Thompson v. Alston et al
MEMORANDUM OPINION AND ORDER granting 23 Motion to Dismiss and dismissing Plaintiff's Complaint with prejudice. Signed by Judge Paul W. Grimm on 5/2/2017. (kns, Deputy Clerk)(c/m 5/3/17)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WARREN THOMPSON, SR.,
Case No.: PWG-16-1096
ROBERT ALSTON, et al.,
MEMORANDUM OPINION AND ORDER
Plaintiff Warren Thompson is a referee with the International Association of Approved
Basketball Officials, Inc.’s Southern Maryland District Board No. 134 (“the Board”). Compl. 2,
ECF No. 1. Acting without counsel, he alleges that the Defendants, officers of the Board and its
parent organization, discriminated against him on the basis of his age and race by assigning him
to referee recreational basketball games, which he deems to be “an inferior brand of basketball,”
instead of high school games. Compl. 2. Thompson claims that the assignment violated his
rights under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C.
§ 623(a)(1); Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1);
and the Maryland Fair Employment Practices Act (“FEPA”), Md. Code Ann., State Gov’t.
§ 20-606(a)(1)(i).1 Id. at 2. Defendant Robert Alston has filed a Motion to Dismiss on behalf of
himself and Defendants Robert Roman and Joseph Mitchell in which they argue, without the
Thompson also alleges his assignment to recreational games violated Board polices. Id. It is
unclear by what authority he believes the Court may enforce the Board’s internal policies, but his
claim sounds in theories of employment discrimination, not contract law. Accordingly,
Thompson has not suggested any mechanism by which the Court may vindicate his rights under
benefit of counsel, that the laws under which Thompson claims relief only protect employees and
note that Thompson admits in his Complaint that he is an independent contractor. Defs.’ Mot. 2,
ECF No. 23. Thompson filed an Opposition, Pl.’s Opp’n, ECF No. 26, and Defendants declined
to file a Reply. No hearing is necessary, Loc. R. 105.6 (D. Md.). Because Thompson admits that
he is an independent contractor and cannot amend his Complaint through an opposition, and
because the allegations do not state any actionable change to the terms, conditions, or privileges
of his employment, I will dismiss the Complaint with prejudice, as amendment would be futile.
Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it
fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237,
2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule’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.” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th
Cir. 2006)). To that end, the Court bears in mind the requirements of Fed. R. Civ. P. 8, Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009),
when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, 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,” as “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice,”
Iqbal, 556 U.S. at 678–79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from
Iqbal and Twombly). “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.
All of the parties to this case are Maryland residents, meaning that the case is in federal
court on the basis of Thompson’s Title VII and ADEA claims. Accordingly, I will address the
viability of those claims first. Both federal employment statutes apply only to employees, not
independent contractors. See Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 259 (4th Cir.
1997) (Title VII); Mangram v. Gen. Motors Corp., 108 F.3d 61, 62–63 (4th Cir. 1997) (ADEA).
In his Complaint, Thomas states that he “has been an independent contractor with Southern
Maryland District Board 134 for 20+ years.”
Compl. 4, ¶ 9.
Based on this admission,
Defendants argue that the Complaint should be dismissed and also note that Thompson signed a
Membership Agreement with the Board that identified him as an independent contractor. Defs.’
In his Opposition, Thompson argues that he should not be deemed an independent
contractor, Pl.’s Opp’n 5–6, correctly noting that a worker’s status must be determined based
upon the “economic realities” of the employment relationship rather than the label that that the
employer affixes to that relationship, Bender v. Suburban Hosp., Inc., 159 F.3d 186, 189–90 (4th
But Thompson never explains why he described himself as an independent
contractor in his Complaint if he disputes that classification, and “[i]t is axiomatic that a
complaint may not be amended by the briefs in opposition to a motion to dismiss.” Nicholson v.
Fitzgerald Auto Mall, No. RBD-13-3711, 2014 WL 2124654, at *4 (D. Md. May 20, 2014).
Accordingly, I will dismiss Thompson’s Title VII and ADEA claims.
Since Thompson now disputes his status as an independent contractor, it is possible that
an amended complaint could rectify that pleading deficiency; however, I find that further
amendment would be futile because the wrong that Thompson complains of does not involve any
adverse employment action. Both Title VII and the ADEA prohibit discrimination on prohibited
grounds in the “terms, conditions, or privileges of employment.” 29 U.S.C. § 623(a)(1); 42
U.S.C. § 2000e-2(a)(1). Thus, only “tangible employment action [that] constitutes a significant
change in employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in benefits” are
actionable under those statutes. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998);
see also Royster v. Gahler, 154 F. Supp. 3d 206, 232 (D. Md. 2015). Notably, “[t]he mere fact
that a new job assignment is unappealing to the employee . . . does not constitute adverse
employment action.” James v. Booz Allen & Hamilton, Inc., 368 F.3d 371, 376 (4th Cir. 2004).
To be actionable, the assignment must entail “some significant detrimental effect,” Holland v.
Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007), and “absent any decrease in
compensation, job title, level of responsibility, or opportunity for promotion, reassignment to a
new position commensurate with one’s salary” does not rise to the level of an adverse
employment action, Boone v. Goldin, 178 F.3d 253, 256–57 (4th Cir. 1999).
Thompson challenges his assignment to referee recreational games instead of high school
games because he considers the former to be “an inferior brand of basketball that is generally
played at deteriorated sites, poor[ly] managed facilities, [with] poor equipment, and unsafe and
frequent[ly] dangerous situations.” Compl. 2–3. He does not allege that the assignment entailed
any change in job title, responsibilities, or compensation. Neither Thompson’s subjective views
about the quality of recreational gameplay nor his generic statements about referee safety at
recreational games state a plausible claim for employment discrimination. And, based on the
barebones nature of his allegations, it does not appear that he will be able to rectify the
Complaint’s deficiencies. Accordingly, I will dismiss Thompson’s Title VII and ADEA claims
with prejudice. See Laber v. Harvey, 483 F.3d 404, 426 (4th Cir. 2006) (interpreting Fed. R.
Civ. P. 15(a) “to provide that ‘leave to amend should be denied only when the amendment would
be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or
the amendment would have been futile.’ ” (quoting Johnson v. Oroweat Foods Co., 785 F.2d
503, 509 (4th Cir. 1986))).2
As for Thompson’s FEPA claim, Defendants have not identified any authority, nor am I
aware of any, that has addressed whether the statute applies to independent contractors.
Generally, however, courts deem FEPA to be coextensive with Title VII. Butler v. Md. Aviation
Admin., No. MJG-11-2854, 2012 WL 3541985, at *11 (D. Md. Aug. 14, 2012). Regardless, a
federal court “may decline to exercise supplemental jurisdiction over” state law claims such as
Thompson’s FEPA claim, where “the district court has dismissed all claims over which it has
original jurisdiction” or where “the claim raises a novel or complex issue of State law.” 28
U.S.C. § 1367(c)(1), (3). Because I have dismissed Thompson’s federal claims, I will not
explore a legal issue that does not appear to have been squarely addressed by Maryland’s courts.
Accordingly, it is this 2nd day of May, 2017, by the United States District Court for the
District of Maryland, hereby ORDERED that:
1. Defendants’ Motion to Dismiss, ECF No. 23, IS GRANTED;
2. Plaintiff’s Complaint IS DISMISSED with prejudice;
Defendant Bennis Watkins did not join the other Defendants’ Motion to Dismiss, see Defs.’
Mot. 4, and he has not filed an answer to the Complaint. Notwithstanding Watkins’s absence
from the pending Motion, a “district court may sua sponte dismiss a complaint for failure to state
a claim, and where the face of a complaint plainly fails to state a claim for relief, the district
court has ‘no discretion but to dismiss it.’ ” Nix v. NASA Fed. Credit Union, 200 F. Supp. 3d
578, 586 (D. Md. 2016) (quoting Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 n.10 (4th Cir.
2006); see also 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §
1357 (3d ed. 2004). For the same reasons that Thompson cannot state a claim against the other
Defendants, he cannot do so against Watkins. Accordingly, I will dismiss the claims against all
3. The Clerk SHALL CLOSE the case.
Paul W. Grimm
United States District Judge
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