Fain v. BAE Systems, Inc.

Filing 11

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 6/12/2018. (kns, Deputy Clerk)

FILED
U S DISTRICT COURT
IN THE UNITED STATES DISTRICT COURllJIS1RICT
OF Ht,RYLAND
FOR THE DISTRICT OF MARYLAND
Southern Division
ZOl8 JUN 13 A G: I 5
CLERK', OFF!":

AT GOi'

CYNTHIA FAIN

rs~:!
I

RY __ .
Case No.: G.II1- I 7-2697

Plaintiff.

i

v.
RAE SYSTEMS TECHNOLOGY
SOLUTIONS & SEIWICES INC.I

*
*

Defendant.

MEMORANDUM OPINION
PlaintilTCynthia
Systems Technology

Fain brings this action against her fonner employer.

Defendant BAE

Solutions & Services Inc. (OOBAE").alleging gender-based

discrimination

in

violation of Title VII of the Civil Rights Act. 42 U,S.c. ~ 2000e-2. and intentional infliction of
OO
Now pending before the Court is Defendant's
).

emotional distress (OOIlED

-

ECF NO.7. No hearin!! is necessarv.
Defendant's
I.

~

Motion to Dismiss.

-

Loe. R. 105.6 (D. Md. 2016). For the followin!! reasons.

Motion to Dismiss is granted.

BACKGROUND2
I'laintiffbegan

working for Defendant on April 7, 2008 as a quality auditor and. in

October 2013. was selected to IiII the newly-created
Orania Colombo in lhe Business Operations
regarded as an exemplary

employee.

awarded the BAE Chairman"s

position of Talent Manager. working under

Unit. ECF No. 1 ~ II. PlaintilTwas

consistently

universally

received stellar perfiJrnulilee reviews. and was

Silver Award as a result of her work as Talent Manager.ld

I Defend::lllt indicated that it was ilH:orrectly sucd as "BAE Systems. Inc"- ECF No.7-I.
accordimdv.
2 The nlCts.arc taken from the Complaint and assumed 10 be true.

n 13.

The docket will be updated

14. While working under Colombo. Plaintiff frequently. and with Colombo's acknowledgcmcnt
and approval. worked Irom homc using physical copics of ncccssary documcnts instcad of
logging into BAE"s remotc nctwork because ofthc slow spced ofthc network connection. !d

~i~

16.17.
Colombo announced her retircmcnt Irom BAE in Novcmbcr 2015. hI.

'i

IS. and Jcftery

King took livcr as managcr of the Busincss Operations Unit on January 7. 2016. Id.
Plaintiffallcgcs

'1 19.

that King took a numbcr of actions indicativc of his bias against fcmale

employecs. which induded. socializing with malc mcmbcrs of thc team to thc cxclusion of thc
remaining lemale mcmbers. id. ~ 20: excluding. dismissing. belittling. or othcrwise ignoring thc
lemale mcmbers. id. ~ 22: and ceasing regular stalT meetings and only sharing work-relatcd
inl'(lrI11ationwith the male membcrs of the Business Opcrations Unit to thc cxclusion ofthc
female mcmbers. id. '\23.
On February 2. 2016. Plaintiff received an email form Jcnniler Ncstor of thc Ethics and
Busincss Conduct Unit instructing hcr to rcport to a mecting on the morning of February 4. !d
~ 25. Plaintiff asked King about the purpose of the meeting. and he rcspondcd that "cvcn ifhe
kncw. hc would not have told hcr:' Id. During the February 4 mceting. "in an intcrrogation-stylc
setting:' Nestor and Janel Wilson Irom Human Rcsourccs qucstioncd whcther PlaintilTsigncd
into thc BAE rcmote network when working Irom homc. Id. ~ 26. PlaintilTrespondcd that whcn
working on a presentation or research. she did not sign into the nctwork. but that all work had
bccn approved by Colombo. 1<1.: ee also id. ~~ 16. 17. PlaintilTallegcs that during and prior to
s
this mecting. shc notified BAE managcment ofthc nccd for training on time kecping. !d ,; 26.
I'laintiffallegcs

that shc Icft that meeting "with leelings of lear. humiliation. and extrcme

anxicty:' !d

2

On February 7. PlaintilTnotilied

King that she would be taking a sick day on thc

following day, On Pebruary 8. Plaintiff received a "harassing" call lI'om King and Wilson
insisting that shc rcport to work, !d ~ 27. In rcsponse. Plaintiffadviscd

King that she had a

doctor's appointment and needed blood work and would not be coming in. !d While at the
doctor's appointment. King called a second time and left a voiccmailmessage

notifying Plaintiff

that hcr access to the building had been revoked. !d ~ 28. While Plaintiff characterizcs her
departure from SAE as a tennination. she states that "[n1o BAE employec ever provided [hcrl
with any oflicial noticc of termination:'

!d ~ 28.

Plaintiff allegcs that shc suffers Irom systemic lupus crythcmatosus. which can result in
flarc-ups caused by cxtrcme stress. !d ~ 29. PlaintilTallcges that King's treatmcnt of her.
including thc "two harassing telcphone calls on February 8. 2016" caused a narc-up of her
condition and amplilicd its effects. which included rashes. mouth sores. and sevcrc musclc
fatigue:' !d ~~ 29. 30. In her Complaint. PlaintilT notes that ..the purportcd rcason 1<11" her
termination was alleged ineonsistcneies in her time card" but alleges that was a pretext for the
true reason le)r her liring-gendcr
II.

discrimination. !d ~~ 31. 32.

STANDAIW OF I{EVIEW

To state a claim that survives a Rule 12(b)(6) motion to dismiss. a complaint. relying on
only wcll-pled factual allegations. must state at Icast a "plausible claim le)r rclief." Ashcl'oli ",
Iqhal. 556 U.S. 662. 679 (2009). The "mere recital of elemcnts of a cause of action. supported
only by conciusory statements. is not sufficient to survivc a motion madc pursuant to Rule
J

2(b)(6):' Wallers \', McMahen. 684 F.3d 435. 439 (4th Cir. 2(12). To detcrminc whcthcr a

claim has erosscd ..the linc from conccivable to plausiblc:' the court must cmploy a "contextspecific inquiry:' drawing on the court's "expcrienec and common scnse:' Itlhal. 556 U.S, at

3

679-80. When performing this inquiry. the court accepts "all well-pled facts as true and
construes these lacts in the light most favorable to the plaintilTin weighing the legal sufliciency
of the complaint:' Nelllel Chevrolel. Ltd. \', Consulllera{f(lirs, COlli.Inc.. 591 r.3d 250. 255 (4th
Cir. 2009).
III.

DISCUSSION
A. Title VII
Title VII makes it illegal for an cmployer "to discharge any individual or otherwise to

discriminate against any individual with respect to his compensation. terms. conditions. or
privileges of employment. because of such individual's race. color. religion. sex, or national
origin:' 42 U.S,c.

* 2000e-2(a)(I),

The parties dispute whether the Complaint contains

suflieient factual content to create a plausible inference that PlaintifTwas fired because of her
sex. See ECF No. 7.1 at 5.-'
Plaintiffs may establish a Title VII claim through two avenues of proof. See Fosler \'.
Unil'l'l'sily IJ(Marylwul.Easlel'l7 Shore. 787 r.3d 243. 249 (4th Cir. 2(15), First. a plaintiff may
demonstrate ..through direct or circumstantial cvidence that his race lor sex 1 was a motivating
factor in the employer's adverse employment action:' Id. (citing Hill \', Lockheed Marlin
Logislics MglIIl.. /nc .. 354 F.3d 277. 284 (4th Cir. 2(04) (en banc). ahrogaled on olher ground.,'
hy Univ. (!ITex . .'Ill". Med. Or, v. Nassar. 570 U.S. 338 (2013)). Alternatively. if the plaintiff
cannot provide direct or circumstantial evidence. she may proceed under the familiar burden-

:;Pin cites to documents tiled on the
by that systelll.

COllrt"S

electronic filing system (CM/ECF)

4

refer

to the page

Ilumbers

generated

shiliing pretext framework laid out in McD0I1I1ell Doug/as C(lIp.

1',

Greel1. 411 U,S, 792 (1973),4

Under this approach. the plaintilThas the initial burden of establishing a prima facie ease of
discrimination, See id at 802: see a/so E\,(/l1s \', Techn%gies

AppliClltiol1s & Sen'ice

Co .. 80

F,3d 954. 959 (4th Cit'. 1996), If the plaintiff establishes a prima l~leieease. the burden of
production shilis to the defendant to articulate some legitimate. nondiscriminatory reason for its
actions, See Reel'es \', Sal1derson f'/ul1/hil1g Prod,'" Inc .. 530 U,S, 133. 142 (2000), The plaintiff
must then demonstrate that the legitimate reasons offered by the defendant are but a pretext I(lr
discrimination. thus creating an inference that the defendant acted with discriminatory intcnt. See
id, at 1435
,Plaintiffs filing suit under Title VII more commonly utilize the pretext framework, See
Fuller \', Phipps. 67 F,3d 1137, 1141 (4th Cit'. 1995). ahrogated
I'a/ace,

Inc,

1',

Oil

other grounds.

Costa. 539 U,S, 90 (2003): .lee a/so Dial1/ond \', C%llia/

Deserl

Lil'e & Acc, /IIS, Co ..

416 F,3d 310.318 (4th Cit'. 2(05) (noting that the pretcxt framework was established to allow a
plainti ITto advance an inlerence of discrimination because direct evidence of intentional
discrimination is hard to come by), But a plaintiff is not required to establish a prima facie case
of discrimination to survive a motion to dismiss because "the prima I~lciecase, , , is an
evidentiary standard. not a pleading requirement:' See Mclel/l)'-El'Il1/s

1',

Ml/I~l'/al1d Dept,

Tral1.lp.. Slale I Jig/nray Admil1 .. 780 F,3d 582. 584 (4th Cit'. 2(15) (citing S\rierkiell'ic::

(II'

\',

5;oremal1 N. A .. 534 U,S, 506. 510 (2002)), As thc Suprcme Court recognized in S\rierkie\ric::.

~ In bringing a Title VII claim. a plaintiff need not. at the outset. elect which framework 10 pursue. Instead. the
district judge determines whether the plaintiff has satisfied either approach. S!!!! /'-ul!/!r \'. Phipps. 67 F.3d 1137.
1142 n.2 (4th Cir. 19(5). abrogated 011 OIlierground\;. Desert Palace. II/C.\', Cosla. 539 U.S. 90 (2003); see also
Diamond \', C()I(}l1iall.~/i.! & Accidl.'J1f Ins. Co,. 416 F.3d 310. 318 11.4 (4tl1 Cir. 1005) ("In the event that a plaintiff
has direct evidence of discrimination Of simply prefers to proceed without the benefit of the burden-shining
framework. she is under no obligation to make out a prima facie case.").
5 Defendant's Motion sets forth arguments that could bc construed as attacking Plaintiffs Complaint undcr either
framcwork. Specifically. Defendant argues that PlaintitThas not adequately alleged that her termination for cause
was a pretext for unlawful discrimination. As set f0l1h above. Pluintiffhas the evidentiary burden to establish a
discriminatory pretext only {~/ier Defendant establishes that her termination was legitimate.

5

requiring a plaintiff to plcad a prima facie case would amount to a "hcightcned plcading
standard" that would contlict with Federal Rule of Civil Procedure 8(a)(2) and would not be
appropriate in cmployment discrimination cases when a plaintiff is able to produce direct
evidencc of discrimination but may not be able to prove all elements of a prima lacie claim. fd
(citingS\I'ierkie\l'c::. 534 U.S. at 511. 512).lfthc

plaintiffdoes not plead thc elcments ofa prima

facie casc. the ordinary rules for assessing thc surticiency of a complaint still apply and the
"[I1actual allegations must be enough to raise a right to rcliefabovc the spcculatiw levcl." See
Co/ell/WI

1',

Md. COllrl o/Appea/s.

626 F.3d 187. 190 (4th Cir. 2010) (quoting T\r(Jlnh~\'. 550

U,S. at 555).
Ilere. Plaintitl'alleges

that King had an animus against femalc employees and mcrcly

presumes that this animus was the motivating factor behind Defendant's decision to terminate
her. Plaintiff does not allcge any direct evidence that hcr termination was at all intlucnced by hcr
gender. Further. Plaintilrs

alleged circumstantial evidence merely amounts to an inference that

King tavored his male subordinates over his female subordinates. which is insurticicnt to statc a
claim of gender-based animus in his decision to terminate her. The allcgations regarding King' s
behavior are primarily stated in generalities. see ECF No. I

'i~
20.

22. 23. but even to the extent

that there arc speeilie allegations of discriminatory attitude. these allegations are not tied to
Plaintiffs alleged termination, See FlIller. 67 F,3d at 1142 (noting that direct evidencc of
discrimination must not only retlect a discriminatory attitudc. but must also bear directly on the
contested employmcnt decision).
As Plaintiff has not pleaded direct or circumstantial evidence proving Defendant acted
with discriminatory intent. her claim may only proceed if shc can show a prima ftlcie case of
discrimination under McDonnell

DOllfdas. A plaintiff claiming discharge on the basis of gender

6

must demonstrate: ..( I) that she is a member of a protected class: (2) that she was perflJnning the
job satisfactorily: (3) that she was dischargcd or constructively discharged: and (4) that shc was
rcplaced by someonc with comparable qualifications outside thc protected class or that the
position remained open to similarly qualitied applicants alier her discharge:' Riley \'. Technical
and Managemell/ Serl'ices Corp .. Inc.. 872 F. Supp. 1454. 1460-61 (D. Md. 1995).
Ilerc. Plaintiff has not sufficiently alleged the third element. Plaintilrs Complaint uses
the word ..termination" throughout but aninnatively

states that Defcndant never provided her

with an oflicial notice of tennination. ECF No. I ~ 28. There!l)rc. the Complaint does not allege
that Plaintiff was discharged: rather. the Complaint alleges that King terminated her access to the
building and implics that Plaintiff was cons/mc/il'ely discharged. ECF No. I ~ 28. Plaintiff
argues that "cven assuming arguendo that Plaintiff did resign fl)llowing the voicemail. that
resignation would clearly fall within the Supremc Court's jurisprudence governing constructive
discharge cases under the Civil Rights Act:' See ECr No. 8-1 at 4. However. the telephone calls
precipitating Plaintilrs

possible resignation do not constitute a constructive discharge.

As set forth in Green \'. Brennan. 136 S.C!. 1769. J 777 (2016). to bring a claim of
constructive discharge. a plaintifTmust prove I) that she was discriminated against by her
employer to the point where a reasonable person in her position would have felt compellcd to
resign. i.e.. that the working conditions were objectively intolerable. and 2) that she actually
resigned. First. Plaintiff alleges that King insisted she come in on a sick day. and when she
refused. len a voicemailmessage

"notifying her that her access to the building had been

revoked:' ECF No. I ~ 28. Courts have previously determincd that similar interactions. without
morc. do not amount to constructive discharge. See Lacasse \'. Didlake. /nc .. 712 F. App'x 231.
239 (4th Cir. 2018) (voluntary resignation fl)llowing a series of counseling sessions and

7

suspension due to plaintiffs

inappropriate workplace behavior was insufticient to support a

claim of constructive discharge):

}'O/lllg I'.

Shore lIea/th System.

111('.•

305 F. Supp. 2d 551. 559

n.l (D. Md. 2003) (indefinite suspension without pay does not establish intolerable working
condition when employee resigned assuming that suspension and lollow-on perlt)fJnance review
would lead to her ultimate termination). While Plaintiff places emphasis on her lupus !lair-up to
suggest that King's conduct was unreasonable. the doctrine of constructive discharge applies an
objective standard. and Plaintiffs specific medical condition. even if caused by King's conduct.
is immaterial. Sccond. Plaintiff never alleges that she ultimately resigned. leaving the simple I~\ct
of when and how she ended her cmployment with Defendant opcn to speculation." Therelore.
Plaintiff has failed to plead sufticient facts to suggest that her termination was the result of
gender discrimination.
B. Intentional

7

Infliction

of Emotional

Distress

PlaintilTalleges that King's discriminatory conduct and tclephone calls made on Fcbruary
8. 2016 causcd a flare-up of her pre-existing chronic medical condition. exacerbating those
physical symptoms "in addition to the severe emotional distressed

r sic J

that accompanied thc

physical symptoms."' lOCI' No. I ~~ 29. 51. Nonetheless. a review of the elements of a claim It)r
liED makes clear that Plaintiffs claim is meritless.

Furthermore. PlaintilT likely cannot Illeet the fourth clement as she only conclusively alleges that "Plaintiff:
Plaintiffs supervisor Oriana Colombo. and Ashley Kalavritinos were all replaced by male hires" without providing
any additional factual allegations regarding the qualilications of her replacement. EeF No. I. ,; 42. Additionally.
even if Plaintiff could plead a prima facie case, the Complaint itself provides a legitimate reason for the firingPlaintiffs tailure to keep .H.'curatc time records-but
only offers a conelusory assertion that it was a pretext for
discrimination. SCt.' Ifil! \'. Lockheed ,\1artin Logixlics ,\1lmaKl!I11c!m. Inc. 354 f.3d "277, 285 (4th Cir. 2(04) (en
bane), Ilhrogaled 011 olha ground,; hy Unh'. (~lTex. \\'. Ml!d CI,.. \'. Nassar, 570 U.S. 338 (2013) (undl'r ,\1C00l1l1c!1!
S
Douglas, once an employer offers a legitimate reason for an employment action, the plaintiff has the burden to show
that the reason was a pretext for discrimination).
7 PlaintilTalso
asserts that Defendant openly discriminated against her due to her age, causing her emotional distress.
ECF No. I 'i 48. The Court presumes that this statement was inadvertently incorporated into the Complaint and thai
PlaintilTdoes not intend In bring a claim of age discrimination.

h

8

To state a common law claim for liED. Plaintiff must allege that: "(1) the defendant's
conduct was intcntional or reckless: (2) the conduct was extreme and outrageous: (3) there was a
causal connection between the wrongful conduct and the emotional distress: and (4) that the
emotional distress was severe:'/larris

\'. JOlles. 380 A.2d 611. 614 (Md. 1977). In Maryland. an

lIED claim is "rarely viable:' Borchers \', I(l'rchuk. 727 A,2d 388. 392 (Md, Ct. Spec, App,
1999). and courts have imposed "Iiability sparingly and ... limited the tort to situations where
the 'wounds are truly severe and incapable of healing themselves:"

Lee \', Queell A,llle's Cty,

Office (!(Sherifr No. RDB-13-672. 2014 WL 476233. at * 16 (D. Md, Feb. 5. 2014) (quoting
Solis \'. Prillce George's Cty .. 153 F, Supp. 2d 793. 804 (D. Md. 2001 )),
To adequately plead the lirst element of an liED claim. a plaintilTmust allege thatlhe
defendant either "desired to inllict severe emotional distress. knew that such distress was certain
or substantially certain to result Irom his conduct. or acted recklessly in deliberate disregard of a
high degree of probability that emotional distress would follow." Brellgle \'. Greellhel//lomes.
!I,C.. 804 F. Supp, 2d 447. 452 (D. Md. 2011) (quoting Foor \'. JUl'ellile Sen's. Admill .. 552 A.2d
947. 959 (Md. Ct. Spec. App. 1989)), Here. Plainti ff has not pleaded that Defendant acted with
the intention of inllicting an)' distress upon Plaintiff or that Defendant was aware that Plaintiff
had a chronic condition that could be exacerbated by stressful situations.
As to the second element. the defendant's conduct must be "so outrageous in character.
and so extreme in degree. as to go beyond all possible bounds of decency. and to be regarded as
atrocious. and utterly intolerable in a civilized community:'

Washillg/oll ,'. MaYI1lI1'lI. Gl.RNo.

13-3767.2016 WL 865359. at *11 (D. Md. Mar. 7.2016) (citing /larris. 380 A.2d at 614). "The
conduct must strike to the very core of one's being. threatening to shatter the Irame upon which
one's cmotional jllbric is hung:' !d. (citing Ilamil/oll \'. Ford Molar Credil Co .. 502 A.2d 1057.

9

1064 (Md. Ct. Spec. App. 1986». As alleged. King's treatment of Plaintiff was. at worst. rude
and unprofessional. exhibiting a bias against female employees. but such behavior is a far cry
Ii'om the outrageous conduct warranting an liED claim. See. e.g.. B.N. \".K.K.. 538 A.2d 1175.
1180 (Md. 1988) (finding that intentional exposure to sexually transmittcd diseasc was
outrageous conduct).
Finally. Plaintitf has not pleaded any facts to suggest that her emotional distress was
severe. See Solis \".Prillce George's Oy., 153 F. Supp. 2d 793, 804 (I). Md. 200 I) (quoting
Thacker \".Cily o(lfyalls\"ille. 762 A.2d 172, 197 (Md. Ct. Spec. App. 2(00)

(plaintiff must

show that he suffered "a severely disabling emotional response to the defendant's conduct. and
that the distress was so severe that no reasonable man could be expected to endure if') (internal
quotation omitted). PlaintitT has merely alleged that she suffered severe emotional distress
associated with the physical manitestations of her chronic medical condition. Such conclusory
statements are insufticient to meet the high burden imposed by the requirement that a plaintiffs
emotional distress be severe. See ,\Jlmikhi \'. Mass 7hmsil Admill .. 758 A.2d 95. 114-15 (Md.
2000) (upholding dismissal of liED claim when the plaintiff tailed to "state with reasonable
certainty the nature. intensity. or duration of the alleged emotional injury"). Therefore. Plaintiffs
liED claim must be dismissed.

10

IV.

CONCLUSION
For the foregoing reasons. Defendant"s Motion to Dismiss. ECF NO.7. shall be granted.

A separate Order follows.x

Dated: J unel'Z: 20 18
GEORGE J. HAZEL
United States District Judge

'The Court will dismiss Plaintiffs Title VII claim because she has not adequately alleged facls to demonstrate that
she was constructively discharged. However. the claim will be dismissed without prejudice because Plaintiff may be
able to add facts to demonstrate that Defendant not only terminated her access to the building on February 8. 2016.
but that Defendant in fact tenninated her employment. Ifsuch facts exist. Plaintiff may seek leave to amend her
Complaint. If Plaintiff does not seek leave to amend within fourteen days. her Title VII claim will be dismissed with
prejudice and the case will be closed.

I1