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