Lindsey-Grobes v. United Airlines, Inc.

Filing 18

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 10/14/2014. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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CAROLYN LINDSEY-GROBES
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Plaintiff,

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v.

Case No.: GJH-14-00857
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UNITED AIRLINES, INC.
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Defendant.
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MEMORANDUM OPINION
This is a race discrimination case brought by Plaintiff Carolyn Lindsey-Grobes
(“Plaintiff”) against her employer, United Airlines, Inc. (“United”), for purported violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq. This Memorandum
Opinion and accompanying Order address United’s Motion to Dismiss, ECF No. 9, as well as
two motions to strike (ECF Nos. 10, 15) filed by United. The Court held a hearing on these
motions on September 15, 2014.

For the reasons stated below, United’s Motion to is

GRANTED and United’s motions to strike are GRANTED as well.1 The dismissal is with
prejudice.2

1

To be precise, the Court GRANTS ECF No. 10 in full and GRANTS ECF No. 15 in part. With
respect to ECF No. 15, the Court will strike paragraphs 1 through 20 of the Lindsey-Grobes
affidavit (ECF No. 13-2), which address Plaintiff’s job performance and which were not
included in the original complaint. The remaining paragraphs (21-32) will not be stricken.
Accordingly, United’s motion to strike will be denied with respect to these paragraphs.
2

At the hearing on this matter, the Court indicated in the event of dismissal, leave to amend the
complaint would likely be permitted. For the reasons stated below, however, the Court now

1

I.

BACKGROUND
The events giving rise to this action occurred as a result of the historic blizzards that

struck the Baltimore-Washington area in late 2009 and early 2010. During such periods of
inclement weather, United has a policy of providing certain eligible employees with companyissued hotel rooms close to the airport to ensure full staffing operations at the airport. See ECF
No. 1 at ¶ 5. Plaintiff, a sales agent for United stationed at Baltimore-Washington International
Airport, contends that United applied this policy discriminatorily by providing similarly situated
white colleagues with their own rooms, while refusing to provide Plaintiff, an African-American,
with her own room. Id. at ¶ 6. Plaintiff points to three allegedly discriminatory incidents to
support her claim. Id. at ¶¶ 8-18. Additionally, Plaintiff contends that she was retaliated against
when she reported this conduct. Id. at ¶¶ 6, 22.
The first allegedly discriminatory incident occurred on Friday, December 18, 2009 – the
day before a major blizzard struck the Baltimore-Washington area leaving nearly two feet of
snow on the ground between Saturday, December 19, 2009 and Sunday, December 20, 2009. Id.
at ¶ 8. On that Friday, December 18, 2009, Plaintiff returned to the Baltimore-Washington area
from Houston where she had been attending a company event. Id. at ¶ 9. With a snowstorm in
the forecast, Plaintiff called her supervisor from Reagan National Airport near Washington, D.C.
to ask that she be provided a company-issued hotel room. Id. Plaintiff’s supervisor, however,
denied her request because Plaintiff was not scheduled to work the following day (Saturday) –
the day on which the snow was forecast to hit.

Id.; see also

ECF No. 13-1 at ¶ 23

(acknowledging that “[she] could not get a room, as [she] was off Saturday”). As a result of her
finds that an amended complaint would be futile. See Cozzarelli v. Inspire Pharms., Inc., 549
F.3d 618, 630 (4th Cir. 2008) (holding that dismissal with prejudice was warranted where
“amendment would be futile in light of the [complaint’s] fundamental deficiencies”).

2

supervisor’s denial of Plaintiff’s request to provide her with a hotel room, Plaintiff was forced to
return home whereupon she became stranded for several days due to the massive amounts of
snow that had accumulated. See ECF No. 1 at ¶ 11. During this time, Plaintiff was unable to
attend work and received a negative mark on her attendance record as a result. Id.

Plaintiff

contends that the decision not to provide her with a company-issued hotel room was
discriminatory because a white colleague was provided a company-issued hotel room on
Saturday, December 19, 2009 and Sunday, December 20, 2009, despite the fact that this
colleague was not scheduled to work on Sunday or Monday. Id. at ¶ 10. When Plaintiff asked
one of her superiors why her white colleague was provided a company-issued hotel room when
Plaintiff was not, she was told that it was because the colleague “was at work when the snow
began.”3 Id. at ¶ 11.
The second incident of which Plaintiff complains arose a few weeks later shortly before
another major blizzard hit the Baltimore-Washington area, which ultimately dumped another two
feet of snow between Friday, February 5, 2010 and Saturday, February 6, 2010. Id. at ¶ 10.
Sometime prior to February 5, 2010, and in anticipation of the predicted blizzard, Plaintiff once
again asked her supervisor if she could be provided a company-issued hotel room. Id. Again,
Plaintiff’s supervisor denied her request because she was not scheduled to work on Friday,
February 5, 2010 – the day on which the snow was forecast to fall. Id. Hoping not to miss any
additional work due to the snow or to spend her own money on a hotel, Plaintiff elected to share
a room with one of her African-American colleagues, who had been provided with her own
company-issued hotel room. Id. at ¶ 13. Plaintiff has not alleged that she missed any shifts or

3

As indicated above, Plaintiff was returning from business-related travel but was not at her jobsite when she made the request.

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overtime opportunities as a result of this second incident. Again, Plaintiff contends that the
decision not to provide her with a company-issued hotel room on February 5, 2010 was
discriminatory because two white colleagues were provided a company-issued hotel room on
Friday, February 5, 2010 and Saturday, February 6, 2010, despite the fact that they were not
scheduled to work on Sunday or Monday. Id. at ¶ 14.
The third and final incident of which Plaintiff complains arose a few days later when
another foot of snow fell in the Baltimore-Washington area between Wednesday, February 10,
2010 and Thursday, February 11, 2010. Id. at ¶ 15. On Thursday, February 11, 2010, Plaintiff’s
supervisor started calling his employees to inform them that United would be providing
company-issued hotel rooms for Friday, February 12, 2010. When Plaintiff asked her supervisor
to be provided a hotel room for that night, her request was denied because Plaintiff was not
scheduled to work that Friday. Id. at ¶ 16. Ultimately, however, Plaintiff worked on Friday and
was provided a hotel room for that night. Id. at ¶ 18. Plaintiff contends that she was not paid
overtime for that work. Id.
At some unspecified point in time, Plaintiff reported the purported discrimination to
United. Id. at ¶¶ 6, 22. Following her reporting of these events, Plaintiff contends that she was
subjected to retaliatory monitoring of her performance, breaks and bidding on shifts, as well as
negative performance reviews. Id.
After filing charges against United for discrimination with the Equal Employment
Opportunity Commission (EEOC), Plaintiff received a right to sue letter from the EEOC on
January 31, 2014. Id. at ¶ 23. Accordingly, on March 20, 2014, Plaintiff filed the instant lawsuit
against United for violations of Title VII of the Civil Rights Act of 1964 claiming that she was
subjected to racially motivated disparate treatment as well as retaliatory acts for reporting the

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alleged discrimination. See ECF No. 1. United has moved to dismiss Plaintiff’s complaint. See
ECF No. 9. For the reasons discussed below, the Court will grant United’s motion and will
dismiss Plaintiff’s complaint with prejudice.
II.

DISCUSSION
A.

Motion to Strike

Prior to addressing United’s Motion to Dismiss, the Court must address United’s Motion
to Strike Paragraph 23 of Plaintiff’s Complaint as well as Exhibits 1 and 2 attached thereto. See
ECF No. 10. Paragraph 23 states:
Plaintiff filed charges with the Equal Employment Opportunity
Commission (EEOC) who issued a Determination on July 31, 2013
that the Defendant’s conduct violated 42 U.S.C. §§2000(e) (Title
VII of the Civil Rights Act of 1964). See: Exhibit 1 [EEOC’s
Factual Determination]. Defendant refused to conciliate and
Plaintiff received a right to sue letter from the EEOC on or about
January 31, 2014 See: Exhibit 2 [Notice of Failure to Conciliate].
United argues that this allegation and the related exhibits are “immaterial” (ECF No. 10-1
at 2) and should be stricken pursuant to Fed.R.Civ.P. 12(f), which permits “the court [to] strike
from a pleading . . . redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P.
12(f). Plaintiff, on the other hand, contends that the allegations and exhibits are proper as they
were included in the complaint “to plead and prove that (a) the administrative process has been
exhausted when the Defendant failed to respond to the EEOC and (b) the Plaintiff timely filed
her Complaint within ninety (90) days as required by law.” ECF No. 13-1 at 19. The Court
disagrees.
Paragraph 23 and the related exhibits go far beyond what is necessary for Plaintiff to
satisfy the requirement that she plead that she exhausted her administrative remedies and that her
complaint was timely filed in federal court. Moreover, Paragraph 23’s references to the EEOC’s

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findings and the Defendant’s refusal to conciliate are not even relevant to these threshold issues
of exhaustion and timeliness. Nor are they probative of the allegations in Plaintiff’s complaint,
which are entitled to a de novo review by the District Court. See Chancey v. N. Am. Trade Sch.,
No. 10-0032, 2010 WL 4781306, at *3 (D. Md. Nov. 17, 2010) (striking from complaint
references to “EEOC findings [as] ‘immaterial to [Plaintiff’s] causes of action” because
“[b]ecause federal district courts review discrimination claims de novo”), aff’d sub nom.
Chancey v. N. Am. Trade Sch., Inc., 442 F. App’x 815 (4th Cir. 2011). Accordingly, the Court
will grant United’s Motion to Strike Paragraph 23, as well as Exhibits 1 and 2 attached to
Plaintiff’s complaint. See e.g., Chancey, No. 10-0032, 2010 WL 4781306, at *3 (plaintiff’s
“inclusion of these prejudicial [EEOC] findings when he has demanded a jury trial and admits
that a juror might see the complaint may be an attempt to evade the Federal Rules of Evidence”);
Chapman v. Duke Energy Carolinas, LLC, No. 09-37, 2009 WL 1652463, at *2 (W.D.N.C. June
11, 2009) (striking from complaint paragraphs discussing EEOC’s findings that the plaintiff
“was retaliated against” and “subject to different terms and conditions” due to race); Robinson v.
Hospitality Group Management, Inc., No. 09-35, 2009 WL 1383295, at *1 (W.D.N.C. May 14,
2009) (striking allegations in complaint containing EEOC’s findings as “irrelevant” and
“prejudicial”); Moss v. Lane Co., 50 F.R.D. 122 (W.D. Va. 1970) (striking as prejudicial
allegations concerning EEOC findings in the complaint).
B.

Motion to Dismiss
1.

Standard of Review

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if it
“fails to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). This rule’s
purpose “is to test the sufficiency of a complaint and not to resolve contests surrounding the

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facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006). To that end, the Court bears in mind the requirements of
Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a
complaint must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief,” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief,” as
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice,” Iqbal, 556 U.S. at 678–79. “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.
In an employment discrimination case such as this, “pleadings need not ‘contain specific
facts establishing a prima facie case of discrimination under the framework set forth’ in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Westmoreland v. Prince George's
Cnty., No. 09–2453, 2010 WL 3369169, at *3 (D. Md. Aug. 23, 2010) (quoting Swierkiewicz v.
Sorema, N.A., 534 U.S. 506 (2002)). Such a requirement “would essentially create a ‘heightened
pleading standard’ under which a plaintiff without direct evidence of discrimination would need
to plead a prima facie case even though she might uncover direct evidence during discovery.”
Id. (quoting Swierkiewicz, 534 U.S. at 511–12). If this were the case, a plaintiff claiming
employment discrimination would have “‘to plead more facts than [s]he may ultimately need to
prove to succeed on the merits if direct evidence of discrimination is discovered.’” Id. (quoting
Swierkiewicz, 534 U.S. at 512).
The Fourth Circuit “has not, however, interpreted Swierkiewicz as removing the burden
of a plaintiff to allege facts sufficient to state all the elements of her claim.” Bass v. E.I. DuPont

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de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309
F.3d 193, 213 (4th Cir. 2002) (“[T]he Supreme Court’s holding in Swierkiewicz v. Sorema did
not alter the basic pleading requirement that a plaintiff set forth facts sufficient to allege each
element of his claim.” (internal citation omitted)). Thus, 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, 534 U.S. at 510, she must still plead facts sufficient to
state each element of the asserted claim. See Bass, 324 F.3d at 765 (“While a plaintiff is not
charged with pleading facts sufficient to prove her case, as an evidentiary matter, in her
complaint, a plaintiff is required to allege facts that support a claim for relief.”) (emphasis in
original).
2.

Title VII Claims

Title VII makes it illegal for an employer “to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e–2(a). Additionally, Title VII prohibits discrimination
against an employee in retaliation for the employee’s opposing the employer’s illegal
discrimination practices or participating in Title VII enforcement proceedings. 42 U.S.C. §
2000e–3(a). Plaintiff contends that United violated these two sections of Title VII by (1)
discriminatorily applying its inclement weather hotel policy by providing similarly situated white
colleagues with hotel rooms, while refusing to provide Plaintiff with a room; and (2) by
retaliating against Plaintiff when she reported this allegedly discriminatory conduct.

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a.

Disparate Treatment Claim

In order to state a prima facie claim of discrimination under Title VII, a plaintiff must
plausibly allege: “(1) membership in a protected class; (2) satisfactory job performance; (3) an
adverse employment action; and (4) different treatment from similarly situated employees
outside the protected class.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.
2010).
i.

Protected Class

There is no dispute that Plaintiff, an African-American, has adequately alleged that she is
a member of a protected class. See ECF No. 1 at ¶ 6; see also ECF No. 9-1 at 5.
ii.

Satisfactory Job Performance

The second element of a disparate treatment claim requires that Plaintiff plead facts to
establish that “her job performance was satisfactory.” Coleman, 626 F.3d at 190. Plaintiff has
done no such thing. Nowhere in Plaintiff’s complaint does she allege any facts to support the
notion that her job performance was satisfactory. Recognizing as much, “Plaintiff has provided,
in response to the present motion to dismiss, a sworn affidavit [from Plaintiff] which
exhaustively discusses the Plaintiff’s adequate job performance up to, through and including the
discrimination suffered at the hands of the Defendant.” ECF No. 13-1 at 15 (emphasis added).
An affidavit attached to an opposition to a motion to dismiss, however, is no place for Plaintiff to
add material facts to a deficient complaint. Indeed, it is well-established that a plaintiff cannot
amend his complaint by asserting new facts or exhibits in an opposition to a motion to dismiss.
See Zachair, Ltd. v. Driggs, 965 F.Supp. 741, 748 n. 4 (D. Md. 1997) (holding that facts
contained in an opposition to a motion to dismiss but not within the complaint itself cannot be
considered); Brown v. Bank of America, No. 10-1661, 2012 WL 380145, at *8 (D. Md. Feb 3,

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2012) (declining to consider exhibits and additional facts in plaintiff’s opposition brief); Wilson
v. Susquehanna Bancshares, Inc., No. 14-79, 2014 WL 2094039, at *3 (D. Md. May 19, 2014)
(“it is well settled that the sufficiency of [plaintiff’s] allegations is limited to the face of the
Complaint”); Hill v. Abercrombie & Fitch, No. 11-00911, 2011 WL 4433573, at *4 n. 5 (D. Md.
Sept. 20, 2011) (same). Accordingly, the Court will not consider the portions of Plaintiff’s
affidavit that add new facts and effectively amend Plaintiff’s complaint to reflect statements
regarding Plaintiff’s job performance. As such, the Court will grant, in part, United’s Motion to
Strike Plaintiff’s Affidavit Submitted in Opposition to United’s Motion to Dismiss (ECF No. 132) by striking paragraphs 1 through 20 of the affidavit, which address Plaintiff’s job performance
and which were not included in the original complaint. See ECF No. 15.4
In the alternative, Plaintiff invites the Court to infer from the complaint the adequacy of
Plaintiff’s job performance. See ECF No. 13-1 at 15 (stating in opposition to United’s motion to
dismiss that “it can be inferred from the face of the Complaint alone that [Plaintiff] was
performing adequately at her job”). Specifically, Plaintiff contends that the Court can infer from
Plaintiff’s complaint that she was performing her job adequately because it was not “until” she
reported the alleged discrimination that Plaintiff was first accused of performance deficiencies.
See id. The allegation in the complaint upon which Plaintiff relies for this inference, however, is
not that clear. See ECF No. 1 at ¶ 22.
Paragraph 22 of the complaint states: “When the Plaintiff complained of the disparate
treatment she was accused of alleged performance based deficiencies spanning from January of
2010 through May of 2010 and through to the present time.” ECF No. 1 at ¶ 22. Nothing about
4

It should be noted that Plaintiff has not opposed United’s Motion to Strike Plaintiff’s Affidavit
Submitted in Opposition to United’s Motion to Dismiss.

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this allegation states (or allows the Court to infer) that this was the first time Plaintiff had been
accused of performance deficiencies. Indeed, the complaint, as it currently is written, leaves
adequate room for the possibility that Plaintiff had been accused of performance deficiencies
previously. Accordingly, the Court must decline Plaintiff’s invitation to infer that she had been
performing her job satisfactorily and find that she has failed to adequately allege this element of
her claim.
iii.

Adverse Employment Action

“An adverse employment action is a discriminatory act that ‘adversely affect[s] the
terms, conditions, or benefits of the plaintiff’s employment.’” Blakes v. City of Hyattsville, 909
F. Supp. 2d 431, 436 (D. Md. 2012) (quoting Thorn v. Sebelius, 766 F.Supp.2d 585, 598 (D. Md.
2011). An “adverse employment action” must affect “a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.’” Hoyle v. Freightliner,
LLC, 650 F.3d 321, 337 (4th Cir. 2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
761 (1998)). “Although conduct short of ultimate employment decisions can constitute adverse
employment action, there still must be a tangible effect on the terms and conditions of
employment.” Geist v. Gill/Kardash P’ship, 671 F.Supp.2d 729, 737 n. 6 (D. Md. 2009).
Here, Plaintiff contends that she suffered an adverse employment action when, in the face
of pending snow storms, United denied her requests for a company-issued hotel room, causing
her to return home, whereupon she got snowed-in and missed several shifts of work. See ECF
No. 13-1 at 12-14. The Fourth Circuit has recognized, however, that not every personnel
decision that adversely affects the terms and conditions of employment constitutes an “adverse
employment action” actionable under Title VII. See Page v. Bolger, 645 F.2d 227, 233 (4th

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Cir.1981) (“[T]here are many interlocutory or mediate decisions having no immediate effect
upon employment conditions which were not intended to fall within the direct proscriptions of
. . . Title VII.”). Rather, it is only those personnel decisions that affect “a significant change in
[one’s] employment status” that amount to an adverse employment action. Hoyle, 650 F.3d at
337. Thus, personnel decisions that result in a “mere inconvenience” do not constitute an
adverse employment action, unless that inconvenience causes a significant change in
employment status. See Nichols v. Comcast Cablevision of Maryland, 84 F. Supp. 2d 642, 659
(D. Md. 2000) (“[a] mere inconvenience without a significant change in employment status is
insufficient”). While the Court certainly understands the frustrations Plaintiff endured as a result
of United’s decision to deny her request for a hotel room, that decision, at its core, amounted to
nothing more than a mere inconvenience to Plaintiff.
Had Plaintiff wanted to ensure that she not miss any scheduled shifts, she could have
made alternative arrangements for commuting to work. Indeed, that is exactly what Plaintiff did
on at least one other occasion in early February 2010. See ECF No. 13-1 at 7. On that occasion,
instead of returning home in the face of another blizzard, Plaintiff decided to share a companyissued hotel room with a fellow colleague who was eligible to receive a room. Id. As a result,
Plaintiff did not miss any shifts or overtime opportunities on that occasion. Id. But that is not
what Plaintiff did in December 2009; instead, Plaintiff elected to go home, whereupon she got
snowed-in, and missed several shifts of work. While obviously unfortunate, Plaintiff cannot now
transform these misfortunes into United’s. See Settle v. Baltimore Cnty., 34 F. Supp. 2d 969, 989
(D. Md. 1999) (“not everything that makes an employee unhappy is an actionable adverse
action,” as is the case here); see also Allen v. Baltimore Cnty., Maryland, No. 01-863, 2002 WL
32325675, at *3 (D. Md. Sept. 17, 2002) (a “plaintiff cannot establish a Title VII claim based

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solely on disagreements with workplace decisions”). Accordingly, United’s decision to deny
Plaintiff’s requests for a company-issued hotel room is not an adverse employment action for
purposes of Title VII. Although Plaintiff tries to argue that her lost shifts, which ultimately
included overtime opportunities, caused a significant change to her employment status, the Court
is not persuaded.
First, Plaintiff concedes that, at the time United denied her requests for a hotel room, she
was not even scheduled to work overtime.

See ECF No. 13-1 at 14. Indeed, Plaintiff

acknowledges that, at that time, there was only a “possibility” that she would have even had the
opportunity to work overtime. Id. And that it was only after “other agents . . . could not make it
in [to work] due to the weather” that that possibility materialized. Id. Thus, at the time United
denied Plaintiff’s request, Plaintiff’s claimed entitlement to overtime wages was based entirely
on speculation. Such speculation cannot form the basis of an adverse employment action under
these circumstances. See e.g., Roney v. Illinois Dep’t of Transp., 376 F. Supp. 2d 857, 867 (N.D.
Ill. 2005) (no adverse employment action where “allegations of being denied overtime hours are
vague and based on speculation”), aff’d, 474 F.3d 455 (7th Cir. 2007); Swain v. City of Vineland,
457 F. App’x 107, 111 (3d Cir. 2012) (“a speculative increase in potential overtime does not
qualify as a change in the terms or conditions of employment, particularly where one’s current
position, as here, offers its own opportunities to earn overtime”); Rabinovitz v. Pena, 89 F.3d
482, 488-89 (7th Cir. 1996) (holding that an adverse employment action does not include an
employer’s denial of overtime where such benefit was purely discretionary and not automatically
entitled).
Second, even if Plaintiff’s overtime opportunities had been guaranteed (and they were
not), the loss of those few opportunities did not affect a significant change to her employment

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status. See e.g., Cham v. Station Operators, Inc., 685 F.3d 87, 94-95 (1st Cir. 2012) (no adverse
employment action where plaintiff’s claim “is based on the purported loss of three shifts during
the weeks encompassing Labor Day, Thanksgiving, and Christmas” because that “reduction
simply does not rise to the level of an adverse employment action in the context of a workplace
where schedules fluctuate”); Embry v. Callahan Eye Found. Hosp., 147 Fed. App’x. 819, 829
(11th Cir. 2005) (holding that an employee’s one-day suspension resulting in a loss of $88.73 did
not constitute “a serious and material change in the terms, conditions, or privileges of
employment”); Allen v. St. Cabrini Nursing Home, Inc., 198 F. Supp. 2d 442, 449 (S.D.N.Y.
2002) (denial

of

opportunity

to

work

one

day’s

worth

of overtime not

an adverse employment action where plaintiff had other opportunities to earn overtime pay);
Rivers v. Potter, No. 05-4868, 2007 WL 4440880, at *7 (D. N.J. 2007) (determining that the
denial of a single instance of overtime work did not constitute an adverse employment action that
impacts the terms, conditions, or privileges of employment).
Furthermore, nowhere in Plaintiff’s complaint does she allege that the loss of these
overtime opportunities affected her employment status in any material way.5 To be certain,
Plaintiff does not claim that she was demoted, fired, or suspended as a result of the missed
overtime. Nor does she claim that she lost any opportunities for promotion as a result. See Lyle
v. County of Fairfax Va., No. 05-1134, 2006 U.S. App. LEXIS 6025 (4th Cir. Mar. 10, 2006) (no
adverse employment action where denial of overtime opportunities did not “inhibit [plaintiff’s]
opportunities for promotion and professional development and thereby affect her

Although Plaintiff contends she was given an “attendance point” as a result of her missed shifts,
Plaintiff does not allege how, if at all, this mark impacted her job status or job opportunities. See
ECF No. 1 at ¶ 11.
5

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compensation”); Henry v. NYC Health & Hosp. Corp., No. 13-6909, 2014 WL 957074 (S.D.
N.Y. Mar. 10, 2014) (no adverse employment decision where plaintiff “fails to allege facts
plausibly indicating that she suffered any material detriment as a result of being denied overtime,
such as opportunities for career advancement”). Under these circumstances, the Court cannot
say that Plaintiff’s lost opportunity to work potential overtime shifts was an “adverse
employment action” under Title VII.6
iv.

Similarly Situated Employees

Finally, Plaintiff has failed to plead facts sufficient to demonstrate that Plaintiff was
treated differently from similarly situated white employees. Although courts do not always
require comparator evidence, a plaintiff who bases her allegations entirely upon a comparison to
an employee from a non-protected class, like here, “must demonstrate that the comparator was
‘similarly situated’ in all relevant respects.” Sawyers v. United Parcel Serv., 946 F. Supp. 2d
432, 442 (D. Md. 2013) aff’d, 13-1777, 2014 WL 2809027 (4th Cir. June 23, 2014). “Such a
showing would include evidence that the employees ‘dealt with the same supervisor, [were]
subject to the same standards and . . . engaged in the same conduct without such differentiating
or mitigating circumstances that would distinguish their conduct or the employer’s treatment of
Plaintiff’s extensive and exclusive reliance on Johnson v. Baltimore City Police Dept., No. 122519, 2014 WL 1281602 (D. Md. Mar. 27, 2014) is unavailing. See ECF No. 13-1 at 13-14. In
Johnson, the Court determined that a “medical suspension” that caused the plaintiff to lose
“significant income, due to lost overtime and secondary employment opportunities” was
sufficient to establish an “adverse employment action” at the pleading stage. Id. at 19 (emphasis
added). Thus, in Johnson, but for the employer’s decision to suspend the plaintiff, she would
have otherwise earned overtime compensation. Id. That is not what happened here. In this case,
United’s denial of Plaintiff’s requests for a company-issued hotel room did not cause Plaintiff to
lose potential overtime shifts; Mother Nature did. That is, Plaintiff’s lost overtime opportunities
were caused by her decision to return to her home in Prince George’s County and the subsequent
snowfall that made it impossible for Plaintiff to travel to work. See ECF No. 13-1 at 6
(Plaintiff’s opposition recognizing that “[t]he snow was so high, walking out to public
transportation that was either not running or running sporadically was not an option.”).
6

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them for it.’” Haywood v. Locke, 387 F. App’x 355, 359 (4th Cir. 2010) (quoting Mitchell v.
Toledo Hospital, 964 F.2d 577, 583 (6th Cir. 1992)); see also Humphries v. CBOCS W., Inc., 474
F.3d 387, 405 (7th Cir. 2007) (“[T]he purpose of the similarly situated requirement is to
eliminate confounding variables, such as differing roles, performance histories, or decisionmaking personnel . . . .”), aff'd, 553 U.S. 442 (2008). Plaintiff does not challenge United’s claim
that she must allege comparator evidence. Instead, she avers that her allegations are sufficient.
First, with respect to the Friday, December 18, 2009 incident, Plaintiff contends that she
called her supervisor that day to ask that she be provided a company-issued hotel room. Her
request, however, was denied because she was not scheduled to work that Saturday, December
19, 2009. See ECF No. 13-2 at ¶ 23 (acknowledging that “[she] could not get a room, as [she]
was off Saturday”). Plaintiff contends that the decision to not provide her a company-issued
hotel room that Saturday night was discriminatory because a white colleague was provided a
room for that same night. As Plaintiff concedes, however, the white colleague, unlike Plaintiff,
worked that Saturday, December 19, 2009 – the day the snowfall started. Accordingly, Plaintiff
was not similarly situated to that employee.
The same is true as it pertains to the second purported act of discrimination that occurred
around February 5, 2010. Specifically, Plaintiff contends that on some day prior to the start of
the blizzard on Friday, February 5, 2010, her supervisor asked agents who would be needing a
hotel room for that Friday night. Although Plaintiff requested a room for that night, her request
was denied because she was not scheduled to work on that Friday, February, 5, 2010. Plaintiff
contends that United’s decision not to provide her with a company-issued hotel room that Friday
night was discriminatory because two white colleagues were provided a room that night. Again,
however, it is evident from Plaintiff’s complaint that the two white agents who were provided

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with a company-issued hotel room that night were scheduled to work that Friday, February 5,
2010 – the day the blizzard started. As such, Plaintiff, who was not scheduled to work that
Friday, was not similarly situated to the two white agents, who were scheduled to work that day.7
Plaintiff has therefore failed to adequately allege facts sufficient to support a disparate
treatment claim. The Court will grant United’s Motion to Dismiss this claim.
b.

Retaliation

Although not clearly stated in her complaint, Plaintiff appears to attempt to state a
retaliation claim under Title VII. See ECF No. 1 at ¶¶ 6, 24. Title VII prohibits discrimination
against an employee in retaliation for the employee’s opposing the employer’s illegal
discrimination practices or participating in Title VII enforcement proceedings. 42 U.S.C. §
2000e–3(a). To properly plead retaliation, a plaintiff must allege “(1) that she engaged in
protected activity, (2) that an adverse employment action was taken against her, and (3) that
there was a causal link between the protected activity and the adverse employment action.”
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 258 (4th Cir. 1998). Plaintiff has failed
to satisfy this pleading burden.
i.

Protected Activity

The first element of a retaliation claim requires a plaintiff to plead that she engaged in
protected activity. Id. Opposition to an employer’s policies by formal or informal complaints
It ought to be noted that during the second blizzard, one of Plaintiff’s African-American
colleagues was provided with her own company-issued hotel room. The fact that this colleague
ultimately decided to share her room with Plaintiff does not suggest that Plaintiff and her
African-American colleague were somehow forced to room together, while their white
colleagues were each provided their own rooms. See ECF No. 1 at ¶ 13 (alleging that Plaintiff’s
“[c]o-worker, Bernadette Telesford, offered to share her room with [Plaintiff]”). To the contrary,
it suggests that United administered its inclement weather hotel policy in a race-neutral fashion.
Furthermore, Plaintiff acknowledges that on prior occasions “she had [] been provided hotel
rooms prior to scheduled shifts when a storm was impending.” ECF No. 13-1 at 5.
7

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qualifies as protected activity.

See id. at 259 (“Opposition activity encompasses utilizing

informal grievance procedures as well as staging informal protests and voicing one’s opinions in
order to bring attention to an employer’s discriminatory activities.”); see also Okoli v. City of
Baltimore, 648 F.3d 216, 223 (4th Cir. 2011) (recognizing that “protected activity” for a
retaliation claim includes the “filing a complaint with the EEOC”).

Here, Plaintiff has

adequately alleged that she engaged in “protected activity” by (1) informally complaining to
United of the purportedly discriminatory conduct and (2) by filing formal discrimination charges
with the EEOC. See ECF No. ¶ ¶ 6, 24.
ii.

Adverse Employment Action

The second element of a retaliation claim requires Plaintiff to plead that an adverse
employment action was taken against her. See Laughlin, 149 F.3d at 258. The adverse action
element of a retaliation claim is different from that of a disparate treatment claim. Whereas for a
disparate treatment claim, “[a]n adverse employment action is a discriminatory act that adversely
affects the terms, conditions, or benefits of a plaintiff’s employment,” Holland v. Washington
Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007), for a retaliation claim, a plaintiff need only
allege that she suffered an action that was “materially adverse,” meaning that the action “might
have dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Thus, “the anti-retaliation
provision, unlike the substantive provision, is not limited to discriminatory actions that affect the
terms and conditions of employment.” Id. at 64. However, the discriminatory actions must still
“produce[] an injury or harm.” Id. at 67.

Indeed, the standard of material adversity is important

because Title VII does not protect employees from “trivial harms” such as “petty slights” and
“minor annoyances.” Id. at 68.

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Courts have recognized that “[e]ven with the lower bar [set by the Supreme Court in
Burlington], none of the following constitutes an adverse employment action in a retaliation
claim: failing to issue a performance appraisal; moving an employee to an inferior office or
eliminating the employee’s work station; considering the employee ‘AWOL’; or issuing a
personal improvement plan, ‘an “Attendance Warning,” ‘a verbal reprimand, ‘a formal letter of
reprimand,’ or ‘a proposed termination.’” Muldrow v. Blank, No. 13-1200, 2014 WL 938475, at
*10 (D. Md. Mar. 10, 2014) (quoting Rock v. McHugh, 819 F.Supp.2d 456, 470–71 (D.
Md.2011). Here, the allegedly adverse employment actions of which Plaintiff complains include
“monitoring of her performance, breaks and bidding on shifts” (ECF No. 1 at ¶ 6) as well as
accusations of “performance based deficiencies” (id. at ¶ 26). Although neither of these actions
falls squarely within Muldrow’s non-exhaustive list of adverse employment actions in the
retaliation context, the Court finds that, based on the allegations in the complaint, neither of these
alleged actions is sufficient to establish an adverse employment action.
First, Plaintiff alleges that when she “complained about the disparate treatment, she was
subject to retaliatory monitoring of her performance, breaks and bidding on shifts.” Id. at ¶ 6.
Plaintiff’s allegation that she was “subject to retaliatory monitoring” are, at most, “petty slights,
minor annoyances, and simple lack of good manners,” see Burlington, 126 S.Ct. at 2415, that
cannot be classified as materially adverse employment actions. See e.g., Livingston v. DatexOhmeda, Inc., No. 05-3401, 2008 WL 7289608, at *3 (D. Md. May 7, 2008) (plaintiff’s
“complaints that she was singled out and strictly monitored and that her time sheets were
scrutinized, are, at most, ‘petty slights, minor annoyances, and simple lack of good manners,’
that cannot be classified as materially adverse employment actions”) (internal citation omitted),
aff’d sub nom. Livingston v. Gen. Elec. Co., 316 F. App’x 233 (4th Cir. 2009); Nigro v. Virginia

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Commonwealth Univ. Med. Coll. of Virginia, No. 09-00064, 2010 WL 2262539, at *10-11 (W.D.
Va. June 4, 2010) (plaintiff’s allegations of “excessive monitoring” are “insufficient at [the
pleading] stage to state a claim for retaliation”), aff’d sub nom. Nigro v. Virginia Commonwealth
Univ./Med. Coll. of Virginia, 492 F. App’x 347 (4th Cir. 2012); Shannon v. Va. Dep’t of Juvenile
Justice, No. 06-413, 2007 WL 1071973, at *4 (E.D. Va. 2007) (concluding that supervisor’s acts
of questioning employee’s leave requests and monitoring employee’s activities do not cross the
“materially adverse” threshold); Pannell v. Nicholson, No. 06-00088, 2008 WL 565098, at *5
(W.D. Va. Feb. 29, 2008) (employee monitoring “was not an adverse employment action, as
contemplated by Burlington Northern”). Indeed, nothing in Plaintiff’s complaint suggests that
any of the alleged monitoring activities caused Plaintiff any injury or harm. To be certain,
Plaintiff does not allege that she was denied a promotion, lost pay, or otherwise had her work
schedule, duties, or benefits modified as a result of the alleged monitoring. At most, Plaintiff’s
complaint describes increased tension or minor annoyances at the work place; but, increased
tension or unpleasant personal relationships, without concomitant injury or harm, “do not rise to
the level of actionable retaliatory adverse action.” Chika v. Planning Research Corp., 179 F.
Supp. 2d 575, 587 (D. Md. 2002).
Nor has Plaintiff alleged any facts that would allow the Court to conclude that the poor
performance reviews she allegedly received caused any “injury or harm” as required by
Burlington. Plaintiff’s complaint includes only one broad sentence relating to her performance
reviews.

See ECF No. 1 at ¶ 26.

That sentence states generally that “[w]hen [Plaintiff]

complained of the disparate treatment[,] she was accused of alleged performance based
deficiencies spanning from January of 2010 through May of 2010 and through to the present
time.” ECF No. 1 at ¶ 26. Without more, this allegation is insufficient to constitute a materially

20

adverse employment action. The Court cannot discern from this allegation what, if any, harm or
injury, Plaintiff suffered as a result of her negative performance review. See e.g., Parsons v.
Wynne, 221 F. App’x 197, 198 (4th Cir. 2007) (concluding that “even under the Burlington
standard, [plaintiff] is unable to establish a prima facie case of retaliation with respect to . . . her
May 2002 performance evaluation” as she did not show that it “would have dissuaded a
reasonable worker from making or supporting a charge of discrimination”) (internal quotations
omitted); Toulan v. DAP Products, Inc., No. 05-2254, 2007 WL 172522, at *9 (D. Md. Jan. 17,
2007) aff’d sub nom. Toulan v. DAP, Inc., 271 F. App’x 312 (4th Cir. 2008) (“Even under the
relaxed Burlington Northern standard, [plaintiff’s] 2005 [poor performance review] does not
constitute a materially adverse employment action.”); Simmington v. Gates, No. 08-3169, 2010
WL 1346462, at *13 (D. Md. Mar. 30, 2010) (“Defendant's actions of giving Plaintiff a letter of
expectation and an “Unacceptable” rating were not materially adverse actions.”).

Because

Plaintiff’s complaint is devoid of even a single allegation of harm or injury relating to the
increased monitoring or negative performance reviews, Plaintiff has failed to plead facts
sufficient to establish that the complained of conduct “might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68.
iii.

Causal Connection

Even assuming the negative performance reviews and the increased monitoring
constituted adverse employment actions, Plaintiff has not pled facts sufficient to establish “a
causal link between the protected activity and the adverse employment action.” Laughlin, 149
F.3d at 258. Specifically, Plaintiff has not alleged any facts to indicate who she reported the
alleged disparate treatment to, or when she reported it. Additionally, Plaintiff has not alleged
any facts to indicate who from United was involved in the monitoring of her performance,

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breaks, and shift-bidding. Nor does she allege when the monitoring or reviews occurred or any
other details surrounding these alleged occurrences. Without this information, the Court is
unable to draw a reasonable inference that establishes a causal connection between Plaintiff’s act
of reporting the disparate treatment and the increased monitoring and negative performance
reviews she allegedly received. See Davenport v. Maryland, No. 13-1249, 2014 WL 3887932, at
*7 (D. Md. Aug. 6, 2014) (granting motion to dismiss retaliation claim where plaintiff’s
complaint failed to “identify the person or persons who committed these retaliatory acts”); see
also Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) (finding that the plaintiff could not show
that the retaliation was causally related to her complaint of discrimination because she could not
identify who committed the retaliatory acts); Caldwell v. Jackson, No. 03-707, 2009 WL
2487850, at *9 (M.D. N.C. Aug.11, 2009) (“[Defendant] cannot make out a prima facie case of
retaliation based on acts by anonymous persons.”), report and recommendation adopted, 831
F.Supp.2d 911 (M.D. N.C.2010).

Plaintiff has therefore failed to adequately allege facts

sufficient to support a retaliation claim.
III.

CONCLUSION
For the aforementioned reasons, Defendant United’s Motion to Dismiss is GRANTED.

The Court will therefore DISMISS Plaintiff’s complaint WITH PREJUDICE.

Dated: October 14, 2014

/S/
George Jarrod Hazel
United States District Judge

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