Richardson v. Mabus

Filing 35

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 8/16/2013. (c/m 8/16/2013 eb)(ebs2, Deputy Clerk)

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

CHARLIE RICHARDSON,
Plaintiff,
v.

Civil Action No. 8:13-cv-01207-AW

RAY MABUS,
Defendant.

MEMORANDUM OPINION
Pending before the Court are Defendant’s Motion to Dismiss and Defendant’s Motion for
Extension of Time. The Court has carefully reviewed the record and deems a hearing
unnecessary. For the following reasons, the Court GRANTS Defendant’s Motion to Dismiss and
DENIES AS MOOT both Defendant’s Motion for Extension of Time and Second Motion for
Extension of Time.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The instant case sounds in employment discrimination. Pro se Plaintiff is a Maryland

resident. Plaintiff is an African-American male and was over the age of forty at all relevant
times. Plaintiff worked for the Defendant Ray Mabus, Secretary of the United States Department
of the Navy (“Defendant” or “Navy”) at all relevant times. In his Complaint, Plaintiff alleges
eleven discrete acts of discrimination and retaliation that date to 2004.

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Act one occurred on April 19, 2004. On this date, Plaintiff alleges that Defendant forced
him to accept a lower-paying, nonsupervisory position based on prior EEO activity. Apparently,
Plaintiff engaged in additional EEO activity or complained about discrimination on this date.
Act two occurred on August 13, 2004. On this date, Plaintiff alleges that Defendant gave
him an undesirable reassignment. Plaintiff also alleges that Defendant treated him disparately by
checking to see what time he would sign in for work and by denying his request for “offsite
training” with sarcasm. Plaintiff attributes these acts to his prior EEO activity.
Act three occurred in March/April 2005. At this time, Plaintiff alleges that Defendant
denied him “off-site training.” Doc. No. 1 at 5.
Act four occurred in May 2006. At this time, Defendant denied Plaintiff access to a Navy
“website Intranet.” Id. at 4. Plaintiff blames this act on his apparent EEO activity of April 19,
2004.
Act five occurred on November 10, 2008. On this date, Plaintiff alleges that Defendant
discriminated and retaliated against him by promoting “Mr. Lassiter” to the “Site Manager”
position. Id. Although Plaintiff alleges that Lassiter is African American, Plaintiff avers that
Defendant promoted him to create the appearance of diversity.
Act six occurred on July 24, 2009. On this date, Defendant promoted a Stephen Bryan, a
White male, to the Site Manager position. Plaintiff alleges that Bryan was younger and lessqualified than Plaintiff. Although Plaintiff vaguely discusses his qualifications, he makes no
mention of Bryan’s.
Act seven occurred on July 27, 2010. On this date, Plaintiff alleges that Bryan denied his
request for leave to attend his deceased sister’s funeral. Plaintiff adds that the request had
previously been approved.

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Act eight occurred on September 2, 2010. On this date, Plaintiff alleges that Bryan denied
his request for forty hours of compensatory leave. Plaintiff further alleges that Bryan should have
approved his request because he had worked until midnight approximately two weeks before this
date.
Act nine occurred on September 21, 2010. On this date, Plaintiff alleges that Bryan
“interfered with his receiving 40 hours of donated leave from his Spouse.” Id. at 3.
Act ten occurred on October 1, 2010. On this date, Defendant placed “LTJG John
Edwards” in the Site Manager position. Plaintiff further alleges that Defendant preselected
Edwards for the position by way of ensuring that Bryan would occupy it later on. Plaintiff adds
that Edwards was a young White male and suggests that Defendant did not announce the
position’s availability.
Act eleven occurred on or around October 4, 2010. On this date, Defendant informed
Plaintiff that it would be rehiring Bryan as Site Manager.
In the meantime, on August 4, 2010, Plaintiff contacted an EEO counselor. Doc. No. 1-1
at 1. In November 2010, Plaintiff filed a formal EEO complaint alleging that Defendant had
discriminated against him based on race, sex, and age. The EEOC (“Agency”) investigated
Plaintiff’s complaint and dismissed his claims. This decision was affirmed on May 15, 2012.
On April 26, 2013, Plaintiff filed the instant Complaint. Based on the foregoing
allegations, Plaintiff asserts claims for discrimination based on race, age, and sex. On July 2,
2013, Defendant filed a Motion to Dismiss or, in the Alternative, for Summary Judgment
(“Motion to Dismiss”). Doc. No. 27. Defendant filed an untimely Response to this Motion on
August 16, 2013. Substantively, Defendant’s Response is indistinguishable from his Complaint.

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II.

STANDARD OF REVIEW

A.

Motion to Dismiss 12(b)(1)

Generally, “a failure by the plaintiff to exhaust administrative remedies concerning a

Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.” Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300–01 (4th Cir. 2009) (citation omitted). “Courts may
consider materials outside the pleadings to determine whether they have subject matter
jurisdiction.” Bennett v. Kaiser Permanente, Civil Action No. 10–CV–2505 AW, 2013 WL
1149920, at *2–3 (D. Md. Mar. 20, 2013) (citation omitted). Although the Fourth Circuit has
held that the failure of a federal employee to timely contact an EEO counselor does not, per se,
deprive courts of subject matter jurisdiction, the issue is still whether the employee has
exhausted administrative remedies. See Zografov v. V.A. Medical Ctr., 779 F.2d 967, 969–70
(4th Cir. 1985). “Motions to dismiss for failure to exhaust administrative remedies are governed
by Fed. R. Civ. P. 12(b)(1) . . . .” Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003)
(citation omitted); Puryear v. Shrader, Civil No. PJM 11–3640 2013 WL 1833262, at *1 (D.
Md. Apr. 30, 2013) (citation omitted). “[I]f the governmental entity challenges jurisdiction under
Rule 12(b)(1) . . . 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, 603–04 (D. Md.
2012) (alteration in original) (citation and internal quotations marks omitted).1

1
The only document that the Court cites in the instant Opinion is the EEOC’s decision affirming the
Agency’s dismissal of Plaintiff’s Complaint. Plaintiff attached this document to the Complaint and it is
integral thereto and/or incorporated therein. Therefore, the Court would properly rely on this document
under the Rule 12(b)(6) analysis. See, e.g., Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007) (citation omitted).

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B.

Motion to Dismiss 12(b)(6)
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
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).

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III.

LEGAL ANALYSIS

A.

Failure to Exhaust Administrative Remedies

Defendant urges the Court to dismiss the action because Plaintiff failed to meet with an

EEO counselor within 45 days of many of the alleged discriminatory/retaliatory acts. Under
EEOC regulations, “[a]n aggrieved person must initiate contact with a Counselor within 45 days
of the date of the matter alleged to be discriminatory or, in the case of personnel action, within
45 days of the effective date of the action.” 29 C.F.R. § 1614.105(a)(1). This 45-day period is
extended if “the individual shows that he or she was not notified of the time limits and was not
otherwise aware of them.” 29 C.F.R. § 1614.105(a)(2).
In this case, Plaintiff contacted an EEO counselor on August 4, 2010. Therefore, with one
exception noted below, Plaintiff cannot rely on acts occurring before June 20, 2010. However,
acts (1) – (6) occurred at discrete points in time between April 19, 2004 and July 24, 2009.
Furthermore, Plaintiff neither alleges nor argues that Defendant failed to notify him of the time
limits and that he was otherwise unaware of them. Accordingly, Plaintiff failed to exhaust
administrative remedies regarding these acts.
Arguably, Plaintiff’s allegations support the inference that he contacted an EEO
counselor regarding the first act on the same day that the act occurred (i.e., April 19, 2004).
Assuming the truth of this apparent allegation, any acts occurring before June 3, 2004 would not
be time-barred. However, acts (2) – (6) occurred after this date (i.e., August 13, 2004 to July 24,
2009). Therefore, regarding acts (1) – (6), the Court must address whether Plaintiff has stated a
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facially plausible claims for only act (1). As the following section addresses whether Plaintiff has
stated cognizable claims based on acts (7) – (11), the Court will reserve this question for that
section.2
B.

Failure to State a Claim
The Court must address whether Plaintiff has stated cognizable discrimination and

retaliation claims based on his race, sex, and age based on acts (1) and (7) – (11). The brevity of
the Court’s analysis reflects the clear deficiency of Plaintiff’s allegations. All of the allegations
share three overarching flaws. First, one could not plausibly infer from Plaintiff’s allegations that
impermissible animus against African-Americans or elderly persons motivated the acts.
Plaintiff’s conclusory allegations that Bryan and Edwards were young White males do not
sufficiently suggest race, age, or sex discrimination. Indeed, Plaintiff acknowledges that
Defendant promoted a Black male (Lassiter) to the same position. And, although Plaintiff seems
to make contrary conclusory assertions in his Response, the Complaint contains no factual
contentions creating a plausible inference that similarly situated employees were granted leave.
Second, one could not plausibly infer that the complained-of acts are materially adverse. The
thrust of Plaintiff’s allegations is that he was generally dissatisfied with his job conditions and
that he had a hard time getting along with his supervisors, which is insufficient to sustain an
employment discrimination cause of action. See, e.g., Crockett v. SRA Int’l, Civil Action No.
8:13–cv–00261–AW, 2013 WL 1856447, at *8 (May 1, 2013) (citing cases) (dismissing a
complaint for discrimination and retaliation where “the allegations [did] no more than to suggest
that Plaintiff was dissatisfied with her job and her employer’s evaluation of her and had a hard

2
For the reasons stated in Part III.B, acts (2) – (6) also fail to state facially plausible discrimination and
retaliation claims.

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time getting along with people”). Third, Plaintiff fails to allege a temporal or other causal link
between the allegedly adverse actions and any prior EEO activity or complaint regarding
perceived discrimination. Although Plaintiff apparently alleges that he contacted an EEO
counselor after the alleged April 19, 2004 demotion, the next allegedly adverse action does not
occur until nearly four months later and, due to his failure to exhaust, Plaintiff cannot even rely
on acts until July 2010. See, e.g., Crockett, 2013 WL 1856447, at *8 (citing Clark Cnty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273 (2001)) (“Standing alone . . . temporal proximity of four
months is insufficient to suggest causation.”). For these reasons, the Plaintiff’s claims for racial
discrimination, age discrimination, sex discrimination, and retaliation are not cognizable.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss and

DENIES AS MOOT Defendant’s Motion for Extension of Time and Second Motion for
Extension of Time. A separate Order closing the case with prejudice follows.  
August 16 , 2013
Date

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

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