Dent v. University of Maryland et al
Filing
36
MEMORANDUM OPINION (c/m to Plaintiff 6/12/17 sat). Signed by Judge Deborah K. Chasanow on 6/12/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MELISSA DENT
:
v.
:
Civil Action No. DKC 16-2446
:
UNIVERSITY OF MARYLAND,
COLLEGE PARK
:
MEMORANDUM OPINION
Presently
employment
emergency
pending
and
discrimination
pendente
lite
ready
case
for
are:
hearing
by
resolution
(1)
the
motion
Plaintiff
in
for
Melissa
this
an
Dent
(“Plaintiff”) (ECF No. 22); (2) the motion to dismiss filed by
Defendant University of Maryland (“Defendant”) (ECF No. 24); and
(3) Defendant’s motion to strike a surreply (ECF No. 31).
The
issues have been briefed, and the court now rules, no hearing
being deemed necessary.
Local Rule 105.6.
For the following
reasons, the motion to dismiss will be granted, the motion to
strike
will
be
granted,
and
the
motion
for
a
pendente
lite
hearing will be denied.
I.
Background
A.
Factual Background1
Plaintiff is an African American female who worked for the
Maryland Small Business Development Center (“SBDC”), a statewide
1
Unless otherwise noted, the facts outlined here are set
forth in the amended complaint and construed in the light most
favorable to Plaintiff.
non-profit
entity
operates
regional
campus.
a
within
the
University
headquarters
(ECF No. 10 ¶¶ 1, 13, 20).
business
consultant
by
SBDC
for
on
that
College
Park
Plaintiff was employed as a
four
(Id. ¶ 31).
Plaintiff
businesses
small
Maryland
Defendant’s
terminated in May 2016.
assisted
of
years
until
she
was
In her role at SBDC,
in
a
variety
of
ways,
including counseling on revenue generation, helping with funding
opportunities, developing strategic partnerships, and generating
exposure for their businesses.
(Id. ¶ 32).
Until the spring of
2015, Plaintiff had received positive performance reviews, and
she
was
awarded
September of 2014.
SBDC’s
Business
Counseling
State
Star
in
(Id. ¶ 34).
On March 30, 2015, Plaintiff submitted a self-assessment
for the previous rating period to SBDC management in which she
was critical of her supervisor, Bret Kyle Bayliss.
Among
the
problems
she
identified
were
(Id. ¶ 33).
“challenges
in
communication between her and Mr. Bayliss, a lack of resources
and resource allocation, and issues regarding employee morale.”
(Id.).
Plaintiff did not mention any discrimination in her
self-assessment.
Shortly
after
Plaintiff’s
self-assessment
was
submitted,
Mr. Bayliss gave Plaintiff a “below expectations” performance
review for the previous rating period.
(Id. ¶ 34).
When Mr.
Bayliss met with Plaintiff to explain the poor evaluation, she
2
found
him
to
be
unreasonably
hostile,
“rais[ing]
his
voice,
flail[ing] his arms, and knock[ing] items over on his desk,
making [Plaintiff] extremely uncomfortable.”
(Id.).
Plaintiff
responded by emailing Mr. Bayliss’s superiors, Renee Sprow and
Lora
Brown,
to
(Id. ¶ 35).
evaluation
challenge
his
evaluation
of
her
performance.
Specifically, she argued that Mr. Bayliss’s poor
was
unfounded
and
that
several
reportable
accomplishments on her scorecard had been altered to make it
seem as though she was performing worse than she had been.
¶ 35).
(Id.
She later discovered that Mr. Bayliss had manipulated
six of her performance milestones without notifying her, which
ultimately adjusted her score.
(Id. ¶ 37).
Plaintiff explained
this to Ms. Sprow, Ms. Brown, and Jeff Snider, a human resources
representative, but there was no further action on the matter by
SBDC management for several weeks.
Plaintiff
regarding
the
then
filed
matter.
a
(Id.
(Id. ¶¶ 37-38).
grievance
¶
39).
against
Two
Step
Mr.
1
Bayliss
grievance
meetings were held in May 2015 with Plaintiff, Mr. Bayliss, Ms.
Sprow, Ms. Brown, Mr. Snider, and Patrick Laden, an attorney for
the human resources department.
(Id. ¶ 41).
At one hearing,
management agreed to adjust Plaintiff’s performance evaluation
to “Exceeds Expectations.”
(Id.).
After Mr. Bayliss revised
Plaintiff’s performance review, however, he also asked Plaintiff
to revise her evaluation of him in her self-assessment, a “quid
3
pro quo” arrangement that she refused.
(Id. ¶¶ 44-45).
In her
grievance, Plaintiff also had sought to be moved out of Mr.
Bayliss’s supervision or to be permitted to bring representation
to any meeting with Mr. Bayliss so that she would not be alone
with him.
Defendant refused these requests and instead referred
Plaintiff and Mr. Bayliss to arbitration with the University
Ombudsman.
(Id.
¶¶
41,
43).
Other
than
amending
her
performance evaluation, Defendant denied Plaintiff’s grievance.
(Id. ¶¶ 46).
Finding SBDC management’s response inadequate,
Plaintiff filed an internal whistleblower complaint with Denise
Clark,
the
Associate
Vice
President
oversees the SBDC, on June 4, 2015.
of
the
division
that
(Id. ¶ 47-49).
Plaintiff remained under Mr. Bayliss’s supervision, and the
conflict between the two continued.
In August, Mr. Bayliss
denied a reimbursement request for training expenses that would
normally
have
been
reimbursed.
(Id.
¶
50).
In
September,
Plaintiff was accused of calling Mr. Bayliss a liar in a staff
meeting.
review,
(Id. ¶¶ 51-52).
Plaintiff
employment
During her mid-September performance
discovered
milestones
had
once
been
made
again
that
one
of
“non-reportable”
notifying her and needed to be amended.
(Id.
her
without
¶ 53).
Mr.
Bayliss later required staff to read a book and watch a video
that
Plaintiff
divorcee
being
suggests
fired
for
“insinuated
not
[her]
trusting
4
those
situation
with
of
whom
a
she
worked.”
(Id.
¶
56).
He
also
increased
the
frequency
of
performance reviews for the entire staff to monthly reviews,
then ceased the monthly review process when Plaintiff went on
medical leave.
(Id. ¶ 60).
In November, Defendant conducted a
Step 2 hearing for Plaintiff’s grievance, at which the grievance
was dismissed without her having an opportunity to speak.
¶¶ 64-65).
(Id.
When she followed up with a new, revised grievance
in which she again sought to be relieved from meeting with Mr.
Bayliss alone, Defendant refused to consider it.
(Id. ¶ 66).
On December 14, 2015, Defendant denied Plaintiff’s internal
whistleblower complaint.
(Id. ¶ 70).
When Plaintiff threatened
to file a federal whistleblower complaint, Defendant scheduled a
mandatory meeting with her, but would not allow her to bring an
attorney.
meeting,
(Id. ¶¶ 71-73).
and
was
insubordination.
Plaintiff refused to attend this
issued
a
(Id. ¶ 74).
one-day
suspension
for
On January 14, 2016, Plaintiff
filed a federal whistleblower complaint with the Office of the
Inspector
General
(“OIG”)
Administration (“SBA”).
of
the
federal
(ECF No. 10 ¶ 78).
to pursue an investigation into the matter.
As
this
dispute
unfolded,
the
environment began to wear on Plaintiff.
Small
Business
The OIG decided not
(Id. ¶ 96).
stress
of
her
work
In the summer of 2015,
she began to see a doctor for emotional distress and physical
manifestations including pain, rashes, and hair loss.
5
(Id. ¶
54).
After her suspension, Plaintiff’s conditions were severe
enough to warrant approved leave under the Family Medical Leave
Act (“FMLA”) from January 7 to January 19, 2016.
(Id. ¶ 75).
After returning for a short period of time, Plaintiff was again
placed on FMLA leave from February 9 until May 3.
(Id. ¶ 77).
On March 8, 2016, while Plaintiff was out on FMLA leave,
Defendant sent her a “Last Chance Agreement” indicating that she
would be reprimanded if she continued to refuse to meet with Mr.
Bayliss alone.
(Id. ¶ 81).
Plaintiff then filed a charge of
discrimination with the Equal Employment Opportunity Commission
(“EEOC”) on March 28.
(Id. ¶ 26).
On March 31, the EEOC
dismissed her complaint and issued a right to sue notice.
¶ 27).
meet
(Id.
After Plaintiff returned on May 3, Mr. Bayliss sought to
with
violation
her
of
and
the
she
Last
refused.
Chance
(Id.
Agreement,
Plaintiff’s employment on May 11.
¶¶
85-86).
Defendant
(Id. ¶ 85).
Citing
terminated
Even after
Plaintiff was terminated, Defendant’s reports relating to her
termination
benefits.
B.
caused
her
to
be
denied
certain
unemployment
(Id. ¶ 97).
Procedural Background
Plaintiff
filed
this
suit
on
June
29,
2016,
against
Defendant and SBDC, alleging race discrimination (Count I), sex
discrimination
(Count
II),
and
retaliation
(Count
III),
in
violation of Title VII of the Civil Rights Act of 1964 (“Title
6
VII”), 42 U.S.C. § 2000e, et seq. (ECF No. 1).
On November 14,
SBDC and Defendant filed a motion to dismiss.
(ECF No. 8).
Plaintiff responded in opposition to the motion and filed an
amended complaint, adding a claim for retaliation and wrongful
termination
(Count
IV)
in
violation
of
the
Whistleblower
Protection Enhancement Act of 2012 (“WPEA”), an amendment to the
Federal Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302,
and the whistleblower provisions in Section 1553 of the American
Recovery and Reinvestment Act of 2009 (“ARRA”), Pub.L.No. 111–5,
§ 1553(a) (2009).
(ECF Nos. 10, 11).
The court granted the
motion to dismiss as to SBDC because it operates as an entity
within the University.
(ECF No. 17, at 4).
On December 6,
Plaintiff filed the pending motion for a pendente lite hearing.
(ECF No. 22).
Defendant responded (ECF No. 26), and Plaintiff
replied (ECF No. 30).
Defendant filed the instant motion to
dismiss the amended complaint on December 16 (ECF No. 24), and
Plaintiff
responded
on
December
20
(ECF
No.
27).
After
Defendant replied on December 22 (ECF No. 28), Plaintiff filed a
separate “Memorandum of Law in Support of Plaintiff’s Motion to
Deny Defendant’s Motion to Dismiss” on January 3, 2017 (ECF No.
29).
Defendant
Plaintiff’s
then
January
3
filed
filing
the
as
a
instant
motion
surreply.
(ECF
to
strike
No.
31).
Plaintiff responded to the motion to strike (ECF No. 32), and
Defendant replied (ECF No. 33).
7
II.
Motion to Dismiss
A.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
A 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.”
Fed.R.Civ.P. 8(a)(2).
“Rule 8(a)(2)
still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.”
544, 555 n.3 (2007).
Bell Atl. Corp. v. Twombly, 550 U.S.
That showing must consist of more than “a
formulaic recitation of the elements of a cause of action” or
“naked
assertion[s]
devoid
of
further
factual
enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
At
this
stage,
all
well-pleaded
allegations
in
the
complaint must be considered as true, Albright v. Oliver, 510
U.S.
266,
268
(1994),
and
all
factual
allegations
must
construed in the light most favorable to the plaintiff.
be
See
Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783
(4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993)); Brockington v. Boykins, 637 F.3d
(4th
the
complaint,
unsupported legal allegations need not be accepted.
Revene v.
503,
505-06
Cir.
2011).
In
evaluating
Charles Cty. Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
8
Legal
conclusions
couched
as
factual
allegations
are
insufficient,
Iqbal, 556 U.S. at 678, as are conclusory factual allegations
devoid
of
any
reference
to
actual
events.
United
Black
Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see
also Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
“[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has
alleged, but it has not ‘show[n] that the pleader is entitled to
relief.’”
8(a)(2)).
Iqbal,
556
U.S.
at
679
(quoting
Fed.R.Civ.P.
Thus, “[d]etermining whether a complaint states a
plausible claim for relief will . . . be a context-specific task
that
requires
the
reviewing
experience and common sense.”
Generally,
pro
se
court
to
draw
on
its
judicial
Id.
pleadings
are
liberally
construed
and
held to a less stringent standard than pleadings drafted by
lawyers.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner,
404 U.S. 519, 520 (1972).
Liberal construction means that the
court will read the pleadings to state a valid claim to the
extent that it is possible to do so from the facts available; it
does not mean that the court should rewrite the complaint to
include claims never presented.
1128, 1132 (10th Cir. 1999).
Barnett v. Hargett, 174 F.3d
That is, even when pro se litigants
are involved, the court cannot ignore a clear failure to allege
9
facts that support a viable claim.
Weller v. Dep’t of Soc.
Servs., 901 F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No.
RDB–12–969,
2012
WL
6087491,
at
*3
(D.Md.
Dec.
4,
2012)
(citation and internal quotation marks omitted) (“[E]ven a pro
se complaint must be dismissed if it does not allege a plausible
claim for relief.”).
B.
Analysis
1.
Title VII Discrimination Claims
Defendant first contends that Plaintiff has failed to state
a proper claim for discrimination under Title VII in Counts I
and II.
It argues that Plaintiff has failed to allege facts
indicating that any of the adverse actions taken against her
were taken as a result of her race or sex.
14).
(ECF No. 24-1, at 9-
Defendant notes that Plaintiff has not only failed to
identify
a
comparator
outside
the
protected
class
who
was
similarly situated and treated differently, but also that she
has
provided
only
speculative
allegations
stemmed from a race- or sex-based animus.
that
her
treatment
(Id.).
To succeed on a Title VII claim, a plaintiff must provide
direct
evidence
evidence
is
of
lacking,
unlawful
follow
discrimination
the
or,
burden-shifting
if
direct
framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
10
(1973).2
The 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
treatment
from
outside the protected class.
similarly
situated
employees
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 discrimination under the McDonnell Douglas
framework.
(2002)
See Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510
(noting
that
“[t]he
prima
facie
case
.
evidentiary standard, not a pleading requirement”).
2
.
.
is
an
Rather, “to
In her complaint, Plaintiff alleges both that Defendant
took adverse employment actions against her and that it
subjected her to a hostile work environment.
(ECF No. 10 ¶¶
102-05, 108-11).
Claims for discrimination based on a hostile
work environment are reviewed under a different standard.
To
establish a prima facie case, Plaintiff must show that: (1) she
was subjected to unwelcome conduct; (2) the unwelcome conduct
was based on sex or race; (3) the conduct was sufficiently
pervasive or severe to alter the conditions of employment and
create a hostile work environment; and (4) some basis exists for
imputing liability to the employer.
See Smith v. First Union
th
Cir. 2000). These claims
Nat’l Bank, 202 F.3d 234, 241–42 (4
typically arise where the environment is discriminatory, but the
Defendant fails to engage in other concrete adverse employment
actions present here such as disciplinary proceedings or
termination.
To
the
degree
that
Plaintiff
alleges
discrimination by way of a hostile work environment in addition
to the adverse employment actions against her, she fails to
describe how any of the hostile acts she pleads were based on
her race or gender, as described in more detail below.
Plaintiff’s hostile work environment discrimination claims will
therefore be dismissed.
11
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 sense.’”
190
(4th
Cir.
2010)
(quoting
Iqbal,
Coleman, 626 F.3d at
556
U.S.
at
679).
A
plaintiff must allege a situation that is more than consistent
with
discrimination;
inference
that
it
the
[impermissible] bias.”
must
“alone
decisionmakers
support
were
a
reasonable
motivated
by
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
for
Court
district
of
court’s
Appeals
dismissal
the
of
an
Fourth
Circuit
employment
upheld
the
discrimination
complaint because it left “open to speculation the cause for the
defendant’s decision,” and discrimination was not plausible in
light of another “obvious alternative explanation.”
Id.
The allegations in Plaintiff’s complaint strongly indicate
that Mr. Bayliss sought to make Plaintiff’s life more difficult,
but
she
has
failed
to
plead
facts
indicating
that
his
bias
against her was based on her gender or race instead of other
personal
issues.
Defendant’s
conduct
Although
as
Plaintiff
discriminatory,
repeatedly
she
makes
references to race or gender in her complaint.
refers
only
a
to
few
First, in the
context of Mr. Bayliss’s alleged quid pro quo offer to correct
12
her performance review if she amended her evaluation of him in
the self-assessment, Plaintiff alleges that “[she] was the only
business
consultant
that
was
an
African
American
retaliated against in this fashion by Mr. Bayliss.”
¶¶ 44-45).
Female
and
(ECF No. 10
Second, Plaintiff makes reference to another African
American female, a “Ms. Smoots,” who, according to Plaintiff,
was similarly disliked by Mr. Bayliss and complained that her
performance
Third,
metrics
Plaintiff
had
alleges
been
that
lowered.
“Mr.
(Id.
Bayliss
¶¶
48.b,
required
[of
89).
all
staff] the reading of a book and the watching of a video that
insinuated the Plaintiff’s situation of a divorcee being fired
for not trusting those with whom she worked.”
56).3
(ECF No. 10 ¶
Fourth, Plaintiff suggests that Mr. Bayliss “treated other
African-American and Hispanic female employees under his control
and supervision with hostility, while providing disproportionate
raises and favor to others.”
(Id. ¶ 90).
3
It is unclear how the book and video that Mr. Bayliss
required all employees to watch was discriminatory.
Plaintiff
further states that she did not read the book.
(ECF No. 10 ¶
57). As to any direct discrimination claim, Plaintiff does not
indicate that the required viewing and reading constituted an
adverse employment action nor that her refusal to read the book
led to any adverse action. To the degree that reading the book
and watching the video are part of a hostile work environment
claim, Plaintiff appears to be arguing that Defendant was
hostile to her based on her marital status, not her race or sex,
and these two requests would also be insufficient to constitute
severe and pervasive conduct.
13
In contrast to these four references to race or sex, the
narrative
of
explanation”
description
her
complaint
for
of
Mr.
the
offers
Bayliss’s
facts
with
an
“obvious
conduct.
the
poor
alternative
She
review
begins
she
Bayliss in her self-assessment on March 30, 2015.
gave
her
Mr.
(Id. ¶ 33).
Plaintiff makes no allegations that Mr. Bayliss discriminated
against her or treated her with hostility prior to this bad
review.
began
In other words, the complaint alleges a dispute that
because
“management
of
of
Plaintiff’s
SBDC’s
criticism
Corridor
of
Region,”
Mr.
Bayliss’s
“challenges
in
communication between her and Mr. Bayliss, a lack of resources
and resource allocation, and issues regarding employee morale.”
(Id.).
Indeed,
throughout
her
amended
complaint
and
her
internal whistleblower complaint, Plaintiff explains that “Mr.
Bayliss’s
actions
were
in
retaliation
comments.”
for
[Plaintiff’s]
(ECF Nos. 10 ¶ 45; 10-2, at 1).4
In light of this “obvious alternative explanation” on the
face of Plaintiff’s complaint, the few vague references to race
and
gender
Only
that
speculation
Plaintiff
can
fill
makes
the
4
“are
gaps
simply
in
too
conclusory.
[her]
complaint.”
A court may, without converting a motion to dismiss into a
motion for summary judgment, “consider documents attached to the
complaint as well as those attached to the motion to dismiss, so
long as they are integral to the complaint and authentic.”
Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009) (citation omitted).
14
McCleary-Evans, 780 F.3d at 586.
The fact that Mr. Bayliss
treated Plaintiff differently than other business consultants
can
be
explained
by
their
conflict
over
his
management.
Plaintiff’s other allegations speak of discrimination in such
broad strokes as to require extensive speculation to fill in the
details.5
In short, Plaintiff fails to allege plausibly that any
difference in treatment between her and her peers was the result
of prohibited discrimination as opposed to differences in job
duties, personal conflict between her and Mr. Bayliss, or other
non-prohibited reasons.
More
broadly,
limitations
of
Plaintiff
Title
to
Read
VII.
appears
a
as
misunderstand
whole,
the
Plaintiff’s
complaint alleges that Mr. Bayliss unfairly treated her with
hostility simply because she criticized him as a manager.
In
addition to allegations that Mr. Bayliss retaliated against her
for her review of him, Plaintiff also complains of violations of
her “right to a safe workplace,” improper grievance procedures,
the failure to follow internal University policy, and of Mr.
Bayliss
raising
his
voice,
flailing
his
items on his desk, and being a “bully.”
53,
60,
64,
65).
Title
VII
does
5
not
arms,
knocking
over
(ECF No. 10 ¶¶ 34, 42,
protect
against
such
Plaintiff cannot bring a claim for discrimination based on
Mr. Bayliss or Defendant discriminating against Ms. Smoots.
Plaintiff also makes clear in the complaint that Mr. Bayliss
inherited Ms. Smoots’ territory, which indicates that she was in
a different position than Plaintiff.
15
issues.
In evaluating Title VII claims, the federal courts do
“not sit as a kind of super-personnel department weighing the
prudence
with
of
employment
employment
decisions
made
discrimination.”
by
[employers]
Amirmokri
v.
charged
Abraham,
437
F.Supp.2d 414, 424 (D.Md. 2006) (quoting DeJarnette v. Corning
Inc., 133 F.3d 293, 299 (4th Cir. 1998)). Title VII “does not
establish a general civility code for the American workplace.”
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008).
If Mr. Bayliss mistreated Plaintiff and Defendant took adverse
employment actions against her because she wrote Mr. Bayliss a
bad review, Title VII does not provide her any recourse.
Given
that this explanation is the overriding thrust of her complaint,
her discrimination claims in Counts I and II will be dismissed.
2.
Title VII Retaliation Claims
Count III of Plaintiff’s complaint alleges retaliation in
violation of Title VII.
Defendant moves to dismiss Count III
because Plaintiff has failed to plead that any retaliatory acts
were a result of her engaging in protected activity under the
statute.
(ECF
No.
24-1,
at
18).
Even
if
an
employer’s
underlying conduct was not discriminatory, retaliation can exist
where
the
employer’s
discrimination
making
or
future].”
“could
supporting
response
well
a
to
dissuade
charge
of
a
plaintiff’s
a
reasonable
charge
worker
discrimination
[in
of
from
the
Burlington N. & Santa Fe Ry. Co v. White, 548 U.S.
16
53,
67-68
(2006).
To
establish
a
prima
facie
case
of
retaliation, Plaintiff would have to show that: (1) she engaged
in a protected activity; (2) in response, his employer acted
adversely
against
him;
and
(3)
the
protected
causally connected to the adverse action.
activity
was
Fordyce v. Prince
George’s Cty. Md., 43 F.Supp.3d 537, 547 (D.Md. 2014) (citing
Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir.
2007)).
Protected activity includes “oppos[ing] any . . . unlawful
employment
charge,
practice
[under
testif[ying],
Title
VII]
assist[ing],
or
.
.
.
or
[making]
participat[ing]
in
a
any
manner in [a Title VII] investigation, proceeding or hearing.”
42 U.S.C. § 2000e-3(a).
employee’s
employer
plaintiff
complaint
understood,
was
The Fourth Circuit has held “that an
constitutes
or
opposing
protected
should
have
discriminatory
activity
understood,
conduct.”
when
the
that
the
Burgess
v.
Bowen, 466 F.App’x 272, 282 (4th Cir. 2012) (citing, inter alia,
EEOC
Compliance
Manual
§
8-II.B.2
(2006)
(“[A]
protest
is
protected opposition if the complaint would reasonably have been
interpreted
as
opposition
Determining
whether
an
to
employment
employer
should
discrimination.”)).
have
understood
a
complaint to allege discriminatory conduct “requires courts to
consider whether the complaint could reasonably have led the
employer
to
understand
the
nature
17
of
the
complaint
in
the
context in which it was made.”
Burgess, 466 F.App’x at 282
(citing Richardson v. Richland Cty. Sch. Dist. No. 1, 52 F.App’x
615, 617 (4th Cir. 2002)).
There
are
no
specific
phrases
or
words
that
must
included in a complaint to constitute protected activity.
be
See
Okoli v. City of Baltimore, 648 F.3d 216, 224 (4th Cir. 2011)
(holding that a complaint alleging “harassment” was sufficient
for an employer to understand that the plaintiff was alleging
sexual harassment); see also Broderick v. Donaldson, 437 F.3d
1226,
1232
required,
(D.C.Cir.
the
2006)
complaint
must
(“While
in
no
some
‘magic
way
words'
allege
are
unlawful
discrimination, not just frustrated ambition.”); Olson v. Lowe’s
Home Ctrs. Inc., 130 F.App’x 380, 391 n.22 (11th
(“There is no magic word requirement.
Cir. 2005)
That is, the employee
need not label the events ‘sexual harassment’ in order to place
an employer on notice of the offending behavior.”).
Title VII
does require, however, “that the employee at least have actually
opposed employment practices made unlawful by Title VII.
is
to
say,
unlawful
the
clause
employment
protects
practices
nor
opposition
to
simply thinks are somehow unfair.”
neither
practices
the
That
to
all
employee
McNair v. Computer Data
Systems, Inc., No. 98-1110, 1999 WL 30959, at *5 (4th Cir. Jan.
26, 1999) (unpublished table opinion); see also Harris v. Md.
House
of
Correction,
209
F.Supp.2d
18
565,
570
(D.Md.
2002).
“Complaints
about
a
supervisor’s
‘rude’
conduct,
or
other
generalized complaints which do not alert the employer or person
receiving the complaint ‘that [the employee’s] complaints were
based on an allegation of discrimination,’ are not protected
activity.”
Ruffner v. MD OMG EMP LLC, No. WDQ-11-1880, 2012 WL
3542019 at *3 (D.Md. Aug. 13, 2012).
In
Count
III,
Plaintiff
alleges
two
types
of
protected
activity: (1) “engaging in the University’s grievance process
regarding her unfair treatment,” and (2) filing a complaint with
the EEOC.
(ECF No. 10 ¶ 116).
Plaintiff’s
retaliation
claim
Defendant argues first that
should
be
dismissed
or
limited
because she failed to exhaust her administrative remedies.
No. 24-1, at 14-15).
(ECF
“Before filing suit under Title VII, a
plaintiff must exhaust her administrative remedies by bringing a
charge with the EEOC.”
Smith v. First Union Nat’l Bank, 202
F.3d 234, 247 (4th Cir. 2000); Lewis v. City of Chicago, 560 U.S.
205, 210 (2010).
Here, Plaintiff’s complaint states that her
EEOC charge was filed on March 28, 2016, and that the EEOC
rejected her claim and issued her a right to sue notice on March
31.
(ECF No. 10 ¶¶ 26-27).
Plaintiff does not allege that she
filed any other EEOC complaints.
Because the EEOC clearly did
not have the opportunity to review any of Defendant’s alleged
conduct after March 28, Plaintiff has failed to exhaust her
administrative remedies for any claim of retaliation in response
19
to the EEOC complaint or occurring after that date, including,
most notably, her termination.
See Handon-Brown v. Washington
Suburban Sanitary Comm’n, No. RWT-13-3223, 2015 WL 1137728, at
*1 n.3 (D.Md. Mar. 11, 2015) (“The EEOC Charge of Discrimination
does
not
happened
allege
after
additional
retaliatory
its
EEOC
filing,
charge,
termination
nor
[the
amend
or
did
since
the
that
plaintiff]
charge
event
file
to
an
allege
retaliatory termination.”).
Plaintiff’s argument that Defendant retaliated against her
in
response
to
the
grievances
she
filed
fails
reason that her discrimination claims do.
allegation
against
in
her
the
for
assessment.
complaint
criticizing
is
that
him
as
Mr.
a
for
the
same
Plaintiff’s clear
Bayliss
manager
retaliated
in
her
self-
Plaintiff attached both her internal whistleblower
complaint and her EEOC complaint to her complaint in this case.
(ECF Nos. 10-1, 10-2).
Both documents similarly present this
conflict over the evaluation as the source of Mr. Bayliss’s
unequal treatment, with little reference to her race or gender.
(See
ECF
No.
10-1,
at
8
(“The
ongoing
harassment
and
discriminatory events go back to a primary event[, Plaintiff’s
self-assessment,] on March 30, 2015.”); 10-2, at 1 (“Bret Kyle
Bayliss,
milestone
illegally,
results
highlighting
fraudulently,
.
.
‘workplace
.
in
manipulated
direct
barriers’
20
in
my
performance
retribution
my
Self
for
my
Assessment
Questionnaire.
.
retribution.”)).
.
.
In
I
her
have
amended
evidence
that
complaint,
the
this
was
allegations
about the content of her grievances are similarly focused on Mr.
Bayliss’s response to her criticism and lack any connection to
Title VII-protected classes.
Bayliss’
actions
were
(See, e.g., ECF No. 10 ¶ 45 (“Mr.
in
retaliation
for
Ms.
Dent’s
comments.”)).
As noted above, in order to plead a claim for retaliation
under Title VII, the retaliatory conduct must be in response to
protected activity: “oppos[ing] any . . . unlawful employment
practice
[under
Title
VII]
.
.
.
or
[making]
a
charge,
testif[ying], assist[ing], or participat[ing] in any manner in
[a Title VII] investigation, proceeding or hearing.”
Activity
protected by employment contracts, union agreements, or internal
policies is inapplicable, despite the fact that the complaint
process – reporting to a point of contact in the human resources
department, filing a grievance, conducting a hearing, etc. – may
proceed
in
retaliation
similar
ways.
in
limited
the
Title
VII
only
circumstances
protects
where
an
against
employer
retaliates against an employee for opposing, or participating in
proceedings related to, discrimination on the basis of race,
color, religion, sex or national origin.
Plaintiff’s complaint
makes clear that Mr. Bayliss’s retaliation began with the nonprotected
issues
she
raised
pertaining
21
to
his
management
abilities and continued due to her grievance and whistleblower
complaints
based
on
the
same
conflict.
“In
offering
this
explanation as to the real reason for the employer’s action, the
plaintiff has undone [her] case.
[Plaintiff] has tried to take
a statute aimed at discrete forms of discrimination and turn it
into a general whistleblower statute, which of course Title VII
is not.”
Lightner v. City of Wilmington, N.C., 545 F.3d 260,
264 (4th Cir. 2008)
3.
Whistleblower Claims
Finally,
Defendant
argues
that
Plaintiff’s
whistleblower
claims in Count IV should be dismissed.
First, Defendant points
out
WPEA,
that
the
WPA,
federal employees.
as
amended
by
the
(ECF No. 24-1, at 19).
applies
only
to
The WPA prohibits
federal employers from taking a personnel action against “an
employee in . . . a covered position in an agency” “because of
any disclosure of information by an employee . . . which the
employee . . . reasonably believes evidences any violation of
any law, rule, or regulation.”
“covered
position”
is
5 U.S.C. § 2302(b)(8)(A)(i).
defined
as
“any
position
in
A
the
competitive service, . . . the Senior Executive Service, or . .
. the excepted service,” and an “agency” for purposes of the law
is “an Executive agency.”
Id. § 2302(a)(2)(B-C).
Defendant, an
entity of a state university, clearly is not a federal agency
under the statute.
Plaintiff’s allegation that SBDC relies on
22
federal grant funding from the SBA is insufficient to convert
her job to a covered position.
See Williams v. Va., State Bd.
of Elections, No. 3:11CV863-HEH, 2012 WL 2878579, at *5 (E.D.Va.
July 13, 2012) (finding no authority to support the proposition
that a state entity qualifies as an employer under the WPA even
in light of the fact that “a vast majority of the funds spent by
the
[state
Plaintiff’s
agency]
only
are
derived
argument
in
from
response
federal
is
that
a
grants”).
university
receiving federal funds and considered a non-profit for federal
tax
purposes
“should
Federal laws.”
do
better
and
(ECF No. 27, at 4).
be
better
in
upholding
Plaintiff has thus failed
to state a claim under the WPA.
Defendant also argues that Section 1553 of the ARRA is also
inapplicable here.
only
to
(ECF No. 24-1, at 21).
whistleblowers
who
disclose
with funds distributed under the ARRA.
Section 1553 applies
misconduct
in
connection
See Pub. L. No. 111-5, §
1553(a) (2009); Hosack v. Utopian Wireless Corp., No. DKC-110420, 2011 WL 1743297, at *6 (D.Md. May 6, 2011).
Plaintiff has
not alleged that the misconduct she disclosed was in any way
related to ARRA funds.
indicates
that
the
As Defendant points out, her complaint
federal
funding
used
by
SBDC
comes
from
grants from the SBA, a permanent government entity with its own
federal
statute
and
regulations.
23
(ECF
No.
24-1,
at
22).
Accordingly, Section 1553 is inapplicable here, and Plaintiff’s
claims in Count IV will be dismissed.
III. Motion to Strike
Without seeking leave, Plaintiff has also filed a surreply
to Defendant’s motion to dismiss, labeled as a “Memorandum of
Law in Support of Plaintiff’s Motion to Deny Defendant’s Motion
to
Dismiss
the
Amended
Summary Judgment.”
surreply.
(ECF
Complaint
(ECF No. 29).
No.
31).
and
Defendant’s
Motion
for
Defendant moved to strike the
Local
Rule
105.2(a)
states
that
“[u]nless otherwise ordered by the Court, surreply memoranda are
not permitted to be filed.”
Plaintiff argues that she did not
receive the letter from the clerk of the court about Defendant’s
motion to dismiss, and her right to reply to it, until December
23, after she had already responded and Defendant had already
replied.
(ECF No. 32 at 1-2).
Because Defendant’s reply had
repeatedly noted Plaintiff’s failure to respond to its legal
arguments,
Plaintiff
appears
to
have
construed
letter as a demand for further explanation.
the
(Id.).
clerk’s
Despite
this confusion, briefing on the motion was complete at the time
she
filed
this
“Memorandum
of
Law,”
and
the
filing
clearly
constitutes a surreply.
A surreply may be permitted “when the moving party would be
unable to contest matters presented to the court for the first
time in the opposing party’s reply.”
24
Khoury v. Meserve, 268
F.Supp.2d
600,
605
(D.Md.
2003)
(citation
omitted).
By
contrast, “[a] motion for leave to file a surreply may be denied
when the matter addressed in the reply is not new.”
Marshall v.
Capital View Mut. Homes, No. RWT–12–3109, 2013 WL 3353752, at *3
(D.Md. July 2, 2013) (citation omitted).
raise
new
arguments
in
its
reply.
Defendant did not
Accordingly,
Defendant’s
motion to strike will be granted.
IV.
Motion for Pendente Lite Hearing
Plaintiff also filed a motion for a pendente lite hearing.
In her motion, Plaintiff asks the court to order Defendant to
pay
her
a
lump
sum
pending litigation.
and
ongoing
monthly
payments
during
the
Because Plaintiff’s amended complaint will
be dismissed, the motion will be denied as moot.
Even if the
court were to hear the motion, Plaintiff has not shown that she
is entitled to temporary relief.
V.
Conclusion
For the foregoing reasons, the motion to dismiss will be
granted, the motion to strike will be granted, and the motion
for a pendente lite hearing will be denied.
A separate order
will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
25
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?