Briscoe v. W.A. Chester, L.L.C.
Filing
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MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 11/20/2018. (km4s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
MICHAEL WAYNE BRISCOE,
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Plaintiff,
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v.
Case No.: GJH-17-1675
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W.A. CHESTER, LLC,
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Defendant.
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MEMORANDUM OPINION
Plaintiff Michael Briscoe filed a Complaint on June 19, 2017, alleging that his employer,
Defendant W.A. Chester, LLC, discriminated against him on the basis of race over the course of
nearly eight years. 1 Defendant filed a Motion to Dismiss for Failure to State a Claim on October
24, 2017, which was granted in part and denied in part by the Court on May 15, 2018. On July
30, 2018, Plaintiff filed a motion for leave to file an Amended Complaint to add hostile work
environment claims under Title VII and 42 U.S.C. § 1981. ECF No. 27. Defendant opposed this
motion. ECF No. 28. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the
following reasons, Plaintiff’s Motion for Leave to Amend is denied.
I.
BACKGROUND
Plaintiff, a black man, has been employed as a Journeyman Lineman at W.A. Chester
since March 16, 2005. ECF No. 27-1 ¶ 9. On March 11, 2007, he was promoted to Foreman. Id.
¶ 12. As part of his job duties, he was required to monitor safety conditions on the jobsite and
report to the General Foreman. Id. ¶¶ 10. He also deputized for Robert L. Ezzell, Jr., the General
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The facts relied on herein are either undisputed or viewed in the light most favorable to the Plaintiff. Unless
otherwise stated, the background facts are taken from Plaintiff’s proposed Amended Complaint, ECF No. 27, and
are presumed to be true.
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Foreman, when Mr. Ezzell was unavailable. Id. ¶ 13. When he served as General Foreman, he
was paid accordingly. Id.
On August 18, 2008, Mr. Ezzell was transferred to another job and ceased to be the
General Foreman. Id. ¶ 22. From that date until February 11, 2015, Plaintiff worked as the
General Foreman, but was never paid as such. Id. at ¶ 22. On several occasions, Plaintiff made
requests to be paid as a General Foreman, but these requests were denied. Id. In June 2013,
Plaintiff learned that a white male would be hired as the General Foreman. Id. ¶ 23. The position
was never posted as a general vacancy, so Plaintiff had no opportunity to formally apply for the
position. Id. ¶ 17. Nevertheless, Plaintiff continued to perform the duties required of a General
Foreman without being paid as such. Id. ¶ 24. Plaintiff alleges that this failure to promote him, as
well as a subsequent demotion on February 9, 2015, was motivated by racial discrimination in
violation of Title VII and 32 U.S.C. § 1981.
On May 15, the Court granted a Partial Motion to Dismiss. ECF No. 21. In its opinion,
the Court held that it would not hear Plaintiff’s failure-to-promote claim for two reasons. First,
Plaintiff did not include any reference to the lack of promotion in his Charge of discrimination
filed with the Equal Employment Opportunity Commission; thus, Plaintiff failed to exhaust his
administrative remedies, which robs the Court of jurisdiction. ECF No. 20 at 5.2 Second, the
failure to promote occurred in 2008, outside of the statute of limitations both for Title VII and §
1981 claims. Id. at 6-7. On July 30, Plaintiff filed a motion for leave to amend his complaint,
seeking to add hostile work environment claims under both Title VII and § 1981. ECF No. 27-1
¶¶ 54-61. Defendant opposes the motion for leave to amend, contending it is unduly delayed and
futile. ECF No. 28 at 1.
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Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the exhibit and page
numbers generated by that system.
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II.
STANDARD OF REVIEW
Though leave to amend a pleading “shall be freely given when justice so requires,” Fed.
R. Civ. P. 15(a), a motion for leave to amend should be denied when the amendment would be
futile. Devil’s Advocate, LLC v. Zurich Amer. Ins. Co., 666 F. App’x 256, 267. An amendment to
a complaint is futile when the amended complaint could not survive a motion to dismiss under
Fed. R. Civ. P. 12(b)(6). Id.
On a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6),
the Court “must accept the factual allegations of the complaint as true and construe them in the
light most favorable to the nonmoving party.” Rockville Cars, LLC v. City of Rockville, Md., 891
F.3d 141, 145 (4th Cir. 2018). To overcome a 12(b)(6) motion, the “complaint must contain
sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). Plaintiffs must “provide sufficient detail” to show “a more-than-conceivable chance
of success on the merits.” Upstate Forever v. Kinder Morgan Energy Partners, 887 F.3d 637,
645 (4th Cir. 2018) (citing Owens v. Balt. City State’s Attorneys Ofice, 767 F.3d 379, 396 (4th
Cir. 2014)). The mere recitation of “elements of a cause of action, supported only by conclusory
statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012). Nor must the Court accept unsupported legal
allegations. Revene v. Charles Cnty. Commis., 882 F.2d 870, 873 (4th Cir. 1989). A plausibility
determination is a “context-specific inquiry” that relies on the court’s “experience and common
sense.” Iqbal, 556 U.S. at 679-80.
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III.
DISCUSSION
A racially hostile work environment exists “when the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working environment.” BoyerLiberto v. Fontainebleau Corp., 786 F.3d 264, 276 (4th Cir. 2015) (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 65-67 (1986)). To establish a hostile work environment claim under
either Title VII or 42 U.S.C. § 1981, the plaintiff “must show that there is (1) unwelcome
conduct; (2) that is based on the plaintiff’s race; (3) which is sufficiently severe or pervasive to
alter the plaintiff’s conditions of employment and to create an abusive work environment; and
(4) which is imputable to the employer.” Id. at 277.
The third element of this inquiry requires “‘looking at all the circumstances,’ which ‘may
include the frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance.’” Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17,
22 (1993)). A discrete discriminatory act is distinguishable from the “repeated conduct” typically
characteristic of a hostile work environment claim. Id. For an “isolated incident of harassment”
to amount to “discriminatory changes in the terms and conditions of employment,” the incident
must be “extremely serious.” Id. For example, in Boyer-Liberto, the Fourth Circuit held that the
singular use of the racial epithet “porch monkey” was sufficient to establish a racially hostile
work environment. Id. at 280.
Here, Plaintiff offers only his racially motivated underpayment and his demotion as
evidence of a hostile work environment. The Court has already determined that Plaintiff’s
allegations of racial discrimination rooted in the failure to promote him in June 2013 are outside
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of the statute of limitations for both Title VII and § 1981, and that, in any case, these allegations
were not made in Plaintiff’s EEOC Charge, meaning he did not exhaust his administrative
remedies before bringing this claim. ECF No. 20 at 6-8.
Plaintiff now attempts to re-characterize Defendant’s failure to promote as a matter of
pay discrimination, but these allegations still were not made in Plaintiff’s EEOC Charge, so the
Court cannot take jurisdiction over them. See ECF No. 20 at 6. Therefore, in evaluating
Plaintiff’s hostile work environment claim, Plaintiff’s demotion stands alone and it is insufficient
to support such a claim. Plaintiff makes no other allegations of serious racial epithets, repeated
harassment, or any other behavior that could be considered severe or pervasive enough to create
an abusive work environment. Additionally, Plaintiff’s allegation that his demotion was
motivated by racial discrimination already forms the basis of Counts I and II of the original
Complaint. Further amendment of the Complaint would be futile.
IV.
CONCLUSION
Plaintiff’s Motion for Leave to Amend his Complaint, ECF No. 27, is denied. A separate
Order shall issue.
Date: November 20, 2018
_________/s/_________________
GEORGE J. HAZEL
United States District Judge
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