Sewell, M.Ed. v. Westat
Filing
15
MEMORANDUM OPINION. Signed by Judge Roger W Titus on 11/8/2016. (kns, Deputy Clerk)(c/m 11/8/16)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STARSHA M. SEWELL, M.ED.,
Plaintiff,
v.
WESTAT,
Defendant.
*
*
*
*
*
*
*
*
*
*
*
Case No. RWT 16-cv-0158
MEMORANDUM OPINION
On July 13, 2015, Plaintiff filed a charge of race discrimination and retaliation with the
Maryland Commission on Civil Rights against Defendant Westat, which was dually filed with
the Equal Employment Opportunity Commission. ECF No. 1 at 1. She alleges that she then
received a Notice of Right to Sue, and filed her complaint within ninety days of receipt of the
notice. Id. at 2. On January 14, 2016, Plaintiff filed this pro se action claiming employment
discrimination based on race and gender against Defendant Westat, pursuant to
42 U.S.C. § 2000e, et seq. ECF No. 1. On March 7, 2016, Defendant filed a Motion to Dismiss
and for Partial Summary Judgment. ECF No. 8. On March 8, 2016, Plaintiff filed a Motion to
Strike and Dismiss Westat’s Motion to Dismiss, ECF No. 11, and on August 5, 2016, Plaintiff
moved for a status teleconference, ECF No. 14. The issues have been fully briefed, and no
hearing is necessary. Local Rule 105.6. For the reasons discussed below, Defendant’s Motion to
Dismiss and for Partial Summary Judgment will be granted and Plaintiff’s Motion to Strike and
Motion for a Status Teleconference will be denied.
BACKGROUND
Plaintiff alleges that she applied for the position of Survey Methodologist at Westat in
February 2015. ECF No. 1 at 2. On March 25, 2015, she received a letter stating that she was
not selected for this position. Id. On May 15, 2015, Plaintiff applied for the position of
Research Associate – Education, and was rejected for this position five days later. Id.
On
May 29, 2015, she allegedly left a voice message for Mr. Randy Yu, a member of Westat’s
Human Resources Department, explaining that she was a class member of a settlement with the
Department of Labor. Id. On June 2, 2015, Plaintiff applied for a third position, Clinical Trials
Research Associate, for which her application was also rejected. Id. at 3.
Plaintiff alleges that she was qualified for each of the three positions for which she
applied, and that the denial of her applications for these positions was an act of retaliation for
informing Mr. Yu that she was a member of the settlement class in a discrimination case for
which Westat was “required to improve and increase employment opportunities.” ECF No. 1
at 3.
She explains that the settlement to which she is a party “regulates the Company’s
recruitment of minorities,” especially African-American women, and contends that Westat is
using its non-disclosed list of protected class members for discriminatory purposes. Id. Plaintiff
believes that she was denied the Research Associate position “as a discriminatory act of
retaliation, because [she is] on the class member [sic] on Westat’s OFCCP conciliation
settlement list in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”) and
42 U.S.C. § 2000e, et seq., retaliation, failure to hire on the basis of Plaintiff’s race and gender
[sic].” Id.
On June 11, 2015, Plaintiff filed a complaint with Defendant’s recruitment team to
“inquire about the ongoing disqualification notices that [she] received for each position that [she]
2
qualified for outside of the Settlement agreement,” but she has not received a response. Id. On
August 21, 2015, she received correspondence from Phillip Wikes, a Civil Rights Officer, who
she claims “did not thoroughly investigate the employment discrimination that Westat is
subjecting class members to.” Id. Plaintiff avers that since she began to “engage[] in protected
activity,” Defendant has not advertised any Research Analyst opportunities “with the sole
intentions [sic] to discriminate against class members.” Id. Plaintiff alleges that there is a
“causal connection between the Plaintiff’s protected activity”—her internal complaint and
voicemail to Mr. Yu—and the adverse hiring decisions that Defendant made against her. Id. at 4.
These actions were allegedly taken because “Plaintiff is a class member and is black listed
internally, because her name is on an undisclosed list.” Id.
DISCUSSION
I.
Westat’s Motion to Dismiss and for Partial Summary Judgment
In a ruling on a motion to dismiss, the Plaintiff’s well-pleaded allegations are accepted as
true and the Complaint is viewed in the light most favorable to the Plaintiff. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “However, conclusory statements or a ‘formulaic recitation
of the elements of a cause of action will not [suffice].’”
E.E.O.C. v. Performance Food
Grp., Inc., 16 F. Supp. 3d 584, 588 (D. Md. 2014) (quoting Twombly, 550 U.S. at 555).
A federal district court is charged with liberally construing a complaint filed by a pro se
litigant to allow the development of a potentially meritorious case.
Hughes v. Rowe,
449 U.S. 5, 9 (1980). Nonetheless, liberal construction does not mean that a court can ignore a
clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district
court. See Weller v. Dep’t of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990). The mandated
liberal construction afforded to pro se pleadings means that if the court can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, it should do so; however, a
3
district court may not rewrite a complaint in order for it to survive a motion to dismiss. See
Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
A. Plaintiff Failed to Exhaust Administrative Remedies on her Gender
Discrimination Claim.
Defendant first argues that Plaintiff’s gender discrimination claims should be dismissed
pursuant to Rule 12(b)(1), as she failed to exhaust her administrative remedies on this claim. See
Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003) (“Motions to dismiss for failure to
exhaust administrative remedies are governed by Fed. R. Civ. P. 12(b)(1) for lack of subject
matter jurisdiction.”). In deciding a Rule 12(b)(1) motion, the court “may look beyond the
pleadings and ‘the jurisdictional allegations of the complaint and view whatever evidence has
been submitted on the issue to determine whether in fact subject matter jurisdiction exists.’” Id.
(quoting Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir. 1993)).
Before a plaintiff can file suit under Title VII, she “must exhaust administrative remedies
by filing a charge with the EEOC.”
Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132
(4th Cir. 2002). This charge “defines the scope of the plaintiff’s right to institute a civil suit,”
and the “scope of the civil action is confined only by the scope of the administrative
investigation that can reasonably be expected to follow the charge of discrimination.” Id.
Plaintiff’s charge with the Maryland Commission on Civil Rights was dually filed with the
EEOC. See ECF No. 8-4. In her charge, she checked only the boxes relating to discrimination
based on race and retaliation. ECF No. 8-3. The investigation and findings were accordingly
limited to the question of whether she was discriminated against based on her race or her
participation in a protected activity. ECF No. 8-4. Because her civil suit is limited by the charge
with the Maryland Commission on Civil Rights, Plaintiff’s claims based on gender
discrimination will be dismissed for failure to exhaust administrative remedies.
4
B. Plaintiff Failed to State a Failure to Hire Race Discrimination Claim.
Defendant moved to dismiss Plaintiff’s race and retaliation claims pursuant to
Rule 12(b)(6) for failure to state a claim upon which relief can be granted. ECF No. 8-1 at 8. A
motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) tests the sufficiency of the complaint.
Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In considering a motion to
dismiss, the Court considers whether the “complaint . . . contain[s] sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal citation and quotation marks omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. A court must construe
factual allegations in the light most favorable to the plaintiff. See Lambeth v. Bd. of Comm’rs of
Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005). Nevertheless, a court is not required to
accept as true “a legal conclusion couched as a factual allegation,” Papasan v. Allain,
478 U.S. 265, 286 (1986), or “allegations that are merely conclusory, unwarranted deductions of
fact or unreasonable inferences.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (internal
quotation marks omitted). Put simply, a complaint must “raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
To state a claim for discrimination in hiring, the plaintiff must allege and prove that:
“(i) [s]he belongs to a protected class, (ii) [s]he applied and was qualified for a job for which the
employer was seeking applicants, (iii) despite [her] qualifications, [s]he was rejected, and
(iv) after [her] rejection, the position remained open and the employer continued to seek
applicants from persons of [her] qualifications.”
E.E.O.C. v. Sears Roebuck and Co.,
243 F.3d 846, 851 (4th Cir. 2001). With regard to the fourth element, it is “critical” that the
5
plaintiff “demonstrate [s]he was not hired (or fired or not promoted, etc.) ‘under circumstances
which give rise to an inference of unlawful discrimination.’” Id. at 851 n.2 (quoting Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Plaintiff’s allegations regarding the second and fourth elements of her failure to hire
claim fail to “nudge[] [her] claims across the line from conceivable to plausible.” See Twombly,
550 U.S. 544, 570 (2007). First, Plaintiff only states conclusorily that she was “qualified for
every position for which [she] applied.” ECF No. 1 at 3. This allegation, devoid of further
support, is insufficient to satisfy the second element and survive a Rule 12(b)(6) motion to
dismiss.
See Chavan v. IBM Corp., No. 09-cv-1473-AW, 2010 WL 2651647, at *3
(D. M. Jun. 30, 2010) (motion for judgment on the pleadings granted in part because plaintiff
“provided no factual support that he performed his job satisfactorily or that he was qualified for
the position in question”).
Second, Plaintiff has alleged no facts that give rise to an inference of unlawful
discrimination. She puts forth only conclusory allegations that Defendant failed to hire her “for
opportunities that she [was qualified] for because she is an African American female.”
ECF No. 1 at 3. But Plaintiff’s “‘subjective belief of discrimination, however genuine, [cannot]
be the basis of judicial relief.’” Parker v. Ciena Corporation, No. 14-cv-4036-WDQ, 2016 WL
153035, at *5 (D. Md. Jan. 12, 2016) (quoting Elliot v. Group Medical & Surgical Service,
714 F.2d 556, 557 (5th Cir. 1983)).
Plaintiff’s claim of failure to hire based on race
discrimination is purely conclusory and contains no factual support that would allow it to survive
a Rule 12(b)(6) motion to dismiss.
6
C. Plaintiff Failed to State a Retaliation Claim.
Plaintiff baldly asserts that the denial of her application for the three positions to which
she applied was “an act of retaliation because [she] communicated to Mr. Yu that [she was] a
protected member of the protected class of systemic discrimination for which the Respondent
required [sic] to improve and increase employment opportunities.” ECF No. 1 at 3. In order to
establish a prima facie case of retaliation, a plaintiff must establish that she “engaged in a
protected activity, that the employer took an adverse action against [her], and that a causal
relationship existed between [her] protected activity and the employer’s adverse action.”
Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006). First, Plaintiff’s claims based on her
rejection for the Survey Methodologist and Research Associate – Education positions must fail
because her alleged voicemail to Mr. Yu did not occur until May 29, 2015, after she was rejected
for both positions. ECF No. 1 at 2. There can be no causal connection between her allegedly
protected activity and the adverse hiring decision because the alleged protected activity took
place after the employer’s adverse action.
See Hall v. Greystar Mgmt. Servs., L.P.,
637 Fed. App’x 93, 98 (4th Cir. 2016) (“Retaliatory conduct, by its very nature, must come after
the protected activity.”).
With regard to the Clinical Trial Research Associate position, for which she was denied
after she allegedly left the voicemail with Mr. Yu, Plaintiff has not alleged that the voicemail
constituted “protected activity” or that Defendant failed to hire her in retaliation for leaving the
voicemail. Plaintiff states only that in her voicemail she “communicated to Mr. Yu that [she
was] a member of the protected class” for which Defendant “was required to improve and
increase employment opportunities.”
ECF No. 1 at 3.
She does not claim that she
communicated to Mr. Yu that she felt she was being discriminated against. Cf. Bryant v. Aiken
7
Reg’l Med. Ctrs., 333 F.3d 536, 543-44 (4th Cir. 2003) (“Title VII protects the right of
employees to oppose any ‘unlawful employment practice’ under Title VII. Employees are thus
guaranteed the right to complain to their superiors about suspected violations of Title VII.”).
Even if, construing Plaintiff’s pro se Complaint liberally, as this Court must, Plaintiff’s
voicemail constituted protected activity, she has not alleged that Mr. Yu was a decision-maker
with regard to the hiring decision for the Clinical Trial Research Associate position, or that he
communicated the contents of her voicemail to any relevant decisions-makers. See Dowe v.
Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 655 (4th Cir. 1998) (“A plaintiff
cannot establish a prima facie case of retaliation when, as here, the relevant decisionmaker was
unaware that the plaintiff has engaged in a protected activity.”). Plaintiff’s retaliation claim must
therefore be dismissed.
D. Defendant is Entitled to Partial Summary Judgment on Plaintiff’s Failure to Hire
Claims.
Rule 56 of the Federal Rules of Civil Procedure allows the court to grant summary
judgment “if the movant shows there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant may show
there is no genuine issue of material fact through the pleadings, discovery, exhibits, and other
materials. Fed. R. Civ. P. 56(c). Upon motion for summary judgment and a showing by the
moving party that there is no genuine dispute of material fact, the opposing party must rebut this
showing by going beyond the pleadings to “designate specific facts showing that there is a
genuine issue for trial.” See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (citations
omitted) (summarizing Fed. R. Civ. P. 56). To survive a motion for summary judgment, the
standard requires more than “the mere existence of some alleged factual dispute between the
parties.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (emphasis in original).
8
Defendant argues that it is entitled to summary judgment on Plaintiff’s failure to hire
claims based on her rejection for the Survey Methodologist and Research Associate –Education
positions because it is “undisputed that Defendant cancelled the requisitions for these positions
and no longer sought applicants.” ECF No. 8-1 at 11; see ECF No. 8-2 ¶¶ 4-5. Plaintiff has
offered no evidence to rebut Defendant’s supporting affidavit.1
Plaintiff therefore cannot
establish a prima facie case because there is no inference of discrimination when Defendant
cancelled the requisition and did not fill the position with someone outside the protected class.
See Agelli v. Sebelius, No. 13-cv-497-DKC, 2014 WL 347630, at *5 (D. Md. Jan. 30, 2014)
(defendant entitled to summary judgment when it cancelled the vacancy and did not fill the open
position because when the entity “‘cancels a vacancy announcement and no one outside the
protected class is hired to fill the position, the plaintiff cannot establish her prima facie case
because she cannot satisfy the fourth prong of the analysis.’”) (quoting Bowie v. Ashcroft,
283 F. Supp. 2d 25, 31 (D.D.C. 2003)).
Defendant also argues that it is entitled to summary judgment on Plaintiff’s failure to hire
claim based on gender with respect to the Clinical Trials Research Associate position because it
is undisputed that the position was filled by a female. ECF No. 8-1 at 11; ECF No. 8-2 ¶ 6.
Because Plaintiff cannot show that she was rejected in favor of someone outside her protected
group, she is unable to establish a failure to hire gender discrimination claim with regard to the
Clinical Trials Research Associate position and Defendant is entitled to summary judgment on
that claim. See Simpson v. Technology Serv. Corp., No. 14-cv-1968-DKC, 2015 WL 5255307,
at *9 (D. Md. Sept. 8, 2015) (finding that the fact that position “was filled by someone within
1
Plaintiff provides a printout of Westat’s job openings from its website as of August 22, 2015, which shows that the
Research Associate – Education position was still open. ECF No. 1-5. This is insufficient to rebut Defendant’s
affidavit because Defendant states that the position was cancelled on September 1, 2015. ECF No. 8-2.
Additionally, the printout of the job opening does not establish that the position was filled by someone outside the
protected class, which is necessary to give rise to an inference of unlawful discrimination.
9
[plaintiff’s] protected class negates an inference of gender discrimination and fatally undermines
Plaintiff’s ability to establish a prima facie case); cf. Miles v. Dell, Inc., 429 F.3d 480, 488
(4th Cir. 2005) (to establish a discriminatory discharge claim, “a plaintiff must ordinarily show
that she was replaced by someone outside her protected class because, when someone within her
protected class is hired as a replacement, that fact ordinarily gives rise to an inference that the
defendant did not fire the plaintiff because of her protected status.”).
II.
Plaintiff’s Motion to Strike and Dismiss Opposing Counsel’s Motion to Dismiss
After Defendant filed its motion to dismiss, Plaintiff filed a “Motion to Strike and
Dismiss” Defendant’s motion. ECF No. 11. The motion is more properly construed as a
Response in Opposition to Defendant’s Motion to Dismiss and for Partial Summary Judgment, as
the motion is largely based on the argument that “Plaintiff’s claims are properly pled pursuant to
Rule 8(a) (1, 2, and 3) of the Fed.R.Civ.P., and that the Plaintiff is entitled to declaratory
judgment pursuant to the merits of her complaint,” and that Defendant’s “legal argument is
substantially flawed.” Id. at 1. She also moves on the basis that Defendant’s motion “expressly
confirms a scandalous matter involving select leaders from the President’s Financial Crimes
Task Force.” Id. Plaintiff’s motion otherwise has no discernible relation to Westat. Because
Defendant’s Motion to Dismiss and for Partial Summary Judgment was properly filed and is an
appropriate response to Plaintiff’s Complaint, her Motion to Strike will be denied.
III.
Plaintiff’s Motion for a Status Teleconference
Much of Plaintiff’s Motion for a Status Teleconference [ECF No. 14] utterly lacks any
argument related to her lawsuit against Defendant. Instead, she alleges that United States
Attorney for the District of Maryland Rod Rosenstein “literally positioned the Judge to engage in
organized crime, in their attempts to have President Barack Obama impeached, while assuming a
similar role of ‘Liddy’ in the Richard Nixon and Spiro Agnew during the Watergate scandal.”
10
ECF No. 14 at 1. The only argument related to her lawsuit is that David Reesman, Vice
President and General Counsel of Westat, “indicated that Sewell was next on the list, and could
apply for other opportunities” with Westat, but he “failed to hire Sewell for the Research Analyst
position that is being advertised to the general public; with the sole intent to discriminate against
class members who are protected class-members under the conciliation agreement.” ECF No. 14
at 2-3.
Mr. Reesman in no way indicated that Plaintiff was next on the list of possible hires. In
fact, the language quoted by Plaintiff shows only that Mr. Reesman stated that she was
“appropriately placed on the list of those who may be offered a Research Analyst, Education
Research position, if sufficient openings occur and she is the next one on the list.” ECF No. 14
at 2 (emphasis added). Nothing in this quoted language indicates that Mr. Reesman “promised
the next opportunity to Starsha Sewell,” and there are absolutely no facts alleged that plausibly
demonstrate that Mr. Reesman acted with the “sole intent to discriminate against a Department
of Labor Class Member, because she is an African American Woman.” Id. at 3. Because this
Court finds that no status teleconference is necessary, Plaintiff’s motion will be denied.
IV.
Conclusion
Defendant’s Motion to Dismiss and Motion for Partial for Summary Judgment
[ECF No. 8] will be granted. Plaintiff has failed to adequately state a claim for discrimination
based on race and gender, and has failed to allege a retaliation claim.
Her Complaint
[ECF No. 1] must therefore be dismissed. Because Defendant has provided undisputed facts
showing that the Survey Methodologist and Research Associate – Education positions were
never filled and the requisitions were cancelled, Defendant is entitled to summary judgment on
those discrimination claims. Defendant is also entitled to summary judgment on Plaintiff’s
gender discrimination claim based on her rejection for the Clinical Trials Research Associate
11
position because Defendant filled the position with a female. Plaintiff’s Motion to Strike and
Dismiss Opposing Counsel’s Motion to Dismiss [ECF No. 11] and Motion for Status
Teleconference [ECF No. 14] provide no discernible grounds for relief and will be denied. A
separate Order follows.
Date: November 8, 2016
/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?