Olarewaju v. Allied Universal
MEMORANDUM OPINION (c/m to Plaintiff 8/1/22 sat). Signed by Judge Deborah K. Chasanow on 8/1/2022. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 21-3250
Presently pending and ready for resolution in this pro se
employment discrimination case is a motion to dismiss the operative
complaint filed by Defendant Allied Universal.
(ECF No. 6).
opposition to Defendant’s motion to dismiss, Plaintiff Olalekan
Olarewaju attempts to move for leave to amend.
(ECF Nos. 17; 19).
The issues have been briefed, and the court now rules, no hearing
Local Rule 105.6.
For the following reasons,
the motion to dismiss will be granted in part and denied in part
and the motion for leave to amend will be denied.
Facts Alleged in Operative Complaint
Mr. Olarewaju was born in Nigeria and moved to the United
He worked for Allied Universal as a security guard until
The facts outlined here, which are set forth in the operative
complaint, an attachment thereto, and a proposed amended
complaint, are construed in the light most favorable to the
Plaintiff. See Philips v. Pitt Cnty. Mem’l Hosp., 572 F.3d 176,
180 (4th Cir. 2009) (holding that attached documents “integral to
he was terminated on April 16, 2021.
He had been employed by
predecessor contractors before Allied took over in June 2019.
alleges that, from the transition to Allied in June 2019, he had
a problem with his supervisor Major Sam Robinson, who favored Black
He gave Black Americans more favorable postings and he
never disciplined the Black American who relieved Mr. Olarewaju at
the end of his shift, Ms. Ashley Parker, for being late and not
showing up at all.
On April 14, 2021, Mr. Olarewaju was late to work because he
had been pulled over by police.
After he arrived, Mr. Robinson
allegedly told Mr. Olarewaju that he was a “dumb African, that we
Olarewaju’s words, told him he would “come back after he might
have pull off his uniform to beat [him] up physically.”
1, at 6).
Mr. Olarewaju reported the incident and was then told
by Mr. Robinson to report to the regional office on April 19.
Initiation of this Action and Motions Practice
Mr. Olarewaju filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on September 15, 2021,
checking the box for national origin discrimination, and was issued
the complaint and authentic” may be considered on a motion to
a right to sue letter about two weeks later, on September 27.
He then filed this action without legal representation
on December 21, 2021.
He asserts claims for national origin
discrimination and a hostile work environment under Title VII, 42
U.S.C. § 2000e et seq., the Maryland Fair Employment Practices
Act, Md. Code Ann., State Gov’t § 20-601 et seq., and Montgomery
County Code § 26-6.2
He appears to advance these claims primarily
based on the verbal abuse, threat of physical violence, and his
(See ECF No. 1, at 9).
He also checked the box for
race discrimination, filled in a blank for color discrimination,
and checked boxes for unequal conditions of employment as a means
of discrimination, and retaliation.
Defendant moved to dismiss the complaint, contending that any
claim other than those for discriminatory discharge based on
exhausted, and that Plaintiff failed to state a claim properly for
those two potentially exhausted claims.
Mr. Olarewaju’s response
appeared to form a request to amend his complaint.
(ECF No. 17).
Plaintiff was advised that, if he wished to file an amended
complaint, he needed to file a complete proposed amended complaint.
He did so. (ECF No. 19). Defendant opposes allowing Mr. Olarewaju
The relevant employment
Montgomery County Code § 27-19.
to amend, contending that the amended complaint still fails to
state a claim.
Facts Alleged in Proposed Amended Complaint
The proposed amended complaint does little to alter the
picture presented in the operative complaint.
It augments some
minor details, leaves out at least one key detail, and otherwise
largely restates the same assertions.
It is narrower because it
does not include the statement by Mr. Robinson that Mr. Olarewaju
was a “dumb African” alleged in the operative complaint.
addition, it asserts only Title VII national origin discrimination
and hostile work environment claims (despite stray indications
that he relies on race, color, and religion).
detail is biographical.
Most of the added
The amended complaint does more clearly
indicate that from the outset Mr. Robinson wouldn’t listen to Mr.
Olarewaju, “talk[ed] down to him in a derogatory manner,” shouted,
and told him that he lacked common sense.
(ECF No. 19, at 2).
also now contends that Mr. Robinson coordinated with a property
manager to prevent Mr. Olarewaju from parking his car in a nearby
Otherwise it simply reasserts the remaining details in the
He alleges that Ms. Parker was treated
differently despite being late all the time and that when he was
late on April 16 (rather than April 14), Mr. Robinson cursed him,
called him a bastard, and threatened to beat him up.
As discussed further below, the omissions from the proposed
amended complaint are more harmful to Mr. Olarewaju’s case than
any additional detail is helpful.
Because Mr. Olarewaju proceeds
without a lawyer, the court declines his self-defeating request
for leave to amend.
For that reason, only the factual allegations
Universal’s motion to dismiss.
Standard of Review
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the complaint.
Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006).
“[T]he district court must
accept as true all well-pleaded allegations and draw all reasonable
factual inferences in plaintiff’s favor.”
F.3d 295, 299 (4th Cir. 2021).
Mays v. Sprinkle, 992
A plaintiff’s complaint need only
satisfy the standard of Fed.R.Civ.P. 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
is entitled to relief[.]”
A Rule 8(a)(2) “showing” still requires
more than “a blanket assertion of entitlement to relief,” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007), or “a
formulaic recitation of the elements of a cause of action[.]”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations
“A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that defendant is liable for the misconduct alleged.”
Mays, 992 F.3d at 299-300 (quoting Iqbal, 556 U.S. at 663).
construed and held to a less strict standard than those drafted by
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
construction means that courts will read the pleadings to state a
valid claim to the extent that it is possible to do so from the
See Bing v. Bravo Sys., LLC, 959 F.3d 605, 618
(4th Cir. 2020) (citation omitted); Barnett v. Hargett, 174 F.3d
1128, 1133 (10th Cir. 1999).
Where an unrepresented plaintiff’s
complaint must be dismissed, courts should provide “notice of the
deficiencies” so that the plaintiff can “use the opportunity to
See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
complaint to assert claims for: (1) race and color discrimination,
(4) hostile work environment.
It argues that Mr. Olarewaju did
adequately to state claims (3)(b) and 4.
Race and Color Discrimination, Retaliation, and
National Origin Discrimination by Unequal Conditions
discrimination with the EEOC before filing suit in federal court.
42 U.S.C. § 2000e-5(e)(1), (f)(1).
The purpose of this exhaustion
requirement is to put employers on notice to potential misconduct
and afford them the opportunity to remedy it with the complaining
employee more quickly and efficiently than litigation allows.
Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005).
a plaintiff’s claims in her judicial complaint are reasonably
related to her EEOC charge and can be expected to follow from a
reasonable administrative investigation, the plaintiff may advance
such claims in her subsequent civil suit.”
Smith v. First Union
Nat’l Bank, 202 F.3d 234, 247 (4th Cir. 2000) (citation omitted).
But a suit may not present entirely new factual bases or entirely
new theories of liability from those set forth in the initial EEOC
See Evans v. Techs. Applications & Serv. Co., 80 F.3d
954, 963–64 (4th Cir. 1996).
Mr. Olarewaju did not exhaust any of the challenged claims.
He did not check the box for race or color discrimination or for
description in his charge did not mention his race or color or
that he complained about unlawful conduct.
See Miles v. Dell,
Inc., 429 F.3d 480, 491–92 (4th Cir. 2005) (holding plaintiff failed
to exhaust when she “did not check the retaliation box on her
charge form, and the narrative explaining her charge made no
mention of retaliation”).
To the extent Mr. Olarewaju asserts
claims for national origin discrimination not grounded in his
termination, that claim too was not exhausted because the EEOC
charge mentions only that Mr. Olarewaju was discharged and faced
discrimination and retaliation claims, or any national origin
National Origin Discrimination by Discharge
“[T]o determine what the plaintiff must plausibly allege at
the outset of a lawsuit, we usually ask what [elements] the
plaintiff must prove in the trial at its end.”
Comcast Corp. v.
Nat’l Ass’n of African American-Owned Media, 140 S.Ct. 1009, 1014
(2020). In employment discrimination cases, a plaintiff must plead
that (1) his employer took an adverse employment action against
While not discussed by the Defendant, claims under the
Maryland Fair Employment Practices Act also require exhaustion.
See Johnson v. United Parcel Serv., Inc., No. 14-cv-4003-RDB, 2015
WL 4040419, at *6 (D.Md. 2015). Maryland County Code claims have
the same requirements. Magee v. DanSources Tech. Servs., Inc.,
137 Md.App. 527, 549 (2001). Any race and color discrimination or
retaliation claims, or national origin claims grounded in unequal
conditions, that Mr. Olarewaju asserts under state or county law
will therefore also be dismissed.
him, (2) because of his protected status.
See 42 U.S.C. § 2000e-
2(a)(1); McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 585
(4th Cir. 2015).
“An employment discrimination plaintiff need not
plead a prima facie case of discrimination to survive a motion to
dismiss because the prima facie case is an evidentiary standard,
not a pleading standard.” McCleary-Evans, 780 F.3d at 584 (cleaned
up) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510, 515
Allied Universal argues that Mr. Olarewaju has not pleaded
enough to support an inference that he was fired because of his
To allege that an employer acted “because of” an
employee’s protected status, there must be “some connective thread
between the alleged mistreatment and the protected status.”
Gough v. Rock Creek Sports Club, No. 19-cv-3533-PJM, 2021 WL
795447, at *2 (D.Md. Mar. 2, 2021).
The most direct way to support
an inference of discriminatory motive is to allege statements
indicative of discriminatory animus that have a relatively close
connection to the alleged adverse event.
See Johnson v. United
Parcel Serv., Inc., 839 F.App’x 781, 783 (4th Cir. 2021) (discussing
statements that reflect improper attitude in retaliation context)
(citing Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289,
comparatively better treatment of similarly situated individuals
outside their protected class. Swaso v. Onslow Cnty. Bd. of Educ.,
698 F.App’x 745, 748 (4th Cir. 2017) (unpublished) (citing Bryant
v. Aiken Reg’l Med. Ctrs., Inc., 333 F.3d 536, 545-46 (4th Cir.
Mr. Olarewaju’s operative complaint successfully alleges that
Robinson called him a bastard and a “dumb African.”
(ECF No. 1,
Mr. Robinson was his supervisor and he made these comments
during his last encounter with Mr. Olarewaju before he was fired.
Taken together, improper animosity evident in a comment made to a
plaintiff by his supervisor almost immediately before he was fired
is enough to plead improper discriminatory animus based on national
discriminatory motive through comparison with Ms. Parker.
a closer call, whether the court were to look to the operative
complaint or the proposed amended complaint.
Ms. Parker appears
to be a similarly situated employee outside his protected class.
She was a native-born Black American who held the same position –
she replaced Mr. Olarewaju at the end of his shift.
that Ms. Parker was always late and sometimes didn’t show up at
all but that Mr. Robinson never disciplined her. What’s less clear
is whether Mr. Olarewaju contends that Allied Universal’s stated
reason for firing him was that he was late.
charge recites that he was “accused of abuse.”) Absent the alleged
statement by Mr. Robinson above, Mr. Olarewaju might have needed
to plead more.
In discovery, Mr. Olarewaju may pursue evidence of
treatment of Ms. Parker.
Defendant’s motion to dismiss Mr. Olarewaju’s Title VII,
discrimination grounded in his discharge will be denied.
Hostile Work Environment
To state a hostile work environment claim under Title VII, a
unwelcome, (2) was based on h[is] [protected status], (3) was
sufficiently severe or pervasive to alter the conditions of h[is]
employment and create an abusive work environment, and (4) was
imputable to h[is] employer.”
See Ziskie v. Mineta, 547 F.3d 220,
224 (4th Cir. 2008) (cleaned up) (summary judgment decision).
Defendant argues that Mr. Olarewaju has not pleaded severe or
Harassment is sufficiently severe or pervasive
perceived, and is perceived, as hostile or abusive.’”
Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015)
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)).
“Th[e] determination is made ‘by looking at all the circumstances,’
which ‘may include the frequency of the discriminatory conduct;
its severity; whether it is physically threatening or humiliating,
interferes with an employee’s work performance.’”
Harris, 510 U.S. at 23).
Mr. Olarewaju pleads just enough to support an inference of
a hostile work environment.
“[A]n employee will have a reasonable
belief that a hostile work environment is occurring based on an
isolated incident if that harassment is physically threatening or
humiliating.” Boyer-Liberto, 786 F.3d at 284. Here, Mr. Olarewaju
alleges that, after calling him a bastard and a “dumb African,”
Mr. Robinson “told [him] he will come back after he might have
pull off his uniform to beat me up physically.”
(ECF No. 1, at6).
Although a single physical threat may not rise to the level of
extremely serious conduct, it is a close call and Mr. Olarewaju’s
allegations at least make it plausible that he endured such extreme
Defendant’s motion to dismiss Plaintiff’s Title VII, statelaw, and Montgomery County claims for hostile work environment
will be denied.
For the foregoing reasons, Defendant’s motion to dismiss will
be granted in part and denied in part and Plaintiff’s motion for
leave to amend the complaint will be denied.
A separate order
DEBORAH K. CHASANOW
United States District Judge
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