Jarallah v. Thompson et al

Filing 49

MEMORANDUM OPINION (c/m to Plaintiff 8/17/15 sat). Signed by Judge Deborah K. Chasanow on 8/17/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
TAJUDIN JARALLAH
:
v.

:

Civil Action No. DKC 14-1772

:
WARREN THOMPSON, et al.
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case are the following motions: (1) a
motion to dismiss or, alternatively, for summary judgment filed
by Defendants Warren Thompson, Maurice Jenoure, and Dina Zaikouk
(ECF No. 12); (2) a motion to dismiss or, alternatively, for
summary judgment filed by Defendant Dan Kelly (ECF No. 26); (3)
a

motion

Jarallah

to

amend

(ECF

No.

the

complaint

32);

(4)

filed

motions

by
to

Plaintiff
dismiss

Tajudin

filed

by

Defendants Bowie State University (“Bowie State”) (ECF No. 4),
Morgan State University (“Morgan State”) (ECF No. 5), and Prince
George’s Community College (“PGCC”) (ECF No. 16) (collectively
the “school Defendants”); (5) a motion to dismiss voluntarily
without prejudice filed by Plaintiff (ECF No. 24); and (6) a
motion to disqualify counsel filed by Plaintiff (ECF No. 25).
The

issues

have

been

briefed,

hearing being deemed necessary.

and

the

court

now

Local Rule 105.6.

rules,

no

For the

following reasons, the motions of Defendants Thompson, Jenoure,
Zaikouk,

and

Kelly

to

dismiss

judgment will be granted.
will be denied.
granted.
prejudice

alternatively,

for

summary

Plaintiff’s motion for leave to amend

School Defendants’ motions to dismiss will be

Plaintiff’s
will

or

be

motion

denied.

to

dismiss

Plaintiff’s

voluntarily
motion

to

without

disqualify

counsel will be denied.
I.

Background
A.

Factual Background

Plaintiff

worked

Hospitality

Corporation

Hospitality

is

in

a

food

various

(“Thompson
services

capacities

for

Thompson

Hospitality”).

provider

that

Thompson

contracts

with

colleges and universities to provide cafeteria and other food
services.

Plaintiff began working for Thompson Hospitality in

early 2011.

Plaintiff initially worked as an Executive Chef for

Thompson Hospitality at Bowie State.
Plaintiff

raised

multiple

concerns

While at Bowie State,
to

Thompson

Hospitality

management regarding alleged discrimination by his supervisors.
(ECF

No.

1-4,

investigated
without merit.

at

1–33).

Plaintiff’s

Thompson

allegations

Hospitality
and

found

management

them

to

be

(ECF No. 1-4, at 32).

In August 2011, Plaintiff emailed Thompson Hospitality a
request for a transfer to a location in the South because he
found the rent in Maryland too high and maintained a home in
2

Atlanta, Georgia.

(ECF No. 1-4, at 46–47).

In December 2012,

Plaintiff was transferred within Thompson Hospitality, and began
working as a Food Service Director at Paine College in Augusta,
Georgia.

(ECF No. 13-1, at 1).

In January 2013, Thompson

Hospitality lost its contract with Paine College.

Plaintiff was

offered to transfer again within Thompson Hospitality, but chose
to stay at Paine College.

(Id.).

The record indicates that, as

of at least May 9, 2014, Plaintiff has remained employed by ABL
Educational Enterprise, Thompson Hospitality’s replacement, at
Paine College as a Food Service Director.
B.

(ECF No. 1-5, at 1).

Procedural Background

Shortly
Plaintiff

after

departure

from

Thompson

three

complaints

with

the

Equal

Employment

Commission

(“EEOC”).

In

his

EEO

complaints,

filed

Opportunity

his

Hospitality,

Plaintiff alleged that he was discriminated against based on
race,

color,

sex,

religion,

national

origin,

age,

and

disability, and was also retaliated against based on an earlier
EEO complaint.

(ECF No. 13-1, at 5–15).

Plaintiff and Thompson

Hospitality communicated extensively throughout the spring and
summer of 2013 regarding settling the EEO complaints.
31-4 and 31-6).

(ECF Nos.

Plaintiff and Thompson Hospitality exchanged

multiple draft settlement proposals.
On August 12, 2013, Plaintiff attended an EEOC mediation
session with representatives from Thompson Hospitality.
3

(ECF

No. 13-2, at 1–2).

According to Plaintiff, during the EEOC

mediation session, he “stood up to walk out of the negotiation
and promised to continue to sue the Defendants for the next
‘hundred years.’”

(ECF No. 31, at 7).

The parties continued to

negotiate, however, and ultimately signed a Separation Agreement
and

Release

Release,

(“Release”).

Plaintiff

(ECF

agreed

to

No.

13-3,

“waive,

at

2-8).

release,

and

In

the

forever

resolve all claims, demands, or causes of action arising out of,
relating to, or touching or concerning Thompson [Hospitality].”
(Id. at 3).

In exchange for this release, Thompson Hospitality

paid, what Plaintiff contends amounts to, roughly the equivalent
of one year of his salary.1
The record indicates that the EEOC closed at least one of
Plaintiff’s EEO complaints against Bowie State on May 16, 2014
because “[t]here [was] no employee/employer relationship.”
No.

1-3).

The

record

does

not

indicate

the

(ECF

disposition

or

current status of the other EEO complaints against Bowie State
or the other school Defendants.
Plaintiff, proceeding pro se, commenced this suit on June
3, 2014.

(ECF No. 1).

Plaintiff alleges discrimination based

on race, color, nationality, religion, and sex in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”) while

1

The specific amount paid under the Release was redacted
from the record.
4

employed by Thompson Hospitality at Bowie State.

Plaintiff also

alleges numerous other claims, but provides nothing more than
conclusory allegations and buzzwords without adequate facts to
support his allegations.2
On September 24, 2014, Bowie State and Morgan State filed
separate motions to dismiss.

(ECF Nos. 4 and 5).

21, 2014, PGCC also moved to dismiss.
filed oppositions to each motion.

On October

(ECF No. 16).

Plaintiff

(ECF Nos. 18, 19, and 24).

Plaintiff also moved to dismiss his complaint voluntarily in
order to bring his complaint in state court.
On

October

20,

2014,

Defendants

(ECF No. 24).

Thompson,

Jenoure,

and

Zaikouk filed a motion to dismiss or, in the alternative, for
summary

judgment.

(ECF

No.

12).

Defendant

Kelly

moved

to

dismiss or, in the alternative, for summary judgment on November
14, 2014.3

(ECF No. 26).

Plaintiff filed an opposition, (ECF

No. 31), and Defendants Thompson, Jenoure, Zaikouk, and Kelly
(collectively “individual Defendants”) replied (ECF No. 35).

2

Among Plaintiff’s other allegations are: defamation,
breach of contract, invasion of privacy, intentional infliction
of emotional distress, violations of 42 U.S.C. §§ 1981 and 1983,
violations of Title VI and Title IX, violations of the Age
Discrimination in Employment Act, and a violation of the
Sarbenes-Oxley Act of 2002.
3

Defendant Kelly filed his motion to dismiss or, in the
alternative, for summary judgment separately because he was
served after the other Defendants. The motions are identical,
and he joined the reply.
5

On

November

13,

2014,

Plaintiff

filed

disqualify individual Defendants’ attorney.
individual

Defendants

filed

an

motion

(ECF No. 25).

opposition.

Plaintiff filed a supplemental motion.

a

(ECF

No.

to
The
33).

(ECF No. 34).

Finally, on November 24, 2014, Plaintiff filed a motion for
leave to amend his complaint to add additional defendants.
No. 32).

(ECF

Individual Defendants filed opposition, (ECF No. 37),

and Plaintiff replied (ECF Nos. 40 and 41).
II.

Individual Defendants’ Motion to Dismiss or, Alternatively,
for Summary Judgment
A.

Standard of Review

The individual Defendants have moved to dismiss or, in the
alternative, for summary judgment.
consider

matters

outside

the

Ordinarily, a court cannot

pleadings

or

resolve

factual

disputes when ruling on a Rule 12(b)(6) motion to dismiss.

See

Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007).

If

the

court

does

consider

matters

outside

the

pleadings,

“the

motion must be treated as one for summary judgment under Rule
56,” and “[a]ll parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.”
Fed.R.Civ.P. 12(d); see also Finley Lines Joint Protective Bd.
Unit 200 v. Norfolk S. Corp., 109 F.3d 993, 997 (4th Cir. 1997)
(“[A] Rule 12(b)(6) motion to dismiss supported by extraneous
materials cannot be regarded as one for summary judgment until

6

the district court acts to convert the motion by indicating that
it will not exclude from its consideration of the motion the
supporting

extraneous

materials.”).

It

is

appropriate

to

consider the extraneous materials submitted by Defendants, and
Plaintiff

had

Defendants.

notice
See

by

Warner

virtue
v.

of

Quilo,

the

No.

motion

filed

ELH-12-248,

by

2012

WL

3065358, at *2 (D.Md. July 26, 2012) (“When the movant expressly
captions its motion ‘in the alternative’ as one for summary
judgment,

and

submits

matters

outside

the

pleadings

for

the

court’s consideration, the parties are deemed to be on notice
that

conversion

under

Rule

12(d)

may

occur[.]”)

(quoting

Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th
Cir. 1998)).

Accordingly, Defendants’ motion will be treated as

one for summary judgment.
Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material

fact,

and

the

moving

party

is

plainly

judgment in its favor as a matter of law.

In

entitled

to

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court
explained that, in considering a motion for summary judgment,
the “judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

A dispute about a material fact

is genuine “if the evidence is such that a reasonable jury could
7

return a verdict for the nonmoving party.”

Id. at 248.

Thus,

“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”

Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence

in

support

The mere existence of a “scintilla” of
of

the

nonmoving

party’s

case

is

not

sufficient to preclude an order granting summary judgment.

See

Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).

8

B. Analysis
Individual

Defendants

argue

that

the

Release

signed

by

Plaintiff precludes the discrimination claims brought against
them as employees and agents of Thompson Hospitality.
13, at 9).

(ECF No.

Plaintiff counters that the Release does not cover

Defendants

as

individuals,

or,

alternatively,

that

Thompson

Hospitality fraudulently represented the scope of the Release.
(ECF No. 31, at 8).
It

is

undisputed

that

Plaintiff

signed

the

Release

on

August 13, 2013 following an EEOC mediation session.

(ECF No.

13-3,

are

at

2–6).

Such

cooperative

EEOC

settlements

“preferred means for eliminating unlawful discrimination.”

the
Bala

v. Virginia Dep’t of Conservation and Recreation, No. 14-1362,
2015 WL 3895468, at *3 (4th Cir. June 25, 2015) (citing Alexander
v. Gardner-Denver Co., 415 U.S. 36, 44 (1974)).

An employee can

waive potential discrimination claims “provided the waiver is
knowing, voluntary, and part of a bargain that resolves the
underlying employment discrimination dispute.”
C.F.R.

§

1614.504(a)

provides:

“Any

Id.

Title 29

settlement

agreement

knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both
parties.”
Federal

courts

have

held

that

settlement

agreements

are

contracts between the parties, subject to the rules of contract
9

interpretation.

See, e.g., Rock v. McHugh, 819 F.Supp.2d 456,

466 (D.Md. 2011) (citations omitted).

The Release states that

it “shall be construed and governed in accordance with the laws
of the State of Maryland.”
contract

law

applies

interpretation.

(ECF No. 13-3, at 6).

the

objective

theory

Maryland

of

contract

See, e.g., Rock, 819 F.Supp.2d at 467; Ocean

Petroleum, Co. v. Yanek, 416 Md. 74, 86–87 (2010).
Under

the

unambiguous

objective

contract

theory

terms

are

of

contract

given

their

interpretation,
plain

meaning,

regardless of the parties’ intentions at the time the contract
was formed.

See Nova Research, Inc. v. Penske Truck Leasing

Co., 405 Md. 435, 448 (2008).
contract

is

ordinarily

a

The interpretation of a written

question

of

law

for

the

Suburban Hosp. v. Dwiggins, 324 Md. 294, 306 (1991).

court.

Therefore,

when interpreting a contract, the court’s task is to “determine
from the language of the agreement itself what a reasonable
person in the position of the parties would have meant at the
time it was effectuated.”

Calomiris v. Woods, 353 Md. 425, 436,

(quoting Gen. Motors Acceptance v. Daniels, 303 Md. 254, 261
(1985)).
parties

“The true test of what is meant is not what the
to

the

contract

intended

it

to

mean,

but

what

a

reasonable person in the position of the parties would have
thought it meant.”
look

to

the

entire

Id.

In its interpretation, the court must

language

of
10

the

agreement,

not

merely

a

portion thereof, Jones v. Hubbard, 356 Md. 513, 534–35 (1999),
but parol evidence of the parties’ intent or meaning should not
be considered unless there is an ambiguity.

See Beale v. Am.

Nat’l Lawyers Ins. Reciprocal, 379 Md. 643, 660 (2004); Bushey
v. N. Assurance, 362 Md. 626, 632 (2001); see also Higgins v.
Barnes, 310 Md. 532, 537 (1987) (“[E]vidence is inadmissible to
vary,

alter,

or

contradict

a

contract

that

is

complete

and

unambiguous.”).
The plain meaning of the Release’s terms bar Plaintiff’s
claims

against

employees

and

Defendants
agents

of

acting

within

Thompson

their

capacity

Hospitality.

as

Plaintiff

attempts to bring discrimination claims against Defendants in
their

individual

capacities,

possibly

to

maneuver

terms of the Release, but this attempt is futile.

around

the

The United

States Court of Appeals for the Fourth Circuit has held that
“supervisors are not liable in their individual capacities for
Title VII violations.”

Lissau v. Southern Food Service Inc.,

159 F.3d 177, 181 (4th Cir. 1998).

Because of this, even absent

a valid Release, Plaintiff could not bring his discrimination
claims

against

the

individual

Defendants.

Plaintiff’s

only

potential claim of discrimination based on the alleged conduct
of

Thompson

Hospitality

employees

is

against

Thompson

Hospitality itself, a claim that is precluded by the Release.
See, e.g., Erskine v. Board of Education, 197 F.Supp.2d 399, 405
11

(D.Md.

2002)

educators

(dismissing

and

only

Title

leaving

VII

claim

claims

against

against

Board

of

public

Education

itself).
Plaintiff

alleges

that

Thompson

Hospitality

fraudulently

induced him to sign the Release, and that he “was misled as to
the true intention and terms” of the Release.
2).

(ECF No. 31, at

Plaintiff contends that he was intentionally misled to

believe that he would still be able to bring claims against
Thompson Hospitality’s employees.

Individual Defendants assert

that

the

there

is

Defendants

no

or

indication

Thompson

in

Hospitality

representations or omissions.

record

that

individual

made

any

fraudulent

(ECF No. 35, at 3).

Plaintiff has not shown any indication of fraud committed
by

Thompson

Hospitality

or

individual

Defendants.

Plaintiff

provided numerous settlement-related e-mails between himself and
Thompson Hospitality representatives, (ECF Nos. 31-2, 31-4, and
31-6), but none of the communications indicates any fraudulent
effort

on

behalf

Defendants.

On

of
the

Thompson
contrary,

Hospitality
the

or

individual

communications

show

an

extensive negotiation on settlement terms between Plaintiff and
Thompson Hospitality that ultimately concluded with the Release.
Thompson
agreement

Hospitality
that

sent

Plaintiff

an

initial

rejected.

draft
(ECF

of

No.

a

settlement

35-1,

at

4).

Plaintiff countered with an agreement of his own that ended up
12

being

the

basis

of

the

final

Release.

(Id.)

Plaintiff’s

negotiations led to an increase in the final settlement amount.
Nothing in the record undermines the conclusion that the
Release was a bargained-for agreement foreclosing Plaintiff’s
ability

to

Thompson

bring

all

claims

Hospitality.

relating

Plaintiff,

to

in

his

the

employment
final

at

Release,

voluntarily waived his right to bring “all claims, demands, or
causes of action arising out of, relating to, or touching or
concerning Thompson [Hospitality].”

(ECF No. 13-3, at 3).

The

Release enumerates fourteen categories of claims that Plaintiff
is

barred

from

bringing

against

individual

Defendants,

including:
[A]ll claims, demands, or causes of action
arising under . . . the Civil Rights Act of
1964, as amended; . . . the Civil Rights Act
of 1866 (42 U.S.C. § 1981 and § 1981a); . .
. the Age Discrimination in Employment Act,
29 U.S.C. § 621 et seq.; . . . the United
States
Constitution
.
.
.
defamation,
promissory estoppel, breach of fiduciary
duty,
fraud,
negligence,
tortuous
interference[.]”
(ECF

No.

13-3,

at

3–4).

The

Release

also

includes

clear

language expressly affirming that Plaintiff “carefully read and
fully

understands[,]

.

to[,]

.

knowingly

.

.

[and]

.

.

knowingly
and

and

voluntarily

legally bound by” the terms of the Release.
7).

voluntarily
intends

agrees
to

be

(ECF No. 13-3, at

Plaintiff expressly “recognize[d] that he has the right to

13

consult with an attorney of his choice prior to executing” the
Release.

(Id.).

Notably,
settlement

Plaintiff

has

agreements.

experience

In

2009,

executing

Plaintiff

similar

challenged

a

settlement agreement of a discrimination claim, alleging it was
the product of duress.

The United States Court of Appeals for

the Fifth Circuit affirmed the district court’s dismissal of his
claim as being barred by the agreement.

See Jarallah v. Sodexo,

Inc., 452 Fed.App’x 465 (5th Cir. 2011).

The Fifth Circuit noted

that Plaintiff had “competently litigated several cases pro se
and adeptly negotiated this clear and plain settlement agreement
himself over a lengthy period of time.”

Id. at 468.

In that

case, the Fifth Circuit held that Plaintiff “simply made no
showing that his agreement was reached by duress.”

Id.

Here, Plaintiff also has simply made no showing that the
Release was procured by fraud.
his

bargain,

courts

after

[Plaintiff]
knowingly

“Having obtained the benefit of

cannot
and

now

seek

a

voluntarily

remedy

from

relinquishing

the
the

underlying claims.”

Bala, 2015 WL 3895468, at *1; see also

Randolph

Homes,

v.

Caruso

Inc.,

No.

RWT-13-2069,

2014

WL

4661985, at *5 (D.Md. Sept. 16, 2014) (“By signing the Release,
failing to revoke it, and accepting payment under it, she chose
to forego the uncertainty and expense of a lawsuit in favor of
the

certainty

of

a

severance
14

payment.”).

Neither

Thompson

Hospitality nor individual Defendants made any representations
indicating
against

that

the

Thompson

Release

would

Hospitality

not

bar

employees.

actions

For

the

brought

foregoing

reasons, the motion of Defendants Thompson, Jenoure, and Zaikouk
to

dismiss

granted.

or,

alternatively,

for

summary

judgment,

will

be

Defendant Kelly’s motion to dismiss or, alternatively,

for summary judgment will also be granted.
III. Plaintiff’s Motion to Amend
A.

Standard of Review

Under Federal Rule of Civil Procedure 15(a)(2), “a party
may amend its pleading only with the opposing party’s written
consent or the court’s leave.
leave

when

justice

so

The court should freely give

requires.”

Denial

of

leave

to

amend

should occur “only when the amendment would be prejudicial to
the opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.”

Johnson v.

Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986).
The

standard

for

futility

dismiss under Rule 12(b)(6).

is

the

same

as

a

motion

to

See U.S. ex rel. Wilson v. Kellogg

Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (affirming
district court’s denial of a motion to amend because “proposed
amended complaint does not properly state a claim under Rule
12(b)(6) and lacks sufficient particularity under Rule 9(b)”);
Perkins

v.

United

States,

55

F.3d
15

910,

917

(4th

Cir.

1995)

(holding that an amendment is futile if the amended claim would
fail to survive a motion to dismiss).

“Leave to amend should be

denied

only

on

the

ground

of

futility

when

the

proposed

amendment is clearly insufficient or frivolous on its face.”
Cappetta

v.

GC

Servs.

Ltd.

P’ship,

No.

3:08CV288,

2009

WL

482474, at *4 (E.D.Va. Feb. 24, 2009) (citing Davis v. Piper
Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980); Oroweat Foods
Co., 785 F.2d at 510)).
B.

Analysis

Plaintiff requests leave to amend his complaint to add as
additional Defendants: Thompson Hospitality; Compass Group, USA,
Inc.; Tomas P. Dowd; and Littler Mendelson, P.C.
Plaintiff

seeks

to

assert

fraud

claims

(ECF No. 32).

against

the

proposed

additional defendants and bring discrimination claims against
Thompson Hospitality.
Plaintiff’s amended complaint alleging fraud is subject to
the

heightened

Procedure 9(b).

pleading

standard

of

Federal

Rule

of

Civil

See Harrison v. Westinghouse Savannah River

Co., 176 F.3d 776, 783–84 (4th Cir. 1999); Dwoskin v. Bank of
America, N.A., 850 F.Supp.2d 557, 569 (D.Md. 2012).

Rule 9(b)

provides that, “in alleging a fraud or mistake, a party must
state

with

fraud

or

particularity
mistake.

the

Malice,

circumstances
intent,

constituting

knowledge,

and

conditions of a person’s mind may be alleged generally.”
16

the
other
Such

allegations typically “include the ‘time, place and contents of
the false representation, as well as the identity of the person
making the misrepresentation and what [was] obtained thereby.’”
Superior

Bank,

F.S.B.

v.

Tandem

Nat’l

Mortg.,

Inc.,

197

F.Supp.2d 298, 313–14 (D.Md. 2000) (quoting Windsor Associates,
Inc. v. Greenfeld, 564 F.Supp. 273, 280 (D.Md. 1983)).
purposes

of

Rule

9(b)

are

to

provide

the

The

defendant

with

sufficient notice of the basis for the plaintiff’s claim; to
protect

the

defendant

against

frivolous

suits;

to

eliminate

fraud actions where all of the facts are learned only after
discovery; and to safeguard the defendant’s reputation.

See

Harrison, 176 F.3d at 784.
Plaintiff’s proposed amended complaint (ECF No. 32-1) does
not meet Rule 9(b)’s heightened standard.

Plaintiff makes no

particularized

fact,

factual

showing

assertions

of

fraud,

supporting

his

and,

in

fraud

provides

allegations.

no

Absent

such a showing of fraud, the Release bars Plaintiff’s potential
discrimination

claims

against

reasons explained above.
of

fraud,

and,

Thompson

Hospitality

for

the

Because Plaintiff has made no showing

absent

such

a

showing,

cannot

bring

discrimination claims against Thompson Hospitality, Plaintiff’s
request

for

leave

to

amend

is

futile.

For

the

foregoing

reasons, Plaintiff’s request for leave to amend will be denied.

17

IV.

School Defendants’ Motions to Dismiss
A.

Standard of Review

School Defendants have moved to dismiss.

The purpose of a

motion to dismiss under Rule 12(b)(6) is to test the sufficiency
of the complaint.

Presley v. City of Charlottesville, 464 F.3d

480, 483 (4th Cir. 2006).

A plaintiff’s complaint need only

satisfy the standard of Rule 8(a), which requires a “short and
plain

statement

of

entitled to relief.”
requires

a

the

showing

that

Fed.R.Civ.P. 8(a)(2).

‘showing,’

rather

entitlement to relief.”
544, 555 n.3 (2007).

claim

than

a

the

pleader

is

“Rule 8(a)(2) still

blanket

assertion,

of

Bell Atl. Corp. v. Twombly, 550 U.S.

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) (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, 176 F.3d

at 783 (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).

In evaluating the complaint, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
18

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).
Finally,
pleadings

“to

while

courts

less

generally

stringent

standards

should
than

hold

pro

formal

se

pleadings

drafted by lawyers,” they may nevertheless dismiss complaints
that

lack

a

cognizable

legal

theory

or

that

fail

sufficient facts under a cognizable legal theory.

to

allege

Haines v.

Kerner, 404 U.S. 519, 520 (1972); Turner v. Kight, 192 F.Supp.2d
391, 398 (D.Md. 2002).
B.

Analysis

In order for Plaintiff’s Title VII claim to survive school
Defendants’ motions to dismiss, he must first allege that the
schools were his “employer” for Title VII purposes.
was

an

employee

discriminatory
Hospitality

was

of

Thompson

conduct
his

Hospitality

occurred.

employer,

but

when

Plaintiff
alleges

the

admits

that

Morgan State, and PGCC were his “co-employer[s].”

Plaintiff
alleged
Thompson

Bowie

State,

(ECF No. 1 ¶

96).
Due to the ambiguity of the term “employer” under the Act,
courts have fashioned a variety of tests by which a defendant
who does not directly employ the plaintiff may still be the
plaintiff’s “employer” under Title VII.

See Hukill v. Auto

Care, Inc., 192 F.3d 437, 442 (4th Cir. 1999), abrogated on other
19

grounds by Arbaugh v. Y & H Corp., 546 U.S. 500 (2006).

One

such test, the “integrated-employer test,” seeks to determine
whether

two

separate

entities

can

employer” for Title VII purposes.

be

considered

a

“single

See id.; Tasciyan v. Med.

Numerics, 820 F.Supp.2d 664, 671-72 (D.Md. 2011); Watson v. CSA,
Ltd., 376 F.Supp.2d 588, 594 (D.Md. 2005).

Under this test, the

court may find that separate companies are “so interrelated that
they constitute a single employer.”
It

appears

alleging

Plaintiff,

that

by

Thompson

using

the

Hospitality

Hukill, 192 F.3d at 442.
term
and

“co-employer,”
the

schools

is
were

integrated employers.
The integrated-employer test involves four elements: “(1)
common

management;

(2)

interrelation

between

operations;

(3)

centralized control of labor relations; and (4) degree of common
ownership/financial control.”

Id.; see also Romano v. U-Haul

Int’l, 233 F.3d 655, 665 (1st Cir. 2000) (recognizing that the
majority of courts have applied the “integrated-enterprise test”
when determining whether a single employer exists under Title
VII); Laurin v. Pokoik, No. 02 CIV. 1938 (LMM), 2004 WL 513999,
at *4 (S.D.N.Y. Mar. 15, 2004) (acknowledging that courts have
applied the four factors to Title VII claims). While “control of
labor

operations

is

the

most

critical

factor,”

acknowledged that “no single factor is conclusive.”

courts

have

Hukill, 192

F.3d at 442; see also Armbruster v. Quinn, 711 F.2d 1332, 1338
20

(6th Cir. 1983), abrogated on other grounds by Arbaugh v. Y & H
Corp.,

546

U.S.

500

(2006)

(“All

four

criteria

need

not

be

present in all cases.”); Laurin, 2004 WL 513999, at *4 (“No one
factor is controlling, and not every factor is required.”).
As to Morgan State and PGCC, Plaintiff alleges no facts,
beyond short conclusory statements, suggesting either school was
his

employer

Hospitality.

or

was

an

integrated

employer

with

Thompson

Plaintiff never worked for Thompson Hospitality at

either Morgan State or PGCC, and Plaintiff does not allege any
facts

suggesting

an

integrated

employer

Thompson Hospitality and either school.

relationship

between

Because of the complete

lack of facts alleged with regards to Morgan State and PGCC,
Morgan State and PGCC’s motions to dismiss will be granted.
Plaintiff

alleges

slightly

requiring further analysis.
taken

by

Thompson

more

regarding

Bowie

State,

The alleged discriminatory actions

Hospitality

employees

were

done

while

Plaintiff was working for Thompson Hospitality at Bowie State.
Plaintiff alleges that Bowie State had the right to control
certain hiring and termination decisions.

Bowie State counters

that Plaintiff was solely an employee of Thompson Hospitality.
Bowie State asserts it had no control over Plaintiff or other
Thompson Hospitality employees and there was no interrelation,
common

management,

or

centralized

entities.
21

control

between

the

two

Plaintiff

has

not

alleged

any

facts

supporting

his

conclusory claim that Bowie State was an integrated employer
with Thompson Hospitality.

Nothing in the complaint plausibly

states that Bowie State and Thompson Hospitality had any degree
of

common

management,

interrelation

between

operations,

centralized control of labor relations, or any common ownership
or financial control.
that

Bowie

terminate

State
is

had

Plaintiff’s brief conclusory statement
the

undermined

right
by

to

his

dictate
other

who

to

hire

allegations

and

against

Thompson Hospitality employees and by documents attached to, and
referenced in, the complaint.

Thompson Hospitality, not Bowie

State, retained all supervisory responsibilities over Plaintiff
and other Thompson Hospitality employees, including hiring (ECF
No. 1-9, at 1), transferring (ECF No. 1-4, at 46-47), and dayto-day

operations

(ECF

No.

50).4

Plaintiff’s

conclusory

allegations do not plausibly allege that Thompson Hospitality
and Bowie State were integrated employers.

4

A complaint alleging a defendant is an integrated employer
often survives a motion to dismiss, but, in those cases,
plaintiffs pleaded significantly more facts alleging the
integrated nature of the entities than Plaintiff has here. See,
e.g., Gilbert v. Freshbikes, LLC, 32 F.Supp.3d 594, 603 (D.Md.
2014) (denying motion to dismiss because plaintiff pleaded
substantial facts alleging common management, common control of
labor relations, and common ownership); Watson v. CSA, Ltd., 376
F.Supp.2d 588, 593–99 (D.Md. 2005) (denying motion to dismiss
because
plaintiff
pleaded
facts
showing
significantly
interrelated operations, control of labor relations, and
financial control).
22

Plaintiff’s only opposition to school Defendants’ motions
to dismiss is a motion to dismiss his complaint voluntarily
without prejudice in order to bring the discrimination claims
against school Defendants in Maryland state court.
18, 19, and 24).

(ECF Nos.

The decision to grant or deny a motion for

voluntary dismissal under Rule 41(a)(2) “is a matter for the
discretion of the district court, and its order will ordinarily
not be reversed except for an abuse of discretion.”
USX Corp., 819 F.2d 1270, 1273 (4th Cir. 1987).

Davis v.

The factors that

should guide a district court in deciding a motion under Rule
41(a)(2) include “the opposing party’s effort and expense in
preparing for trial, excessive delay and lack of diligence on
the part of the movant, insufficient explanation of the need for
a voluntary dismissal, and the present stage of litigation.”
Miller v. Terramite Corp., 114 F.App’x. 536, 540 (4th Cir. 2004)
(quoting Phillips USA, Inc., v. Allflex USA, Inc., 77 F.3d 354,
358 (10th Cir. 1996)).

The Fourth Circuit has noted that, when

assessing motions to dismiss voluntarily under Rule 41(a)(2),
district

courts

should

“focus

primarily

on

the

interests

of

defendants,” but also consider other factors the court deems
proper,

including

“preventing

plaintiffs

from

litigating,

losing, and then wiping the slate clean by voluntary dismissal.”
GO Computer, Inc. v. Microsoft Corp., 508 F.3d 170, 177 (4th Cir.
2007).
23

Plaintiff,
allegations

as

supporting

school Defendants.
voluntary

discussed
his

earlier,

has

discrimination

made

claims

no

factual

against

the

Plaintiff has given insufficient reasons why

dismissal

is

required.

Voluntarily

dismissing

Plaintiff’s claims against the school Defendants to allow him to
bring

them

deficiency

in
that

state
there

court
was

would
no

not

cure

employee-employer

between Plaintiff and the school Defendants.
Thompson

Hospitality,

not

the

the

school

fundamental
relationship

It is clear that

Defendants,

appropriate defendant, if any, for Plaintiff’s claims.5
Bowie

State’s

motion

dismiss

the

For the

foregoing

reasons,

granted.

Morgan State’s motion to dismiss will be granted.

PGCC’s motion to dismiss will be granted.

to

is

will

be

Plaintiff’s motion to

dismiss voluntarily without prejudice will be denied.
V.

Plaintiff’s Motion to Disqualify Counsel
A.

Standard of Review

As explained in Penn Mutual Life Ins. Co. v. Berck, No. DKC
09-0578, 2010 WL 3294309, at *3 (D.Md. Aug. 20, 2010):
A motion to disqualify is a serious matter,
which must be decided on a case-by-case
basis.
This is so because two significant
interests
are
implicated
by
a
disqualification motion: the client’s free
choice of counsel and the maintenance of the
highest ethical and professional standards
in the legal community.
Nevertheless, the
5

As discussed earlier, the Release bars Plaintiff from
bringing his claims against Thompson Hospitality.
24

guiding principle in considering a motion to
disqualify
counsel
is
safeguarding
the
integrity of the court proceedings.
Thus,
this court must not weigh the competing
issues with hair-splitting nicety but, in
the proper exercise of its supervisory power
over the members of the bar and with a view
of preventing an appearance of impropriety,
[this Court] is to resolve all doubts in
favor of disqualification.
Berck, 2010 WL 3294309, at *3 (quoting Zachair, Ltd. v. Driggs,
965

F.Supp.

741,

750

(D.Md.

1997))

(citations

and

internal

quotation marks omitted). Because disqualification necessarily
results

in

the

drastic

result

of

a

party

losing

its

freely

chosen counsel, the movant “bear[s] ‘a high standard of proof to
show that disqualification is warranted.’”
454

F.Supp.2d

356,

364

(D.Md.

2006)

Franklin v. Clark,

(quoting

Buckley,

908

F.Supp. at 304); see also Aetna Cas. & Surety Co. v. United
States, 570 F.2d 1197, 1200-01 (4th Cir. 1978) (requiring that
the district court find that there is an “actual conflict,” and
not just a speculative conflict, before disqualifying counsel).
Accordingly, the movant has the burden of proof as to all facts
necessary to show the rule of professional conduct that requires
the attorney’s disqualification.

See Pennsylvania Nat’l Mut.

Cas. Ins. Co. v. Perlberg, 819 F.Supp.2d 449, 454-55 (D.Md.
2011) (finding, after reviewing movant’s evidence in support of
its motion to disqualify under Rule 1.9, that the movant “has
not satisfied the high burden of proof necessary to sustain a

25

disqualification

motion

in

showing

it

stood

in

an

attorney-

client relationship” with opposing counsel); see also Victors v.
Kronmiller,

553

F.Supp.2d

533,

552-53

(D.Md.

2008)

(denying

movant’s motion for disqualification because the movant failed
conclusively to establish a conflict under Rule 1.9);

cf. City

of Cleveland v. Cleveland Elec. Illuminating Co., 440 F.Supp.
193, 207 (N.D.Ohio 1976) (describing the moving party’s burden
as being “imposed by several interrelated evidentiary hurdles”
provided by the operative rule of professional conduct).
B.

Analysis

The Maryland Rules of Professional Conduct (“MRPC”), which
have been adopted by the Court of Appeals of Maryland, apply to
disputes involving attorney conduct.
argues

that

representing

Thomas

P.

individual

Dowd

Local Rule 704.

should

Defendants

violates Rule 3.7(a) of the MRPC.6

be

because

Plaintiff

disqualified
the

from

representation

Rule 3.7(a) states that “[a]

lawyer shall not act as advocate at a trial in which the lawyer
is likely to be a necessary witness unless: (1) the testimony
relates to an uncontested issue; (2) the testimony relates to
the nature and value of legal services rendered in the case; or

6

Plaintiff also argues Mr. Dowd’s disqualification should
be imputed to his firm.
It is not necessary to reach this
question because the court finds Mr. Dowd is not disqualified
under the MRPC.
26

(3)

disqualification

of

hardship on the client.”

the

lawyer

would

work

substantial

MRPC 3.7(a).

Plaintiff argues that Mr. Dowd’s declaration (ECF No. 132), makes him a material witness in violation of Rule 3.7(a).
Plaintiff

states

regarding

Plaintiff’s

Hospitality.

that

Mr.

Dowd

will

allegations

Defendants

respond

be

of
by

a

material

fraud

against

arguing

that

witness
Thompson

Mr.

Dowd’s

declaration relates only to the undisputed fact that Plaintiff
executed the Release.

(ECF No. 33, at 2).

Defendants also

contend that there will be no reason for Mr. Dowd to testify at
trial.

(Id.).

Mr. Dowd’s declaration relates solely to the occurrence of
the EEOC mediation session and the execution of the Release.
The

declaration

is

not

about

the

substance

or

scope

of

the

mediation session or Release signed by Plaintiff and a Thompson
Hospitality

representative.

information

contained

in

Plaintiff

the

has

declaration

not
and,

contested

the

as

the

such,

declaration falls within the uncontested issue exception found
in Rule 3.7(a)(1).

The submission of Mr. Dowd’s declaration

with Defendants’ motion for summary judgment does not run afoul
of Rule 3.7.
Moreover,

it

is

not

necessary witness at trial.
dismiss

and

for

summary

likely

that

Mr.

Dowd

will

be

a

Because all Defendants’ motions to
judgment
27

will

be

granted,

further

consideration

about

potential

prejudice

issues at a trial are not applicable.

or

confusion

of

the

Cf. Harris v. Keystone

Ins. Co., No. CCB-13-2839, 2013 WL 6198160, at *3 (D.Md. Nov.
26, 2013) (“Having decided that [Plaintiff] cannot pursue a bad
faith tort cause of action, the court determines that he cannot
base a motion to disqualify counsel on that claim.”).

In the

unlikely chance that a trial occurs, there is no showing that
Mr. Dowd is likely to be a necessary witness on a contested
issue.

For

the

foregoing

reasons,

Plaintiff’s

motion

to

disqualify independent Defendants’ counsel will be denied.
VI.

Conclusion
For

the

foregoing

reasons,

the

motion

of

Defendants

Thompson, Jenoure, and Zaikouk to dismiss or, alternatively, for
summary judgment will be granted.

Defendant Kelly’s motion to

dismiss or, alternatively, for summary judgment will be granted.
Plaintiff’s

motion

Defendant

Bowie

Defendant

Morgan

to

amend

State’s

his

motion

State’s

motion

complaint

will

be

denied.

to

dismiss

will

be

granted.

to

dismiss

will

be

granted.

Defendant PGCC’s motion to dismiss will be granted.

Plaintiff’s

motion to dismiss voluntarily without prejudice will be denied.
Plaintiff’s motion to disqualify counsel will be denied.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
28

A