CARLA Y. NELSON, Plaintiff,
STATE EMPLOYEES CREDIT UNION OF MARYLAND, INC., Defendant.
Richard D. Bennett United States District Judge
Plaintiff Carla Y. Nelson (“Plaintiff” or “Nelson”) brought this action against the State Employees Credit Union of Maryland, Inc. (“Defendant” or “SECU”) alleging race, color, and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1) (“ADEA”). Plaintiff later amended her Complaint to allege additional claims of race and color discrimination in violation of 42 U.S.C. § 1981 (“Section 1981”), and race, sex, color, and age discrimination in violation of Title 20 of the Maryland Code (“Title 20”). Pending before this Court are Defendant’s Motions to Dismiss Plaintiff’s Complaint (ECF No. 6) and Plaintiff’s Amended Complaint (ECF No. 11). The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendant State Employees Credit Union of Maryland Inc.’s Motion to Dismiss Plaintiff’s Complaint (ECF No. 6) is DENIED AS MOOT and Defendant’s Motion to Dismiss Plaintiffs Amended Complaint (ECF No. 11) is also DENIED.
This Court accepts as true the facts alleged in Plaintiffs amended complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Plaintiff Carla Y. Nelson (“Plaintiff or “Nelson”) is a fifty-two year old African-American woman. Pl.’s Am. Compl. ¶ 1, ECF No. 10. For approximately twenty-nine years, Plaintiff was employed as a Corporate Security Manager at the State Employees Credit Union of Maryland, Inc. (“Defendant” or “SECU”), a not-for-profit, member-owned cooperative organized under Maryland state law that employs more than five hundred (500) individuals. Id. ¶¶ 2, 15. At the time of her March 2011 dismissal, Plaintiff alleges that she was “fully qualified for the Corporate Security Manager position and performed the duties of the job in exemplary fashion.” Id. ¶ 13. Plaintiff notes that she served as President of the Maryland Association of Bank Security, an organization focused on fraud prevention and security at financial institutions. Id ¶ 14.
Plaintiff alleges that as of March 2011, Rachel Kneisly (“Kneisly”), a white woman in her thirties, was her supervisor. Id ¶ 16. According to Plaintiff, Kneisly joined SECU in 2004 with no banking experience and Plaintiff, having extensive experience investigating suspected fraud, began training her in that specialty. Id ¶¶ 17-18. Plaintiff was terminated on March 18, 2011. Id ¶ 15. Plaintiff alleges that Kneisly “never promoted a person of color, or terminated a white person” in her role as supervisor. Id ¶ 19. Plaintiff further alleges that Kneisly personally admitted to making the decision to eliminate Plaintiff’s position. Id ¶ 16. Additionally, Plaintiff claims that SECU modified her position following her departure, and posted it as a Team Leader for Loss and Security Prevention (“Team Leader”) position. Id. ¶ 20. Ultimately, Plaintiff alleges that SECU “denied [her] the opportunity to apply for the position” on account of her race, color, sex, and age, opting for “a much younger and less experienced white male” to fill the new position. Id. ¶¶ 21-24.
Following her March 2011 termination, Plaintiff filed an administrative complaint with the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 3. The EEOC issued a Dismissal and Notice of Rights dated July 31, 2012, which Plaintiff’s attorneys received on August 6, 2012. Id. ¶¶ 4-5. Plaintiff filed a Complaint against SECU on November 5, 2012 alleging race, color, and sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1) (“ADEA”). On December 7, 2012, SECU filed a Motion to Dismiss the Complaint as untimely and for failure to state a claim for relief pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and Local Rule 105(1) (ECF No. 6). On December 26, 2012, Plaintiff amended her Complaint to allege additional claims of race and color discrimination in violation of 42 U.S.C. § 1981 (“Section 1981”) and race, sex, color, and age discrimination in violation of Title 20 of the Maryland Code (“Title 20”) (ECF No. 10). On January 14, 2013 SECU again filed a Motion to Dismiss Plaintiff’s Amended Complaint as untimely and for failure to state a claim for relief (ECF No. 11).
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon which relief can be granted; therefore, “the purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). In ruling on such a motion, this Court is guided by the Supreme Court’s instructions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) which “require complaints in civil actions be alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). The Supreme Court’s Twombly decision articulated “[t]wo working principles” courts must employ when ruling on Rule 12(b)(6) motions to dismiss. Iqbal, 556 U.S. at 678.
First, while a court must accept as true all the factual allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such deference. Id. (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to plead a claim.) Second, a complaint must be dismissed if it does not allege “a plausible claim for relief.” Id. at 679. Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Although the plausibility requirement does not impose a “probability requirement, ” id. at 556, “[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 663; see also Robertson v. Sea Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012) (“A complaint need not make a case against a defendant or forecast evidence sufficient to prove an element of the claim. It need only allege facts sufficient to state elements of the claim.”) (emphasis in original) (internal quotation marks and citation omitted). In short, a court must “draw on its judicial experience and common sense” to determine whether the pleader has stated a plausible claim for relief.” Iqbal, 556 U.S. at 664.
The Defendant argues that Plaintiff’s claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”) and the Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1) (“ADEA”) should be dismissed as untimely because Plaintiff failed to file her Complaint within ninety (90) days of receiving her Notice of Right to Sue from the Equal Employment Opportunity Commission (“EEOC”). Plaintiff responds that although the Notice of Right to Sue was mailed on August 1, 2012 and she did not personally receive a copy, her attorney’s case manager received it on August 6, 2012. See Aff. John Pinkus, p. 1-2, ECF No. 16-2. Accordingly, Plaintiff contends that her Complaint filed on November 5, 2012, ninety days after receipt, is timely.
It is well established that, to assert a cause of action under Title VII or the ADEA, a claimant must timely file suit within ninety days after receipt of a right-to-sue letter from the EEOC. See 42 U.S.C. § 2000e–5(f)(1); Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149-50 (1984) (ruling that a claimant forfeits its right to pursue a claim under Title VII if suit is not brought within ninety days). The ninety day period is not jurisdictional, but instead is treated as a statute of limitations period. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982). Nevertheless, the ninety day timing requirement is strictly enforced. See Harvey v. City of New Bern Police Dep’t, 813 F.2d 652, 654 (4th Cir. 1987) (ruling that an action filed ninety-one days after the claimant’s wife received the notice was untimely). The United States Court of Appeals for the Fourth Circuit does not follow an “actual receipt” rule. See West v. CSX Corp., No. JFM-05-3256, 2006 WL 373843 at *2 (D. Md. 2006). “The limitations period is triggered when the Postal Service delivers notice to a plaintiff that the right-to-sue letter is available for pickup, and not when the letter is actually picked up.” Id. (citing Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40, 42 (4th Cir. 1993)). Furthermore, where the date of receipt is uncertain or otherwise disputed, courts presume that the notice to sue was received within three days of the date upon which it was mailed. Darden v. Cardinal Travel Ctr., 493 F.Supp.2d 773, 775 (W.D. Va. 2007) (citing Ish v. Arlington County, Va., 918 F.2d 955 (4th Cir. 1990) (unpublished)).
Although Defendant claims that the date of receipt is in dispute, and therefore that the court should presume receipt within three days of mailing, Plaintiff has submitted a sworn affidavit from her attorney’s case manager verifying receipt on August 6, 2012. See Aff. John Pinkus, p. 1-2, ECF No. 16-2. There is no evidence to the contrary. Accordingly, date of receipt is not uncertain or otherwise disputed in this case. As the right-to-sue letter was received on ...