Lopez v. BMA Corp.
Filing
24
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 12/24/13. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ROSA LOPEZ
:
v.
:
Civil Action No. DKC 13-2406
:
BMA CORP.
:
MEMORANDUM OPINION
Presently pending and ready for review in this employment
discrimination case is the motion to dismiss filed by Defendant
BMA Corporation d/b/a Ledo’s Pizza & Pasta.
(ECF No. 21).
The
issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
For the
following reasons, the motion to dismiss will be granted in part
and denied in part.
I.
Background
The
following
facts
are
either
alleged
in
the
amended
complaint, evidenced by documents referenced or relied upon in
the complaint, or are matters of public record of which the
court may take judicial notice.1
1
“Although as a general rule extrinsic evidence should not
be considered at the 12(b)(6) stage,” the court may consider
such evidence where the plaintiff has notice of it, does not
dispute its authenticity, and relies on it in framing the
complaint.
Am. Chiropractic Ass’n v. Trigon Healthcare, Inc.,
367 F.3d 212, 234 (4th Cir. 2002); see also Douglass v. NTI-TSS,
Inc., 632 F.Supp.2d 486, 490 n.1 (D.Md. 2009). Here, Defendant
Plaintiff Rosa Lopez brings this suit as parent and next
friend of her daughter, LL.2
descent,
specifically
LL is a female of Latin American
Salvadorian.
Defendant
BMA
–
doing
business as Ledo’s Pizza & Pasta – is a restaurant in Temple
Hills, Maryland.
On August 15, 2011, LL began work as a server and cashier
at Defendant’s restaurant.
She worked Thursdays, Fridays, and
Saturdays from either 5:00 pm to 10:00 pm (Thursday) or 4:00 pm
to 11:00 pm (Friday and Saturday).
Soon after beginning work,
LL was told by her manager Farine (no last name given) that she
and her co-worker Ingrid (no last name given) were not allowed
to speak Spanish while at the restaurant.
mother Rosa, her immediate supervisor.
the
head
of
the
restaurant,
Bobby
LL complained to her
Rosa then complained to
Syed.
Mr.
Syed
–
a
Bangladeshi – replied that Spanish is not a real language and
that Spanish shall not be spoken anywhere in the restaurant,
including the areas not patronized by customers.
This “no-
has attached Plaintiffs’ Charge of Discrimination form jointly
submitted to the Prince George’s County Human Relations
Commission and the Equal Employment Opportunity Commission.
This
filing
was
specifically
referenced
in
the
amended
complaint.
(ECF No. 12 ¶ 55).
In the opposition papers,
Plaintiff does not challenge the authenticity of this document.
Thus, the court may consider it in resolving the pending motion
to dismiss.
2
As LL is a minor, she will be referred to only by her
initials in accordance with Federal Rule of Civil Procedure
5.2(a). Alternatively, she may be referred to as “Plaintiff.”
2
Spanish”
policy
employment.
enforced
for
the
entirety
of
LL’s
Previously, Spanish had only ever been spoken in
employee-only
Defendant’s
was
areas.
owners
Following
and
managers
enactment
of
frequently
this
policy,
conversed
dialect of Bangladeshi, their native language.
in
a
(ECF No. 11 ¶¶
4-10).
LL claims that she was subjected to further differential
treatment because of her nationality.
On or around June 2012,
LL – who possessed a learners’ permit - was at her car after her
shift had concluded.
Defendant’s owner saw her and said, “I’m
going to call the police and they are going to lock you up!”3
The next day, Defendant’s owner told Rosa that he was going to
call
the
police
to
“lock
her
up”
because
she
irresponsible parent for letting her daughter drive.
that
these
statements
were
motivated
by
a
belief
was
an
LL alleges
that
all
Hispanics are undocumented and could not have drivers’ licenses.
(Id. ¶¶ 11-12).
The alleged differential treatment also took other forms.
LL was charged ten dollars for each of her work shirts, but her
Bangladeshi co-workers were not so charged.
On May 5, 2012, Mr.
Syed asked LL if she had any Cinco de Mayo plans which she must
be
celebrating
because
her
father
3
is
Mexican.
After
LL
It is unclear whether “Defendant’s owner” is referring to
Mr. Syed.
3
corrected Mr. Syed that her father is not Mexican, Mr. Syed
called LL a racist in front of other employees.
LL was also
reprimanded by Mr. Syed in front of the entire workforce for not
helping a customer pay when her Bangladeshi co-workers were not
so reprimanded for engaging in similar behavior.
(Id. ¶¶ 14-
17).
LL was also allegedly subjected to sexual harassment.
The
primary perpetrator of the sexual advances was a twenty-six year
old co-worker named Mohammad Mohsin.
LL’s first interaction
with Mr. Mohsin came after she had been working at Ledo’s for
several months.
shifts.
The two were both servers, often on the same
The sexual harassment began on the first day LL and Mr.
Mohsin started working together.
For over a month, Mr. Mohsin
repeatedly made advances toward LL, including telling her that
“Each day you are looking more sexy for me”; asking for her
phone number; repeatedly inviting her to his house; frequently
telling her that he wanted the two of them to be close; that he
wanted her to be his girlfriend; and always seeming to find
himself in close proximity to LL.
LL repeatedly rebuffed his
advances, reminding him that she was only sixteen years old.
This did not placate Mr. Mohsin and the harassment continued as
described.
(Id. ¶¶ 19-35).
LL complained to her supervisors – including Mr. Syed –
about Mr. Mohsin multiple times, telling them that she did not
4
like
working
with
uncomfortable,
Mr.
and
Mohsin,
his
his
sexual
compliments
were
advances
made
inappropriate.
her
LL
states that she spoke with the owner of Ledo’s five or six
times.
But Mr. Syed and the other supervisors did nothing to
reign in Mr. Mohsin.
On July 30, 2012, LL again met with Ledo’s
owner and reiterated Mr. Mohsin’s behavior, how she found it
unacceptable and requested that Defendant take action to end it.
Defendant did not do anything in response.
To LL’s knowledge
and belief, Defendant never spoke with Mr. Mohsin about his
behavior.
problem.
that
Defendant never told LL what was done to fix the
Mr. Syed modified LL’s work schedule, but in a manner
exacerbated
Thursday
and
the
Friday
problem:
and
a
instead
cashier
on
of
being
a
Saturday,
server
now
working all three days as a server with Mr. Mohsin.
she
on
was
(Id. ¶¶ 36-
43).
Mr.
Mohsin
management.
to
take
all
restaurant’s
was
not
happy
with
LL
speaking
with
their
When the two worked together as servers, he tried
the
desirable
policy
of
tables
alternating
instead
table
of
following
assignments.
the
LL
confronted Mr. Mohsin about this, to which he responded that as
the senior server she needed to listen to him.
These actions
were done with the knowledge and endorsement of Ledo’s ownership
and management.
(Id. ¶ 45).
5
Furthermore, Defendant would micromanage LL and arbitrarily
discipline LL.
Mr. Mohsin would complain about LL’s performance
to Mr. Syed, who would always give credence to Mr. Mohsin’s
complaints, yelling at LL in front of staff and customers.
By
contrast, Mr. Syed would never take action against Mr. Mohsin
when LL complained.
supervisor,
allowing
would service.
The
Mr.
Mohsin
to
dictate
which
tables
she
(Id. ¶¶ 46-49).
work
environment
manifested
itself
headaches,
shaking,
sickness.
Mr. Syed allowed Mr. Mohsin to act as LL’s
in
caused
the
trouble
form
LL
to
of
keeping
feel
unsafe,
anxiety,
food
down,
which
nervousness,
and
general
LL spoke to a nurse who referred her to a therapist.
LL worked with the therapist for one month, at which point the
therapist advised LL to get legal assistance.
On August 3,
2012,
She
LL’s
employment
ended
with
Defendant.
was
not
terminated, but alleges that her resignation was not voluntary;
instead it was forced upon her by the hostile work environment.
(Id. ¶¶ 50-54).
II.
Procedural History
On or about December 11, 2012, LL filed a charge with the
Prince George’s County Human Relations Commission (“HRC”) which
was cross-filed with the EEOC.
on
sex
beginning
and
on
national
August
origin
15,
2011
LL alleged discrimination based
that
was
through
6
a
continuing
August
3,
2012.
action
She
provided three instances of alleged discrimination: (1) for the
entirety
of
her
employment,
Ledo’s
owner
prohibited
her
and
other Spanish speaking employees from speaking Spanish because
of their national origin; (2) from July 1, 2012 to August 3,
2012, a male co-worker regularly subjected LL to a hostile work
environment that Ledo’s owners had knowledge of and failed to
take appropriate action because of LL’s sex; and (3) LL was
constructively discharged because she could no longer work in a
sexually hostile environment.
On
April
24,
2013,
(ECF No. 21-2).
Plaintiff
filed
a
complaint
in
the
Circuit Court for Prince George’s County, Maryland for alleged
violations of county employment discrimination laws.
19, 2013, Defendant filed a motion to dismiss.
2013,
Plaintiff
filed
an
amended
complaint.
On July
On August 5,
The
amended
complaint has two counts: employment discrimination on the basis
of sex and national origin in violation of: (1) Prince George’s
County Code § 2-222; and (2) Title VII, 42 U.S.C. § 2000e, et
seq.
(ECF No. 11).
Defendant filed its notice of removal on
August 16, 2013, citing federal question jurisdiction, 28 U.S.C.
§ 1331, over the Title VII claim and supplemental jurisdiction,
28 U.S.C. § 1367, over the state law claim.
(ECF No. 1).
August 26, 2013, Defendant filed a motion to dismiss.
21).
On
(ECF No.
Plaintiff opposed the motion on September 12, 2013 (ECF
7
No. 22), and Defendant replied on September 30, 2013 (ECF No.
23).
III. Standard of Review
The arguments raised by Defendant in its motion to dismiss
– lack of subject matter jurisdiction and failure to state a
claim
–
implicate
Defendant’s
motion
jurisdiction
12(b)(1).
is
different
to
standards
dismiss
governed
of
review.
lack
of
Federal
by
for
Rule
of
First,
subject
Civil
matter
Procedure
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 425, 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 proving 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).
In considering a Rule 12(b)(1) motion, the
court
evidence
“may
consider
outside
the
pleadings”
to
help
determine whether it has jurisdiction over the case before it.
Richmond, Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at
647.
The court should grant such a motion “only if the material
jurisdictional facts are not in dispute and the moving party is
8
entitled to prevail as a matter of law.”
Richmond, 945 F.2d at
768.
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, 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).
9
v.
Charles
Cnty.
Legal conclusions
couched as factual allegations are insufficient, Iqbal, 556 U.S.
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).
IV.
Analysis
The Amended Complaint does not identify with any precision
the
employment
actions
that
underlie
the
claims.
Defendant
assumes that allegations in the factual section were intended as
separate
causes
of
action.
Defendant
has
divided
the
allegations into (1) driving incident, (2) fee for work shirts,
(3) Cinco de Mayo remark, (4) rescheduling, (5) retaliation for
complaining,
Hostile
(6)
“English
Environment,
only”
and
rule,
(8)
(7)
Sexual
constructive
Harrassment
discharge.
Plaintiff’s response to the motion does not directly take issue
with those assumptions.
A.
Lack of Subject-Matter Jurisdiction for Failure to
Exhaust Administrative Remedies
Defendant contends that the court should dismiss the claims
implicated in paragraphs 11-12, 14-17, 42-43, and 46-52 of the
amended complaint because Plaintiff did not include these claims
in her charge form filed with HRC and EEOC.
These paragraphs
cover the driving incident; fee for work shirts; Cinco de Mayo
altercation; rescheduling; and retaliation for complaining.
10
“[F]ederal
courts
lack
subject
matter
jurisdiction
over
Title VII claims for which a plaintiff has failed to exhaust
administrative remedies.”
Balas v. Huntington Ingalls Indus.,
Inc., 711 F.3d 401, 406 (4th Cir. 2013).
The burden of proving
subject-matter
the
jurisdiction
Evans, 166 F.3d at 647.
rests
with
plaintiff.
See
The United States Court of Appeals for
the Fourth Circuit has explained that
[i]n
any
subsequent
lawsuit
alleging
unlawful employment practices under Title
VII, a federal court may only consider those
allegations included in the EEOC charge.
See Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 962-63 (4th Cir. 1996)
(“The
allegations
contained
in
the
administrative
charge
of
discrimination
generally operate to limit the scope of any
subsequent judicial complaint.”).
If the
plaintiff’s Title VII claims “exceed the
scope of the EEOC charge and any charges
that would naturally have arisen from an
investigation thereof, they are procedurally
barred.”
Chacko [v. Patuxent Inst.], 429
F.3d [505,] 506 [(4th Cir. 2005)] (quoting
Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156
(4th Cir. 1995).
Balas, 711 F.3d at 407-08; see also Evans, 80 F.3d at 963 (“Only
those discrimination claims stated in the initial charge, those
reasonably
related
to
the
original
complaint,
and
those
developed by reasonable investigation of the original complaint
may be maintained” in a subsequent lawsuit).
Consistent
with
these
principles,
“a
claim
in
formal
litigation will generally be barred if the EEOC charge alleges
11
discrimination
litigation
claim
such as sex.”
(4th
on
one
basis,
alleges
such
as
race,
discrimination
on
a
and
the
formal
separate
basis,
Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300
Cir.
2009).
complaint
Likewise,
allege
the
same
where
type
the
of
EEOC
claim
charge
(e.g.,
and
the
race-based
discrimination), the formal litigation claim may still be barred
if the central factual allegations supporting it were not raised
in the EEOC charge.
F.3d
505,
reference
(4th
506
discrimination
See, e.g., Chacko v. Patuxent Inst., 429
different
2005)
barred
claim
Cir.
where
time
frames,
(national
origin-based
“administrative
actors,
and
charges
discriminatory
conduct than the central factual allegations in [her] formal
suit”); Jones v. Republic Servs., No. AW–10–cv-1999, 2011 WL
6000761,
at
*2–3
(D.Md.
Nov.
29,
2011)
(where
EEOC
charge
alleged race-based disparate treatment based on the plaintiff’s
suspension
and
termination,
claim
for
race-based
disparate
treatment based on employer's refusal to grant an alternative
work schedule was barred).
“At the same time, however, if the
factual allegations in the administrative charge are reasonably
related to the factual allegations in the formal litigation, the
connection
between
the
charge
and
the
claim
is
sufficient.”
Chacko, 429 F.3d at 509; see also Sydnor v. Fairfax Cnty., Va.,
681 F.3d 591, 595 (4th Cir. 2012) (although the administrative
charge and the judicial complaint alleged different facts in
12
support of a disability discrimination claim, they involved the
same
place
of
work,
the
same
actor,
the
same
type
of
discrimination, and the same disability).
Here,
Plaintiff’s
discrimination
as
EEOC
based
charge
on
characterizes
national
origin
and
the
sexual
harassment, the latter of which rose to the level of a hostile
work
environment
discharge.
and
She
eventually
provides
led
three
to
LL’s
instances
constructive
of
alleged
discrimination: the no-Spanish policy which existed throughout
LL’s
employment;
the
sexual
harassment
perpetrated
by
a
co-
worker from July 1, 2012 to August 3, 2012 that Defendant’s
owners
did
not
adequately
respond
to;
and
LL’s
constructive
discharge because of the sexually hostile work environment on
August 3, 2012.
(ECF No. 21-2).
LL argues that the driving
incident and fee for work shirts were exhausted administratively
as
they
relate
discrimination
directly
and
are
to
her
examples
claim
of
of
national
Defendant
differently because of her national origin.
origin
treating
LL
The Cinco de Mayo
incident can also be considered because it is an example of the
hostile work environment LL was subjected to.
LL’s
alleged
arguments
national
are
origin
unconvincing.
The
sole
discrimination
listed
in
instance
of
Plaintiff’s
EEOC charge is the existence of the no-Spanish policy for the
entirety of LL’s employment.
No mention was made of the parking
13
lot
incident,
the
confrontation.
$10.00
charge,
or
the
Cinco
de
Mayo
Those events are not reasonably related to the
alleged existence of the no-Spanish policy nor could they be
expected
to
emerge
from
a
existence of such a rule.
reasonable
investigation
of
the
To the extent that Plaintiff argues
that these three incidents are appropriately considered as part
of the hostile work environment LL was subjected to, Plaintiff’s
EEOC charge only refers to the hostile work environment based on
her
sex,
claims
specifically
that
her
sexual
harassment.
constructive
discharge
“sexually hostile work environment.”
discrete
act
or
acts
in
an
was
based
she
on
her
No mention is made of
hostility because of her national origin.
a
Furthermore,
“[T]he allegation of
administrative
charge
is
insufficient when the plaintiff subsequently alleges a broader
pattern
of
misconduct.”
Chacko,
429
F.3d
at
509;
see
also
Dennis v. Cnty. of Fairfax, 55 F.3d 151, 153, 156 (4th Cir. 1995)
(employee
who
filed
an
EEOC
charge
“alleging
disparate
disciplinary treatment” based on one incident did not exhaust
his
administrative
based
on
the
practices).
remedies
employer’s
Earlier
this
before
filing
“hiring,
year,
a
Title
promotion,
the
Fourth
and
VII
claim
training”
Circuit,
while
recognizing that EEOC charges “must be construed with utmost
liberality,” held that courts “are not at liberty to read into
administrative
charges
allegations
14
they
do
not
contain.
Instead, persons alleging discrimination have a different form
of recourse if they determine that their initial charge does not
read as they intended: they may . . . file an amended charge
with the EEOC.
408.
See 29 C.F.R. § 1601.12(b).”
Balas, 711 F.3d at
Thus, any claim that LL was subjected to a hostile work
environment
because
administratively
of
her
exhausted.
national
In
terms
origin
of
was
national
not
origin
discrimination, this court has subject-matter jurisdiction only
over the no-Spanish policy.
Defendant
also
argues
that
LL
has
failed
to
exhaust
administratively with regards to paragraphs 42-43 and 46-50 of
Plaintiff’s amended complaint.
These portions of the complaint
allege that Mr. Syed – after being told by LL of Mr. Mohsin’s
behavior
–
retaliated
against
her
by
changing
assignments and arbitrarily disciplining her.
her
work
Defendant argues
that these allegations constitute a claim of retaliation which
was not alleged in the EEOC charge nor did Plaintiff check the
box for “retaliation” as one of the bases of discrimination she
suffered.
Plaintiff,
in
response,
disagrees
characterization of these paragraphs.
with
Defendant’s
She contends that this
portion of the complaint should not be read to attempt to make
out a claim for retaliation as no such claim was alleged in
either the EEOC charge or the amended complaint.
15
Instead, these
paragraphs
relate
to
the
sexual
harassment
LL
endured
and
demonstrate that LL’s management had knowledge of Mr. Mohsin
behavior and failed adequately to address it.
LL has exhausted administratively these claims.
Her EEOC
charge states that a co-worker subjected her to a hostile work
environment and Defendant’s owners “whom [sic] had knowledge of
the
sexual
harassment
failed
to
take
appropriate
immediately eliminate the sexual harassment.”
action
and
Furthermore, LL
charged Defendant with constructive discharge because she “could
no longer work [in a] sexually hostile work environment.”
LL
was telling the EEOC that Mr. Mohsin sexually harassed her and
Defendant’s owners knew of this issue.
Their failure to take
action created a hostile work environment which eventually rose
to
such
a
level
that
LL
had
no
choice
but
to
leave.
A
reasonable investigation of LL’s claims of sexual harassment and
hostile work environment would have led to inquiries regarding
what Defendant’s management knew, when they knew it, and what
they did about it when they became aware of it.
As will be
discussed in greater detail below, one element of a claim for
sexual harassment based on a hostile work environment is that
there was some basis for imposing liability on the employer.
Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 331 (4th Cir.
2003).
have
A reasonable investigation into LL’s EEOC charge would
been
expected
to
include
16
whether
her
management
was
informed of the sexual harassment and any actions they took or
did not take in response.
Consequently, the allegations in
paragraphs 42-43 and 46-50 of Plaintiff’s amended complaint were
exhausted
administratively
and
this
court
has
subject-matter
jurisdiction over them as part of the hostile environment claim.
B.
Timeliness of Plaintiff’s Claims
Defendant next contends that the claim concerning the noSpanish policy is untimely.4
Title VII requires a plaintiff to
file an EEOC charge within a prescribed limitations period.
42
U.S.C. § 2000e–5(e)(1).
In deferral states such as Maryland,
that
is
limitations
period
allegedly discriminatory act.
these
time
limits
limitations periods.”
and
300
days
Id.5
rarely
from
the
date
of
the
“Courts strictly adhere to
allow
equitable
tolling
of
Khoury v. Meserve, 268 F.Supp.2d 600, 606
(D.Md. 2003), aff'd, 85 F.App’x 960 (4th Cir. 2004).
Plaintiff’s charge was filed on December 11, 2012, meaning
that only those discriminatory acts which occurred within 300
days of that date are timely filed.
Defendant argues that LL’s
complaint in regard to the no-Spanish policy is threadbare and
4
Defendant also argues that the fee for work shirts is
untimely.
Because
that
claim
was
not
exhausted
administratively, this court does not have subject-matter
jurisdiction to consider the timeliness of this claim.
5
A “deferral state” is one that has its own state or local
agency with authority to grant or seek relief from employment
discrimination or to institute criminal proceedings on behalf of
the alleged victim. 42 U.S.C. § 2000e-5(e)(1).
17
devoid
of
such
critical
details
as
to
Defendant enforced this alleged policy.
who,
when,
and
how
According to Defendant,
there is nothing in the amended complaint to show that the noSpanish policy was implemented or enforced within the 300 days
preceding LL’s December 11, 2012 filing with the EEOC.
Plaintiff acknowledges the 300-day time limit but contends
that the no-Spanish policy is well within that limit because it
was a policy that was in place throughout LL’s employment, up to
and including her last day of employment on August 3, 2012.
This argument is likely an attempt to invoke the “continuing
violation” theory, which “allows for consideration of incidents
that occurred outside the time bar when those incidents are part
of a single, ongoing pattern of discrimination.”
Holland v.
Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007) (citing
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002)).
Such a theory only applies, however, when an employee asserts a
hostile
work
environment
claim.
Id.;
see
also
Szedlock
v.
Tenet, 61 F.App’x 88, 93 (4th Cir. 2003) (“The Supreme Court’s
ruling in [Morgan] makes clear that unless the plaintiff alleges
a
hostile
work
environment
[claim]
discrimination is a discrete act.”
.
.
.
each
instance
of
Otherwise, when a plaintiff
alleges disparate treatment, she may only proceed and recover on
deliberate discrimination that occurred within the limitations
period, Lewis v. City of Chicago, Ill., 560 U.S. 205, 214-215
18
(2010), although she is not barred from using prior acts as
background evidence in support of a timely claim, Morgan, 536
U.S. at 113; see also id. at 114 (rejecting the concept of
“serial violations,” i.e., “so long as one act falls within the
charge filing period, discriminatory and retaliatory acts that
are plausibly or sufficiently related to that act may also be
considered for the purposes of liability.”).
There is some indication in those portions of the complaint
over
which
the
court
has
subject-matter
jurisdiction
that
Plaintiff intends to bring a hostile work environment claim on
the basis of national origin.
(See ECF No. 11 ¶ 56 (“Defendant
has engaged in unlawful employment practices by allowing coworkers
to
subject
LL
to
sexual
harassment
and
ethnicity/national origin harassment that altered the terms and
conditions
of
her
environment.”)).
employment
and
created
a
hostile
work
In this instance, the alleged existence of a
discriminatory policy does not fit comfortably into the category
of “discrete acts” which the Supreme Court of the United States
has said includes “termination, failure to promote, denial of
transfer, [and] refusal to hire.”
discussed
in
administrative
the
preceding
charge
made
Morgan, 536 U.S. at 114.
section,
no
allegation
however,
of
a
As
Plaintiff’s
hostile
work
environment on the basis of national origin, but only on the
basis of sex.
See Balas, 711 F.3d at 408 (courts are “not at
19
liberty to read into administrative charges allegations they do
not contain.”); Evans, 80 F.3d at 962-63 (finding allegations of
sexual harassment in the complaint were not “reasonably related”
to EEOC charge’s allegations of discrimination based on gender).
Plaintiff’s muddled complaint and other filings in this court do
not disabuse this view.
here,
the
no-Spanish
disparate treatment.6
Consequently, the discriminatory act –
policy
–
must
proceed
effects
of
a
theory
of
Such treatment must have occurred within
300 days of the December 11, 2012 EEOC charge.
present
on
past
actions
cannot
Moreover, merely
lead
to
Title
VII
liability for claims requiring discriminatory intent, including
disparate
treatment
claims
such
as
the
no-Spanish
policy.
Morgan, 536 U.S. at 113; Delaware State College v. Ricks, 449
U.S. 250, 258 (1980) (“the proper focus [for calculating the
limitations period] is upon the time of the discriminatory acts,
not upon the time at which the consequences of the acts became
most painful.”); Cherosky v. Henderson, 330 F.3d 1243, 1248 (9th
Cir. 2003) (“‘if the mere existence of a policy is sufficient to
constitute a continuing violation, it is difficult to conceive
of a circumstances in which a plaintiff’s claim of an unlawful
6
Plaintiff’s opposition brief suggests that she is
operating under this theory, responding to Defendant’s argument
that she has failed to state a claim for national origin
discrimination by evaluating her case against the elements of a
prima facie case of disparate treatment.
(See ECF No. 22, at
15).
20
employment policy could be untimely.’” (quoting Abrams v. Baylor
Coll. of Med., 805 F.2d 528, 533 (5th Cir. 1986)).
Plaintiff’s EEOC charge states that Defendant subjected her
to
the
no-Spanish
employment,
policy
specifically
throughout
August
15,
the
2011
entirety
to
August
of
3,
her
2012.
LL’s complaint states that she was first instructed not to speak
Spanish at Ledo’s “soon after LL started working for Defendant,”
and
that
it
employment,
2012.”
“was
enforced
including
her
through
last
day
(ECF No. 11 ¶¶ 6 and 9).
of
the
entirety
employment,
of
LL’s
August
3,
It will be assumed for the
purposes of this motion that Plaintiff has sufficiently pled
that the no-Spanish policy was enforced against her at least
once within 300 days of her EEOC filing.
C.
Failure to State a Claim
1.
National Origin Discrimination
While a plaintiff pleading a claim of disparate treatment
does not need to establish a prima facie case under McDonnell
Douglas to survive a motion to dismiss, Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 510 (2002), she must plead facts sufficient
to state each element of the asserted claim, Bass v. E.I. Dupont
De Nemours & Co., 324 F.3d 761, 765-65 (4th Cir. 2003).
disparate
evidence
treatment
of
claim
discrimination
can
be
or
the
pled
through
familiar
either
McDonnell
A
direct
Douglas
framework: (1) Plaintiff is a member of a protected class; (2)
21
her
job
adverse
performance
employment
was
satisfactory;
action;
and
(4)
(3)
her
she
suffered
employer
an
treated
similarly situated employees outside her protected class more
favorably.
See Coleman v. Md. Court of Appeals, 626 F.3d 187,
190 (4th Cir. 2010), aff’d on other grounds, --- U.S. ---, 132
S.Ct. 1327 (2012).
direct evidence.
Plaintiff
has
Plaintiff does not contend that she has pled
Defendant’s only point of contention is that
failed
to
plead
sufficiently
the
adverse
employment action element.
An adverse employment action is “a discriminatory act that
‘adversely affect[s] the terms, conditions, or benefits of the
plaintiff's employment.’”
Holland v. Washington Homes, Inc.,
487 F.3d 208, 219 (4th Cir. 2007) (quoting James v. Booz-Allen &
Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004)).
Where, as
here, an employee is not discharged, such actions typically take
the form of a decrease in compensation, demotion, or loss of an
opportunity for promotion.
See James, 368 F.3d at 376.
Plaintiff completely fails to engage this element of the
prima facie case, seemingly refusing to acknowledge it.
She
contends that there are only three elements to the prima facie
case: (1) membership in a protected class; (2) conduct similar
to an employee outside the protected class; and (3) treatment
different
than
the
employee
outside
the
protected
class.
Plaintiff is not without authority for her proposition that a
22
Plaintiff must only plead elements one, two, and four, but that
authority – Vazquez v. Maryland Port Admin., 937 F.Supp. 517
(D.Md. 1995) – is a dated case from this district.
More recent
binding precedent dictates that an adverse employment action is
one element of a disparate treatment claim.
See, e.g., Young v.
United Parcel Serv., Inc., 707 F.3d 437, 449-50 (4th Cir. 2013);
James, 368 F.3d at 375 (“Regardless of the route a plaintiff
follows in proving a Title VII action, the existence of some
adverse
employment
action
is
required.”).
Not
because
Plaintiff
fails
to
recognize
acknowledge
element,
she
makes
no
contention
or
that
the
no-Spanish
resulted in such an adverse employment action.
contends
that
constructive
she
suffered
discharge
is
a
a
constructive
form
of
an
surprisingly,
this
policy
While Plaintiff
discharge,
adverse
and
a
employment
action, Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999),
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 67 (2006), she does not argue that the
no-Spanish policy contributed to that constructive discharge,
instead
confining
her
allegedly
forced
resignation
to
the
circumstances surrounding the sexual harassment she allegedly
suffered.
(See ECF No. 22, at 17-18).
Plaintiff does not
contend that the no-Spanish policy resulted in a negative effect
on
her
promotion
salary,
benefits,
opportunities.
job
See
23
title,
James,
responsibilities,
368
F.3d
at
or
375-76.
Consequently,
Plaintiff
fails
to
state
a
claim
of
disparate
treatment on the basis of national origin.7
2.
Sexual Harassment Hostile Work Environment
Plaintiff claims harassment on the basis of sex, leading to
a hostile work environment, a form of prohibited discrimination.
See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-77 (1986).
To establish a prima facie case, Plaintiff must show that: (1)
she
was
conduct
subjected
was
based
to
on
unwelcome
sex;
(3)
7
conduct;
the
(2)
conduct
the
was
unwelcome
sufficiently
Defendant’s characterization of its alleged policy as
“English-only” is incorrect.
It is better characterized as a
“no-Spanish” policy as Plaintiff alleges that Bangladeshi
employees were free to speak in their native language.
Consequently, Defendant’s reliance on Long v. First Union Corp.,
894 F.Supp. 933 (E.D.Va. 1995), aff’d, 86 F.3d 1151 (4th Cir.
1996) (table decision), is misplaced.
There, a group of
Hispanic employees challenged their employer’s policy that
English be spoken by all its employees. Id. at 938. While an
“English-only” rule may not violate Title VII if applied to all
employees, the policy here, by contrast, was allegedly applied
selectively to the Spanish speakers. If a plaintiff suffered an
adverse employment action because of a No-Spanish policy, such a
policy “could support an inference of intentional discrimination
on the basis of national origin.” Velasquez v. Goldwater Mem’l
Hosp., 88 F.Supp.2d 257, 263 (S.D.N.Y. 2000); see also
Maldonando v. City of Altus, 433 F.3d 1294, 1304 (10th Cir. 2006)
(noting that “English-only policies are not always permissible;
each case turns on its facts”); Garcia v. Spun Steak Co., 998
F.2d 1480, 1489 (9th Cir. 1993) (refusing to “foreclose the
prospect that in some circumstances English-only rules can
exacerbate existing tensions, or, when combined with other
discriminatory behavior, contribute to an overall environment of
discrimination”); Lopez v. Flight Servs. & Sys., Inc., 881
F.Supp.2d 431, 440 (W.D.N.Y. 2012) (“an employer may require
employees to speak English where there is a legitimate reason
for doing so, but it may not forbid employees from speaking
their native tongues if the reason is because of discriminatory
animus toward the employee’s national origin.”).
24
pervasive or severe to alter the conditions of employment and
create a hostile work environment; and (4) some basis exists for
imputing liability to the employer.
See Smith v. First Union
Nat’l Bank, 202 F.3d 234, 241-42 (4th Cir. 2000).
The parties do
not dispute that Mr. Mohsin’s alleged conduct was unwelcome or
because of LL’s sex.
failed
to
plead
Instead, Defendant argues that LL has
adequately
that
Mr.
Mohsin’s
conduct
was
sufficiently severe or pervasive and that Mr. Mohsin’s conduct
is imputable to Defendant.
In terms of the third prong, the Supreme Court explained
that
in
order
objectionable
subjectively
to
be
actionable
environment
offensive
-
must
i.e.,
under
be
one
Title
both
that
a
VII,
a
sexually
objectively
reasonable
and
person
would find hostile or abusive and one that the plaintiff found
to be so.
(1993).
the
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22
The Court further instructed that the determination of
sufficiency
of
an
environment’s
hostility
or
abusiveness
should be made by considering all circumstances, including the
“frequency of the discriminatory conduct; its severity; whether
it is physically threatening or humiliating, or a mere offensive
utterance;
and
whether
employee's
work
performance.”
offhand
comments,
and
it
unreasonably
Id.
isolated
at
interferes
23.
incidents
Simple
(unless
with
an
teasing,
extremely
serious), do not qualify as having an effect on the “terms and
25
conditions of employment.”
Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 82 (1998).
Here, Plaintiff’s complaint alleges that Mr. Mohsin – a
twenty-six year old male – would repeatedly make sexual advances
to LL, a sixteen-year old female.
Mr. Mohsin told LL that “each
day you are looking more sexy for me,” and wanted her to be his
girlfriend; he invited himself over to her house and asked for
her
phone
number
multiple
times.
As
a
result
of
this,
LL
suffered from anxiety, nervousness, headaches, shaking, trouble
keeping
food
down,
and
sought
psychological
therapy.
LL’s
allegations are sufficient to state a claim that the alleged
discriminatory conduct she suffered was frequent, severe, and
objectively offensive.
Defendant also argues that it cannot be held liable for Mr.
Mohsin’s
alleged
established
in
harassment.
two
ways:
Employer
negligence
or
liability
vicarious
can
be
liability,
depending on the relationship between the alleged harasser and
the victim.
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
765 (1998).
“In a case where an employee is sexually harassed
by a coworker, the employer may be liable in negligence if it
knew or should have known about the harassment and failed to
take effective action to stop it.”
34.
By
contrast,
“[a]n
employer
Ocheltree, 335 F.3d at 333is
subject
to
vicarious
liability to a victimized employee for an actionable hostile
26
environment
created
by
a
supervisor
with
immediate
successively higher) authority over the employee.”
U.S. at 765.
(or
Ellerth, 524
LL alleges that Mr. Mohsin was the harasser and
does not contend that he is LL’s supervisor.
Plaintiff’s
complaint
states
that
she
complained
to
her
supervisors about Mr. Mohsin’s behavior many times and met with
them on this matter five or six times.
precise
on
the
date
of
one
meeting
–
Although she is only
July
30,
2012
–
she
repeatedly states that Mr. Syed did nothing to correct the issue
and that Mr. Mohsin’s behavior continued after she informed Mr.
Syed.
(See ECF No. 11 ¶¶ 36, 38).
According to LL’s knowledge
and belief, Defendant never spoke with Mr. Mohsin about the
issue, nor did Defendant follow up with LL to see that the
problem had been resolved or explain what it had done.
40).
According
to
the
complaint,
Defendant’s
(Id. ¶
actions,
if
anything, perpetuated Mr. Mohsin’s harassment by adjusting LL’s
work assignment to put her in closer proximity to Mr. Mohsin.
(Id.
¶
43).
Based
on
her
allegations,
Plaintiff
has
sufficiently pled the final element of her prima facie case.
Accordingly, Defendant’s motion to dismiss Plaintiff’s claim of
discrimination in the form of sexual harassment hostile work
environment will be denied.
27
3.
Constructive Discharge
LL also alleges that her employment with Defendant ended on
August 3, 2012 not of her own accord, but as the result of a
“constructive
allowance
discharge”
of
an
environment.”
caused
severe
ongoing
(ECF
No.
by
and
11
¶
54).
“Defendant’s
pervasive
“Under
wholesale
hostile
the
work
constructive
discharge doctrine, an employee’s reasonable decision to resign
because of unendurable working conditions is assimilated to a
formal discharge for remedial purposes.”
Suders,
542
U.S.
129,
141
(2004).
Pa. State Police v.
When
the
constructive
discharge claim arises in the context of a hostile-environment
lawsuit,
the
hostile
work
plaintiff
must
environment,
go
beyond
but
“must
merely
show
establishing
that
the
a
abusive
working environment became so intolerable that her resignation
qualified as a fitting response.”
Id. at 134.
“[H]arassment so
intolerable as to cause a resignation may be effected through
co-worker conduct, unofficial supervisory conduct, or official
company acts.”
plaintiff
discharge,
frontpay.
The
is
Id. at 148.
entitled
including
to
A prevailing constructive discharge
all
backpay
damages
and,
in
available
some
for
formal
circumstances,
Id. at 147 n.8.
Fourth
Circuit
has
held
that
“an
employee
is
constructively discharged if an employer deliberately makes the
working conditions of the employee intolerable in an effort to
28
induce the employee to quit.”
Whitten v. Fred’s, Inc., 601 F.3d
231, 248 (4th Cir. 2010), abrogated on other grounds by Vance v.
Ball State Univ., 133 S.Ct. 2434 (2013) (quotation marks and
citation
omitted).
A
constructive-discharge
plaintiff
must
therefore allege and prove two elements: (1) deliberateness of
the employer’s actions and (2) intolerability of the working
conditions.
Id.
“Intolerability”
is
not
established
by
showing merely that a reasonable person,
confronted with the same choices as the
employee, would have viewed resignation as
the wisest or best decision, or even that
the employee subjectively felt compelled to
resign; presumably every resignation occurs
because the employee believes that it is in
his
best
interest
to
resign.
Rather
“[i]ntolerability . . . is assessed by the
objective standard of whether a ‘reasonable
person’ in the employee’s position would
have felt compelled to resign,” Bristow [v.
Daily Press, Inc.], 770 F.2d [1251] at 1255
[(4th Cir. 1985)] (emphasis added) — that is,
whether he would have had no choice but to
resign.
Blistein v. St. John’s Coll., 74 F.3d 1459, 1468 (4th Cir. 1996),
overruled on other grounds by Oubre v. Entergy Operations, Inc.,
522 U.S. 422 (1998) (emphasis in original).
Deliberateness can be shown “by actual evidence of intent
by
the
employer
to
drive
the
employee
from
the
job,
or
circumstantial evidence of such intent, including a series of
actions that single out a plaintiff for differential treatment.
Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993) (citing
29
Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981)
(stating that the “fact that employees were treated identically
rebuts any inference” of constructive discharge)).
At this initial stage of the proceedings, Plaintiff has met
her burden.
LL alleges that she told Defendant’s management
numerous times of Mr. Mohsin’s harassing behavior and they did
nothing to address it.
What action they did take actually made
LL’s situation worse, by changing LL’s assignments so that she
would have greater interaction with Mr. Mohsin.
All the while,
Mr. Mohsin’s previously described harassment continued unabated.
LL also alleges that Defendant purposefully made her working
conditions worse, by arbitrarily disciplining her and calling
her
out
for
customers.
supposed
infractions
in
front
of
staff
and
According to LL, Defendant would always discipline
her when Mr. Mohsin brought supposed issues with her performance
to management’s attention, but would not do likewise when the
roles were reversed and LL was raising issues regarding Mr.
Mohsin.
Given these allegations, Plaintiff has pled sufficient
facts to state a claim that she was subject to discrimination on
the basis of sex in the form of a hostile work environment that
reached such a level that she was constructively discharged from
her position.
30
C.
Damages
While not necessary to dispose of its motion, Defendant is
correct that if Defendant’s business has between fifteen (15)
and
one
hundred
(100)
punitive
damages
are
1981a(b)(3)(A).
employees,
limited
combined
to
compensatory
$50,000.
42
and
U.S.C.
§
However, the argument for the proposition that
Prince George’s County Code does not permit punitive damages for
employment discrimination is incorrect.
Defendant’s citation to
Md. Code Ann., State Gov’t § 1203(d) does state that punitive
damages may not be awarded, but only applies to an employer
located in Baltimore County.
Section 1202 – which provides a
private cause of action for those located in Prince George’s
County – is silent on the matter of punitive damages.
The
County Code does not limit damages that can be awarded in a
civil action, only those awards given by the County’s Human
Relations Commission.
Prince George’s Cnty. Code § 2-195.01.
The Court of Special Appeals of Maryland, in interpreting the
meaning
of
§
1202
found
that
it
permitted
unlimited
money
damages, subject only to the limits of the state common law.
Edgewood Mgmt. Corp. v. Jackson, 212 Md.App. 177, 227-28 (2013);
Shabazz
v.
Bob
Evans
Farms,
Inc.,
163
Md.App.
602,
638-39
(2005).
Finally, Defendant fails to recognize that the standards
for
punitive
damages
differ
between
31
state
and
federal
law.
Defendant argues that Plaintiff must demonstrate “actual malice”
to support her claim of punitive damages.
That may be so under
Maryland law, see Hanna v. Emergency Medicine Assocs., P.A., 77
Md.App. 595, 611 (1989), but under federal law, a plaintiff can
recover
punitive
damages
if
she
can
demonstrate
that
her
employer “engaged in a discriminatory practice or discriminatory
practices
with
malice
federally
protected
or
rights
with
of
reckless
an
indifference
aggrieved
to
individual,”
the
42
U.S.C. § 1981a(b)(1) (emphasis added).
V.
Conclusion
For the foregoing reasons, Defendant’s motion to dismiss
will be granted in part and denied in part.
A separate order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
32
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