Briscoe v. W.A. Chester, L.L.C.

Filing 20

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 5/15/2018. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern

Division

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MICHAEL WAYNE BRISCOE,

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Case No.: G.JH-17-1675

Plaintiff,

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v.
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W.A. CHESTER, L.L.C.,

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Defendant.

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MEMORANDUM OPINION
Plaintiff Michael Wayne Briscoe alleges that his employer.
L.L.c. ("DerendanC).

failed to promote him. and subsequently

Defendant W.A. Chester.

demoted him. on the basis of race

in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.c. ~ 2000e ef seq .. 42 U.S.c.
~ 1981. and Md. Code Ann .. State Gov't ~ 20-601 ef seq. ("Maryland
Now pending before the Court is Defendant's
hearing is necessary.

I-Iuman Relations Ace).

Partial Motion to Dismiss. ECF No. 12. No

Loc. R. 105.6 (D. Md. 2016). For the following reasons. Defendant's

Motion is granted.
I.

BACKGROUND'
Plaintiff: an Ati'ican American male. began working for Defendant on March 16.2005 as

a Journeyman

Lineman?

Id.

! 9.

On or about March 11. 2007. PlaintitTwas

Foreman. working under the direct supervision

promoted to

of Robert L. Ezzell Jr.. who was the General

The facts are taken from the Complaint and assumed to be true.
Journeyman Lineman's job includes connecting electricity to new homes and existing homes that storm or
heavy rain have damaged or cut ofTtheir power supply:' ECF No. I 9. A Journeyman Lineman is supervised by a
Foreman. IJ.
1

2 •• A

,.

_.

Foreman for Northern

Prince George's

County. Maryland (or the "Yard ..).J Id. ~ 12. When Ezzell

was out, Plaintiff was "asked to deputize for Mr. Ezzell as General Foreman" and. when doing
so. was paid the commensurate
Ezzell was transferred

hourly rate for a General Foreman. Id. ~ 13. On August 18,2018,

to another job and ceased to be the General Foreman. Id.

22. Thereatler.

until February II. 20 IS. PlaintitT performed the duties of General Foreman but was not paid the
commensurate

hourly rate. lei.

On several occasions,

Plaintiff complained

to Defendant and requested to be paid as a

General Foreman. but his requests were denied. lei. The position of General Foreman can only be
filled by appointment

fi'om the General Manager, Don Cherba. and is never posted as a general

vacancy. As such, Plainti 1'1'
was unable to formally apply for the position. Id. ~ 17. Sometime in
June of 20 13, at an Annual Quarterly Meeting, Plaintiff learned that Emory Kelly, a Caucasian
male, would take over as General Foreman of the Yard. Id.

23. However. Kelly "never stepped

his foot at the [Yard]"" and Plaintiff continued to perform the General Foreman duties without
receiving the commensurate

pay. Id.

24.

On October 13. 2013. Kelly promoted Brian Goldberg as the second Foreman at the
Yard, creating a two-person

Foreman position where formerly and customarily,

only one Foreman and one General Foreman. Id.
Goldberg that they would work independently
for their separate crew members.

there had been

25. Kelly instructed both PlaintilTand

with separate crews and that each was responsible

Plainti tT alleges that Defendant created the two-person

:1 The Complaint

appears to make reference to Briscoe being denied promotions. and other events taking place, at
both the Northern Prince George's County yard station. ECF No. I ~~ 12,22,25. and at the Montgomery yard. id.
~ 20.24,25.
It is difficult to decipher whether Briscoe is alleging that he worked at and was denied promotions at
both places or if he is conflating the two. Because the Court's ruling herein does not turn on this point, the Court
will refer to them collectively as the Yard, without attempting to draw distinctions.

2

Foreman

position

because Defendant

though he was performing

did not want to elevate PlaintilTto

the duties of that job. Id..f

5. 20 IS, Goldberg

On February

got into an altercation

a safety issue. Id. ~ 33. PlaintilTwas

regarding

the workers
Resources

involved.

General Foreman even

with two workers on his crew

not aware of the safety issue and did not supervise

Id. On February 9, 20 IS, Cherba, Kelly, and Ed Lavelle from I-Iuman

came to the Yard to discuss the safety issue. Lavell then demoted

Journeyman

Lineman

for reporting

the safety issue. Id. Plaintiff alleges that Lavell could not explain to him how he

was responsible

because PlaintilTwas

Plainti 1'1'
back to

the "senior person" at the Yard and was responsible

for the safety issue as it occurred

when he was not at the Yard and did not

involve his own crew. Id. ~ 34. Plainti IT alleges that both this demotion
refusal to promote

him to General Foreman

of Title VII (Count 1).42 U.S.c.

and Defendant" s prior

were the result of racial discrimination

~ 1981 (Count II). and the Maryland

in violation

Human Relations

Act

(Count III).

II.

STANDARD

OF REVIEW

A. Motion to Dismiss Pursuant

to Rule 12(b)(1)

A motion to dismiss based on lack of subject-matter
of Civil Procedure
authority

12(b)( I). raises the question

jurisdiction.

pursuant to Federal Rule

of whether the court has the competence

or

to hear and decide a pm1icular case. See Davis v. Thompson. 367 F. Supp. 2d 792, 799

(D. Md. 2005). The court may properly grant a motion to dismiss for lack of subject-matter
jurisdiction

"where a claim fails to allege facts upon which the court may base jurisdiction."

Id.

Plaintiff also references two incidents in April of 2013 and April 4. 2014 whereby I) Cherba. in response to
Plaintiff informing him of a dispute between two crew members. laughed at him and told him to handle the situation
any way he wanted and 2) Cherba and Kelly shut down the Yard for two days and forced Plaintiff to work at the
Forestville location after Goldberg refused to do so. ECF No. I ~'128-3 I. However. it is unclear how either event is
relevant to Plaintiffs claims herein. Notably. Plaintiff has not asserted a Hostile Work Environment claim under
Title VII.

4

3

(citing Cros/en v. Kamal!f; 932 F.Supp. 676, 679 (D. Md. 1996». The court "generally
rule on the merits of a case without first determining
of claim in suit (subject-matter

jurisdiction)

Shipping Corp., 549 U.S. 422, 430-31

that it has the jurisdiction

may not

over the category

" Sinochem In/'I Co. Ltd. v. Malaysia In/ '/

....

(2007). The district court should grant a motion to dismiss

under Rule 12(b)(1) "only if the materiaIjurisdictional

facts are not in dispute and the moving

party is entitled to prevai I as a matter of law'" See Evans v. B.F. Perkins Co.. 166 F .3d 642, 647
(4th Cir. 1999) (internal

citation omitted).

B. Motion to Dismiss Pursuant
Pursuant

to Rule 12(b)(6)

to Rule 12(b)(6), a court may dismiss a complaint

upon which relief can be granted. When deciding
true all of the factual allegations
inferences

contained

for failure to state a claim

a motion to dismiss, a court "must accept as

in the complaint:'

[from those facts] in favor of the plaintifr:'

and "draw all reasonable

£.1. du Pont de Nemours & Co. v. Kolon

Indus .. Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and internal quotation marks omitted).
To survive a motion to dismiss invoking
factual matter. accepted

Rule l2(b)(6),

"a complaint

must contain sutlicient

as true, 'to state a claim to relief that is plausible

on its face.'" Ashcrrdi

v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell A/I. Corp. v. Twombly, 550 U.S. 544. 570 (2007».
Where the facts alleged in a complaint
12(b )(6) motion is an appropriate

clearly demonstrate

mechanism

that a claim is time-barred,

to address a statute of limitations

a Rule

defense. See

Goodman v. PraxAir. Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc).
III.

DISCUSSION
Defendant

moves to dismiss Plaintiff's

claims relating to his failure to promote

I and II and Count III in its entirety because Plaintiff has either failed to exhaust his

4

in Counts

administrative

remedies or because his claims fall outside of the statute of limitations.

ECF No.

13. The Court will review each Count. and associated statute, in turn.
A, Title VII - Count I

Before a plaintiff may file suit under Title VII, he is required to file a Charge of
discrimination

with the Equal Employment

~ 2000e-5(f)(1).
administrative

A plaintiffs

Opportunity

Commission

("EEOC").

See 42 U.S.c.

failure to file a Charge with thc EEOC and "cxhaust his

remedies concerning

a Title VII claim deprives the federal courts of subject

over the claim." See Jones v. Calvert Group. Ltd, 551 F.3d 297, 300 (4th Cir.

matter jurisdiction

2009). In his Complaint,

Plaintiff alleges that he has exhausted his administrative

remedies

because he filed a Charge and received a Right to Sue Letter on March 17, 2017. ECF No. 1 ~ 1.
However. because Plaintiffs
administrative

Charge only references his demotion, he has not exhausted his

remedies with respect to his failure to promote claim and. as such. the Court does

not have jurisdiction

to hear it now. See Sell'ell v. Strayer University. 956 F. Supp. 2d 658, 668

(D. Md. 2013) (quoting Chacko v. Patuxent /nst., 429 F.3d 505. 506 (4th Cir. 2005)) ("[W]here
plaintiffs

'administrative

a

charges reference different time frames. actors, and discriminatory

conduct than the central factual allegations

in [his] formal suit.' there is no subject matter

jurisdiction.").
Plaintiffs
discrimination

EEOC Charge alleges that Defendant engaged in a "continuing

from April 4. 2014 to April 7.2015

terms and conditions."

ECF No. 16-1.5 As reproduced

that he was treated unfavorably

below. Plaintiff's

"demotion

and unequal

Charge only suggests

as compared to Goldberg. The Charge makes no mention of

Plaintiff provided the Charge as an attachment to his
which the Court will rely on herein. See Evans v. B.F.
the court may consider evidence outside the pleadings
without converting the proceeding to one for summary
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based on Plaintiffs

acC of racial

Opposition in Response to Defendant's Motion, ECF No. 16,
Perkins Co,. 166 FJd 642, 647 (4th Cir. 1999) (noting that
when a defendant challenges subject-matter jurisdiction
judgment).

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Defendant's

failure to promote

Plaintiff the commensurate

Plaintiff to General Foreman or Defendant's

hourly rate for performing

failure to pay

General Foreman duties. Instead, the

Charge reads that:
I began working for [Defendant] on March 16,2005. as a Journeyman Lineman.
My past position was as a Foreman. I have been subject to unequal terms and
conditions such as: On April 4, 2014, I was called by a management official to
send a worker down to the Forestville location because they were short one
worker. I told them that I could not spare anyone because I was short. The
employer shut down the yard in Montgomery County, since I could not spare
anyone. The employer closed down the entire yard down for 2 days. Foreman,
Brian Goldberg (White) turned the request down also over the phone and nothing
was said when he said no. Mr. Goldberg only got a reprimand. Mr. Goldberg went
home along with the workers for two days, but I was made to work in Forestville,
MD location. On February 5. 20 IS, Mr. Goldberg got into an altercation with two
workers, about a safe issue. [ did not know anything about the altercation because
[ was not there. On February 9, 2015, Ed Lavelle, Human Resources, came down
to the job site to talk to the three employees about the altercation. On February II,
2015, Mr. Lavelle, along with two other management officials, returned to the job
site this time to talk with me about the altercation. [ was told by Mr. Lavelle, that
I was being demoted back to my original position Journeyman Lineman. [
immediately asked why but I did not get a reply. Mr. Goldberg got a written
reprimand about the altercation.
ECF No. 16-1. While Plaintiff argues that the reference
Charge encompasses

Defendant's

failure to promote

at 8,6 the Charge itselfis

clearly unrelated

subject matter jurisdiction

over Plaintiffs

to "unequal

PlaintifTto

to such an allegation.

terms and conditions"

General Foreman,

in his

ECF No. 16

As such, the Court does not have
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failure to promote claim.

B. 42 U.S.c. ~ 1981 - Count II
Section

* 1658(a);

1981 claims are subject to a four year statute of limitations.

See 28 U.S.c.

see also Jones v. R.R. Donnelley & Sons, 541 U.S. 369, 383-84 (2004) (applying 28

(, Pin cites to documents tiled on the Court's electronic tiling system (CM/ECF) refer to the page numbers generated
by that system.
7 Even if the Charge encompassed
Plaintiffs failure to promote, which occurred in 2008, Plaintiffs EEOC Charge
was not tiled within 300-days of the alleged discriminatory act as required by Title VII. See Sewel v. Strayer
University. 956 F. Supp. 2d 658. 671 (dismissing Title VII claims regarding certain discrete acts that were not
administratively
exhausted within the 300-day period).

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U.S.c. ~ 1658 statute of limitations to ~ 1981 claim). Plaintiff filed his Complaint
2017. Therefore.
Plaintiffs

on .June 19,

Plaintiff may only bring a claim for actions occurring after .June 19.2013.

But

failure to promote claim would have accrued when Defendant first denied Plaintiff's

request to be promoted to General Foreman following Ezzel\'s August 18, 2008 transfer. See
Raynor v. G-IS Secure Solulions (USA) Inc., 283 F. Supp. 3d 458, 464 (W.O. N.C. 2017) (citing
Nalional Passenger Railroad Corp. v. Morgan, 536 U.S. 101. 110, 114 (2002) ("A discrete
retaliatory

or discriminatory

happened.''')):

act, like termination

or failure to promote, occurs 'on the day that it

see also Kramer v Board (dEdI/C. (~lBall. Cnly., 788 F. Supp. 2d 421. 427 (D.

Md. 2011) (holding that discriminatory
position reclassification

action accrued when an employer denied an employee's

request. not when the employee made the request). While Plaintiff does

not provide a date for when Defendant first denied his request to be promoted to General
Foreman, the Complaint

makes clear that Plaintiffs

requests were denied before Plaintiff learned

that Kelly had been promoted to General Foreman in .June of 20 13. ECF No. I
times while [Plaintiff] was acting General Foreman, he complained
accordingly,

but Defendant[]

Foreman but "Defendant

refused."):

and asked to be paid

id. ~ 23 (alleging that Kelly was appointed to General

would not officially appoint [Plaintiff] as General Foreman" after the

position became vacant). Therefore,
. year statute oflimitations

22 ("Several

Plaintiffs

failure to promote claim falls outside of the four

and must be dismissed.s

Plaintiff argues that his failure to promote claim falls within the statute of limitations
under the continuing

violation doctrine, which "allows for consideration

of incidents that

R Even if the Court construes
Plaintiffs failure to promote claim to have accrued when Plaintiff first became aware
of Kelly's appointment.
and not when Defendant previously denied Plaintiffs request to be promoted, Plaintiffs
Complaint fails to allege that he was made aware of Kelly's appointment ({lieI' June 19,2013 and his claim is still
barred by the statute of lim itations. See Sloyal101' v. Mabus, 126 F. Supp. 3d 531, 549 (D. Md. 2015) (holding that
failure to promote claim accrued when plaintiff first learned that another employee had been promoted to the
position plaintiff sought).

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occurred outside the time bar when those incidents are part of a single, ongoing pattern of
i.e., when the incidents make up part ofa hostile work environment

discrimination,

claim." ECF

No. 16 at 14 (quoting HoI/and\'. Wash. Homes. Inc., 487 F.3d 208, 219 (4th Cir. 2007)). Plaintiff
maintains that because he performed
February 2015, Plaintiff's
otherwise

the duties of General Foreman from August 2008 through

failure to promote was therefore part ofa continuing

barred by the statute of limitations.

Plaintiff's

Id.

argument fails for a number of reasons. First. the continuing violation theory

that Plaintiff attempts to invoke comes from case law surrounding
claims-a

acts such as termination,fai/ure

easy to identify:')
continuing

hostile work environment

claim that Plaintiff has not asserted. Second. the continuing

apply to discrete acts of discrimination,
("Discrete

violation not

violation theory does not

such as failure to promote. See tv/organ, 536 U.S. at 114
/0

promote, denial of transfer. or refusal to hire are

(emphasis added); HoI/and, 487 F.3d at 220 (plaintiff "cannot benefit from the

violations theory because he has alleged discrete violations'}

Plaintiff essentially

argues that each day that Defendant should have, but failed to, promote him to General Foreman
perpetuated

a continuous

discrimination
continuous

violation. But under such an approach, any discrete act of

that is not subsequently

corrected by an employer could be turned into a

violation, rendering the statute of limitations toothless. See HoI/and. 487 F.3d at 220

(noting that the continuous

violation doctrine does not apply to discrete acts of discrimination

merely because plaintiff alleges that the act occurred as part of a policy of discrimination).
Therefore,

Plaintiff's

failure to promote claim falls outside of the four year statute of limitations

and must be dismissed.

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C. Maryland

Human Relations

Finally, under the Maryland

I-Iuman Relations Act. a plaintiff must file a lawsuit within

two years of the alleged discriminatory
Plaintitrs
Lineman

Act - Count III

act. Md. Code Ann., State GOy't ~ 20-1013(a)(3).

final act of alleged discrimination
on February

occurred when he was demoted to Journeyman

9. 2015. The statute of limitations

2017, four months before Plaintiff tiled his Complaint.

expired two years later, on February 9,
Therefore,

all claims under Count III

must be dismissed.
IV.

CONCLUSION
For the foregoing

reasons,

Defendant's

Partial Motion to Dismiss, ECF No. 12. shall be

granted. A separate Order follows.

Dated: May

15. 2018

/s/
GEORGE

.I. HAZEL

United States District Judge

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