Myers v. Montgomery County Maryland

Filing 9

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 6/17/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
NICK MYERS
:
v.

:

Civil Action No. DKC 14-3054

:
MONTGOMERY COUNTY, MARYLAND
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case is a motion to dismiss filed by
Defendant Montgomery County.

(ECF No. 6).

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 drawn from the corrected complaint.

Plaintiff Nick Myers (“Mr. Myers” or “Plaintiff”)1 is a fiftyyear-old Caucasian male who began working for the Montgomery
County Department of Health and Human Services on December 5,
1994.

(ECF No. 3 ¶ 10).

Technology
Eligibility
1

Unit
Unit

before

Plaintiff worked in the Information

(“SEU”)

he
on

was

transferred

July

11,

to

2011,

the
which

Services
is

when

Plaintiff’s attorney provides varying spellings of her
client’s last name throughout the complaint. (Compare ECF No. 3
¶ 10 with ¶ 12).
The court assumes the spelling indicated in
the case caption is accurate.

problems ensued for him.
work

as

an

Income

reduction in force.

Plaintiff was transferred to SEU to

Assistance

Program

(Id. ¶ 11).

Specialist

due

to

a

Plaintiff states that SEU is

predominantly African-American and that he was and remains the
only Caucasian male in that unit.

(Id. ¶ 12).

became Plaintiff’s supervisor at SEU.2

Monica Talley

(Id. ¶ 14).

According to

Plaintiff, he “experienced different treatment on the part of
Ms. Talley from the beginning of [his] employment with SEU.”
(Id.).

For

instance,

Plaintiff

contends

that

Ms.

Talley

“continually interrupted his training to take phone calls, or
attend to other duties.
else

in

the

unit

to

Furthermore, she would not allow anyone
help

train

[Plaintiff].”

(Id.

¶

15).

Plaintiff contends that he lacked training in his position with
SEU, and when he fell behind on his work resulting from the
alleged lack of training, “Ms. Talley began to send [him] emails
and reprimands.”

(Id. ¶ 17).

He states that when his co-

workers attempted to help him, they were reprimanded and told
that they would be formally disciplined.
alleges

that

uniformly

“[p]rior

satisfactory

to
work

his

transfer

performances

helpful and courteous with customers.

2

(Id. ¶ 18).
to
and

was

he

received

regarded

as

He has had [a] clean

Plaintiff
describes
Ms.
Talley
American/Hispanic female.” (ECF No. 3 ¶ 14).
2

SEU,

Plaintiff

as

an

“African

record and had never been the subject of disciplinary action.”
(Id. ¶ 20).
The complaint further avers that on or about October 21,
2011,

Plaintiff

Caucasian

represented

female)

as

“her

his

co-worker,

union

steward

Lucinda
in

a

management officials, which included Ms. Talley.”
Plaintiff

“informally

told

management

officials

Ramsey

meeting

(a

with

(Id. ¶ 21).
[during

that

meeting] that he was not being properly trained by Ms. Talley.”
(Id.).

Less than one month after that meeting, on November 10,

2011, Ms. Talley filed an EEO complaint against Plaintiff and
Ms. Ramsey “claiming that they were creating a hostile work
environment

on

the

basis

essence[,]

she

racists.”

(Id. ¶ 22).

both
leave

Plaintiff
and

accused

and

Mr.

racial

[Myers]

and

discrimination;
Ms.

Ramsey

of

in

being

Four days later, on November 14, 2011,

Ms.

transferred

o[f]

Ramsey
to

were

other

placed

on

locations.

administrative
(Id.

¶

23).

Plaintiff insinuates that Ms. Ramsey’s placement was better than
his, however.

Specifically, Plaintiff explains that he “was

transferred to a remote work [location] that was not within the
SEU and was [] further away from his home[,]” while Ms. Ramsey
was allowed to remain in SEU at a location that was only ten
miles

further

away

from

her

former

location.

(Id.).

He

describes his new location as “a storage pod” where he was given
“significantly less work and was prevented from performing work
3

that was associated to the work he was supposed to be doing in
SEU.”

(Id.

¶

24).

He

further

contends

that

in

his

new

position, he was not “allowed to do the customary overtime,
which means his take home salary was also reduced.”

(Id.).

In

his new work location, Plaintiff also was without a supervisor,
without work responsibilities for the period of the transfer,
and without a working phone for three (3) months.

(Id. ¶ 25).

Additionally, Plaintiff states that while at the new location,
“he was excluded from emails and trainings and was not notified
of events within the Unit.”
On

February

7,

2012,

(Id. ¶ 27).
Plaintiff

complained

to

the

union

about his new work location and conditions and the union filed a
grievance on his behalf.

Whereas Plaintiff had received only

(eighteen) 18 cases to work on until February 2012 – a light
load about which Plaintiff was unhappy – he was sent thirty-four
(34) cases in one week after the union filed a grievance, which
Plaintiff states is “an extremely large volume of casework.”
(Id. ¶ 26).

On May 5, 2012, Plaintiff was notified about the

dismissal of Ms. Talley’s EEO charge against Ms. Ramsey and him.
(Id. ¶ 28).

On June 6, 2012, Plaintiff informally was advised

that “he could return to the Germantown SEU and was accordingly
transferred on June 25, 2012.”

(Id. ¶ 29).

Plaintiff states that conditions did not improve for him
even

after

his

return

to

SEU.
4

Plaintiff

contends

that

he

“continued to receive disparate treatment from Ms. Talley and
management.

Three months after his return, he was still not

allowed to process State cases that are customary and necessary
for

his

position.

He

was

excluded

from

internal

communications that were being sent to all staff.”
On

August

16,

2012,

Plaintiff

filed

email

(Id. ¶ 30).
a

charge

of

discrimination with the Equal Employment Opportunity Commission
(“EEOC”).

(Id. ¶ 31).

Plaintiff contends that “[d]uring the

EEOC process, [he] was still experiencing disparate treatment
based on his race.”

(Id. ¶ 33).

He recounts an incident from

April 3, 2014, when a co-worker, a Hispanic female, allegedly
assaulted him in front of witnesses; specifically, his co-worker
apparently “pushed into his shoulder moving him out of the way
to sit down in front of him.”
that

despite

the

assault

on

(Id. ¶ 34).
him,

the

Plaintiff states

“aggressor”

was

not

reprimanded or suspended, yet he was issued a reprimand by Ms.
Talley.

(Id. ¶ 35).

The complaint also avers that “[o]n July

2014, he was singled out for a written reprimand and threatened
with termination of his employment.”

(Id. ¶ 48).

The EEOC issued a right-to sue-letter on June 26, 2014.
(ECF No. 7-2, at 5).

Plaintiff filed a corrected complaint in

this court on September 30, 2014 asserting as a single count
race and gender discrimination and retaliation under Title VII
of the Civil Rights Act of 1964.
5

In the opening paragraph of

his complaint, Plaintiff also lists violations of “Title 20 of
the Maryland State Government Article § 20-101; the Civil Rights
Act

of

1991,

42

U.S.C.

§

1981a.”

(See

ECF

No.

Defendant moved to dismiss on November 6, 2014.

3,

at

1).

(ECF No. 6).

Plaintiff opposed the motion (ECF No. 7), and Defendant replied
(ECF No. 8).
II.

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 different standards of review.
failure

by

the

plaintiff

to

exhaust

First, “a

administrative

remedies

concerning a Title VII claim deprives the federal courts of
subject matter jurisdiction over the claim.”

Jones v. Calvert

Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009).

A motion to

dismiss for lack of subject matter jurisdiction is governed by
Federal Rule of Civil Procedure 12(b)(1).

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 435, 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).
6

In considering a

Rule 12(b)(1) motion, the court “may consider evidence 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 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, 556 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
7

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).

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,

(4th

847

Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Francis

v.

“[W]here the

well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged,
but it has not ‘show[n] . . . that the pleader is entitled to
relief.’”
8(a)(2)).

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”

court

to

draw

on

its

judicial

Id.

The recent analysis undertaken by the United States Court
of Appeals for the Fourth Circuit in explaining the standard of
review on a motion to dismiss in the context of a Title VII
claim is instructive:

8

Federal Rule of Civil Procedure 8(a)(2)
“requires only a short and plain statement
of the claim showing that the pleader is
entitled to relief, in order to give the
defendant fair notice of what the . . .
claim is and the grounds upon which it
rests.”
Twombly, 550 U.S. at 555 (internal
quotation marks and citation omitted).
But
this rule for pleading “requires more than
labels and conclusions, and a formulaic
recitation of the elements of a cause of
action will not do.”
Id.
Instead, a
complaint
must
contain
“[f]actual
allegations [sufficient] to raise a right to
relief above the speculative level.”
Id.;
see also Iqbal, 556 U.S. at 678 (holding
that
a
complaint
“tender[ing]
‘naked
assertion[s]’ devoid of ‘further factual
enhancement’” does not “suffice” (quoting
Twombly, 550 U.S. at 557)).
The Supreme
Court has accordingly held that Rule 8(a)(2)
requires that “a complaint . . . contain[]
sufficient factual matter, accepted as true,
to ‘state a claim to relief that is
plausible on its face’” in the sense that
the complaint’s factual allegations must
allow a “court to draw the reasonable
inference that the defendant is liable for
misconduct alleged.” Iqbal, 556 U.S. at 678
(emphasis added).
McCleary-Evans

v.

Maryland

Dept.

of

Transp.,

State

Highway

Admin., 780 F.3d 582, 585 (4th Cir. 2015).
III. Analysis
A.

Timeliness

Defendant argues that Plaintiff’s claims related to events
occurring before October 21, 2011 and any events occurring in
2014 are untimely and cannot be considered.
a

plaintiff

to

file

an

EEOC

9

charge

Title VII requires

within

a

prescribed

limitations period.

42 U.S.C. § 2000e-5(e)(1).

In deferral

states such as Maryland, that limitations period is 300 days
from the date of the allegedly discriminatory act.

Id.

“Courts

strictly adhere to these times limits and rarely allow equitable
tolling

of

limitations

periods.”

Khoury

v.

Meserve,

268

F.Supp.2d 600, 606 (D.Md. 2003), aff’d, 85 F.App’x 960 (4th Cir.
2004).
The allegations in Plaintiff’s complaint primarily relate
to the following events and time periods: (1) his reassignment
to SEU on July 11, 2011 and the alleged lack of training in that
unit; (2) his temporary transfer in November 2011 to a “storage
pod”

at

a

remote

location

after

Ms.

Talley

filed

an

EEO

complaint against him; and (3) the alleged physical assault by
his coworker in April 2014 for which Plaintiff, and not the
“aggressor,” was reprimanded.

Plaintiff filed his EEO charge

on August 16, 2012, meaning that only those discriminatory acts
which occurred within 300 days of that date are timely filed.
Consequently, Defendant contends that any allegations describing
conduct that occurred before October 21, 2011 (300 days prior to
August 16, 2012) and in April 2014, which post-dates his EEO
charge, should not be considered in connection with his race and
gender

discrimination

claims.3

3

(ECF

No.

6-1,

at

9).

In

“The scope of the plaintiff’s right to file a federal
lawsuit is determined by the charge’s contents.”
Jones v.
10

response, Plaintiff invokes 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.”
Inc.,

487

F.3d

208,

219

(4th

Cir.

Holland v. Wash. Homes,
2007)

(citing

Nat'l

Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002)).

R.R.

Plaintiff

argues:
[Plaintiff], pursuant to the continuing
violation doctrine, details in his instant
Complaint the same repeating sets of related
and ongoing discriminatory acts; he has
described an ongoing action against him from
the July 11, 2011 date of his transfer to
SEU through the filing of this lawsuit.
Therefore, all such repeated and continuing
identical acts of discrimination as alleged
by Plaintiff, created, as a matter of law,
one continuously hostile work environment
from July 11, 2011 to September 30, 2014,
with this continuing violation doctrine
thereby
eliminating
the
usual
300-day
limitations period[,] which typically bars
legal remedy.
(ECF No. 7-1, at 9).
Plaintiff’s arguments are unavailing.

Judge Blake recently

explained the continuing violation doctrine and its application
Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
“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 Title VII lawsuit.” Evans v.
Techs. Applications & Serv. Co., 80 F.3d 954, 963 (4th Cir.
1996).
Here, there is no indication that the April 2014 event
was actually investigated by the EEOC or that it could be
expected to be included as part of his August 2012 charge, such
as a retaliation claim. See, e.g., Jones, 551 F.3d at 303-04.
11

in Walker-Pittman v. Maryland Dept. of Transp., Civ. No. CCB-14202, 2015 WL 419806, at *6-7 (D.Md. Jan. 29, 2015):
Walker-Pittman’s
transfers
and
the
reduction of her job duties occurred more
than 300 days prior to her filing an EEOC
charge. . . . She attempts to overcome this
bar by relying on the continuing violation
doctrine announced by the Supreme Court in
National Railroad Passenger Corp. v. Morgan,
536 U.S. 101 (2002).
Morgan, however, held that when a
plaintiff
brings
a
claim
involving
a
discrete discriminatory or retaliatory act,
she must file her charge within 180 or 300
days of that act.
Id. at 113.
Therefore,
“[e]ach discrete discriminatory act starts a
new clock for filing charges alleging that
act.”
Id.
Furthermore,
“discrete
discriminatory acts are not actionable if
time barred, even when they are related to
acts alleged in timely filed charges.”
Id.
In Morgan, the court provided examples of
what constitutes a “discrete act,” including
“termination, failure to promote, denial of
transfer, or refusal to hire.” Id. at 114.
The
court
in
Morgan
distinguished
discrete acts from “hostile work environment
claims.”
Id. at 115.
These claims, by
“[t]heir very nature involve[] repeated
conduct,” id., because a “hostile work
environment is composed of a series of
separate acts that collectively constitute
one ‘unlawful employment practice.’” Id. at
117 (citing 42 U.S.C. § 2000e-5(e)(1)).
Because the conduct is repeated, it “cannot
be said to occur on any particular day” and,
unlike discrete acts “a single act of
harassment may not be actionable on its
own.”
Id.
at
115.
Given
these
characteristics, the court held that an
employer may be found liable for “all acts
that are part of . . . [a] single claim” of
hostile work environment, even those that
12

occurred outside
Id. at 118.

the

limitations

period.

Although Plaintiff now attempts to characterize his claims
as supporting a “continuously hostile work environment from July
11, 2011 to Sept[ember] 30, 2014,” (ECF No. 7-1, at 9), his
labeling

of

the

acts

he

complains

about

as

constituting

a

“hostile work environment” do not transform them into such to
trigger

the

continuing

requirement.

violation

exception

work

allegation

the

environment

that

“[t]he

in

the

The only mention of a
complaint

discrimination

and

is

the

hostile

environment has continued throughout the past years.”
3 ¶ 36).

timeliness

Notably, Plaintiff did not allege a hostile work

environment claim in his complaint.4
hostile

to

broad
work

(ECF No.

Nowhere in the complaint does Plaintiff detail how any

of the allegedly discriminatory acts rise to the level of a
hostile work environment, which requires plausible allegations
that the harassment was “sufficiently severe or pervasive to
alter the conditions of [] employment and [] create an abusive
atmosphere[.]”

Baqir v. Principi, 434 F.3d 733, 745-46 (4th Cir.

2006); see also Tawwaab v. Va. Linen Serv., Inc., 729 F.Supp.2d
4

Moreover, Plaintiff did not assert a hostile work
environment claim in his EEO charge. Plaintiff alleged race and
sex discrimination, and retaliation in his EEO charge. (ECF No.
7-2, at 1).
He stated: “I believe I was subjected to a
transfer, unequal terms and conditions of employment, and denied
training because of my race (White), sex (male), and in
retaliation for engaging in protected activity in violation of
Title VII of the Civil Rights Act of 1964).” (Id.).
13

757, 777 (D.Md. 2010) (“Courts usually only allow hostile work
environment claims to proceed where the [harassment] is near
constant, oftentimes of a violent or threatening nature, or has
impacted the employee’s work performance.”); Young v. Giant Food
Stores, LLC, No. PWG-14-2006, ---F.Supp.3d----, 2015 WL 3556009,
at *7 (D.Md. June 8, 2015) (“Title VII is not a general civility
code

and

it

does

not

provide

a

remedy

tribulations of the workplace. . . .

for

the

ordinary

Though hardly pleasant,

the disrespectful conduct alleged by Young is not sufficient to
give

rise

to

a

hostile

work

environment

claim.”

(internal

quotation marks and citations omitted)).
Indeed,

the

allegations

in

the

complaint

pertain

to

See Szedlock v. Tenet, 61 F.App’x 88, 93 (4th

discrete acts.

Cir. 2003) (“Morgan . . . makes clear that unless the plaintiff
alleges a hostile work environment [claim] . . . each instance
of discrimination is a discrete act.”).

As set forth in the

fact

that

section

proper

above,

training

by

Plaintiff
Ms.

complains

Talley

when

in

SEU,

he

was

that

denied
he

was

reprimanded by her when he fell behind on his work, and that his
coworkers were instructed not to assist him.

Next, he complains

about the temporary transfer in November 2011 to a “storage pod”
after

he

management

represented
officials

Ms.
and

Ramsey
mentioned

in

a

the

union

meeting

inadequate

with

training,

which apparently prompted Ms. Talley to file an EEO complaint
14

against Plaintiff and Ms. Ramsey.

Then, Plaintiff discusses an

incident from April 2014, nearly two years after he filed his
EEO charge in August 2012, when he was allegedly assaulted by a
female coworker, yet he was reprimanded.

Without providing any

additional context, Plaintiff also asserts that he “had to wait
an inordinately long period of time – eight (8) weeks to be
exact – to receive a Client’s Automated Resource and Eligibility
System (CARES) log in ID while other county employees received
same within seven (7) days.”

(ECF No. 3 ¶ 39).

Although Plaintiff broadly avers throughout his complaint
that “[t]he unfair and discriminatory treatment has continued
until

present,”

none

of

the

acts

about

which

he

complains

involve “repeated conduct” that “cannot be said to occur on any
particular

day”

environment.

which

together

constituted

Morgan, 536 U.S. at 115.

a

hostile

work

Along the same lines,

none of the acts that Plaintiff characterizes as constituting
ongoing discrimination are related so as to infer plausibly a
continuing violation; they are discrete acts which occurred on
specific, identifiable days.

Judge Williams’s analysis on this

point in Crockett v. SRA International, 943 F.Supp.2d 565, 572
(D.Md. 2013), applies here:
In
this
case,
Plaintiff
has
inadequately alleged the existence of a
continuing violation.
Although Plaintiff
argues
that
Defendant
continually
discriminated
against
her,
a
close
15

examination of her Complaint reveals that
she alleged five distinguishable instances
of discrimination: (i) Defendant’s failure
to promote her in 2005-2006; (ii) an
employee’s plotting against her with respect
to the NARA contract in October 2007; (iii)
being assigned to an “undesirable” DOJ
contract
in
2009;
(iv)
Defendant’s
marginalization of her with respect to the
FDIC contract in February 2010 to March
2011; (v) the January 2011 incidents in
which two people told her that she made a
poor presentation with respect to the FDIC
contract; and (vi) a subsequent incident in
which an employee criticized her work ethic.
.
.
.
[T]he
alleged
instances
of
retaliatory conduct commencing in 2007 do
not
“involve
the
same
type
of
discrimination” as the alleged failure to
promote, which weighs against the existence
of
a
continuing
violation.
.
.
.
Additionally, the five instances of alleged
discrimination
following
the
2005-2006
failure to promote are too distinct from
each other in terms of time and content to
constitute a continuing violation.
In
short,
Plaintiff’s
allegations
fail
to
support a plausible inference that she was
unaware of the facts giving rise to her
claim until July 2011 or that Defendant’s
conduct was otherwise part of a continuing
violation.
(emphasis added); see also Szedlock, 61 F. App'x at 93 (“Early
discriminatory actions by the CIA cannot be made timely simply
because they resemble later discriminatory actions.”).
Based

on

the

foregoing,

Plaintiff

may

not

rely

on

any

allegedly discriminatory acts that occurred before October 21,
2011 or the alleged assault from his coworker in April 2014.

16

B.

Title 20 of the Maryland State Government Code

Plaintiff also states in his complaint that the “unlawful
employment practices on the basis of race [] and sex” violated
Title 20 of the Maryland State Government Article § 20-101.”
(ECF No. 3, at 1).

Title 20, otherwise known as Maryland’s Fair

Employment Practices Act (“MFEPA”), prohibits “employer[s]” from
“fail[ing] or refus[ing] to hire, discharge[ing], or otherwise
discriminat[ing]

against

any

individual

with

respect

to

the

individual’s compensation, terms, conditions, or privileges of
employment because of . . . the individual’s race . . . sex . .
. [or] sexual orientation.”
606(a)(1)(i).

Md. Code Ann., State Gov’t § 20-

MFEPA permits a litigant to bring a civil action

if: (1) he files a timely administrative charge; (2) at least
180 days have elapsed since the filing of the administrative
charge; and (3) the civil action is filed within two years after
the alleged unlawful employment practice occurred.

Id. § 20-

1013(a).
Defendant argues that Plaintiff cannot base his Title 20
claim on any events that occurred before September 27, 2012, two
years prior to his filing the instant complaint.
not

respond

to

this

argument

in

the

Plaintiff does

opposition

other

than

generally relying on the continuing violation doctrine, which is
inapplicable for the reasons explained above.

In the complaint,

Plaintiff refers to the April 2014 assault by the coworker as
17

the only allegedly discriminatory act that post-dated September
27,

2012,

but

as

explained,

Plaintiff

may

not

rely

on

this

incident as he did not file a separate EEO charge pertaining to
it.

Accordingly, the MFEPA claim is time-barred.
C.

Race and Gender Discrimination

Defendant argues that Plaintiff fails to state claims for
race and gender discrimination.

The only timely incident on

which Plaintiff may rely to support his discrimination claims is
the temporary transfer in November 2011, pending resolution of
Ms. Talley’s EEO complaint against him.

Plaintiff asserts that

during his temporary transfer, he received significantly less
casework, lost the opportunity to obtain overtime benefits, had
to

travel

further

away

from

home,

was

without

access

to

a

working phone for three months, and essentially had to work in a
“storage pod” until his return to SEU on June 25, 2012.

(See

ECF No. 3 ¶¶ 22-29).
Title
employment

VII

provides

practice

for

that
an

“[i]t

employer

shall
.

.

be

.

to

an

unlawful

discharge

any

individual, or otherwise to discriminate against any individual
with

respect

privileges

of

to

his

compensation,

employment,

because

of

terms,
such

color, religion, sex, or national origin.”
2(a)(1).

To

survive

a

motion

to

conditions,

individual’s

or

race,

42 U.S.C. § 2000e-

dismiss

a

claim

for

discrimination, Plaintiff must allege that he was terminated or
18

otherwise treated less favorably “because of” his race or sex.
Citing Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th
Cir. 2010), Defendant contends that to state a claim for race or
sex

discrimination,

allegations

that:

the

(1)

complaint

Plaintiff

is

must
a

include

member

of

a

factual
protected

class; (2) his job performance was satisfactory; (3) he suffered
an

adverse

employment

action;

and

(4)

his

employer

treated

similarly situated employees outside his protected class more
favorably.

(ECF No. 6-1, at 13).

The plaintiff in Coleman,

however, asserted that he was terminated based on his race,
making the second element above applicable for a prima facie
case.

Here,

Plaintiff

is

not

asserting

a

discriminatory

discharge claim, but rather challenges his temporary transfer as
having been motivated by race and sex.

See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 n.13 (1973) (noting that the
precise formulation of the required prima facie showing will
vary in “differing factual situations.”).
violation

of

discrimination

Title
or,

in

VII

either

the

by

absence

A plaintiff proves a
direct

evidence

of

direct

evidence,

by

of

following the burden-shifting framework of
At

the

motion

required

to

set

instead,

he

is

discrimination.

to

dismiss

forth

a

required
See,

stage,

prima
to

e.g.,

set

however,

facie
forth

Doyle
19

McDonnell Douglas.

v.

Plaintiff

case
a

for

each

plausible

City

of

is

not

element;
claim

Chicago,

of
943

F.Supp.2d 815, 823 (N.D.Ill. 2013) (“At the motion to dismiss
stage, a complaint need not allege facts in support of each
element, and it is sufficient if it alleges that the employee
was

discriminated

quotation

marks

discrimination

against

because

omitted).

A

suit

is

generally

of

his

plaintiff
required

race.”)
in
to

an

(internal
employment

plead

that

the

employer took an adverse action against him “under circumstances
which give rise to an inference of unlawful discrimination.”
Texas

Dept.

(1981).

of

Cmty.

Affairs

v.

Burdine,

450

U.S.

248,

253

The analysis in Paxson v. County of Cook, Illinois, No.

02 C 2028, 2002 WL 1968561, at *3 (N.D.Ill. Aug. 23, 2002),
adjudicating a motion to dismiss in a reverse discrimination
case is instructive:
. . . [T]he Seventh Circuit has held
that a reverse discrimination plaintiff must
make a showing of background circumstances
sufficient to demonstrate that they are
members
of
a
protected
class.
Such
background
circumstances
includes
allegations that the particular employer at
issue has some inclination or reason to
discriminate
against
the
majority
or
allegations that indicate that there is
something “fishy” about the facts of the
case.
Mills v. Health Care Services Corp.,
171 F.3d 450, 455-57 (7th Cir. 1999). []
Background
circumstances
“support
an
inference that the defendant is one of those
unusual employers who discriminates against
the majority.”
Mills, 171 F.3d at 455
[(]quoting Taken v. Oklahoma Corp. Comm’n,
125 F.3d 1366, 1369 (10th Cir. 1997).

20

The Seventh Circuit also noted in Mills
that “if a plaintiff cannot show background
circumstances,
but
‘has
established
a
logical
reason
to
believe
that
the
[employer’s] decision rests on a legally
forbidden ground,’ . . . he may shift the
burden to the defendant to prove the
challenged employment action was actually
based
on
legitimate,
non-discriminatory
reasons.” Mills, 171 F.3d at 457.
In
the
instant
case,
Paxson
has
sufficiently
pled
the
minimum
facts
necessary to place Defendants on notice of
his claim.
The facts alleged, including
that he was treated differently than all
similarly situated non-white employees and
that
his
allegations
of
reverse
race
discrimination and harassment did not get
investigated, are enough to provide this
Court with the background circumstances
necessary to allow Plaintiff to proceed with
the
Complaint
at
this
stage
of
the
proceedings.
The allegations here are sufficient to survive dismissal of
both the race and sex discrimination claims.

Plaintiff has

alleged sufficiently that the temporary transfer constituted an
adverse employment action.

An adverse employment action is a

discriminatory

adversely

act

that

conditions, or benefits” of employment.

affects

employment

action

includes

“terms,

James v. Booz-Allen &

Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004).
adverse

the

Typically, an

“discharge,

demotion,

decrease in pay or benefits, loss of job title or supervisory
responsibility, or reduced opportunities for promotion.”
v. Gordin, 178 F.3d 253, 255 (4th Cir. 1999).

21

Boone

Defendant contends

that Plaintiff’s job title and regular level of pay were not at
all affected by his temporary transfer.

“Although a transfer to

a new job assignment [that] is subjectively less appealing to
employee is not [by itself] a ‘materially adverse’ employment
action[,] Booz-Allen & Hamilton, Inc., 368 F.3d at 375, courts
have found that a new job assignment with reduced supervisory
duties or diminished responsibility can constitute an adverse
employment action.”

Fordyce v. Prince George’s County Maryland,

43 F.Supp.3d 537, 548 (D.Md. 2014) (internal quotation marks
omitted); Czekalski v. Peters, 475 F.3d 360, 364 (D.C.Cir. 2007)
(noting

that

employment

a

lateral

action

employee’s

if

transfer

it

“supervisory

significantly

different

can

results

in

duties”

constitute
the

or

an

adverse

withdrawal

of

“reassignment

responsibilities”

(internal

an
with

quotations

and citations omitted)); Kessler v. Westchester Cnty. Dep’t of
Soc. Servs., 461 F.3d 199, 206-07 (2d Cir. 2006) (stating that a
transfer is an adverse employment action if it causes a “radical
change in nature of the [plaintiff’s] work” (internal quotations
and citations omitted)).
Here,

the

complaint

asserts

that

the

temporary

transfer

adversely affected the terms, conditions, and benefits of his
employment.

Specifically,

Plaintiff

explains

that

he

essentially worked in a “storage pod” with significantly fewer
responsibilities

and

reduced
22

workload,

which

meant

no

opportunity for overtime and reduction of “take home salary.”
He also states that he was “prevented from performing work that
was associated to the work he was supposed to be doing in SEU”
and that he had no supervisor or phone for three months.
No. 3 ¶¶ 24-25).

(ECF

Furthermore, Plaintiff avers that he incurred

travel expenses because the new location was further away from
his home.

(Id. ¶ 45).

He states that the loss of overtime

paired with the added distance of the new location decreased his
net compensation.5

Based on the allegations in the complaint, it

is plausible that the transfer constituted an adverse employment
action.
Finally, Plaintiff articulates facts in the complaint that
give rise to an inference of reverse discrimination.

Plaintiff

asserts that he was the only Caucasian male in SEU and that the
unit

is

predominantly

African

American.

5

(ECF

No.

3

¶

12).

Defendant also argues that “all of Plaintiff’s claims
arising out of his temporary transfer are moot at this point, as
they were resolved by the settlement of the union grievance
encompassing those issues.”
(ECF No. 6-1, at 19).
Defendant
attaches as an exhibit to its motion to dismiss the settlement
agreement with Plaintiff regarding his temporary transfer. (ECF
No. 6-2). Defendant asserts that “Plaintiff was returned to his
original location and allowed to request reimbursement for the
difference in the mileage he was required to travel to and from
work. . . .
In light of the settlement agreement, all of the
issues relating to [Plaintiff’s] transfer were resolved and need
not be re-hashed in federal court.”
(ECF No. 6-1, at 19-20).
Because Defendant moved to dismiss, and not for summary
judgment, and the complaint neither mentions the settlement
agreement nor does Plaintiff attach it as an exhibit thereto, it
cannot be considered.
23

Although the complaint is not entirely clear as to whether Ms.
Talley directed the temporary transfer, Plaintiff asserts that
less than one month after he participated in the union meeting
with Ms. Talley, an African American woman, she filed a hostile
work environment claim against Ms. Ramsey (a white female) and
him on the basis of race, and shortly thereafter, both of them
were placed on administrative leave and transferred to other
locations.6
Plaintiff

(ECF No. 3 ¶¶ 22-23).
has

alleged

plausible

Accordingly, at this stage,
facts

that

the

adverse

employment action – the temporary transfer to what Plaintiff
characterizes as a “storage pod” - was taken against him on the
basis of race.
As for the gender discrimination claim, Defendant argues
that “[s]ince Plaintiff has only identified one other co-worker
who had an EEO complaint filed against her, and she was treated
similarly, he has not provided any basis for a charge of gender
discrimination.”

(ECF No. 6-1, at 14).

Plaintiff counters:

Defendant
erroneously
concludes
that
[Plaintiff] was treated in the same manner
as
Ms.
Ramsey.
Ms.
Ramsey
was
not
transferred to the same location during the
investigation
of
the
discriminatory
allegations.
Ms. Ramsey was placed in a
work environment comparable to her previous
work environment whereas [Mr. Myers] was not
(described in the complaint).
[Mr. Myers]
6

The complaint asserts that Ms. Talley essentially “accused
[Mr. Myers] and Ms. Ramsey of being racists.” (ECF No. 3 ¶ 22).
24

wasn’t only transferred but he was also
reassigned and placed in a different unit
with minimal supervision available.
Ms.
Ramsey even wondered why Defendant would
place [Mr. Myers], as opposed to her, in a
new and different unit with little to no
supervision since he was yet to be fully
trained.
(See Exhibit B – Lucinda Ramsey
Affidavit).[7]
(ECF No. 7-1, at 12-13).
The
“[T]he

gender

reality

discrimination
[is]

that

the

claim

will

comparison

not
will

be

dismissed.

never

involve

precisely the same set of work-related offenses occurring over
the

same

period

of

time

and

under

the

same

set

of

circumstances.”

Cook v. CSX Transp. Corp., 988 F.2d 507, 511

(4th Cir. 1993).

Here, although Ms. Ramsey also was transferred,

Plaintiff avers that while he was transferred “to a remote work
[location] that was not within the SEU and . . . further away
from his home[,] . . . Ms. Ramsey was allowed to remain in the
SEU at a location that was only 10 miles further away from her
former location.”

(ECF No. 3 ¶ 23).

Defendant argues that

“[e]ven if there was some minor difference in the location to
which they were transferred, there is absolutely no basis for
believing

that

this

differing genders.”

minor

distinction

(ECF No. 8, at 8).

was

based

on

their

Plaintiff also avers,

however, that Ms. Ramsey was allowed to remain within SEU, but
7

Plaintiff attaches as an exhibit to his opposition an
affidavit from Lucinda Ramsey, (ECF No. 7-3), but it cannot be
considered on a motion to dismiss.
25

he “was prevented from performing work that was associated to
the work he was supposed to be doing in SEU.”

(ECF No. 3 ¶ 24).

Although sparse, considering the well-pled allegations of the
complaint in the light most favorable to Plaintiff, they suffice
to

set

forth

a

plausible

claim

that

he

was

transferred

temporarily on the basis of his gender.
D.

Remaining Claims

The corrected complaint also asserts claims under the Civil
Rights Act of 1991, 42 U.S.C. § 1981 et seq., and retaliation
under Title VII.

In the motion to dismiss, Defendant argues

that 42 U.S.C. § 1981 does not apply because 42 U.S.C. § 1983 is
the only vehicle to assert claims against a state actor.

See,

e.g., Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735 (1989)
(Ҥ 1983 . . . provides the exclusive federal damages remedy for
the violation of the rights guaranteed by § 1981 when the claim
is pressed against a state actor.”); Dennis v. Cnty. of Fairfax,
55 F.3d 151, 156 (4th Cir. 1995) (“To the extent that [the race
discrimination

claims

against

the

County

of

Fairfax]

were

pleaded under § 1981, they run afoul of Jett . . . [T]he § 1983
requirement that plaintiffs show an official policy or custom of
discrimination also controls in § 1981 actions against state
entities.”).
stated

a

Defendant also contends that Plaintiff has not

claim

for

retaliation.

To

state

a

claim

for

retaliation, Plaintiff must allege that: (1) he engaged in a
26

protected

activity;

(2)

his

employer

acted

adversely

against

him; and (3) the protected activity was causally connected to
the adverse employment action.
Inc.,

487

complaint

F.3d
does

208,

218

Plaintiff

See Holland v. Wash. Homes,

(4th

Cir.

identify

2007).

any

Nowhere

protected

in

the

activity

in

which he engaged for which Defendant retaliated against him and
which specific acts he believes were retaliatory.
Plaintiff

does

not

respond

Defendant in his opposition.

to

these

arguments

from

By failing to respond to these

facially valid arguments, Plaintiff abandons both claims.

See

Ferdinand–Davenport v. Children's Guild, 742 F.Supp.2d 772, 777
(D.Md.

2010)

(“By

her

failure

to

respond

to

[defendant's]

argument” in a motion to dismiss, “the plaintiff abandons [her]
claim.”); Mentch v. Eastern Sav. Bank, FSB, 949 F.Supp. 1236,
1247 (D.Md. 1997) (holding that failure to address defendant's
arguments

for

summary

judgment

in

the

opposition

brief

constituted abandonment of claim).
IV.

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

27