Nam v. 2012 Inc. et al
Filing
12
MEMORANDUM OPINION (c/m to Plaintiff 1/11/16 sat). Signed by Judge Deborah K. Chasanow on 1/11/2016. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DJIBY NAM
:
v.
:
Civil Action No. DKC 15-1931
:
2012 INC. d/b/a College Park
Exxon
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
employment discrimination case is a motion to dismiss filed by
Defendant 2012 Inc. (“Defendant”).
(ECF No. 6).
The issues
have been fully briefed, and the court now rules, no hearing
being deemed necessary.
reasons,
the
motion
to
Local Rule 105.6.
dismiss
will
be
For the following
granted
in
part
and
denied in part.
I.
Background
Unless otherwise noted, the following facts are set forth
in
the
complaint.
(“Plaintiff”),
a
black
(ECF
male
No.
1).
Plaintiff
originally
from
Djiby
Senegal,
Nam
began
working as a cashier at an Exxon gas station in College Park,
Maryland (the “Exxon Station”) in early 2012.
Defendant, a
company run by Mr. Iftikhar Ahmad, bought the Exxon Station in
August 2012.
Plaintiff alleges that his immediate supervisor
was Mr. Doug Deputy, Sr. general manager of the Exxon Station.
Plaintiff
also
worked
with
two
of
Mr.
Deputy
Sr.’s
family
members at the Exxon Station: Ms. Patty Deputy, his wife at the
time, and Mr. Doug Deputy Jr., his son.
All three of the Deputy
family members are white.
Plaintiff contends that Mr. Deputy Sr. “showed favoritism
to his wife, Patty, and his son, Doug Deputy, Jr.” and subjected
Plaintiff to worse treatment.
although
they
were
all
(Id. ¶ 19).
cashiers,
Plaintiff
perform janitorial and restocking duties.
He alleges that,
was
required
to
Plaintiff also avers
that he was unable to obtain a set schedule, unlike the other
cashiers.
Plaintiff
further
contends
that,
after
sending
multiple letters to Mr. Deputy Sr. and Mr. Ahmad in September
2012
complaining
Deputy
family
unprofessional
about
members
manner”
the
perceived
“began
by
to
yelling
favoritism,
treat
at
him,
all
Plaintiff
sending
three
in
him
an
home
early, or not unlocking the door for him to enter the Exxon
Station at the start of his shift.
On September 19, Mr. Deputy
Sr. sent a letter to Plaintiff responding to his complaints.
(ECF
No.
10-29).1
In
the
letter,
Mr.
Deputy
Sr.
informed
Plaintiff that, in response to a customer complaint, Mr. Deputy
Sr. determined that the Exxon Station was improperly out of
operation during one of Plaintiff’s shifts.
1
Mr. Deputy Sr.
Although Plaintiff does not attach Mr. Deputy Sr.’s letter
to his complaint, the court may consider documents that are
integral to the complaint and authentic.
See Philips v. Pitt
Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
2
conveyed
that
improperly
closing
the
Exxon
Station
was
“an
offense that could result in termination if it happens again.”
(Id. at 3).
Plaintiff further avers that he wrote a letter to
Mr. Ahmad on September 22, 2012 stating “that he believed that
he
was
being
subjected
of
to
different
employment
because
his
race,
African.”
(ECF No. 1 ¶ 23).
treatment
Black,
and
and
terms
national
of
origin,
Plaintiff asserts that Mr. Ahmad,
in response to the letters, suspended Plaintiff without pay on
September 24.
On
September
discrimination
26,
with
2012,
the
Plaintiff
Maryland
filed
Commission
a
on
charge
Civil
of
Rights
(“MCCR”) and the U.S. Equal Employment Opportunity Commission
(“EEOC”)
(ECF
No.
6-1),
November 5 (ECF No. 10-2).
which
he
subsequently
amended
on
After receiving notice of the MCCR
charge, Mr. Ahmad told Plaintiff to report to work, but Mr.
Deputy Sr. refused to place Plaintiff on the work schedule.
(ECF No. 1 ¶ 25).
During a meeting on October 11, Mr. Ahmad
said he was transferring Plaintiff to a different gas station
that would have required him to commute by bus two hours each
way.
Plaintiff
avers
that
his
subsequent
requests
to
be
transferred to another station in College Park went unanswered.2
2
Defendant appears to argue in its motion to dismiss that
Mr. Ahmad accepted Plaintiff’s offer to transfer to another
College Park station. Plaintiff asserts that he never received
such a letter.
At the motion to dismiss stage, Plaintiff’s
assertions of fact must be taken as true.
3
At that point, Mr. Ahmad performed a criminal background check
on Plaintiff and checked references at his former employers (the
“background check”).
On January 17, 2013, the MCCR held a fact
finding conference, during which Plaintiff alleges that he was
officially
fired.
According
to
Plaintiff,
Mr.
Ahmad
said,
“[Plaintiff] is a thief and [Defendant didn’t] want him back.”
(Id. ¶ 33).
On January 23, 2015, after a significant delay, the MCCR
issued a report finding that there was no probable cause to
believe that Defendant discriminated against Plaintiff because
of race and national origin and wrongfully retaliated against
him.
(ECF
NO.
6-2).
Plaintiff
filed
a
request
for
reconsideration with the MCCR, which was denied on March 13,
2015.
(ECF No. 6-3).
On April 17, 2015, the EEOC “adopted the
findings of the” MCCR and issued a right to sue letter.
(ECF
No. 1-1).
Plaintiff, proceeding pro se, commenced this suit by filing
a complaint on June 30, 2015.
(ECF No. 1).
The complaint
alleges that Defendant discriminated against him on the basis of
race
and
national
origin
(Counts
I
and
II)
and
retaliated
against him (Counts III and IV) in violation of Title VII of the
Civil Rights Act of 1964 (“Title VII”) and the Maryland Fair
Employment
Practices
defamation
(Count
Act
V),
(“MFEPA”).
and
a
Plaintiff
violation
4
of
the
also
Fair
alleges
Labor
Standards
Act
(“FLSA”)
(Count
VI).
Plaintiff
seeks
a
declaratory judgment, back pay, and compensatory and punitive
damages.
On August 20, Defendant moved to dismiss the complaint.
(ECF No. 6).
Plaintiff was provided with a Roseboro notice,
which advised him of the pendency of the motion to dismiss and
his entitlement to respond within 17 days.
(ECF No. 7); see
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (holding
that pro se plaintiffs should be advised of their right to file
responsive
material
to
a
motion
for
summary
judgment).
Plaintiff responded in opposition (ECF No. 10), and Defendant
replied (ECF No. 11).
II.
Standards of Review
Defendant’s
exhaust
administrative
untimeliness,
review.
raise
and
for
dismissal
remedies,
privilege
–
failure
implicate
–
to
i.e.,
failure
state
several
a
to
claim,
standards
of
First, Defendant’s arguments that Plaintiff failed to
certain
analyzed
arguments
under
allegations
before
Fed.R.Civ.P.
the
EEOC
12(b)(1)
or
because
MCCR
a
must
Title
be
VII
plaintiff’s failure to exhaust administrative remedies deprives
the
federal
claims.
Cir.
court
of
subject
matter
jurisdiction
over
such
Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th
2009).
Generally,
“questions
of
subject
matter
jurisdiction must be decided ‘first, because they concern the
5
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
1998)).
that
al.,
Federal
Practice
§
12.30[1]
(3d
ed.
The plaintiff always bears the burden of demonstrating
subject
court.
Moore’s
matter
jurisdiction
properly
exists
in
federal
See Evans v. B.F. Perkins Co., a Div. of Standex Int’l
Corp., 166 F.3d 642, 647 (4th Cir. 1999).
Dismissal for lack of
subject matter jurisdiction is appropriate “only if the material
jurisdictional facts are not in dispute” and the defendant is
“entitled to prevail as a matter of law.”
Id. (internal marks
omitted).
should
pleadings
In
as
its
mere
analysis,
evidence
the
on
the
court
issue,
and
“regard
may
the
consider
evidence outside the pleadings without converting the proceeding
to one for summary judgment.”
Evans, 166 F.3d at 647.
Second, Defendant’s arguments that the complaint fails to
state a plausible claim for relief are governed by Fed.R.Civ.P.
12(b)(6).
The
purpose
of
a
motion
to
dismiss
under
12(b)(6) is to test the sufficiency of the complaint.
Rule
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 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.”
6
Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 n.3 (2007).
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
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,
847
(4th
Cir.
1979);
see
also
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Francis
v.
Ultimately, a
complaint must “‘permit[] the court to infer more than the mere
possibility of misconduct’ based upon ‘its judicial experience
and common sense.’”
Coleman v. Md. Court of Appeals, 626 F.3d
187, 190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
To
this end, “while a plaintiff [in an employment discrimination
7
case] is not required to plead facts that constitute a prima
facie case in order to survive a motion to dismiss, [f]actual
allegations must be enough to raise a right to relief above the
speculative level.”
Id. (citing Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 510–15 (2002); Twombly, 550 U.S. at 555); see also
McCleary-Evans v. Md. Dept. of Transp., State Highway Admin.,
780 F.3d 582, 585 (4th Cir. 2015).
Generally,
pro
se
pleadings
are
liberally
construed
and
held to a less stringent standard than pleadings drafted by
lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner,
404 U.S. 519, 520 (1972).
Liberal construction means that the
court will read the pleadings to state a valid claim to the
extent that it is possible to do so from the facts available; it
does not mean that the court should rewrite the complaint to
include claims never presented.
1128, 1132 (10th Cir. 1999).
Barnett v. Hargett, 174 F.3d
That is, even when pro se litigants
are involved, the court cannot ignore a clear failure to allege
facts that support a viable claim.
Weller v. Dep’t of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No.
RDB–12–969,
2012
WL
6087491,
at
*3
(D.Md.
Dec.
4,
2012)
(citation and internal quotation marks omitted) (“[E]ven a pro
se complaint must be dismissed if it does not allege a plausible
claim for relief.).
8
Finally,
Defendant
argues
that
Plaintiff’s
MFEPA
claims
should be dismissed under Rule 12(b)(6) because they are timebarred
and
dismissed
that
Plaintiff’s
because
privileged.
the
defamation
alleged
claims
defamatory
should
statements
be
were
The statute of limitations and the existence of a
privilege are affirmative defenses that a party typically must
raise in a pleading under Fed.R.Civ.P. 8(c) and are not usually
an appropriate ground for dismissal.
See Eniola v. Leasecomm
Corp., 214 F.Supp.2d 520, 525 (D.Md. 2002); Gray v. Mettis, 203
F.Supp.2d 426, 428 (D.Md. 2002).
Nevertheless, dismissal under
Rule 12(b)(6) may be proper “when the face of the complaint
clearly
reveals
defense.”
the
existence
of
a
meritorious
affirmative
Brooks v. City of Winston–Salem, N.C., 85 F.3d 178,
181 (4th Cir. 1996).
III. Analysis
A.
Title VII and MFEPA
Plaintiff asserts claims of discrimination and retaliation
under
both
Title
VII
and
MFEPA.
MFEPA
is
the
“state-law
analogue” to Title VII, and courts routinely interpret the two
statutes similarly.
469, 482 n.8 (2007).
See Haas v. Lockheed Martin Corp., 396 Md.
It is only necessary, however, to assess
Plaintiff’s claims under Title VII because his MFEPA claims are
time-barred.
The MFEPA requires that a “civil action [be] filed
within 2 years after the alleged unlawful employment practice
9
occurred.”
Md. Code, State Gov’t § 20-1013(a)(3).
discriminatory
or
retaliatory
act
Plaintiff
The latest
alleges
is
in
January 2012, which is well beyond the two year limitation.
Thus, it is clear from the face of the complaint that all of
Plaintiff’s MFEPA claims are time-barred and must be dismissed.
1.
Discrimination (Counts I and II)
Plaintiff
asserts
claims
of
race
and
national
origin
discrimination based on two theories: differential treatment and
hostile work environment.
To survive a motion to dismiss on a
differential treatment claim, a plaintiff must plausibly allege
that his employer discriminated against him or otherwise treated
him less favorably “with respect to his compensation, terms,
conditions, or privileges of employment, because of [his] race .
. . or national origin.”
42 U.S.C. § 2000e-2(a)(1).
For a
hostile
claim,
allege
“extreme”
work
environment
conduct
that
creates
a
a
plaintiff
hostile
because of his race or national origin.
work
must
environment
See Reed v. Airtran
Airways, 531 F.Supp.2d 660, 668-69 (D.Md. 2008).
Although a plaintiff need not satisfy the elements of a
prima facie
case of discrimination at the motion to dismiss
stage, he must “assert facts establishing the plausibility of”
the discrimination allegation.
Coleman, 626 F.3d at 190-91.
A
plaintiff’s allegations must allege a situation that is more
than consistent with discrimination; it must “alone support a
10
reasonable inference that the decisionmakers were motivated by
[impermissible] bias.”
McCleary-Evans, 780 F.3d at 586 (citing
Iqbal, 556 U.S. at 678).
Appeals
for
the
Fourth
Indeed, the United States Court of
Circuit
upheld
the
district
court’s
dismissal of an employment discrimination complaint because it
left “open to speculation the cause for the defendant’s decision
to select someone other than” the plaintiff, and discrimination
was
“not
plausible
in
light
of
the
‘obvious
alternative
explanation’ that the decisionmakers simply judged those hired
to be more qualified and better suited for the positions.”
Id.
Here, Defendant argues that Plaintiff has alleged no facts
suggesting that Defendant was racially motivated and that “the
only plausible conclusion is that any disparate treatment was a
product
of
Plaintiff
Deputy
contends
and
origin.
nepotism,
Mr.
not
that
Deputy
racism.”
he
Jr.
(ECF No. 1 ¶ 16).
was
(ECF
treated
because
of
No.
6,
differently
his
race
or
at
10).
than
Ms.
national
Plaintiff also suggests, but does
not explicitly assert, that the hostile work environment was due
to
his
race
or
national
origin.
(Id.
¶
19).
Plaintiff’s
conclusory allegations are similar to those in McCleary-Evans,
and
the
possibility
“complaint
and
‘stop[s]
plausibility
short
of
of
entitlement
McCleary-Evans, 780 F.3d at 586 (quoting
678).
the
line
to
between
relief.’”
Iqbal, 556 U.S. at
Plaintiff cites no similarly situated employees, other
11
than relatives of his supervisor, who were treated differently
in
similar
situations.
Many
of
his
letters
and
complaints
expressly reference the Deputys’ familial relationship as the
perceived source of disparate treatment.
10-30).
(See ECF Nos. 10-28;
Plaintiff puts forth no facts showing any explicit
racial bias.
Moreover, the hostile conduct described in the
complaint is “in no way alleg[ed to be] linked to race.”
531 F.Supp.2d at 669-70.
work
environment
was
Reed,
In Reed, the court found the hostile
based
on
a
racial
bias
because
the
plaintiff alleged that her supervisors made numerous comments
that were clearly racially motivated.
By itself, however, a
“workplace’s racial makeup . . . does not create an inference
that the purported conduct was motivated by race.”
Plaintiff’s
assertions
that
Defendant’s
Id. at 670.
decisions
conduct were based on race “are simply too conclusory.
speculation can fill the gaps in [his] complaint.”
Evans, 780 F.3d at 586.
and
Only
McCleary-
Plaintiff pleads facts showing some
level of disparate treatment and a tense workplace environment,
but,
much
like
in
McCleary-Evans,
the
complaint
fails
to
plausibly allege that this was the result of prohibited racial
discrimination as opposed to nepotism or other non-prohibited
reasons.
Accordingly, Counts I and II will be dismissed.
12
2.
Retaliation (Counts III and IV)
Title
employees
VII
who
prohibits
engage
in
retaliation
by
a
activity.
protected
the
employer
42
against
U.S.C.
§
2000e-3(a); Univ. of Tx. Sw. Med. Ctr. v. Nassar, 133 S.Ct.
2517,
2522
(2013).
Protected
activity
includes
opposing
“unlawful employment practice[s] . . . or [making] a charge,
testif[ying], assist[ing], or participat[ing] in any manner in
[a Title VII] investigation, proceeding or hearing.”
§
2000e-3(a).
Plaintiff
alleges
that
Defendant
42 U.S.C.
retaliated
against him after he sent the letters complaining about the
alleged discriminatory treatment and after he filed his MCCR and
EEOC complaint (Counts III and IV).
Specifically, Plaintiff
contends that a threat of termination, suspension without pay,
attempted transfer to another location, background check, and
ultimate termination were retaliatory.3
Defendant argues in its motion to dismiss that the court
lacks jurisdiction over alleged retaliatory acts that took place
after Plaintiff filed his complaint with the MCCR and EEOC on
September 26, 2012.
Plaintiff counters that he amended his
charge of discrimination on November 5, to include additional
instances of alleged retaliation.
Defendant notes that even if
Plaintiff did amend the charge, some of the alleged retaliatory
3
Count III contains all of Plaintiff’s claims of
retaliation other than retaliatory termination, which Plaintiff
alleges in Count IV.
13
acts were not included and thus are barred.
As a general rule,
“[o]nly those discrimination claims stated in the initial [EEOC]
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.”
Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009)
(citation and internal quotation marks omitted).
There is a
relaxed exhaustion requirement for Title VII retaliation claims,
however.
Id. at 301-04.
As the Fourth Circuit noted in Jones,
retaliation claims need not be filed in a new EEOC charge if
they are reasonably related to allegations in an EEOC charge
properly
before
occurred
after
the
the
court
EEOC
and
pertaining
charge
was
to
filed.
conduct
Id.
that
Here,
Plaintiff’s proposed retaliation claims all relate to charges
that are properly before the court.
Plaintiff need not have
filed a separate EEOC charge in order for the claims to be
heard.
To establish a prima facie case of retaliation, Plaintiff
ultimately will have to show that: (1) he engaged in a protected
activity; (2) in response, his employer acted adversely against
him; and (3) the protected activity was causally connected to
the adverse action.
Fordyce v. Prince George’s County Md., 43
F.Supp.3d 537, 547 (D.Md. 2014) (citing Holland v. Washington
Homes,
Inc.,
487
F.3d
208,
218
14
(4th
Cir.
2007)).
“The
antiretaliation provision [of Title VII] protects an individual
not from all retaliation, but from retaliation that produces an
injury or harm.”
U.S.
53,
67
Burlington N. & Santa Fe Ry. Co v. White, 548
(2006).
“Unlike
for
discrimination
claims,
a
plaintiff need not establish an ‘ultimate employment decision’
to
make
F.Supp.3d
a
prima
at
facie
547-48
case
(citing
of
retaliation.”
James
v.
Fordyce,
Booz-Allen
Inc., 368 F.3d 371, 375-76 (4th Cir. 2004)).
&
43
Hamilton,
Rather, he must
show a materially adverse employment action, meaning that the
“employer’s actions must be harmful to the point that they could
well dissuade a reasonable worker from making or supporting a
charge of discrimination.”
(emphasis
added).
discriminatory
Burlington N., 548 U.S. at 57, 67-68
“An
a
James,
375
(internal
quotation
affect[s]
is
conditions, or benefits’ of the plaintiff’s employment.”
at
adversely
action
terms,
F.3d
which
employment
the
368
act
adverse
marks
omitted).
Each
alleged retaliatory act will be considered in turn.
a.
Threat of Termination
Plaintiff
alleges
that
Mr.
Deputy
Sr.
sent
Plaintiff
a
letter “with a threat of termination” on September 19, 2012.
(ECF Nos. 1 ¶ 21; 10-29).
Mr. Deputy Sr. informed Plaintiff
that the Exxon Station was improperly out of operation during
one of Plaintiff’s shifts and that “[t]his is an offense that
could result in termination if it happens again.”
15
(ECF No. 10-
29, at 3).
Plaintiff argues that this “threat” was made in
retaliation for his complaints about the disparate treatment.
Plaintiff has not plausibly stated a claim for retaliation as to
the
threat
of
termination.
Assuming
that
Plaintiff
has
plausibly shown it was causally related to a protected activity,
the letter does not constitute an adverse employment action,
even
considering
retaliation claim.
Plaintiff;
he
the
lower
standards
required
to
state
a
Mr. Deputy Sr. did not threaten to terminate
merely
informed
terminated if he committed
Plaintiff
another
that
offense.
he
could
be
Nothing in the
terms or conditions of Plaintiff’s employment changed at all by
the receipt of the letter.
Mr.
Deputy’s
action.
letter
to
A reasonable person would not find
be
a
materially
adverse
employment
Accordingly, Plaintiff’s retaliation claim as to the
threat of termination will be dismissed.
b.
Suspension Without Pay
Plaintiff
avers
that
he
sent
a
letter
to
Mr.
Ahmad
on
September 22, 2012 stating that “he believed that he was being
subjected to different treatment and terms of employment because
of his race, Black, and national origin, African.”
23).4
(ECF No. 1 ¶
Plaintiff alleges that, in response to this letter, Mr.
Ahmad suspended him without pay on September 24.
4
Defendant
Plaintiff attaches some letters to his opposition to
Defendant’s motion, but has not attached the September 22, 2012
letter.
16
argues that Plaintiff’s letter to Mr. Ahmad was not a protected
activity
because
complaints
were
“the
only
grounded
plausible
in
conclusion
nepotism”
and
[nepotism] is not protected activity.”
is
that
“complaining
the
about
(ECF No. 6, at 13).
Defendant also argues Plaintiff’s suspension was not causally
related to the protected activity.5
Protesting
unfair
treatment
and
other
workplace
conduct
that is not prohibited by Title VII is not protected activity.
See Harris v. Md. House of Correction, 209 F.Supp.2d 565, 570
(D.Md. 2002).
Here, however, Plaintiff has alleged that his
letter explicitly stated that he was being discriminated against
because of his race.
employee’s
employer
plaintiff
complaint
understood,
was
The Fourth Circuit has held “that an
constitutes
or
opposing
should
protected
have
discriminatory
activity
understood,
conduct.”
when
the
that
the
Burgess
v.
Bowen, 466 F.App’x 272, 282 (4th Cir. 2012) (citing, inter alia,
EEOC
Compliance
Manual
§
8-II.B.2
(2006)
(“[A]
protest
is
protected opposition if the complaint would reasonably have been
interpreted as opposition to employment discrimination.”)); see
also Strothers v. City of Laurel, Md., No. PWG-14-3594, 2015 WL
4578051,
at
*10
(D.Md.
July
27,
2015)
(denying
a
motion
to
dismiss retaliation claim because the plaintiff complained about
5
Defendant’s motion to dismiss does not dispute that the
suspension is an adverse employment action.
17
“harassment,” which was sufficient to put employer on notice
that she was complaining about racial discrimination).
Moreover, the Fourth Circuit has expanded the scope of what
constitutes
a
protected
activity.
See,
e.g.,
DeMasters
v.
Carilion Clinic, 796 F.3d 409, 416-21 (4th Cir. 2015); BoyerLiberto v. Fontainebleau Corp., 786 F.3d 264, 285-88 (4th Cir.
2015) (en banc).
As Judge Grimm noted recently, this “broad[er]
reading of Title VII extends its protection to an employee who
reasonably
fears
that
she
is
being
subjected
to
unfavorable
treatment based on her sex [or race], even where, as here, that
treatment does not rise to the level of creating a hostile work
environment.”
Young v. Giant Food Stores, LLC, No. PWG-14-2006,
2015 WL 35560009, at *11 (D.Md. June 8, 2015).
Young
found
that
the
plaintiff’s
protest
was
The court in
a
protected
activity even though she did not plead a plausible hostile work
environment claim.
Id. at *11-12.
The court held that her
protests were a protected activity because the plaintiff had a
reasonable belief that the workplace activity was a violation of
Title VII and clearly indicated that she was complaining about
gender discrimination rather than general workplace grievances.
See
id.
Thus,
a
plaintiff
can
state
a
plausible
claim
of
retaliation even if the underlying discrimination claim has not
been pleaded with sufficient particularity.
18
Defendant
also
argues
that
Plaintiff
has
not
plausibly
alleged that retaliatory animus was the “but for” cause of the
suspension.
See
retaliation
principles
Nassar,
claims
of
must
but-for
133
be
S.Ct.
proved
at
2533
according
causation.”).
(“Title
to
Defendant
VII
traditional
contends
that
Plaintiff was suspended without pay so Mr. Ahmad could complete
an investigation.
(ECF No. 6, at 12).
The Fourth Circuit has
held that “a causal connection for purposes of demonstrating a
prima
facie
case
exists
where
the
employer
takes
adverse
employment against an employee shortly after learning of the
protected activity.”
See Pepper v. Precision Valve Corp., 526
F.App’x 335, 337 (4th Cir. 2013) (quoting Price v. Thompson, 380
F.3d
209,
omitted).
213
(4th
Cir.
2004))
(internal
quotation
marks
Here, Mr. Ahmad suspended Plaintiff two days after
Plaintiff sent the letter.
In addition, Plaintiff alleges that
Mr. Ahmad referenced the letter as a reason for the suspension.
Taken together, the temporal proximity and Mr. Ahmad’s alleged
statements are sufficient to state a plausible causal connection
between
Plaintiff’s
Accordingly,
protected
Plaintiff’s
activity
claims
of
and
his
retaliation
suspension.
as
to
his
suspension will remain.
c.
Attempted Forced Transfer
Plaintiff
alleges
that
his
attempted
forced
transfer
to
another station was retaliation for his filing of the MCCR and
19
EEOC complaint.
(ECF No. 1 ¶ 25).
Filing the MCCR and EEOC
charge constituted a protected activity.6
Defendant argues that
the transfer was not causally related to the protected activity
and was rather an attempt to diffuse the “friction” between
Plaintiff and the Deputy family.
like
Plaintiff’s
suspension,
(See ECF No. 6, at 12).
the
transfer
proximity to the protected activity.
is
in
Much
temporal
Temporal proximity “alone
cannot provide proof of causation unless the ‘temporal proximity
between an employer’s knowledge of protected activity and an
adverse
employment
action’
was
‘very
close.’”
Pepper,
526
F.App’x at 337 (quoting Clark Cnty. Sch. Dist. V. Breeden, 532
U.S.
268,
273
omitted)).
(2001)
Here,
(per
Mr.
curium)
Ahmad
(internal
discussed
the
quotation
transfer
marks
with
Plaintiff approximately two weeks after Plaintiff filed the MCCR
and EEOC complaint.
period
between
action
“gives
a
rise
The Fourth Circuit has held that a ten-week
protected
to
a
activity
sufficient
and
adverse
inference
of
employment
causation.”
King v. Rumsfeld, 328 F.3d 145, 151, 151 n.5 (4th Cir. 2003).
Thus, although Plaintiff alleges less additional facts showing a
retaliatory animus, this is not fatal to his effort to state a
claim.
Accordingly, Plaintiff’s retaliation claim as to the
forced transfer will remain.
6
Defendant does not argue, and the court does not analyze,
whether the transfer was an adverse employment action.
20
d.
Criminal Background and Reference Check and Resulting
Termination
Plaintiff alleges that Defendant selectively conducted a
criminal background and reference check in retaliation for his
protected activity.
that,
on
January
(ECF No. 1 ¶¶ 26-29).
17,
2013,
his
He also asserts
employment
was
terminated as a result of the background check.
officially
(Id. ¶ 31).
Defendant counters that the background check was not an adverse
employment
action
pleaded
facts
plausibly showing that he was terminated in retaliation.
(ECF
No. 6, at 12-13).
and
that
Plaintiff
has
not
To be a materially adverse employment action,
the “employer’s actions must be harmful to the point that they
could
well
dissuade
a
reasonable
worker
supporting a charge of discrimination.”
at 57, 67-68.
the
terms,
employment.”
from
making
or
Burlington N., 548 U.S.
Specifically, an action must “adversely affect
conditions,
or
benefits’
of
the
plaintiff’s
James, 368 F.3d at 375 (internal quotation marks
omitted).
Here, it is possible that the prospect of a background
check in and of itself might not dissuade a reasonable worker
from making a charge of discrimination.
Conduct short of an
ultimate employment decision becomes relevant, however, if it is
a “mediate step . . . relied upon for a true adverse employment
action.”
(D.Md.
Ruffin v. Lew, No. PWG-11-2469, 2014 WL 4854972, at *8
Sept.
29,
2014)
(internal
21
quotation
marks
omitted)
(quoting
Jeffers
v.
Thompson,
264
F.Supp.2d
314,
330
(D.Md.
2003)).
Thus, the two allegations are appropriately analyzed
together; even if the background check is not, by itself, an
adverse employment action, it may give rise to a retaliation
claim when coupled with Plaintiff’s termination.
See Suggs v.
7-Eleven, Inc., No. DKC-14-1903, 2015 WL 3891949, at *7-8 (D.Md.
June 23, 2015).
Subjecting Plaintiff to a background check “can
be viewed as a mediate step that was relied upon in making [the]
true adverse employment action” of terminating Plaintiff.
at *8.
Id.
“[T]he consequences of [the background check], namely
[termination], could certainly dissuade a reasonable employee
from filing a discrimination claim.”
In
addition,
connection
Plaintiff
between
his
has
protected
Id.
plausibly
activity
alleged
and
the
a
causal
background
check and termination.
Defendant conducted the background check
within
protected
weeks
investigation
officially
of
his
was
ongoing.
terminated
at
activity
According
the
MCCR
and
to
as
the
Plaintiff,
factfinding
MCCR’s
he
was
conference.
Moreover, Plaintiff avers that he was the only employee to be
subjected to such a background check, further supporting his
causation argument.
(ECF No. 1 ¶ 27).
Plaintiff has alleged
facts sufficient to show, at the motion to dismiss stage, that
the background check and termination, when viewed together, are
causally related to his protected activity.
22
Accordingly, Plaintiff’s claims for retaliation based on
the background check (Count III) and termination (Count IV) will
remain.
B.
Defamation (Count V)
Plaintiff alleges that Mr. Ahmad defamed him by accusing
him of being a thief during the MCCR fact finding conference
meeting on January 17, 2013.
(ECF No. 1 ¶ 33).
Defendant
argues that the statement was either absolutely or conditionally
privileged and thus cannot be the basis for a defamation claim.
(ECF No. 6, at 13-16).7
In the case of Norman v. Borison, 418 Md. 630 (2011), the
Court
of
absolute
Appeals
judicial
of
Maryland
explored
privilege.
The
the
court
contours
of
observed
the
that
“witnesses, parties, and judges” enjoy “absolute immunity from
civil liability” for statements made in a judicial proceeding,
“even if the statement is wholly unrelated to the underlying
proceeding.”
Id.
at
650.
The
privilege
also
extends
to
statements made in connection with quasi-judicial proceedings,
such as administrative proceedings, if the proceeding satisfies
the two part test of Gersh v. Ambrose, 291 Md. 188 (1981).
Gersh dictates that, in deciding whether a proceeding gives rise
to an absolute privilege, a court must consider “‘(1) the nature
7
Defendant only argues for dismissal based on privilege, it
does not, at this point, challenge the substance of Plaintiff’s
defamation claim.
23
of the public function of the proceeding and (2) the adequacy of
procedural
safeguards
which
defamatory statements.’”
291 Md. at 197).
will
minimize
the
occurrence
of
Norman, 418 Md. at 652 (quoting Gersh,
The Court of Appeals has recently increased
the scope of the absolute privilege against defamation in quasijudicial
proceedings.
See
Norman,
Brenner, 402 Md. 191 (2007).
adhered
to
the
so-called
418
Md.
630;
Offen
v.
In addition, “Maryland has long
‘English’
rule
of
privilege
for
witnesses’ statements, the privilege is absolute without regard
to the relevancy of the defamatory statement to the subject
matter of the proceedings.”
Odyniec v. Schneider, 322 Md. 520,
527 (1991) (citations omitted).
This court has previously held that statements made before
the MCCR are absolutely privileged.
Judge Motz held that “any
statements made by [the defendant] to the [MCCR] in defending
against plaintiff’s complaint are absolutely privileged in light
of
the
[MCCR’s]
against
Total
nature
of
[MCCR]
procedures
the
Health
provide
occurrence
Care,
proceedings
of
Inc.,
adequate
defamatory
880
F.Supp.
and
the
fact
procedural
statements.”
414,
416
(citing Minor v. Novotny, 304 Md. 164 (1985)).8
that
the
safeguards
Booth
(D.Md.
v.
1994)
Accordingly,
because the complaint alleges that the statement in question was
8
Booth referred to the “Human Relations Commission.” This
has since become the MCCR. See Md. Code, State Gov’t § 20-201.
24
made as part of an MCCR proceeding, it is absolutely privileged,
and Count V will be dismissed.9
C.
FLSA (Count VI)
Plaintiff
alleges
that
Defendant
violated
the
FLSA
by
selectively subjecting him “different terms and conditions for
employment” than other employees such as conducting a criminal
background
and
reference
another location.
check
and
transferring
(ECF No. 1 ¶ 34-38).
Plaintiff
to
The FLSA “mandate[es] a
minimum wage for covered employees [and] requires the payment of
overtime for each hour worked in excess of forty per work week.”
Schultz v. Capital Intern. Sec., Inc., 466 F.3d 298, 304 (4th
Cir.
2006)
Plaintiff
violation.
IV.
(citing
has
alleged
29
U.S.C.
no
facts
§§
206(a)(1),
plausibly
207(a)(1)).
stating
a
FLSA
Accordingly, Count VI will be dismissed.
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
9
It is not necessary to determine if a qualified privilege
also applies.
25
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