Reed v. Management Solutions Consulting Group, Inc. et al
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 1/18/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 16-2442
STRATEGISTS,INC. and MANAGEMENT
SOLUTIONS CONSULTING GROUP, INC.:
employment case are: (1) a motion to transfer filed by Defendant
Innovative Management Strategists, Inc. (“IMS”) (ECF No. 19);
(2) a motion to dismiss or for summary judgment filed by IMS
Management Solutions Consulting Group, Inc. (“MSCG”) (ECF No.
The issues have been briefed, and the court now rules, no
hearing being deemed necessary.
Local Rule 105.6.
judgment will be granted for both Defendants, and IMS’s motion
to transfer will be dismissed as moot.
MSCG styled its motion as a motion to dismiss, but it
requests in a footnote that that the motion alternatively be
treated as one for summary judgment if necessary to consider the
attached documents. (ECF No. 32-2, at 4). As discussed below,
the motion will be converted to one for summary judgment with
regard to Plaintiff’s claims under the Prince George’s County
Human Rights Ordinance.
Plaintiff Andrea Reed, a Virginia resident, began working
as a Logistics Coordinator for MSCG in in January 2013.
Plaintiff worked at MSCG’s office in Lanham, Maryland, which is
in Prince George’s County.
(Id. ¶ 15).
Plaintiff about moving to a new role as a Logistics Coordinator
(Id. ¶ 20).
MSCG and IMS had developed a joint
Virginia, which was much closer to Plaintiff’s Virginia home.
(Id. ¶¶ 19-20).
Plaintiff agreed to the transfer and, according
to her employment letter, was scheduled to start with IMS on
Monday, November 3, 2014.
(ECF No. 32-3, at 2).
On Friday, October 31, Plaintiff received an email from
(ECF No. 14 ¶ 27).
Plaintiff and her husband
wanted to start a family in the near future, and she became
concerned that the transfer to IMS would cause her to lose more
than 30 hours of paid leave that she had accrued with MSCG, as
Unless otherwise noted, the facts outlined in this section
are set forth in the complaint or undisputed and construed in
the light most favorable to Plaintiff.
well as maternity leave, disability benefits, and life insurance
(Id. ¶¶ 25, 26).
Plaintiff emailed Ms. Burks and IMS
President Latonya Dunlow the next day asking to delay her move
discuss her benefits.
(Id. ¶ 28).
Ms. Dunlow set the meeting
for 8:30 a.m. Monday morning, Plaintiff’s first day with IMS, at
a Panera Bread restaurant in Woodbridge, a location where she
frequently held meetings because IMS was not yet able to move
into its Woodbridge office space.
(Id. ¶¶ 29-30).
benefits and what options she would have if she became pregnant.
concerned” and stated, “Well, are you pregnant now? If you’re
not pregnant now, then there is no real rush or worry to have
Plaintiff’s request to postpone her start date.
(Id. ¶ 33).
Plaintiff began work for IMS that day, but continued to
work in MSCG’s Lanham office.
She alleges that she continued to
report to the same direct supervisor, MSCG’s Logistics Manager
(Id. ¶ 23).
On November 5, Plaintiff asked Ms.
Dunlow if she could telework until the Woodbridge office opened
because all of her duties could be fulfilled remotely and her
roundtrip commute to Lanham was between three and four hours per
employees to telework until the Woodbridge office opened, she
denied Plaintiff’s request.
(Id. ¶¶ 34, 37, 38).
week, Plaintiff submitted requests to telework on specific days
during November and December to accommodate her holiday plans.
(Id. ¶ 39).
Ms. Dunlow approved some of these dates but denied
(Id. ¶ 40).
Plaintiff asked for reconsideration with
regard to the other days she had requested because she wanted to
travel out of town, but Ms. Vasconi responded that IMS did not
have a telecommuting policy and that it was “a benefit based on
the needs of the job, work group, and company at the time of the
(ECF No. 32-6, at 2).3
On December 9, Plaintiff took an at-home pregnancy test
which indicated that she was pregnant.
(Id. ¶ 43).
pregnancy and, on December 23, left work early because she was
supervisor that day, approved her request to leave early.
Plaintiff then emailed Ms. Dunlow to inform her that she
had left early and to request permission to work from home the
following day; Ms. Dunlow again denied her request.
(Id. ¶¶ 47-
Plaintiff responded to Ms. Dunlow, stating that she felt
The content of the emails denying Plaintiff’s telework
requests are integral to the complaint and therefore may be
considered on Defendants’ motions to dismiss.
Philips v. Pitt
Cnty. Memorial Hosp., 572 F.3d 176, 180 (4 Cir. 2009).
she was being treated unfairly with regard to teleworking.
Plaintiff later that day in Woodbridge and fired Plaintiff at
(Id. ¶¶ 51-52).
IMS has stated that Plaintiff
had been fired for leaving the office early without supervisor
permission on December 23.
(Id. ¶ 53).
that Ms. Martin was her supervisor under the terms of the IMS
employee handbook and had approved her early departure.
Plaintiff timely filed a charge of discrimination with the
United States Equal Employment Opportunity Commission (“EEOC”),
which issued a Dismissal and Notice of Rights on March 31, 2016.
(Id. ¶ 6).
She filed the instant suit on June 29, alleging
claims under Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., for (1) discrimination on the
bases of her sex and pregnancy and (2) retaliation for engaging
in protected activity.
(ECF No. 1).
After Plaintiff filed an
amended complaint to add counts under the Prince George’s County
Human Rights Ordinance for (1) discrimination based on her sex,
retaliation (ECF No. 14), IMS filed the pending amended motions
responded on October 3.
(ECF Nos. 19; 20; 28; 29).
its pending motion to dismiss on October 17; Plaintiff responded
and MSCG replied.
(ECF Nos. 32; 33; 34).
Title VII Claims
Standard of Review
motions to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to
state a claim upon which relief can be granted.
The purpose of
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.”
complaint must be considered as true, Albright v. Oliver, 510
construed in the light most favorable to the plaintiff,
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783
(4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d
The motion to transfer cites to 28 U.S.C. § 1404(a), a
discretionary venue transfer provision.
The issues raised are
not jurisdictional and need not be considered prior to
addressing the motions to dismiss. The transfer motion will be
denied as moot.
See Revene v. Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir.
“Rule 8(a)(2) still requires a ‘showing,’ rather than a
blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n.3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal citations omitted).
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, see United Black Firefighters v. Hirst, 604 F.2d
844, 847 (4th Cir. 1979).
Failure to State a Claim for Discrimination
Defendants contend that Plaintiff has failed to state a
proper claim for discrimination under Title VII.
succeed on a Title VII claim, a plaintiff must provide direct
evidence of unlawful discrimination or, if direct evidence is
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
elements of a prima facie case of discrimination under Title VII
are: (1) membership in a protected class; (2) satisfactory job
performance; (3) adverse employment action; and (4) different
Coleman v. Md. Court of Appeals, 626 F.3d 187,
190 (4th Cir. 2010), aff’d sub nom. Coleman v. Court of Appeals
of Md., 132 S.Ct. 1327 (2012).
At the motion to dismiss stage,
however, a complaint need not establish a prima facie case of
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002) (noting
that “[t]he prima facie case . . . is an evidentiary standard,
not a pleading requirement”).
Rather, “to survive a motion to
dismiss, the complaint must ‘state a plausible claim for relief’
that ‘permits the court to infer more than the mere possibility
of misconduct’ based upon ‘its judicial experience and common
626 F.3d at 190 (4th
Iqbal, 556 U.S. at 679).
Cir. 2010) (quoting
A plaintiff must allege a situation
that is more than consistent with discrimination; it must “alone
motivated by [impermissible] bias.”
McCleary-Evans v. Md. Dep’t
of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.
2015) (citing Iqbal, 556 U.S. at 678).
Indeed, in McCleary-
Evans, the United States Court of Appeals for the Fourth Circuit
discrimination complaint because it left “open to speculation
the cause for the defendant’s decision,” and discrimination was
because Plaintiff has not alleged that a non-pregnant employee
(ECF No. 32-2, at 19).
According to MSCG, unless
expression of intent to become pregnant.”
necessary inference: When Plaintiff brought up trying to get
pregnant at the November 3 meeting, Ms. Dunlow “became visibly
concerned” and said, “Well, are you pregnant now? If you’re not
pregnant now, then there is no real rush or worry to have the
benefits right now.”
(ECF No. 14 ¶ 32).
This statement does
not suggest that IMS began denying Plaintiff’s telework requests
rationale for why Plaintiff’s attempts to get pregnant would
justify denying her telework requests just a few days later.
The explanation IMS gave to the state that she was fired for
leaving without permission may be disputed given that Plaintiff
purports to have received permission to leave from Ms. Martin,
but Plaintiff’s repeated requests for telework after being told
that she needed to work from Lanham raise an obvious alternative
explanation: that her termination was the result of her repeated
attempts to avoid going to the office and Ms. Dunlow’s questions
about “Plaintiff’s work ethic and abilities.”
(Id. ¶ 42).
conduct were motivated by her attempts at pregnancy “are simply
Only speculation can fill the gaps in [her]
McCleary-Evans, 780 F.3d at 586.
facts potentially showing that she was treated differently than
other employees, but, much like in McCleary-Evans, the complaint
fails plausibly to allege that any difference was the result of
duties, personal conflict between her and Ms. Dunlow, or other
Failure to State a Claim for Retaliation
Defendants also contend that Plaintiff fails to state a
proper claim for retaliation for engaging in protected activity.
conversation she had with Ms. Burks about Ms. Dunlow treating
her unfairly and (2) her email to Ms. Dunlow about being treated
activity includes ‘utilizing informal grievance procedures as
well as . . . voicing one’s opinions in order to bring attention
to an employer’s discriminatory activities.’”
(ECF No. 33, at
14 (quoting Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 551
(4th Cir. 1999)).
Plaintiff does not allege that she mentioned
either of these conversations.
Indeed, in her conversation with
Ms. Burks, she raised only non-protected issues, such as Ms.
Dunlow being critical of Plaintiff’s work ethic and abilities.
(ECF No. 14 ¶ 42).
In her email to Ms. Dunlow, Plaintiff
pregnancy or sex.
(Id. at 49; ECF No. 32-8, at 2).
protected activity, her retaliation claims will be dismissed.
III. Prince George’s County Claims
state law claims within the court’s supplemental jurisdiction
motion to dismiss for failure to state a federal claim, the
jurisdiction, pursuant to 28 U.S.C. § 1367, over pendent statelaw claims.”
Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006).
Because these claims can easily be resolved, the court will
retain jurisdiction at this juncture.
Defendants argue that Plaintiff’s claims under the Prince
George’s County Human Rights Ordinance (the “Ordinance”) must
fail because she has not exhausted her administrative remedies.
Maryland law provides that a person may bring a civil action
against an employer for violating the Ordinance so long as the
action is commenced no sooner than 45 days after the plaintiff
filed a complaint with the county authority.
Md. Code Ann.,
County, that filing authority is the Executive Director of the
Prince George’s County Human Relations Commission (the “PGHRC”).
discrimination charges with the EEOC, not with the PGHRC.
No. 14 ¶ 6).
Standard of Review
As noted above, on a motion to dismiss under Rule 12(b)(6),
motion to dismiss.
Here, whether Plaintiff filed with the PGHRC
is not evident from the face of her complaint.
As a result, the
court will consider matters outside of the pleadings in its
“Ordinarily, a court cannot consider matters outside
the pleadings or resolve factual disputes when ruling on a Rule
12(b)(6) motion to dismiss.”
F.3d 442, 450 (4th Cir. 2007).
See Bosiger v. U.S. Airways, 510
When the court considers matters
outside the pleadings, “the motion must be treated as one for
summary judgment under Rule 56,” and “[a]ll parties must be
given a reasonable opportunity to present all the material that
Finley Lines Joint Protective Bd. Unit 200 v. Norfolk S. Corp.,
treating the motion as one for summary judgment.
Wall, 761 F.2d 175, 177 (4th Cir. 1985).
See Gay v.
A party’s awareness
that material outside the pleadings is pending before the court
satisfies this notice requirement.
See id.; Warner v. Quilo,
No. ELH–12–248, 2012 WL 3065358, at *2 (D.Md. July 26, 2012)
alternative’ as one for summary judgment, and submits matters
outside the pleadings for the court’s consideration, the parties
are deemed to be on notice that conversion under Rule 12(d) may
occur[.]” (quoting Laughlin v. Metro. Wash. Airports Auth., 149
F.3d 253, 261 (4th Cir. 1998))).
Second, courts must satisfy
themselves that the nonmoving party has had a fair opportunity
to discover information essential to oppose the motion.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5 (1986)
(citing Fed.R.Civ.P. 56(f)).
IMS styled motion as a “motion to dismiss and or summary
(ECF No. 20, at 1).
MSCG styled its motion solely
as a motion to dismiss, but requests in a footnote that that the
motion alternatively be treated as one for summary judgment if
necessary to consider the attached documents.
(ECF No. 32-2, at
Plaintiff had notice by virtue of the title of IMS’s motion
and MSCG’s footnote.
Although a footnote might not always be
sufficient, Plaintiff’s opposition to MSCG’s motion acknowledged
MSCG’s request for summary judgment in the alternative (ECF No.
included its own attachments of extrinsic evidence (ECF No. 332).
It is thus appropriate to consider the extraneous materials
A motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the moving
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
dispute about a material fact is genuine “if the evidence is
undertaking this inquiry, a court must view the facts and the
favorable to the party opposing the motion,” Matsushita Elec.
(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005), but a “party cannot create a genuine dispute
Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md.
2001) (citation omitted).
To prevail on a motion for summary judgment, the moving
party generally bears the burden of showing that there is no
genuine dispute as to any material fact.5
No genuine dispute of
material fact exists, however, if the nonmoving party fails to
make a sufficient showing on an essential element of his case as
to which he or she would have the burden of proof.
responsibility to confront the summary judgment motion with an
The parties have not addressed whether Plaintiff generally
bears the burden of proving exhaustion before moving forward
with a claim under the Ordinance or whether Defendants must
plead and prove a failure to exhaust as an affirmative defense.
Even if Defendants bear the burden of proof, however, they have
produced evidence sufficient to meet the burden, as discussed
there is a genuine issue for trial.
See Ross v. Early, 899
F.Supp.2d 415, 420 (D.Md. 2012), aff’d, 746 F.3d 546 (4th Cir.
Failure to Exhaust
Defendants challenge Plaintiff’s claims under the Ordinance
remedies under the Ordinance.
(ECF Nos. 22, at 3; 32-2, at 14-
In her opposition to the motions, she contends that, by
alleging that the discrimination charge was filed with the EEOC,
Plaintiff also alleged that her complaint was filed with the
EEOC will cross-file the charge with the local agency.
C.F.R. § 1601.13.
The PGHRC is an approved local authority.
C.F.R. § 1601.74.
complaint explicitly names the local authorities with which it
would be cross-filed and does not include the PGHRC.
filings against both IMS and MSCG state that the charge will be
cross-filed with the Maryland State Commission on Human Rights
and the Prince William County, Virginia Human Rights Commission.
(ECF No. 32-12, at 3, 12).
Both of these agencies are also
C.F.R. § 1601.74, and the EEOC regulations are clear that the
29 C.F.R. § 1601.70(d) (“Where both State and local
 agencies exist, the [EEOC] reserves the right to defer to the
State [authority] only.”); id. (“[W]here there exist agencies of
concurrent jurisdiction, the [EEOC] may defer to the  agency
which would best serve the purposes of title VII.”); see also 29
contact the [local] agency to confirm coverage.”).
has also previously held that these warnings “would seem to
indicate to any reasonable person exercising due diligence that
a referral to the PGHRC . . . would not be automatic after a
claim had already been filed with the Maryland Human Relations
Rachel-Smith v. FTData, Inc., 247 F.Supp.2d 734,
744 (D.Md. 2003).
The court in Rachel-Smith granted summary
judgment in favor of the employer for the PGHRC claims where the
plaintiff similarly failed to exhaust based on an assumption
that the EEOC filing would trigger cross-filing with the PGHRC.
Although that case involved a more circuitous path to the
PGHRC – Plaintiff expected the State authority to send it to the
EEOC and then the EEOC, knowing the state authority already had
the filing, to send it to the PGHRC – its logic applies here as
Plaintiff signed her EEOC charge filings that named only
the local authorities for the State of Maryland and the county
where Woodbridge, Virginia is located.
In light of the specific
naming of the other local authorities and the absence of the
PGHRC on the face her EEOC charge filing, Plaintiff’s contention
is insufficient to create a dispute over whether a charge was
summary judgment will be granted with regard to these claims.
For the foregoing reasons, the motions to dismiss or for
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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