Mackin v. Charles Schwab & Co., Inc. et al
Filing
12
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
:
v.
:
Civil Action No. DKC 16-3923
:
CHARLES SCHWAB & CO., INC.
et al.
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
employment discrimination case is the motion to dismiss filed by
Defendant Charles Schwab & Co., Inc. (“Schwab”) and Defendant
Gregory
The
Matthews
issues
have
(collectively,
“Defendants”).
been
and
briefed,
hearing being deemed necessary.
the
court
(ECF
now
No.
rules,
Local Rule 105.6.
5).
no
For the
following reasons, the motion to dismiss will be granted, in
part, and denied, in part.
I.
Background1
A.
Factual History
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
work
with
1
her
and
made
a
number
of
racially
insensitive
Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable
to Plaintiff.
comments.2
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.
(Id.).
She
further
alleges
that
she
was
required
to
do
administrative tasks not required of a white AFC at Schwab’s
Bethesda branch.
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.
B.
(ECF No. 1, at 12-13).
Procedural History
Plaintiff filed a charge of discrimination with the EEOC in
May 2013.
She received a right to sue notice on September 9,
2
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).
2
2016.3
Plaintiff
brought
this
complaint
alleging
employment
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. §
2000e,
et
dismiss.
II.
seq.,
on
December
7,
2016.
Defendants
moved
to
(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).
A complaint
need only satisfy the standard of Rule 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
is
entitled
to
relief.”
“Rule
8(a)(2)
still
requires
a
‘showing,’ rather than a blanket assertion, of entitlement to
relief.”
(2007).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
That showing must consist of more than “a formulaic
recitation
of
the
elements
of
a
cause
of
action”
or
assertion[s] devoid of further factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
stage,
all
well-pleaded
allegations
3
in
a
complaint
“naked
Ashcroft
At this
must
be
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).
Defendants
withdrew that part of their argument when the EEOC responded to
their FOIA request. (ECF No. 10).
3
considered
as
true,
Albright
v.
Oliver,
510
U.S.
266,
268
(1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff.
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)).
In evaluating the complaint, unsupported legal
allegations
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cty.
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,
(4th
847
Cir.
1979);
see
also
Francis
v.
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
In
inquiry
analyzing
on
plaintiffs
the
in
a
motion
sufficiency
the
to
of
dismiss,
the
complaint.”
facts
Zak
v.
courts
“focus
relied
upon
Chelsea
Intern., Ltd., 780 F.3d 597, 606 (4th Cir. 2015).
their
by
the
Therapeutics
Courts “cannot
go beyond these documents on a Rule 12(b)(6) motion.”
E.I. du
Pont de Nemours & Co v. Kolon Indus., Inc., 637 F.3d 435, 438
(4th
Cir.
2011).
Therefore,
Defendants’
attachments
to
the
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.
Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
4
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.
Cir. 1999).
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
claim
for
relief.”
(citation
and
internal
quotation
marks
omitted)).
III. Analysis
A.
Timeliness
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,
427
(D.Md.
2013)).
irrebuttable
contrary.
and
is
This
used
presumption,
when
there
is
however,
no
Weathersbee, 970 F.Supp.2d at 427.
5
evidence
is
to
not
the
Here, Plaintiff
dated the envelope September 9 per instructions included with
the right to sue notice.
(ECF No. 1-2, at 4, 6).
Plaintiff has
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.
B.
Individual Liability
Plaintiff brought suit against Gregory Matthews, her branch
manager.
Title
individuals.
VII
does
not
provide
a
remedy
against
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.”).
Therefore, Defendant
Matthews will be dismissed from this case.
C.
Hostile Work Environment
“To
state
a
hostile
work
environment
claim,
[Plaintiff]
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.
2003).
Defendants
argue
that
Plaintiff
has
not
alleged
sufficient facts to satisfy the severe or pervasive element.
6
“The ‘severe or pervasive’ element has both subjective and
objective components.”
F.3d
325,
333
(4th
Ocheltree v. Scollon Prods., Inc., 335
Cir.
2003).
To
satisfy
the
subjective
component, the harassment must be severe or pervasive to the
plaintiff personally.
Id.
To satisfy the objective component,
courts look to all the circumstances including the “frequency of
the
discriminatory
conduct;
physically
threatening
utterance;
and
or
whether
its
severity;
humiliating,
it
or
unreasonably
employee's work performance.”
whether
a
mere
interferes
it
is
offensive
with
an
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,
offhand
comments,
and
isolated
incidents
(unless
extremely
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
caliber”
to
be
a
manager,
employees more favorably.
omitted).
and,
in
general,
treated
white
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
7
hostile work environment because much of the conduct was not
racial
in
nature,
demonstrated
and,
workplace
regardless,
harassment
none
of
the
“sufficiently
facts
severe
or
pervasive to alter the conditions of employment and create an
abusive
atmosphere.”
Id.
at
281
(internal
quotation
marks
omitted).
As
in
Hawkins,
Plaintiff’s
allegations
that
FCs
were
reluctant to work with her and that her job was difficult do not
demonstrate a problem that was “racial in nature.”
281.
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
Rentals,
quotation
Inc.,
marks
521
F.3d
and
306,
316
alterations
(4th
Cir.
2008)
(internal
omitted),
that,
although
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).
In
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.
Sunbelt Rentals,
Therefore, Plaintiff has failed to state
8
a
claim
for
hostile
work
environment
and
her
claim
will
be
dismissed.
D.
Unequal Terms and Conditions of Employment
To prevail on her claim of racial discrimination, Plaintiff
must
show:
“(1)
membership
in
a
protected
class;
(2)
satisfactory job performance; (3) adverse employment action; and
(4)
different
treatment
from
outside the protected class.”
626
F.3d
187,
190
(4th
similarly
situated
employees
Coleman v. Md. Court of Appeals,
Cir.
2010).
Defendants
argue
that
Plaintiff has not identified any adverse employment that would
raise a discriminatory inference.
adverse
employment
action
is
(ECF No. 5-1, at 10-12).
a
discriminatory
act
“An
which
adversely affect[s] the terms, conditions, or benefits of the
plaintiff's employment.”
368
F.3d
omitted).
371,
375
(4th
James v. Booz-Allen & Hamilton, Inc.,
Cir.
2004)
(internal
quotation
marks
An adverse employment action requires a “significant
detrimental effect.”
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.”
Boone v.
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).
9
Here, Plaintiff has alleged that FCs “refused to accept the
leads
[she
found]
and
would
often
not
follow
up
with
the
clients” and that she had to do tasks that a white AFC did not
have to do.
was
any
(ECF No. 1, at 10).
impact
on
economic damages.
not
alleged
a
her
income
She has not alleged that there
or
career
(See ECF No. 1, at 7).
materially
adverse
and
has
not
sought
Thus, Plaintiff has
employment
action,
and
her
claim of unequal terms and conditions of employment will be
dismissed.
E.
Retaliation
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.”
argue
that
the
Coleman, 626 F.3d at 190.
complaint
does
not
establish
Defendants
any
adverse
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
8).
For the purposes of Title VII’s antiretaliation provision,
an action is adverse if it might “dissuade[] a reasonable worker
from
making
or
supporting
a
charge
of
discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006).
Here, Plaintiff has alleged that she received a written
10
warning, as a result of which Defendant Schwab withheld her
“sales bonus.”
reasonable
(ECF No. 1, at 13-14).
person
may
be
dissuaded
It is axiomatic that a
from
making
a
charge
of
discrimination if, by doing so, she would lose income she was
entitled to.
72
(finding
See Burlington N. & Santa Fe Ry Co., 548 U.S. at
a
37-day
suspension
without
pay
constituted
an
adverse action even when the person was later reinstated with
backpay).
action,
Because withholding a bonus can constitute an adverse
particularly
for
a
retaliation
claim,
it
is
not
necessary to address whether not being alerted to the office
closure could also constitute an adverse action.
“[A]
plaintiff
making
a
retaliation
claim
.
.
.
must
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
case
of
causation
which
is
a
lower
standard
than
actual
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
11
of causality.”
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
months
of
the
EEOC
dismissing
her
first
EEOC
complaint.
Although not crystal clear, she does allege that the people
disciplining her knew about her first EEOC complaint and also
notes
the
coincidence
of
timing,
that
other
people
who
had
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.
plausibly
support
a
claim
of
The facts as pled
retaliation,
and,
therefore,
Plaintiff’s retaliation claim will be allowed to continue.
F.
Leave to Amend
“The
determination
whether
to
dismiss
with
or
without
prejudice under Rule 12(b)(6) is within the discretion of the
district court.”
(D.Md.
2013)
opportunity
Weigel v. Maryland, 950 F.Supp.2d 811, 825
(internal
is
given
quotation
to
amend
marks
the
complaint,
should generally be without prejudice.”
Jail
Authority,
524
F.App’x
899,
omitted).
“Where
the
no
dismissal
Adams v. Sw. Va. Reg’l
900
(4th
Cir.
2013).
Nevertheless, “dismissal with prejudice is proper if there is no
set of facts the plaintiff could present to support his claim.”
12
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.
“When a
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
omitted).
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
concerns.
IV.
Conclusion
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
follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
13
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