Burns v. WSSC Water

Filing 24

MEMORANDUM OPINION. Signed by Magistrate Judge Gina L Simms on 8/2/2022. (ybs, Deputy Clerk)

Case 8:21-cv-02509-GLS Document 24 Filed 08/02/22 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
(SOUTHERN DIVISION)
ALBON BURNS,
Plaintiff,
v.
WSSC WATER,
Defendant.

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Civil Action No. GLS-21-cv-02509

MEMORANDUM OPINION
Pro se Plaintiff Albon Burns (“Plaintiff”) has brought an action against his former
employer Washington Suburban Sanitary Commission Water (“Defendant”).

(ECF No. 1).

Although Plaintiff has not clearly articulated his claim for relief, he appears to generally allege
employment discrimination, i.e., that he was “wrongful[ly] dismiss[ed].” (Id.; ECF No. 21). 1
Pending before this Court is Defendant’s “Motion to Dismiss Plaintiff’s Complaint”
(“Motion”). (ECF No. 13). Plaintiff filed an “Answer to Motion” (“Opposition”), and the
Defendant filed its Reply. (ECF Nos. 21, 23). The issues have been fully briefed. The Court finds
that no hearing is necessary. See Local Rule 105.6. (D. Md. 2021). For the reasons set forth below,
the Defendant’s request to dismiss this case based on Fed. R. Civ. P. 12(b)(1) is denied. However,
Defendant’s motion to dismiss predicated upon Fed. R. Civ. P. 12(b)(6) is granted.

In his opposition to Defendant’s Motion to Dismiss, Plaintiff asserts for the first time that his claim arises under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) (ECF No. 21). As set forth more fully
below in Section III.A., the Court may consider Plaintiff’s belated clarification.
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I.

BACKGROUND
A. Procedural Background
On June 23, 2020, Plaintiff was terminated from his employment. (ECF No. 1-2, p. 3).

Following termination, Plaintiff filed a Charge of Discrimination with the Equal Employment
Opportunity Commission (EEOC), and on May 12, 2021, the EEOC issued a notice of Plaintiff’s
right to sue. (ECF No. 1-2, p. 2).
On September 30, 2021, Plaintiff filed this action against the Defendant. On March 24,
2022, the Defendant filed its Motion. Thereafter, on April 15, 2022, Plaintiff filed his Opposition.
On May 4, 2022, Defendant filed a Reply.
B. Factual Background 2
On May 22, 2000, Defendant first hired Plaintiff. Plaintiff’s most recent position prior to
his termination was as a field supervisor. (ECF No. 1-2 3, p. 3). On June 2, 2020, Plaintiff’s
supervisor called him to determine if Plaintiff had already departed from the “depot” to perform a
work assignment. (Id., p. 4). Upon learning that Plaintiff had not yet departed, the supervisor
“angrily approached [Plaintiff’s] work vehicle” and “banged on the passenger side door.” (Id., p.
4). Plaintiff’s supervisor yelled at Plaintiff, demanding that he roll down his vehicle window.
(Id.). Plaintiff’s supervisor proceeded to cross in front of the work vehicle to approach the driver’s
Unless otherwise noted, the facts are taken from Plaintiff’s Complaint, ECF No. 1, and the attachments thereto that
the Court finds integral to the Complaint. See Section III.B.1. infra. In addition, this Court assumes Plaintiff's version
of facts to be true and construes the facts in the light most favorable to the non-moving party, Plaintiff. Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009); Baltimore Scrap Corp. v. Exec. Risk Specialty Ins. Co., 388 F. Supp. 3d
574, 584 (D. Md. 2019).

2

Plaintiff attaches an April 16, 2021 letter to his Complaint, which is a finding by a Maryland Department of Labor
hearing examiner that Plaintiff was not disqualified from seeking unemployment benefits despite being fired from
WSSC. (ECF No. 1-2, pp. 3-6). This document is not truly “integral” to the Complaint. However, neither Plaintiff nor
Defendant disputes the authenticity of the letter or some of the background facts cited therein. In fact, both parties rely
upon these background facts in the Complaint and Motion to Dismiss. (See ECF Nos. 1, 13). Thus, the Court includes
these facts to paint a clearer picture of the factual background in this case. Ultimately, however, the parties’ reliance
upon these background facts does not change the Court’s analysis. Indeed, as set forth herein, these undisputed
background facts are truly immaterial to the Court’s analysis.
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side door. (Id.). Plaintiff attempted to drive away at the same moment that Plaintiff’s supervisor
“moved to the front of the vehicle.” (Id.). Following this interaction, Plaintiff’s supervisor accused
Plaintiff of striking him with the company vehicle. (ECF No. 1, “Complaint,” p. 6). Defendant
conducted a formal internal investigation and determined that Plaintiff had violated the
Defendant’s workplace violence policies. (ECF No. 1-2, p. 4). The investigation ultimately
resulted in Plaintiff’s termination on June 23, 2020. (Id.).
Plaintiff denies striking his supervisor with his work vehicle. (Complaint, p. 6). In short,
Plaintiff contends that the supervisor’s accusations about his conduct are false and that he was
wrongfully discharged. (Id.). Plaintiff also contends that his termination by the Defendant has
negatively impacted his ability to gain employment. (Id.).
II.

STANDARDS OF REVIEW
A. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(1), a party may move

to dismiss a complaint for lack of subject matter jurisdiction. In a Rule 12(b)(1) challenge to
subject matter jurisdiction, a movant advances either: (1) a facial challenge, i.e., by asserting that
the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction; or
(2) a factual challenge, asserting “‘that the jurisdictional allegations of the complaint [are] not
true.’” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (alteration in original) (citation
omitted). In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion
must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.”
Kerns, 585 F.3d at 192. Id. In this case, Defendant advances a facial challenge to subject matter
jurisdiction. (ECF No. 13-1, pp. 4-5).

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It is well settled that a federal court always has “an independent obligation to determine
whether subject-matter jurisdiction exists, even when no party challenges it.” Hertz Corp. v.
Friend, 559 U.S. 77, 94 (2010). If a federal court lacks subject matter jurisdiction, then dismissal
is appropriate. See Fed. R. Civ. P. 12(h)(3).
B. Motion to Dismiss for Failure to State a Claim
A defendant who files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) is asserting
that, even if a court construes the facts advanced in the Plaintiff’s complaint as true, that complaint
fails to state a claim upon which relief can be granted. To survive a motion to dismiss, a complaint
must contain sufficient facts and must state a “plausible claim for relief.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009); see also Fed. R. Civ. P. 8(a); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007) (complaint must set forth enough facts as to suggest a “cognizable cause of action”). A
claim has “facial plausibility” when the plaintiff pleads factual content that “allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
III.

DISCUSSION
A. Subject Matter Jurisdiction
In its Motion, Defendant argues that this Court lacks subject matter jurisdiction over

Plaintiff’s claims. Specifically, Defendant asserts that: (1) diversity of citizenship does not exist
because both parties reside in Maryland; and (2) Plaintiff fails to allege sufficient facts to suggest
that a federal statute is implicated. Plaintiff counters that he filed his claim under Title VII pursuant
to the EEOC Right to Sue letter he received, and therefore invokes federal question jurisdiction.
A federal court has subject matter jurisdiction over a plaintiff’s claim only under two
circumstances. First, in a case involving a substantial federal question or statute. Second, if the

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action is based on diversity of citizenship. Specifically, a federal court has “original jurisdiction
of all civil actions arising under the Constitution, laws, or treaties of the United States,” and has
original jurisdiction over a civil action where “[a] matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between citizens of different states.” See 28
U.S.C. §§ 1331, 1332(a)(1). A party filing suit in federal court bears the burden of establishing
the court's subject matter jurisdiction. Hertz, 559 U.S. at 96.
Because Plaintiff is not relying upon diversity of citizenship as a basis for this Court’s
jurisdiction, 4 the Court’s analysis relates only to whether federal question jurisdiction exists.
Plaintiff does not refer to any federal statute in his Complaint. However, in his Opposition,
Plaintiff specifically refers to Title VII. Thus, as preliminary matter, this Court must decide
whether it may consider Plaintiff’s clarification in his Opposition as sufficient to invoke federal
jurisdiction. The case of Moore v. Mt. Saint Joseph High Sch., Civ. No. CCB-14-1788, 2014 WL
4854625 (D. Md. Sept. 29, 2014), is instructive. In Moore, the plaintiff filed a complaint that did
not clearly mention the federal statute that he alleged that the defendant violated. The court found
that the plaintiff belatedly clarified in his response to a motion to dismiss that his claims arose
under 42 U.S.C. § 1983. The district court opined that plaintiff’s failure to reference a federal
statute in his complaint could potentially be excused, as the court had not expended “great effort”
to determine the purported source of jurisdiction and found it pointless to require the plaintiff to
“further amend” the complaint. 2014 WL 4854625, at *2.
In this case, when evaluating whether Plaintiff alleged sufficient facts to confer federal
jurisdiction this Court considered the Complaint and the clarification made in Plaintiff’s
Opposition. Liberally construing Plaintiff’s allegations in both pleadings, Plaintiff seems to assert
Plaintiff does not allege diversity of citizenship in this case; he lists Maryland as his state of residence and as
Defendant’s principal place of business. (Complaint, pp. 2, 5).
4

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that he suffered employment discrimination, in violation of Title VII. This Court finds that it
would not be an efficient use of judicial resources to require Plaintiff to amend his Complaint
merely to reference the statute. The Court, therefore, excuses Plaintiff’s “belated invocation of a
federal statute.” See Moore, 2014 WL 4854625, at *2. In sum, this Court holds that Plaintiff has
raised a federal question, namely whether the Defendant’s conduct violates Title VII.
Accordingly, Defendant’s dismissal request predicated on Rule 12(b)(1) is denied.
B. Failure to State a Claim
Defendant contends that Plaintiff has not stated a claim upon which relief can be granted.
According to the Defendant, then, dismissal of this case is appropriate pursuant to Rule 12(b)(6).
1. Documents Considered
In general, a Rule 12(b)(6) motion tests the sufficiency of a complaint, and a court’s
evaluation is “limited to a review of the allegations of the complaint itself.” Goines v. Valley Cmty.
Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016) (quoting Occupy Columbia v. Haley, 738 F.3d 107,
116 (4th Cir. 2013)). However, a court may consider other documents submitted by the parties
“not attached to or expressly incorporated in a complaint, so long as [any such] document was
integral to the complaint and there is no dispute about the document’s authenticity.” Staggers v.
Becerra, Civ. No. ELH-21-231, 2021 WL 5989212, at *11 (D. Md. Dec 17, 2021) (quoting Goines,
822 F.3d at 166). To be “integral,” a document must “by its ‘very existence, and not the mere
information it contains, give[] rise to the legal rights asserted.’” Parker v. Children's Nat'l Med.
Ctr., Inc., Civ. No. ELH-20-3523, 2021 WL 5840949, at *5 (D. Md. Dec. 9, 2021) (quoting
Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md.
2011)).

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In this case, Plaintiff has attached three exhibits to his Complaint for the Court’s
consideration: (1) the EEOC Notice of Right to Sue, (“Right to Sue Letter”) (ECF No. 1-2, p. 2);
(2) a “Lower Appeals Decision” issued by the Maryland Department of Labor (“unemployment
decision letter”) (ECF No. 1-2, pp. 3-6); and (3) the Confidential Stipulated Tolling agreement
between the parties (“tolling agreement”) (ECF No. 1-4, pp. 1-2). 5
Regarding the Right to Sue Letter, Plaintiff explicitly references the letter in the Complaint.
(Complaint, p. 6). In addition, the letter informs Plaintiff of his right to sue based on a charge
Plaintiff filed with the EEOC. Defendant does not contest the authenticity of the document, and
the document itself gives rise to Plaintiff’s ability to sue his employer. Accordingly, the Right to
Sue letter is integral to the complaint. See Bowie v. Univ. of Maryland Med. Sys., Civ. No. ELH14-03216, 2015 WL 1499465, at *6 (D. Md. Mar. 31, 2015) (EEOC Right to Sue letter integral to
employment discrimination complaint).
With respect to the unemployment decision letter, Plaintiff does not reference the letter in
the Complaint; rather, he merely attaches it to his Complaint. The unemployment decision letter
addresses whether Plaintiff would be eligible for unemployment benefits despite being terminated
by the Defendant. While the authenticity of the letter is undisputed, there are no facts in the letter
that touch upon any of the factors relevant to Title VII discrimination claim (e.g., race, color,
religion, sex, or national origin). Accordingly, this letter is not integral to the Complaint, and will
not be considered by the Court when resolving Defendant’s Rule 12(b)(6) motion.

Plaintiff also attached the Right to Sue Letter again to his Opposition, including an additional page that was not
originally attached to the Complaint. There is no additional information in the second page that impacts the Court’s
analysis.
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The tolling agreement is an agreement between the parties to extend the statute of
limitations for Plaintiff to file suit against the Defendant. Although the document is mentioned in
Plaintiff’s Complaint, there are no facts contained therein that mention race, religion, sex, color,
or national origin, which must be sufficiently pled to advance a Title VII claim. Any extension of
the deadline for Plaintiff to sue the Defendant is immaterial to the question of whether Plaintiff
sufficiently alleges Title VII discrimination. Therefore, the agreement is not integral to the
Complaint and will not be considered when resolving Defendant’s Rule 12(b)(6) motion.
2. Analysis of Claim Asserted
Title VII prohibits employers from “discharg[ing] any individual, or otherwise. . .
discriminat[ing] 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)(1). The elements for a prima facie case of discrimination in
violation of Title VII are: “(1) membership in a protected class; (2) satisfactory job performance;
(3) adverse employment action; and (4) different treatment from similarly situated employees
outside the protected class.” 6 See White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir.
2004); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801 (1973). A plaintiff must allege
facts showing that the plaintiff’s status as a member of a protected class is the reason for the
adverse employment action. McCleary-Evans v. Maryland Dep't of Transp., State Highway
Admin., 780 F.3d 582, 585 (4th Cir. 2015).

6
At this procedural stage, Plaintiff need not establish a prima facie case of discrimination. Swierkiewicz v. Sorema,
534 U.S. 506, 510 (2002) (holding that the requirements for establishing a prima facie case for discrimination set out
in McDonnell Douglas are an evidentiary standard, not a pleading requirement). Nonetheless, this Court examined
“the elements of a prima facie claim [in order] to gauge the adequacy of [Plaintiff’s] factual allegations.” Staggers v.
Becerra, Civ. No. ELH-21-0231, 2021 WL 5989212, at *13 (D. Md. Dec. 17, 2021).

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This Court must liberally construe a pro se plaintiff’s claims to ensure that a potentially
meritorious claim survives challenge. Hughes v. Rowe, 449 U.S. 5, 9 (1980). In that regard, this
Court measures an “inartfully pleaded” pro se pleading by “less stringent standards” than pleadings
drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
It is equally true, however, that a court cannot turn a blind eye to a plaintiff’s failure to
allege facts that establish a cause of action. Nor can the Court act as an advocate for a pro se
plaintiff and infer the existence of facts not clearly pleaded. See Weller v. Dep’t of Soc. Servs.,
901 F.2d 387, 391 (4th Cir. 1990).
Construing the facts advanced in the Complaint, Opposition, and the Right to Sue letter as
true, Plaintiff fails to sufficiently articulate a plausible Title VII claim. Plaintiff’s allegations fall
short of stating a claim for discrimination under Title VII for several reasons.
First, to allege membership in a protected class, a plaintiff must allege that he or she falls
within a class protected by Title VII. Okoh v. Univ. of Maryland E. Shore, Civ. No. AW-08-1855,
2010 WL 118367, at *5 (D. Md. Jan. 7, 2010).

Title VII only proscribes employment

discrimination based on “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1);
see King v. Seabord Coast Line R. Co., 538 F.2d 581, 583 (4th Cir. 1976). Even upon consideration
of the documents attached to the Complaint, Plaintiff fails to allege any facts to support how he is
a member of a class (e.g., race or color) protected by Title VII.
Second, the law requires Plaintiff to allege that he was performing his job satisfactorily.
This requires a plaintiff to provide “detailed factual information regarding performance.” Bynum
v. Martin, Civ. No. GJH-16-2067, 2016 WL 7468050, at *5 (D. Md. Dec. 27, 2016) (holding that
conclusory allegation that plaintiff was a “successful performer” was not sufficient to allege
satisfactory job performance). Here, Plaintiff denies striking his supervisor with a company

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vehicle and violating a workplace violence policy. The Complaint, Opposition, and Right to Sue
Letter are devoid of any facts on his job performance. Even drawing all reasonable inferences in
Plaintiff’s favor, Plaintiff fails to allege sufficient facts to demonstrate that his job performance
was satisfactory when he was terminated.
Third, to allege an adverse employment action, a plaintiff must allege a “significant change
in employment status,” such as “hiring” or “firing[.]” Okusami v. Maryland Dep't of Health &
Mental Hygiene, Civ. No. ELH-18-1701, 2019 WL 1003607, at *16 (D. Md. Feb. 28, 2019)
(holding that plaintiff had sufficiently alleged an adverse employment action where plaintiff
alleged his employment was terminated). In this case, because Plaintiff has alleged that the
Defendant terminated him on June 23, 2020, he has sufficiently alleged an adverse employment
action. However, this fact alone is insufficient to plausibly state a claim for discrimination
violating Title VII, as the other elements must also be met.
Fourth, a plaintiff must allege facts to plausibly demonstrate that as a result of his
membership in a protected class, he was treated differently than similarly-situated employees
outside of the protected class. Coleman v. Maryland Ct. of Appeals, 626 F.3d 187, 190 (4th Cir.
2010). In this case, Plaintiff has failed to allege any facts establishing that he was a member of a
protected class who was treated differently from other similarly-situated employees (comparators)
because of his protected status. Consequently, he also fails to sufficiently allege this key element.
See Coleman, at 190 (absent facts showing that comparators were similarly situated and that
plaintiff’s membership in a protected class was the cause of adverse action, plaintiff had not
sufficiently alleged different treatment). 7
7

As a corollary, appending an EEOC Right to Sue letter to a complaint that is devoid of any facts is insufficient, by
itself, to confer subject matter jurisdiction. See Baskins v Mack, Civ. No. 16-1420, 2017 WL 3726751, at *2 (M.D.N.C.
Aug. 28, 2017) (holding that an EEOC right to sue letter, absent any additional information about the underlying
claims, could not provide a basis for federal question jurisdiction). See also Moore, supra, 2014 WL 4854625, at *2

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In sum, this Court finds that Plaintiff’s allegations to be inadequately pleaded. Plaintiff
fails to offer sufficient facts to establish a Title VII violation. Accordingly, Defendant’s Motion
based on a Rule 12(b)(6) challenge is granted.
IV.

CONCLUSION
For the foregoing reasons, the Motion is ultimately granted. An Order accompanies this

Memorandum Opinion.

Dated: August 2, 2022

____________/s/___________
The Honorable Gina L. Simms
United States Magistrate Judge

(where plaintiff failed to allege facts supporting one of the elements for a Section 1983 claim, his claims were so
“insubstantial” as to deprive the court of federal question jurisdiction).

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