve factual disputes
concerning jurisdiction.” Zander v. United States, 843 F. Supp. 2d 598, 603 (D. Md. 2012)
(internal quotation marks omitted) (citing Smith Wash. Metro. Area Transit Auth., 290 F.3d 201,
205 (4th Cir. 2002)).
B.

Motion to Dismiss
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the plaintiff’s

complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In two recent
cases, the U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions.
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
These cases make clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (quoting Fed. R. Civ. P. 8(a)(2)). This
showing must consist of at least “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570.
In deciding a motion to dismiss, the court should first review the complaint to determine
which pleadings are entitled to the assumption of truth. See Iqbal, 129 S. Ct. at 1949–50. “When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. In so doing,
the court must construe all factual allegations in the light most favorable to the plaintiff. See
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999). The Court
need not, however, accept unsupported legal allegations, Revene v. Charles County

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Commissioners, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual
allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations
devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979).
III.

LEGAL ANALYSIS
Because pro se Plaintiff is proceeding in forma pauperis, he is subject to the dictates of

28 U.S.C. § 1915(e)(2). See Ross v. Baron, 493 Fed. App’x 405, 406 (4th Cir. 2012) (citations
omitted). Section 1915(e)(2) requires courts shall dismiss the cases of pro se plaintiffs
proceeding in forma pauperis where the cases are “frivolous” or “fail[] to state a claim on which
relief may be granted.” See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). Furthermore, “frivolous complaints
are subject to dismissal pursuant to the inherent authority of the court, even when the filing fee
has been paid.” Id. (citations omitted).
“[A] federal court may not assume jurisdiction over an action arising under Title VII
unless the claimant has (1) exhausted his administrative remedies, and (2) attempted to seek
redress under any applicable state or local remedies.” Forrest v. Transit Mgmt. of Charlotte, 93
Fed. App’x 577, 578 (4th Cir. 2004) (citation omitted). Therefore, district courts have no
authority to adjudicate complaints “alleging employment discrimination under the guise of Title
VII, unless the EEOC has investigated the claim, made a determination as to the claim’s merit,
and issued a right-to-sue notice.” See id. (citation and internal quotation marks omitted).
Concordantly, numerous federal courts have sua sponte dismissed pro se plaintiffs’ complaints
for failing to allege and/or show the issuance of a right-to-sue letter. See, e.g., Grey v.
Promenade Rehab. & Care Ctr., 145 Fed. App’x, 705, 706–07 (2d Cir. 2005) (summary
disposition) (affirming district court’s sua sponte dismissal of pro se plaintiff’s complaint where

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plaintiff failed to obtain right-to-sue letter); Clinton v. Delray Credit Counseling, Inc., No. 0880828-CIV, 2008 WL 5054097, at *2 (S.D. Fla. Nov. 26, 2008) (citing cases) (sua sponte
dismissing pro se plaintiff’s complaint without prejudice based on failure to provide court with
copy of EEOC right-to-sue letter after receiving ten days to do so); see also Burke v. Also
Cornerstone, No. 3:08mc125(WIG), 2008 WL 1883918, at *1 (D. Conn. Apr. 28, 2008)
(recommending sua sponte dismissal of pro se plaintiff’s claims against defendants whom
plaintiff failed to name in EEOC charge); Jones v. Smith-McKenney Co., Inc., Civil Action No.
3:05-CV-62-JMH, 2006 WL 1206368, at *1 (E.D. Ky. Apr. 28, 2006) (recognizing district
court’s sua sponte dismissal with prejudice of pro se plaintiff’s Title VII claims for failing to file
a right-to-sue letter ); Conner v. Nat’l Health Labs., Inc., No. 96 CIV. 1332 (BSJ), 1996 WL
457307, at *1 (S.D.N.Y. Aug. 13, 1996) (recognizing district court’s sua sponte dismissal of pro
se plaintiff’s employment discrimination claims because plaintiff failed to allege that she
exhausted administrative remedies before filing suit). Similarly, numerous jurisdictions,
including the Fourth Circuit, have sua sponte dismissed a pro se plaintiff’s complaint where the
plaintiff fails to exhaust administrative remedies by filing suit within ninety days of receiving a
right-to-sue letter pursuant to 42 U.S.C. § 2000e-5(f)(1). See, e.g., McGill v. General Elec. Co.,
No. 91-1016, 1991 WL 61305, at *1 (4th Cir. Apr. 21, 1991) (per curiam) (affirming district
court’s sua sponte dismissal of plaintiff’s complaint where plaintiff failed to file complaint
within ninety days of receiving right-to-sue-letter); Portillo v. Zebra Techs. Corp., 154 Fed.
App’x 505, 507 (7th Cir. 2005) (affirming sua sponte dismissal of pro se plaintiff’s complaint
where plaintiff filed complaint after 90-day period for filing suit after receiving right-to-sue letter
had expired).

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In this case, the Court dismisses Plaintiff’s Complaint for lack of subject matter
jurisdiction. Plaintiff has neither alleged nor shown that he received a right-to-sue letter from the
EEOC or other appropriate agency, which is a jurisdictional prerequisite to a Title VII suit in the
Fourth Circuit. Even if Plaintiff filed an EEOC charge and received a right-to-sue letter, he has
neither alleged nor shown that he commenced this action within ninety days of receiving the
letter, which is likewise a jurisdictional prerequisite. Therefore, Plaintiff’s suit is both
“frivolous” and “fails to state a claim” within the meaning of 28 U.S.C. § 1915(e)(2).
Furthermore, sua sponte dismissal would be proper even if section 1915(e)(2) were inapplicable.
Plaintiff neither alleged nor showed that he exhausted administrative remedies despite the
Court’s warning that the failure to do so could result in dismissal of his claims. Additionally,
Plaintiff’s racial and sexual discrimination claims are simply not cognizable. No matter how
liberally the Court construes them, Plaintiff’s sparse, vague allegations do not support a plausible
inference that his employer violated his federal rights to be free from prohibited discrimination.1
IV.

CONCLUSION
For the foregoing reasons, the Court dismisses, without prejudice, Plaintiff’s Complaint.

A separate Order follows.
April 30, 2013
Date

/s/
Alexander Williams, Jr.
United States District Judge

1
The outcome would be the same were the Court to treat Plaintiff’s Title VII claims as § 1983 claims.
See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (citation omitted) (“we shall assume
that the McDonnell Douglas framework is fully applicable to racial-discrimination-in-employment claims
under 42 U.S.C. § 1983”).

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