DR. ROSE C. MERCHANT
PRINCE GEORGE'S COUNTY, MARYLAND, et al.
DeBORAH K. CHASANOW, District Judge.
Presently pending and ready for review in this employment retaliation case is the motion to dismiss or, in the alternative, for summary judgment filed by Defendants Prince George's County, Maryland ("the County"); Rushern Baker; and Pamela B. Creekmur. (ECF No. 17). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, Plaintiff Dr. Rose C. Merchant's amended complaint will be dismissed for lack of subject matter jurisdiction.
In July 2005, the County hired Plaintiff as a G35 Deputy Director in its Department of Corrections. The County discharged Plaintiff on February 21, 2008, but re-hired her August 4, 2008, and transferred her to the Division of Addictions and Mental Health within the County's Health Department. The County terminated Plaintiff again on December 19, 2011.
This action marks the second time Plaintiff has sought judicial relief against the County and its employees. On February 4, 2009, Plaintiff filed a lawsuit in this court captioned Rose C. Merchant v. Prince George's Cnty., et al., No. DKC-09-0256 ("the First Lawsuit"). In the First Lawsuit, Plaintiff asserted claims for gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and pay discrimination in violation of the Equal Pay Act, 29 U.S.C. § 206(d). Plaintiff based her discrimination claims on allegations that she was compensated less than her male peers for performing the same job, and based her retaliation claim on allegations that the County fired her in February 2008 without cause after she complained of the allegedly disparate differences in pay. On February 9, 2010, this court granted summary judgment in favor of the County on all claims asserted by Plaintiff in the First Lawsuit. See Merchant v. Prince George's Cnty., No. DKC-09-0256, 2010 WL 503046 (D.Md. Feb. 9, 2010). On June 21, 2011, the United States Court of Appeals for the Fourth Circuit affirmed this court's decision in an unpublished, per curiam opinion. See Merchant v. Prince George's Cnty., 436 F.Appx. 218, 2011 WL 2451528 (4th Cir. June 21, 2011).
On June 5, 2012, Plaintiff filed the instant lawsuit ("the Second Lawsuit") in the Circuit Court for Prince George's County, Maryland. (ECF No. 2). According to the amended complaint, the County and its employees "continued their campaign of reprisal" against Plaintiff immediately after she filed the First Lawsuit in February 2009. (ECF No. 3 ¶ 37). Specifically, the County allegedly placed Plaintiff in a new position where she had no substantive duties. In addition, Plaintiff alleges that she repeatedly applied for promotions to positions "for which she was more than qualified, " but was denied each time. Plaintiff further alleges that, on December 19, 2011, the "campaign of reprisal finally culminated" when the County again terminated her employment, this time for "allegedly punching in to work in the wrong County building - a County building in which her office was located." ( Id. ¶ 38). The amended complaint in the Second Lawsuit asserts a single count for retaliation under Title VII. ( Id. ¶ 40). The amended complaint asserts that Plaintiff "timely filed a Charge of discrimination with the Equal Employment Opportunity Commission [("EEOC")] alleging retaliation" on October 5, 2011, and then filed the Second Lawsuit within ninety days of receiving a right-to-sue notice. ( Id. ¶¶ 11-12).
On December 3, 2012, Defendants removed the Second Lawsuit to this court. (ECF No. 1). On December 14, 2012, Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment. (ECF No. 17). In support of their arguments under Rule 12(b)(1), Defendants present evidence that contradicts the factual allegations in the amended complaint regarding the timing and nature of Plaintiff's contacts with the EEOC. For example, Monica R. Jackson, an investigative support assistant with the EEOC Baltimore field office, avers that, based upon her review of the investigative file for Charge No. 570-2012-00066, "a minimally sufficient charge of discrimination was docketed... on January 10, 2012." (ECF No. 17-5, Jackson Aff. ¶ 5). Thus, according to Defendants, Plaintiff submitted "an unverified charge information or intake form on January 10, 2012, " as opposed to October 5, 2011. (ECF No. 17-1, at 6). Ms. Jackson further avers that, on January 10, 2012, the EEOC drafted a formal charge of discrimination using EEOC Form 5 and mailed it to Plaintiff for her review, signature, and return. (ECF No. 17-5, Jackson Aff. ¶ 6). Ms. Jackson states that the investigative file also reflects that an EEOC Form 131, titled "Notice of Charge of Discrimination, " was mailed to the County. ( Id. ¶ 4). That document, dated January 12, 2012, advised the County that "[n]o action is required by you at this time" and that "[d]uring the investigative process a perfected charge will be forwarded to you for a completed response." (ECF No. 17-4, at 3). Additionally, the box for "Enclosure - Copy of Charge" was left unchecked. ( Id. ). Ms. Jackson represents that, consistent with its procedures, the EEOC issued Plaintiff a right-to-sue notice and closed its file on March 7, 2012, after thirty (30) days passed without Plaintiff returning a verified formal charge. (ECF No. 17-5, Jackson Aff. ¶¶ 7-8).
In her opposition (ECF No. 21), Plaintiff contests Defendants' timeline of events via her own declaration and exhibits. Specifically, Plaintiff maintains that she filed an intake questionnaire with the EEOC alleging retaliation on October 5, 2011. (ECF No. 21-2, Merchant Decl. ¶ 2). The copy of the intake questionnaire submitted by Plaintiff is undated and unsigned, and consists of five total pages. ( See ECF No. 21-2, Merchant Decl. Attach., at 4-8). The first three pages contain pre-printed questions with handwritten answers. ( Id. at 4-6). In response to the question asking "[w]hat happened to you that you believe was discriminatory?, " Plaintiff responded "[s]ee attachment" and submitted a two-page, typed addendum that provides, in relevant part, as follows:
Since the filing of my EEOC Charge [in 2005] and [the First Lawsuit], I have been subjected to on-going retaliation, including but not limited to depletion of duties, ostracism and repeated denial of promotions. In fact, I have applied for over 10 promotions in positions for which I am more than qualified. I have not been considered for a single position. Moreover, I believe that each of these positions was filled by less qualified male colleagues.
( Id. at 7-8). According to Plaintiff, the EEOC was later notified of her December 2011 termination as additional evidence of retaliation. (ECF No. 21-2, Merchant Decl. ¶ 2). Plaintiff avers that, after she filed her intake questionnaire, she did not receive any documents from the EEOC, nor did anyone from the EEOC contact her to investigate her allegations. Plaintiff recounts that, after several months of hearing nothing from the EEOC, she contacted the agency directly. ( Id. ¶ 4). Despite purportedly being told by an EEOC representative that she would receive a formal charge for her review and signature, Plaintiff insists that the only document she ever received from the EEOC was a right-to-sue notice issued on March 7, 2012. ( Id. ).
II. Standard of Review
Although Defendants' motion implicates several different standards of review, their argument that Plaintiff failed to exhaust her administrative remedies is, as discussed below, dispositive. Because a Title VII plaintiff's failure to exhaust administrative remedies deprives a federal court of jurisdiction over such claims, Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300-01 & n. 2 (4th Cir. 2009), Defendants' motion will therefore be construed pursuant to Rule 12(b)(1).
The plaintiff always bears the burden of demonstrating that subject matter jurisdiction properly exists in federal court. See Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999). When, as here, "the challenge is made, not to the sufficiency of the jurisdictional allegations, but to the underlying facts supporting those allegations, a trial court may go beyond the allegations of the complaint and may consider evidence by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment." Kim v. United States, 609 F.Supp.2d 499, 504 (D.Md. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)) (internal quotation marks omitted). Nonetheless, a Rule 12(b)(1) motion that challenges the facts upon which jurisdiction is premised should be analyzed pursuant to similar standards: "The district court should apply the standard applicable to a motion for summary ...