Sewell, M.Ed. v. Strayer University et al
MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 1/5/2017. (c/m 1/5/2017 aos, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STARSHA M. SEWELL,
STRAYER UNIVERSITY, et al.,
Civil Action No. PWG-16-159
Plaintiff Starsha M. Sewell’s former employer Strayer University (“Strayer”) reduced her
salary and terminated her employment in 2008, and she filed an unsuccessful lawsuit against it in
2012. Compl., ECF No. 1; Sewell v. Strayer University (“2012 Action”), No. DKC-12-2927
(filed D. Md. Oct. 10, 2012), appealed, No. 14-2123 (filed 4th Cir. Oct. 17, 2014), cert. denied,
No. 14-10114 (2015). When Strayer then rejected her applications for employment in 2014,
Sewell, a former adjunct faculty member and associate campus dean at Strayer, filed this
employment discrimination suit against Defendants Robert Silberman and Karl McDonnell (the
“Individual Defendants”) and Strayer (collectively, “Defendants”) on January 14, 2016. Compl.
1. Sewell claims race-based employment discrimination, in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. (Count 1); retaliation, also in
violation of Title VII (Count 2); retaliation in violation of the Family Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601 – 2654 (Count 3); and “Wrongful Termination from Online
Adjunct Professor Position and the Associate Dean position, due to the Plaintiff’s race and
because she engaged in formal and informal protected activity,” which appears to be another
retaliation claim (Count 4). Compl. 1. Buried within the body of the Complaint, Sewell alleges
as “Count 5” what appears to be another Title VII discrimination and retaliation claim based on
the reduction in her salary. Id. at 4. She also states that she brings this action pursuant to 42
U.S.C. § 1981. Id. at 7.
Defendants have moved to dismiss most claims against Strayer under the doctrine of res
judicata, ECF No. 13, arguing that, “with the exception of Plaintiff’s purported Title VII
retaliation claim related to Strayer’s decision to not hire Plaintiff for two positions in 2014,
Plaintiff previously litigated these exact claims against Strayer through resolution by the United
States Court of Appeals for the Fourth Circuit” in the 2012 Action. Defs.’ Mem. 2–3, ECF No.
13-1.1 And, they contend that Sewell’s failure-to-hire claims from 2014 are “nothing more than
the ‘unadorned, the defendant-unlawfully harmed me accusation,’ which is non-compliant with
the requisite pleading standards.” Id. at 3. According to Defendant, “the complaint makes no
allegations about Defendants Silberman or McDonnell,” and therefore the claims against them
should be dismissed. Id. Additionally, Defendants seek sanctions in the form of attorneys’ fees
and a pre-filing injunction “against Plaintiff for her continued vexatious litigation and
harassment of Defendants.” Id.
Res judicata and collateral estoppel2 bar the claims against Strayer based on events
before 2014, and Sewell fails to state a claim against Strayer based on events in 2014. Moreover,
The parties fully briefed the motion. ECF No. 13-1, 18, 20; see ECF No. 19 (Order construing
ECF No. 18 as an Opposition). A hearing is not necessary. See Loc. R. 105.6. In Sewell’s
Opposition, she argued at length that the Court is prejudiced against her. She has filed numerous
unsubstantiated and frivolous allegations against members of this Court and elsewhere of this
nature. The allegations in her Opposition, too, are without merit and will not be addressed.
Defendants raise only res judicata, but to “avoid . . . unnecessary judicial waste,” the Court
may consider collateral estoppel sua sponte, and dismiss on that ground, if it “is on notice that it
has previously decided the issue presented.” Arizona v. California, 530 U.S. 392, 412 (quoting
United States v. Sioux Nation, 448 U.S. 371, 432 (1980) (Rehnquist, J., dissenting) (citations
amendment of her later claims would be futile. Therefore, I will dismiss her claims against
Strayer with prejudice. And, because she concedes that “Sewell is not suing Robert Silberman or
Karl McDonnel[l]. . . . Sewell is suing Strayer University, INC.,” Pl.’s Opp’n 3, I will dismiss
the claims against the Individual Defendants. Because Strayer has demonstrated that Sewell is
attempting to relitigate previously litigated claims and attempting to file additional claims in a
pleading that fails to state a claim and for which amendment would be futile, I find that Strayer
has established grounds for a narrowly tailored pre-filing injunction. I will grant Strayer’s
request for a pre-filing injunction, deny the Individual Defendants’ request for a pre-filing
injunction, and deny Defendants’ request for attorneys’ fees.
Sewell began working for Strayer in February 2006, and she filed an internal complaint
of race-based discrimination against a manager in October 2007. Compl. 3. It appears that, from
December 2007 through March 2008, she was on pregnancy-related medical leave. Id. at 4, 6.
Upon returning to work in March 2008, she was given a “discriminatory financial demotion” in
which Strayer took away her adjunct part-time professor salary of $18,000 that she had received
in addition to her $60,000 salary as a dean. Id. at 4. She alleges that her “financial demotion”
was “because of her race, color, and gender” and in retaliation for her discrimination complaint.
Id. As best I can discern, she also views her “demotion” as retaliation for her exercise of her
FMLA rights. Id.
omitted)), supplemented, 531 U.S. 1 (2000); see also Alston v. Equifax Info. Servs., LLC, No.
TDC-15-3343, 2016 WL 5349716, at *3 (D. Md. Sept. 22, 2016) (noting that “courts may raise
the issue of collateral estoppel sua sponte”).
When considering Defendants’ Motion to Dismiss, I accept the facts alleged in Plaintiff’s
complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011).
On March 30, 2008, shortly after having returned to work, Sewell “was granted
additional FMLA medical leave pursuant to the Pregnancy Discrimination Act (PDA) [42 U.S.C.
§ 2000e(k)] that she remained on until she delivered her child on June 19, 2008.” Id. Sewell
claims that, three days after she returned from maternity leave on August 18, 2008, Strayer
terminated her employment, in violation of the FMLA. Id.
Sewell filed suit against Strayer in 2012, based on these events. Compl., ECF No. 1 in
2012 Action. She claimed race, color, and gender discrimination and retaliation in violation of
Title VII, as well as race discrimination and retaliation under § 1981. Id. She did not allege
violations of the FMLA. She also filed a motion for recusal, asking Judge Chasanow to recuse
herself from the case because “Sewell ha[d] been prejudiced by Chief Judge Chasanow, in
another litigation.”4 ECF No. 23. Judge Chasanow denied the motion. ECF No. 26.
Strayer moved to dismiss, and Judge Chasanow granted the motion, dismissing Sewell’s
discrimination claims under Title VII for lack of subject matter jurisdiction because Sewell failed
to exhaust her administrative remedies and dismissing her § 1981 claims as untimely. July 9,
2013 Mem. Op. & Order, ECF Nos. 25 & 26 in 2012 Action. Judge Chasanow noted that even if
Sewell had exhausted her administrative remedies, her Title VII claims would have been subject
At the time, Sewell had filed four previous suits in this Court. Sewell v. Dore, No. AW-122889; Sewell v. Howard, No. JFM-12-2736; Sewell v. Prince George’s Cnty. Dep’t of Social
Servs., No. DKC -12-2522; Sewell v. Prince George’s Cnty. Dep’t of Social Servs., No. DKC-122402. Since then, she has filed thirteen actions, in addition to this case. Sewell v. Chasanow,
No. JKB-16-3256; Sewell v. Wagner, No. GJH-16-2458; Sewell v. Commodity Fed. Trading
Comm’n, No. PX-16-2457; Sewell v. Wash. Metro. Area Transit Auth., No. GJH-16-2456; Sewell
v. Fidelity Nat’l Fin., Inc., No. DKC-16-906; Sewell v. Westat, No. RWT-16-158; Sewell v.
Fidelity Nat’l Fin. Care, No. PWG-15-3392; Sewell v. Fidelity National Fin. Care, No. PWG15-3077; Sewell v. Am. Educ. Servs./PHEAA, No. DKC-15-3076; Sewell v. John Howard Sr.,
No. PWG-15-1539; Sewell v. Wash. Metro. Area Transit Auth., No. TDC-15-1334; Howard v.
Sewell, No. DKC-14-2205; Sewell v. Wash. Metro. Area Transit Auth., No. JFM-13-2961. Most
of her cases concern the foreclosure on her property or the custody of her children. All of her
cases but two of her most recent have been dismissed or remanded to state court.
to dismissal for failure to state a claim because she failed to make factual allegations that stated a
plausible claim for intentional discrimination. Id. Judge Chasanow granted Sewell leave to
amend with regard to her Title VII retaliation claim based on her demotion. Id.
Sewell amended, ECF No. 27 in 2012 Action; Strayer moved to strike portions of the
amended complaint and to dismiss it, ECF No. 29 in 2012 Action; and Judge Chasanow
dismissed the amended complaint with prejudice for failure to state a claim. ECF Nos. 38 & 39
in 2012 Action. Sewell filed two motions for relief from judgment, a motion for reconsideration
and another motion for recusal of Judge Chasanow, and the Court denied the motions. ECF Nos.
40–42, 44, 48–52 in 2012 Action.
In her motion for reconsideration, Sewell argued that “[t]he state court perpetrated fraud
against Sewell’s property and her minor children and discriminated against both on the basis of
their race. These issues were overlooked and unaddressed by Judge Chasanow in the opinion
issued on April 18, 2014.” ECF No. 42 in 2012 Action. Likewise, in her second motion for
recusal, she insisted that Judge Chasanow
is conflict of interest [sic] as has prejudiced the proper administration of Justice in
this matter and in another case involving the Plaintiff’s minor children, who are
both African American Christian males. Not only has this Judge discriminated on
the basis of the Plaintiff[’s] race, but [she] has done everything in her power to
advance the interest of the State of Maryland.
ECF No. 44 in 2012 Action. In her Rule 60(b)(4) motion for relief, Sewell similarly asserted that
is disqualified . . . as she has and continues to utilize the prestige of her position to
bully, harass and intimidate the plaintiff and her minor children, because of the[ir]
religion and race in violation of 42 USC 1981, and has conspired with various
female Judges in violation of 42 USC 1985 ranging from the State of Maryland,
Richmond, VA, and St. Louis, MO, most of who have utilized their positions to
advance the interest of their judicial family members and friends . . . .
ECF No. 49. She also contended that “[t]his court also has a history of Title 42, U.S.C., Section
14141 violations in majority of their cases . . . and have specifically treated minorities who file
employment litigations Pro Se adversely.” Id. She reiterated the same allegations of prejudice
and discrimination by the Court in her second Rule 60(b)(4) motion. ECF No. 51. Sewell
appealed the denial of her last motion to the Fourth Circuit, ECF No. 53 in 2012 Action, and the
Fourth Circuit affirmed “for the reasons stated by the district court.” ECF Nos. 56 & 56-1 in
In February 2014, Sewell applied for two assistant dean of faculty positions and a campus
dean position at Strayer but was not selected, a decision she attributes to Strayer’s “ongoing
willful violation of FMLA Pregnancy Discrimination Act (PDA) and FMLA Retaliation on the
basis of the Plaintiff’s race.” Compl. 6. Plaintiff alleges that “Mr. Silberman has not responded
to the Plaintiff’s concerns” regarding Strayer’s “willful FMLA violation.” Id. at 7.
Standard of Review
Defendants move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Under this Rule,
Sewell’s Complaint is subject to dismissal if it “fail[s] to state a claim upon which relief can be
granted.” Fed. R. Civ. P. 12(b)(6). A complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), and must state “a
plausible claim for relief,” Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Rule
12(b)(6)’s purpose “is to test the sufficiency of a complaint and not to resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v.
City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). If an affirmative defense “clearly
appears on the face of the complaint,” however, the Court may rule on that defense when
considering a motion to dismiss. Kalos v. Centennial Sur. Assocs., No. CCB-12-1532, 2012 WL
6210117, at *2 (D. Md. Dec. 12, 2012) (quoting Andrews v. Daw, 201 F.3d 521, 524 n. 1 (4th
Cir. 2000) (citation and quotation marks omitted)). Two such affirmative defenses are res
judicata, also known as claim preclusion, and collateral estoppel, also known as issue preclusion.
Plaintiff is proceeding pro se, and her Complaint is to be construed liberally. See Haines
v. Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Plaintiff
from pleading plausible claims. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing
Inmates v. Owens, 561 F.2d 560, 562–63 (4th Cir. 1977)).
Claims against Individual Defendants
Sewell mentions Silberman once in her Complaint, alleging that “Mr. Silberman has not
responded to the Plaintiff’s concerns” about Strayer’s “willful FMLA violation.” Id. at 7. She
does not allege who Silberman is or how he could be liable under the FMLA for Strayer’s
alleged violation based on his alleged failure to respond to her concerns. Sewell does not
mention McDonnell at all in her Complaint. These allegations – or failures to make allegations –
are insufficient to state a claim because they do not provide the Court with facts from which it
could “draw the reasonable inference that [either individual] defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678. Moreover, Sewell concedes in her Opposition that
“Sewell is not suing Robert Silberman or Karl McDonnel[l]. . . . Sewell is suing Strayer
University, INC.” Pl.’s Opp’n 3; see also id. at 1 (insisting that the Individual Defendants are
“two people who aren’t even being sued”); id. at 2 (noting that Defense counsel “filed an
eighteen (18) page motion, defending two white men who are not named as defendants in this
action” and that “Karl and Robert, white men are not Defendant’s [sic] in this action”).
Therefore, the Individual Defendants will be dismissed from this case.
Claims Based on Events before 2014
Res judicata “bars a party from suing on a claim that has already been litigated to a final
judgment by that party or such party’s privies and precludes the assertion by such parties of any
legal theory, cause of action, or defense which could have been asserted in that action.” Reid v.
New Century Mortg. Corp., No. AW-12-2083, 2012 WL 6562887, at *3 (D. Md. Dec. 13, 2012)
(quoting Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009))
(citation and internal quotation marks omitted). When considering this defense, “a court may
take judicial notice of facts from a prior judicial proceeding when the res judicata defense raises
no disputed issue of fact.” Kalos, 2012 WL 6210117, at *2 (quoting Andrews, 201 F.3d at 524
n.1). Res judicata provides grounds for dismissal if a defendant establishes “(1) a judgment on
the merits in a prior suit resolving (2) claims by the same parties or their privies, and (3) a
subsequent suit based on the same cause of action.” Ohio Valley Envtl. Coal. v. Aracoma Coal
Co., 556 F.3d 177, 210 (4th Cir. 2009) (quoting Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir.
1990)). Even if the plaintiff’s legal theory differed in the earlier dispute, the doctrine of res
judicata still bars the current action, provided that “the second suit ‘arises out of the same
transaction or series of transactions as the claim resolved by the prior judgment.’” Id. (quoting
Aliff, 914 F.2d at 42). Further,
The preclusive [e]ffect of a prior judgment extends beyond claims or defenses
actually presented in previous litigation, for “[n]ot only does res judicata bar
claims that were raised and fully litigated, it prevents litigation of all grounds for,
or defenses to, recovery that were previously available to the parties, regardless of
whether they were asserted or determined in the prior proceeding.” Peugeot
Motors of America, Inc. v. Eastern Auto Distributors, Inc., 892 F.2d 355, 359 (4th
Cir. 1989), quoting Brown v. Felsen, 442 U.S. 127, 131 (1979) (internal quotation
Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991).
1. Same parties
As noted, Sewell filed suit against Strayer in the 2012 Action. Given that Plaintiff asserts
that Strayer is the only Defendant, see Pl.’s Opp’n 3, the parties are the same: Sewell and
2. Same cause of action
In the pending case, Sewell alleges that Strayer discriminated against her based on race,
color, and gender, in violation of Title VII, when it “financially demoted” her. Compl. 3–6. She
also alleges that, in demoting her and then terminating her, Strayer was retaliating in response to
her complaints of discrimination, in violation of Title VII. Id. Additionally, she claims that
Strayer retaliated against her, in violation of the FMLA, in response to her exercise of her FMLA
rights by demoting her, terminating her employment, and failing to rehire her in 2014. Id.
Finally, she claims that some or all of these acts were in violation of § 1981. Id. at 7.
As discussed previously, with the exception of the FMLA claims, Sewell brought the
same causes of action in the 2012 Action, where she claimed race, color, and gender
discrimination and retaliation in violation of Title VII, as well as race discrimination and
retaliation under § 1981. Compl., ECF No. 1 in 2012 Action. Sewell did not assert an FMLA
claim in the 2012 Action. But, other than the failure-to-hire claims based on acts in 2014, these
FMLA claims were available to Sewell when she filed the 2012 Action. Therefore, res judicata
bars all of the claims other than those based on the 2014 events, if the Court entered a final
judgment on the merits in the 2012 Action. See Ohio Valley Envtl. Coal., 556 F.3d at 210;
Meekins, 946 F.2d at 1057.
3. Final judgment on the merits
As discussed, in the 2012 Action, this Court dismissed Sewell’s discrimination claims
under Title VII for lack of subject matter jurisdiction because Sewell failed to exhaust her
administrative remedies, and it dismissed her § 1981 claims as untimely. July 9, 2013 Mem. Op.
& Order, ECF Nos. 25 & 26 in 2012 Action. As for her Title VII retaliation claim based on her
demotion, which the Court granted Sewell leave to amend, the Court dismissed the amended
complaint with prejudice for failure to state a claim. ECF Nos. 38 & 39 in 2012 Action. Sewell
filed various motions for reconsideration and the Court denied them all. ECF Nos. 40–52 in
2012 Action. Sewell appealed to the Fourth Circuit, ECF No. 53 in 2012 Action, and the Fourth
Circuit affirmed “for the reasons stated by the district court.” ECF Nos. 56 & 56-1 in 2012
Thus, the 2012 Action was litigated to a final judgment on the merits of the Title VII
retaliation claims and the § 1981 claims, but not the Title VII discrimination claims. See Frank
v. Home Depot, U.S.A., Inc., 481 F. Supp. 2d 439, 442 (D. Md. 2007) (“‘Unless the court in its
order for dismissal otherwise specifies,’ … ‘any dismissal not provided for in [Rule 41], other
than a dismissal for lack of jurisdiction, for improper venue, or for failure to join a party under
Rule 19, operates as an adjudication upon the merits.’ As Rule 12(b)(6) is a dismissal not
provided for in Rule 41(b) and is not for lack of jurisdiction, improper venue, or failure to join a
party, the dismissal of Frank I under Rule 12(b)(6) for failure to state a claim operates as an
adjudication upon the merits.” (quoting Fed. R. Civ. P. 41(b))); Goldsmith v. Mayor & City
Council of Baltimore, 987 F.2d 1064, 1069 (4th Cir. 1993) (“[A] jurisdictional dismissal … is
not a judgment on the merits for purposes of res judicata.”). Therefore, res judicata bars all of
Sewell’s claims against Strayer based on events before 2014, besides her Title VII discrimination
claims. See Ohio Valley Envtl. Coal., 556 F.3d at 210; Meekins, 946 F.2d at 1057. This does not
mean, however, that this Court must permit relitigation of the issue of subject matter jurisdiction
with regard to Sewell’s Title VII claims.
“The collateral estoppel doctrine works to ensure that parties get ‘one full and fair
opportunity to litigate a particular issue, while preventing needless relitigation of that issue.’”
Barna Conshipping, S.L. v. 2,000 Metric Tons, More or Less, of Abandoned Steel, 410 F. App’x
716, 720 (4th Cir. 2011) (quoting In re Cygnus Telecomms. Tech., LLC, Patent Litig., 536 F.3d
1343, 1350 (Fed. Cir. 2008)).
One issue for which collateral estoppel serves as a bar to
relitigation is whether the court has subject matter jurisdiction. See id. (noting that the First
Circuit stated that “[d]ismissal for lack of subject matter jurisdiction precludes relitigation of the
issues determined in ruling on the jurisdictional question” (quoting Muniz Cortes v. Intermedics,
Inc., 229 F.3d 12, 14 (1st Cir. 2000))). Indeed, “[d]ismissal of a suit for want of federal subjectmatter jurisdiction . . . ordinarily should preclude relitigation of the same issue of subject-matter
jurisdiction in a second federal suit on the same claim.” Id. (quoting 18 Charles Alan Wright,
Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure § 4402, at 20 (2d ed.
2002). Collateral estoppel bars relitigation of an issue or fact if
(1) the issue or fact is identical to the one previously litigated; (2) the issue or fact
was actually resolved in the prior proceeding; (3) the issue or fact was critical and
necessary to the judgment in the prior proceeding; (4) the judgment in the prior
proceeding is final and valid; and (5) the party to be foreclosed by the prior
resolution of the issue or fact had a full and fair opportunity to litigate the issue or
fact in the prior proceeding.
In re Microsoft Corp. Antitrust Litig., 355 F.3d 322, 326 (4th Cir. 2004) (emphasis added).
In the 2012 Action, the parties litigated the identical issue of this Court’s subject matter
jurisdiction over the same Title VII discrimination claims that Sewell raises in this case. Mot. to
Dismiss, Opp’n, & Reply, ECF Nos. 7, 14 & 15 in 2012 Action. Sewell is the party who would
“be foreclosed by the prior resolution of the issue.” See In re Microsoft Corp. Antitrust Litig.,
355 F.3d at 326. By filing an Opposition to Strayer’s Motion to Dismiss, ECF No. 14 in 2012
Action, which the Court considered in its analysis, July 9, 2013 Mem. Op., ECF No. 25 in 2012
Action, Sewell “had a full and fair opportunity to litigate the issue” in the 2012 Action. See In re
Microsoft Corp. Antitrust Litig., 355 F.3d at 326. The Court resolved the issue by issuing a
Memorandum Opinion and Order dismissing the claims for lack of subject matter jurisdiction.
July 9, 2013 Mem. Op. & Order, ECF Nos. 25 & 26 in 2012 Action. The issue “was critical and
necessary to the judgment” in the 2012 Action, as it was the basis for dismissal of those claims.
See id.; In re Microsoft Corp. Antitrust Litig., 355 F.3d at 326. Sewell filed various motions for
reconsideration of the dismissal order, as well as for relief from judgment on the basis that Judge
Chasanow was biased, all of which the Court denied, ECF Nos. 40–42, 48–52 in 2012 Action.
When Sewell appealed, the Fourth Circuit affirmed the District Court. ECF Nos. 53 & 56 in
2012 Action. Thus, the dismissal order “is final and valid.” See In re Microsoft Corp. Antitrust
Litig., 355 F.3d at 326.
Therefore, collateral estoppel bars adjudication of the Title VII
discrimination claims. See Barna Conshipping, 410 F. App’x at 720; In re Microsoft Corp.
Antitrust Litig., 355 F.3d at 326.
Claims Based on Events in 2014
As for Sewell’s claim that Strayer’s failure to rehire Sewell in 2014 was retaliation in
violation of the FMLA “on the basis of the Plaintiff’s race” and part of Strayer’s “ongoing
willful violation of FMLA Pregnancy Discrimination Act (PDA),” Compl. 6, claims that could
not have been brought in the 2012 Action, Defendants argue that Sewell’s factual allegations are
insufficient to state a claim. Defs.’ Mem. 3.
To state an FMLA retaliation claim, Sewell must allege that “(1) she ‘engaged in
protected activity;’ (2) ‘an adverse employment action was taken against her;’ and (3) ‘there was
a causal link between the protected activity and the adverse employment action.’” Wright v.
Southwest Airlines, 319 F. App’x 232, 233 (4th Cir. 2009) (quoting Mackey v. Shalala, 360 F.3d
463, 469 (4th Cir. 2004)); see Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 242 (4th
Cir. 1997); Ross v. Comm. Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985); Bosse v. Baltimore
Cty., 692 F. Supp. 2d 574, 588 (D. Md. 2010). Defendants challenge only the third element.
Defs.’ Mem. 13.
Sewell took FMLA leave from December 2007 through March 2008, at which point she
briefly returned to work before she “was granted additional FMLA medical leave pursuant to the
Pregnancy Discrimination Act (PDA) that she remained on until she delivered her child on June
19, 2008.” Compl. 4, 6. Sewell then took maternity leave until August 18, 2008, when she
returned to work. Id. FMLA leave certainly is a protected activity. See Townes v. Maryland
Dep't of Juvenile Servs., No. JKB-15-1093, 2015 WL 5928114, at *5 (D. Md. Oct. 8, 2015)
(“FMLA leave is indisputably a ‘protected activity.’”). She filed a complaint with the Office of
Human Rights and Equity Programs (“OHREP”) in August 2009. Compl. 6 & Ex. 1, ECF No. 12. Sewell later applied for, but Strayer did not hire her for, three positions in February 2014.
Compl. 6. In her application for all three positions, she stated that Strayer previously “granted
[her] an FMLA extension,” such that the decision-maker reviewing her application would have
been aware of her exercise of FMLA rights. Compl. Ex. 4, ECF No. 1-5.
Sewell’s most recent allegedly protected activity, her August 2009 complaint with the
OHREP, was still more than four years and five months before Strayer failed to hire her in
February 2014. This is, by far, “too long a period for Plaintiff to establish a causal relationship
on temporal proximity alone.” Wilson v. City of Gaithersburg, 121 F. Supp. 3d 478, 485–86 (D.
Md. 2015); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (“The cases that
accept mere temporal proximity between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very close.’”) (citation omitted); Horne v.
Reznick Fedder & Silverman, 154 F. App’x 361, 364 (4th Cir. 2005) (holding that “[t]he district
court correctly concluded that Horne failed to produce sufficient evidence of such a causal
connection” where “Horne’s only evidence of causation is that she was fired two months after
she accused Anderson of discrimination,” because “a lapse of two months between the protected
activity and the adverse action is ‘sufficiently long so as to weaken significantly the inference of
causation’” (quoting King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003)); Westmoreland v.
Prince George’s County, Md., 876 F. Supp. 2d 594, 607–08 (D. Md. 2012) (“Although there is
no bright-line rule on the issue of temporal proximity, the Fourth Circuit has held that a lapse of
over three months between the protected activity and the alleged retaliation is too long to give
rise to an inference of causality.”)).
Certainly, Sewell could have alleged causation on facts other than the timeline of events,
had such facts existed. See Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007). A court
“‘may look to the intervening period for other evidence of retaliatory animus’ which ‘may be
used to establish causation.’” Westmoreland, 876 F.Supp.2d at 607–08 (quoting Lettieri, 478
F.3d at 650). But, Plaintiff does not make any such allegations. Therefore, Sewell has failed to
state a claim for FMLA retaliation. See Wright, 319 F. App’x at 233.
Defendants ask the Court to “enter an order prohibiting Plaintiff from filing further
claims against Defendants without prior leave of Court.” Defs.’ Mem. 3. Specifically, they seek
the following injunctive relief:
(a) Before filing any lawsuit against Strayer University, Robert Silberman or Karl
McDonnell, Ms. Sewell must first submit to the Clerk of Court where Ms. Sewell
seeks to file the lawsuit: (i) an application for leave to file suit; (ii) a copy of the
accompanying Order; and (iii) a notarized affidavit or declaration stating that the
matters raised in the lawsuit have not been raised or decided in any other lawsuit,
are brought in good faith, and are not for the purpose of harassment;
(b) The Court where Ms. Sewell seeks to file must grant her leave to file the
lawsuit before filings therein may be docketed or served on any party; and
(c) A finding of contempt and imposition of civil penalties against Ms. Sewell
should she violate the Court’s Order.
Id. at 16.
As to the Individual Defendants, there is no basis for such an order, given that Sewell has
not sued them previously. She is cautioned, however, that further frivolous claims against them
could result in an injunction.
“[T]he All Writs Act, 28 U.S.C. § 1651(a) (2000), grants federal courts the authority to
limit access to the courts by vexatious and repetitive litigants . . . .” Cromer v. Kraft Foods N.
Am., Inc., 390 F.3d 812, 817 (4th Cir. 2004); see Thomas v. Fulton, 260 F. App’x 594, 596 (4th
Cir. 2008) (citing Cromer, 390 F.3d at 817–18). One means of limiting access is a pre-filing
injunction, which should only be used sparingly and be based on a litigant’s demonstrated
vexatious or repetitive filing of meritless motions and other requests for relief. But where, as in
this case, there exist “exigent circumstances, such as a litigant’s continuous abuse of the judicial
process by filing meritless and repetitive actions,” see Cromer, 390 F.3d at 817–18 (citation and
internal quotation marks omitted), a pre-filing injunction is appropriate. When determining
whether to employ a pre-filing review system, a court should consider the following factors: (1)
“the party’s history of litigation, in particular whether [s]he has filed vexatious harassing, or
duplicative lawsuits”; (2) whether the party files her cases on good faith bases, or only to harass;
(3) “the extent of the burden on the courts and other parties resulting from the party’s filings”;
and (4) if alternative sanctions are adequate. Id. at 818. The injunction must be “narrowly
tailored to fit the specific circumstances at issue.” Id.
In two of her previous civil actions, Sewell v. Fidelity National Financial Care, et al.,
Nos. PWG-15-3077 and PWG-15-3392, Sewell was
cautioned that should she persist in filing further frivolous motions for
reconsideration, which are both vexatious and apparently filed solely to delay the
need to appeal the Court’s underlying rulings dismissing these cases, she may
subject herself to the imposition of an injunction prohibiting future filings that
have not previously been reviewed to determine whether they merit being
accepted for filing by the Clerk of the Court.
ECF No. 19 in PWG-15-3077; ECF No. 18 in PWG-15-3392, (citations omitted). In those cases,
Sewell’s history clearly demonstrates she is vexatious, as she has now
filed four rounds of motions for reconsideration, all of which have been denied as
without merit. There is no good faith basis for her filings. Her motions have been
an undue burden to this Court, which has explained the lack of merit in her
original claims and in her subsequent motions for reconsideration on numerous
occasions. See PWG-15-3077, ECF Nos. 4, 11, & 15; PWG-15-3392, ECF Nos.
4, 5, 10, & 14. No alternative sanctions are adequate as Sewell has continued to
file these meritless motions even having been cautioned against doing so and
advised that she has the right to appeal my decisions to the Fourth Circuit if
dissatisfied by my rulings.
ECF No. 20 in PWG-15-3077; ECF No. 21 in PWG-15-3392. On that basis, I “conclude[d] that
Sewell’s repeated filing of unmeritorious post-dismissal motions and related requests for relief
constitutes vexatious filings before this Court,” and therefore there was “good cause for the
imposition of a pre-filing injunction with respect to these two cases.” ECF No. 20 in PWG-153077; ECF No. 21 in PWG-15-3392. I ordered that the Clerk of the Court not accept for
docketing any future filings in those cases unless I had reviewed and approved for docketing the
proposed filings. ECF No. 20 in PWG-15-3077; ECF No. 21 in PWG-15-3392.
Sewell’s litigation history continues to demonstrate that she is vexatious. This case
consists almost entirely of claims that she brought without success in the 2012 Action. As noted,
in addition to the two cases against Fidelity National Financial that were before me, PWG-153077 & PWG-15-3392, she has filed at least fifteen other cases since 2012 that have been
dismissed, some voluntarily, and at least one resulting in the imposition of sanctions against
Sewell. See Sewell v. Chasanow, No. JKB-16-3256 (dismissed); Sewell v. Wagner, No. GJH-162458 (dismissed); Sewell v. Commodity Fed. Trading Comm’n, No. PX-16-2457 (pending);
Sewell v. Wash. Metro. Area Transit Auth., No. GJH-16-2456 (pending); Sewell v. Fidelity Natll
Fin., Inc., No. DKC-16-906 (dismissed; motions for reconsideration denied; sanctions granted);
Sewell v. Westat, No. RWT-16-158 (dismissed; partial summary judgment granted); Sewell v.
Am. Educ. Servs./PHEAA, No. DKC-15-3076 (dismissed); Sewell v. John Howard Sr., No.
PWG-15-1539 (remanded; motions for reconsideration denied); Sewell v. Wash. Metro. Area
Transit Auth., No. TDC-15-1334 (dismissed; motion for reconsideration denied); Howard v.
Sewell, No. DKC-14-2205 (remanded); Sewell v. Wash. Metro. Area Transit Auth., No. JFM-132961 (dismissed); Sewell v. Dore, No. AW-12-2889 (dismissed); Sewell v. Howard, No. JFM-122736 (dismissed; motions for reconsideration denied); Sewell v. Prince George’s Cnty. Dep’t of
Social Servs., No. DKC -12-2522 (dismissed; multiple motions for reconsideration and recusal
denied); Sewell v. Prince George’s Cnty. Dep’t of Social Servs., No. DKC-12-2402 (remanded;
motion for reconsideration denied). None of these cases has been reversed or remanded on
appeal. There is no good faith basis for Sewell’s filings. Her filings have placed an undue
burden on the Court and the defendants she names, especially given that she often sues one
defendant more than once, as she has done here. And, no alternative sanctions are adequate as
Sewell has continued to initiate lawsuits regularly in this Court, repeatedly suing the same
defendants, despite her lack of success.
Additionally, the proposed injunction is narrowly
tailored to the circumstances of this litigation.
Accordingly, I will issue a pre-filing injunction that Sewell may not make any additional
filings in this case without first submitting to me for review and approval for docketing the
proposed filings, and that, before filing any lawsuit against Strayer University, Sewell must first
submit to the Clerk of Court where Sewell seeks to file the lawsuit: (i) an application for leave to
file suit; (ii) a copy of this Memorandum Opinion and the Order accompanying this
Memorandum Opinion; and (iii) a notarized affidavit or declaration stating that the matters raised
in the lawsuit have not been raised or decided in any other lawsuit, are brought in good faith, and
are not for the purpose of harassment. Should Sewell fail to comply with this injunction, she
may be found in contempt of court and civil penalties may be imposed.
Defendants also seek sanctions in the form of attorneys’ fees “against Plaintiff for her
continued vexatious litigation and harassment of Defendants.” Defs.’ Mem. 3. Sanctions are
available under Rule 11 for filing any document with the court “for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase the cost of litigation” or for making
claims that are not “warranted by existing laws.” Fed. R. Civ. P. 11(b)(1), (2). Pursuant to Rule
11(c), the party against whom sanctions are sought must have “notice and a reasonable
opportunity to respond,” and the motion “must be made separately from any other motion.” Fed.
R. Civ. P. 11(c)(1), (2). Defendants have not complied with these requirements, as they included
their request for sanctions within their Motion to Dismiss. Moreover, the relief granted pursuant
to Rule 11 “must be limited to what suffices to deter repetition of the conduct or comparable
conduct by others similarly situated.” Fed. R. Civ. P. 11(c)(4). The pre-filing injunction
discussed above is more likely to be effective, as it is likely that Sewell could not pay the fees.
Thus, given that a proper Rule 11(c) motion would require another round of briefing, it likely
only would accomplish further burden on Defendants. Defendants’ request for attorneys’ fees is
denied without prejudice.
In sum, Defendants’ Motion to Dismiss IS GRANTED. When a plaintiff cannot amend
to present any facts that would survive a motion to dismiss, dismissal should be with prejudice.
See Weigel v. Maryland, 950 F. Supp. 2d 811, 825 (D. Md. 2013) (citing Cozzarelli v. Inspire
Pharm., Inc., 549 F.3d 618, 630 (4th Cir. 2008)). Therefore, the Title VII retaliation and § 1981
claims against Strayer, as well as the FMLA claims against Strayer based on acts before 2014,
WILL BE DISMISSED with prejudice as Sewell cannot allege any facts to overcome res
judicata’s bar. Likewise, the Title VII discrimination claim against all Defendants WILL BE
DISMISSED with prejudice because, regardless how Sewell might amend it, collateral estoppel
would bar the relitigation of the issue of subject matter jurisdiction.
As for the FMLA retaliation claim against Strayer based on the failure to hire Sewell in
2014, and the remaining claims against the Individual Defendants, I have the discretion to
“determin[e] whether to dismiss with or without prejudice under Rule 12(b)(6).” Weigel, 950 F.
Supp. 2d at 825 (quoting 180S, Inc. v. Gordini U.S.A., Inc., 602 F. Supp. 2d 635, 638–39 (D. Md.
2009)). “When a plaintiff fails to state a claim, [s]he ‘should generally be given a chance to
amend the complaint . . . before the action is dismissed with prejudice.’” Id. (quoting FinServ
Cas. Corp. v. Settlement Funding, LLC, 724 F. Supp. 2d 662, 674–76 (S.D. Tex. 2010)). But,
dismissal with prejudice is appropriate where amendment would be futile. See Cozzarelli, 549
F.3d at 630; Weigel, 950 F. Supp. 2d at 825.
As noted, Sewell has filed numerous complaints in this Court, used those actions to lodge
allegations against the courts and members of the judiciary and other public officials, sought
recusal of judges, repeatedly sought reconsideration and appealed, and routinely ignored Court
orders. With the exception of two recent pending cases, all of her cases have resulted in
dismissal or remand, and she has not succeeded on any of her customary appeals to the Fourth
Circuit or requests for certiorari to the Supreme Court. She is one of the most vexatious litigants
in this Court; pre-filing injunctions have been put in place to temper her filings in at least three
other cases, Sewell v. Fidelity Nat’l Fin., Inc., No. DKC-16-906; Sewell v. Fidelity Nat’l Fin.
Care, Nos. PWG-15-3077 & PWG-15-3392, and sanctions have been awarded against her in at
least one case, Sewell v. Fidelity Nat’l Fin., Inc., No. DKC-16-906. Moreover, even a casual
reading of Sewell’s “opposition” to Defendants’ Motion to Dismiss reveals that she has used that
filing as a vehicle to set forth a series of conclusory allegations against a litany of public officials
and judicial officers that, to the extent that they are intelligible (which, for the most part, they are
not), have nothing whatsoever to do with her claims against Defendants in this action. Against
this track record, the likelihood of her successfully litigating an FMLA retaliation claim against
Strayer is low.
Moreover, FMLA retaliation claims, like Title VII retaliation claims, “require but-for
causation.” Rhodes v. Comcast Cable Commc’ns Mgmt., LLC, No. GLR-14-1824, 2016 WL
4376653, at *6, *12 (D. Md. Aug. 17, 2016) (quoting Vicino v. Maryland, 982 F. Supp. 2d 601,
613 (D. Md. 2013)); see also Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 252 (4th Cir. 2015)
(“[T]he McDonnell Douglas framework has long demanded proof at the pretext stage that
retaliation was a but-for cause of a challenged adverse employment action.”). Consequently,
amendment would be futile because no reasonable jury could find that, with Sewell’s early
litigation history as it stood in February 2014, Strayer would have hired her again but for the fact
that she exercised her FMLA rights. See Foster, 787 F.3d at 252; Rhodes, 2016 WL 4376653, at
*6, *12; Vicino, 982 F. Supp. 2d at 613. And, given that Sewell insists that “Sewell is not suing
Robert Silberman or Karl McDonnel[l]. . . . Sewell is suing Strayer University, INC.,” Pl.’s
Opp’n 3, amendment would be futile with regard to any allegations against the Individual
Defendants. Therefore, I will dismiss these claims with prejudice. See Cozzarelli, 549 F.3d at
630; Weigel, 950 F. Supp. 2d at 825.
Strayer’s request for a pre-filing injunction IS GRANTED; the Individual Defendants’
request for a pre-filing injunction IS DENIED. Defendants’ request for attorneys’ fees IS
DENIED without prejudice.
A separate order will follow.
Date: January 5, 2017
Paul W. Grimm
United States District Judge
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