Mackin v. Charles Schwab & Co., Inc. et al
MEMORANDUM OPINION (c/m to Plaintiff 10/12/17 sat). Signed by Judge Deborah K. Chasanow on 10/12/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TONYA A. MACKIN
Civil Action No. DKC 16-3923
CHARLES SCHWAB & CO., INC.
employment discrimination case is the motion to dismiss filed by
Defendant Charles Schwab & Co., Inc. (“Schwab”) and Defendant
hearing being deemed necessary.
Local Rule 105.6.
following reasons, the motion to dismiss will be granted, in
part, and denied, in part.
Plaintiff was an Associated Financial Consultant (“AFC”) at
Schwab’s branch in Gaithersburg, Maryland.
She alleges that the
Financial Consultants (“FCs”) at her branch were reluctant to
Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable
For example, one FC allegedly told a black employee
who was going to New York for a holiday to “have fun [and] don’t
go to jail[.]”
(ECF No. 1, at 10).
Another FC allegedly
referred to President Obama as “that boy” because of his race.
administrative tasks not required of a white AFC at Schwab’s
Plaintiff also alleges that she was retaliated against for
filing an EEOC complaint in 2012.
She alleges that she received
a written warning and lost a sales bonus due to a complaint from
a client even though two FCs — one of whom was a white male and
one of whom was an Asian male — had not received the same
treatment when they received complaints from the same client.
She also alleges that the branch manager intentionally excluded
her from a text notifying employees that the branch was closed
due to weather during Hurricane Sandy.
(ECF No. 1, at 12-13).
Plaintiff filed a charge of discrimination with the EEOC in
She received a right to sue notice on September 9,
An AFC works with clients with less than $250,000 in
assets and performs others tasks in the office.
FCs work with
clients with more than $250,000 in assets. When an AFC uncovers
a lead for a client with greater than $250,000 in assets, the
AFC refers the lead to an FC. (ECF No. 1-2, at 8).
discrimination and hostile work environment on account of race,
color, and gender and retaliation all in violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
(ECF No. 5).
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).
need only satisfy the standard of Rule 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
‘showing,’ rather than a blanket assertion, of entitlement to
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
That showing must consist of more than “a formulaic
assertion[s] devoid of further factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
Defendants originally moved to dismiss arguing that the
complaint was untimely and the right to sue notice was a legal
nullity because the EEOC had originally issued a right to sue
notice on April 30, 2015, and Defendants were unaware that the
notice had been rescinded.
(ECF No. 5-1, at 6).
withdrew that part of their argument when the EEOC responded to
their FOIA request. (ECF No. 10).
(1994), and all factual allegations must be construed in the
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)).
In evaluating the complaint, unsupported legal
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
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,
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
Intern., Ltd., 780 F.3d 597, 606 (4th Cir. 2015).
go beyond these documents on a Rule 12(b)(6) motion.”
Pont de Nemours & Co v. Kolon Indus., Inc., 637 F.3d 435, 438
motion to dismiss cannot be considered at this stage.
Pro se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.
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
Liberal construction means that the court will read the
possible to do so from the facts available; it does not mean
that the court should rewrite the complaint to include claims
Barnett v. Hargett, 174 F.3d 1128, 1132 (10th
That is, even when pro se litigants are involved,
the court cannot ignore a clear failure to allege 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) (“[E]ven a pro se
complaint must be dismissed if it does not allege a plausible
Defendants argue that the suit was untimely because the
right to sue notice was post-marked on September 1, 2016, and a
presumption exists that “a plaintiff receives the right to sue
notice three days after it was mailed.”
(ECF No. 5-1, at 8)
(citing Weathersbee v. Balt. City Fire Dep’t, 970 F.Supp.2d 418,
Weathersbee, 970 F.Supp.2d at 427.
dated the envelope September 9 per instructions included with
the right to sue notice.
(ECF No. 1-2, at 4, 6).
also pled that she received the notice on September 9, and her
pleading is accepted as true.
U.S. at 268.
(ECF No. 1, at 6); Albright, 510
Therefore, the complaint is timely for purposes of
the motion to dismiss.
Plaintiff brought suit against Gregory Matthews, her branch
Baird ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th
Cir. 1999); Lissau v. S. Food. Serv., Inc., 159 F.3d 166, 178
(4th Cir. 1998) (“Employees are not liable in their individual
capacities for Title VII violations.”).
Matthews will be dismissed from this case.
Hostile Work Environment
must allege that: (1) she experienced unwelcome harassment; (2)
the harassment was based on her gender, race, or age; (3) the
harassment was sufficiently severe or pervasive to alter the
conditions of employment and create an abusive atmosphere; and
(4) there is some basis for imposing liability on the employer.”
Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.
sufficient facts to satisfy the severe or pervasive element.
“The ‘severe or pervasive’ element has both subjective and
Ocheltree v. Scollon Prods., Inc., 335
component, the harassment must be severe or pervasive to the
To satisfy the objective component,
courts look to all the circumstances including the “frequency of
employee's work performance.”
Faragher v. City of Boca Raton,
524 U.S. 775, 787-88 (1988) (internal quotation marks omitted).
“A recurring point in these opinions is that simple teasing,
serious) will not amount to discriminatory changes in the terms
and conditions of employment.”
Id. (internal quotation marks
and citation omitted).
In Hawkins v. PepsiCo, Inc., 203 F.3d 274 (4th Cir. 2008),
plaintiff, who was black, alleged that her supervisor, who was
white, had a “strained relationship” with plaintiff, the manager
said that plaintiff and another black employee were “not of the
employees more favorably.
Id. at 277 (internal quotation marks
The United States Court of Appeals for the Fourth
Circuit held that such actions did not rise to the level of a
hostile work environment because much of the conduct was not
pervasive to alter the conditions of employment and create an
reluctant to work with her and that her job was difficult do not
demonstrate a problem that was “racial in nature.”
203 F.3d at
Moreover, Plaintiff’s allegations about comments FCs made,
at most, constitute the type of “rude treatment by coworkers
[and] callous behavior by [her] superiors,” E.E.O.C. v. Sunbelt
unpleasant, is not “sufficiently severe or pervasive to alter
the conditions of employment and create an abusive atmosphere.”
Hawkins, 203 F.3d at 281 (internal quotation marks omitted).
sum, the allegations do not amount to a workplace “permeated
with discriminatory intimidation, ridicule, and insult,” Harris
v. Forklift Sys., 510 U.S. 17, 21 (1993) (internal quotation
marks omitted), and, thus, do not clear the “high bar” necessary
“to satisfy the severe or pervasive test.”
Inc., 521 F.3d at 315.
Therefore, Plaintiff has failed to state
Unequal Terms and Conditions of Employment
To prevail on her claim of racial discrimination, Plaintiff
satisfactory job performance; (3) adverse employment action; and
outside the protected class.”
Coleman v. Md. Court of Appeals,
Plaintiff has not identified any adverse employment that would
raise a discriminatory inference.
(ECF No. 5-1, at 10-12).
adversely affect[s] the terms, conditions, or benefits of the
James v. Booz-Allen & Hamilton, Inc.,
An adverse employment action requires a “significant
Holland v. Washington Homes, Inc., 487
F.3d 208, 219 (4th Cir. 2005).
Under this standard, the Fourth
Circuit has looked for “any decrease in compensation, job title,
level of responsibility or opportunity for promotion.”
Goldin, 178 F.3d 253, 256-57 (4th Cir. 1999) (finding absent any
decrease in salary or career opportunity a reassignment to a
different job does not constitute an adverse employment action).
Here, Plaintiff has alleged that FCs “refused to accept the
clients” and that she had to do tasks that a white AFC did not
have to do.
(ECF No. 1, at 10).
She has not alleged that there
(See ECF No. 1, at 7).
Thus, Plaintiff has
claim of unequal terms and conditions of employment will be
To prevail on her retaliation claim, Plaintiff must show:
“(1) engagement in a protected activity; (2) adverse employment
action; and (3) a causal link between the protected activity and
the employment action.”
Coleman, 626 F.3d at 190.
employment action and, even if it did, it does not raise “a
plausible inference that the [adverse actions] would not have
occurred ‘but for’ [the] protected activity.”
(ECF No. 5-1, at
For the purposes of Title VII’s antiretaliation provision,
an action is adverse if it might “dissuade a reasonable worker
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
Here, Plaintiff has alleged that she received a written
warning, as a result of which Defendant Schwab withheld her
(ECF No. 1, at 13-14).
It is axiomatic that a
discrimination if, by doing so, she would lose income she was
See Burlington N. & Santa Fe Ry Co., 548 U.S. at
adverse action even when the person was later reinstated with
Because withholding a bonus can constitute an adverse
necessary to address whether not being alerted to the office
closure could also constitute an adverse action.
establish that his or her protected activity was a but-for cause
of the alleged adverse action by the employer.”
Univ. of Tx.
Sw. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013).
At this stage
of litigation, Plaintiff only needs to establish a prima facie
causation and all reasonable inferences are drawn in her favor.
Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 251 (4th
Cir. 2015); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009).
The Fourth Circuit has found
that an employee’s claim that she was fired “after her employer
became aware that she had filed a discrimination charge . . . .
satisfies the less onerous burden of making a prima facie case
Williams v. Cerberonics, Inc., 871 F.2d 452, 457
(4th Cir. 1989).
Plaintiff alleges that she was disciplined including the
issuance of a warning resulting in loss of a bonus within two
Although not crystal clear, she does allege that the people
disciplining her knew about her first EEOC complaint and also
received complaints did not receive the same punishment, and
that this was her first complaint in five years of employment.
(ECF No. 1, at 13).
It is a reasonable inference that the
branch manager knew about the complaint.
The facts as pled
Plaintiff’s retaliation claim will be allowed to continue.
Leave to Amend
prejudice under Rule 12(b)(6) is within the discretion of the
Weigel v. Maryland, 950 F.Supp.2d 811, 825
should generally be without prejudice.”
Adams v. Sw. Va. Reg’l
Nevertheless, “dismissal with prejudice is proper if there is no
set of facts the plaintiff could present to support his claim.”
Weigel, 950 F.Supp.2d at 826.
Moreover, in this case Plaintiff
failed to timely respond to a motion to dismiss, and, her much
belated response did not address any of Defendants’ arguments
about the discrimination claims.
Instead, she reiterates that
the focus of her current complaint is retaliation.
plaintiff fails to oppose a motion to dismiss, a district court
is entitled . . . to rule on the motion and dismiss the suit on
the uncontroverted bases asserted in the motion.”
White v. Wal
Mart Stores, Inc., No. ELH-13-00031, 2014 WL 1369609, at *2
(D.Md. April 4, 2014) (internal quotation marks and alterations
To the extent Plaintiff’s claims are dismissed, they are
dismissed with prejudice.
Defendants’ arguments have pointed to
flaws in Plaintiff’s case, and Plaintiff has not addressed these
For the foregoing reasons, the motion to dismiss filed by
Defendant Charles Schwab and Defendant Gregory Matthews will be
granted, in part, and denied, in part.
A separate order will
DEBORAH K. CHASANOW
United States District Judge
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?