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Lee v. Safeway, Inc.

United States District Court, D. Maryland

September 30, 2014

TONYUA LEE, Plaintiff,
v.
SAFEWAY, INC., Defendant.

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

Plaintiff Tonyua Lee ("Lee") brings this action against Defendant Safeway, Inc. ("Safeway"), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq., the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201, et seq., the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401, et seq. (West 1991), and the District of Columbia Wage Payment and Collection Law, D.C. Code §§ 32-1301, et seq. (1956).

Pending before this Court is Defendant's Motion for Leave to File Memorandum in Support of Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 9) ("Motion for Leave to File Memorandum") and Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 8) ("Motion to Dismiss"). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons that follow, Defendant Safeway's Motion for Leave to File Memorandum in Support of Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 9) is GRANTED and Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment, construed as a Motion to Dismiss (ECF No. 8) is GRANTED IN PART (Counts I, II, III, IV, V, VIII, IX, and X) and DENIED IN PART (Counts VI and VII).

BACKGROUND

In a ruling on a motion to dismiss, this Court must accept the factual allegations in the plaintiff's complaint as true and construe those facts in the light most favorable to the plaintiffs. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999).

On October 11, 1992, Defendant Safeway hired Plaintiff Tonyua Lee, an African-American woman, for the position of staff pharmacist. Compl. ¶ 12, ECF No. 1. After twelve years, Plaintiff was promoted in October 2004 to the position of pharmacy manager of the Alabama Avenue, S.E., Washington, D.C. Safeway branch. Id. at ¶¶ 12-13. In November 2009, however, Safeway demoted Plaintiff from pharmacy manager to floater pharmacist. Id. at ¶ 14.[1] Lee does not specify the reasons for which she was demoted, but alleges that she was replaced by "an employee of African origin." Id. at ¶ 15.[2]

Plaintiff's troubles with Defendant continued when, on August 13, 2012, Safeway suspended her for ten days without pay for alleged violations of the Safeway Code of Conduct. Id. at ¶ 16. Lee alleges that her "African counterparts" committed similar violations, but were never admonished for their conduct. Id. Further, she states that, from November 2009 onward, she was the subject of "sex-based and national-origin based harassment, unlike her African counterparts[.]" Id. at ¶ 17. According to Plaintiff, such harassment included long work shifts; meetings with Regional Pharmacy Manager Emmanuel Tesfaye; the reporting of her alleged policy violations to Emmanuel Tesfaye by her "African counterparts; and being treated in a disrespectful and demeaning manner by her African counterparts with the endorsement of her supervisor, Emmanuel Tesfaye." Id. Plaintiff complained to Tesfaye of these actions, but he failed to stop the conduct. Id. at ¶ 19.

In addition to the alleged sex- and national origin-based harassment, Plaintiff claims that Defendant failed to accommodate her need to provide care for her mentally disabled son. Id. at ¶ 26. Lee, as a single mother with sole responsibility for her son, asked Safeway not to schedule her for fifteen-hour or consecutive late-night shifts. Id. [3] Defendant, however, refused the request for accommodation. Id. at ¶¶ 27-28. Instead, the scheduler insisted that he "was just following orders and there was nothing [he] could do about her schedule." Id. at ¶ 27.

During the same period, Plaintiff alleges that Defendant withheld overtime compensation on several occasions. Id. at ¶ 36. From November 2009 "to the present, " Plaintiff alleges that she "regularly" worked in excess of the forty-hour work week, but does not provide any specific dates for which she was not paid. Id. at ¶ 33. Lee states that Defendant knew of the unpaid overtime wages, but willfully manipulated her hours to avoid compensating her for the overtime hours. Id. at ¶¶ 35, 37.

On October 16, 2012, Plaintiff's counsel sent a letter to Defendant describing its alleged violations of Title VII of the Civil Rights Act of 1968, the Americans with Disabilities Act of 1990, and the Fair Labor and Standards Act of 1938, among other complaints. Id. at ¶ 39. Plaintiff then filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") on Novembert 15, 2012. Id. This initial charge alleged only national origin-based discrimination under Title VII of the Civil Rights Act for the period of November 15, 2009 to August 3, 2012. Def.'s Mot. for Leave to File Mem. in Supp. of Def.'s Mot. to Dismiss, or in the Alternative, for Summ. J. Ex. 2, at 13, ECF No. 9-2. Safeway received notice of the filing of the charge on November 18, 2012. Compl. ¶ 39.

Ten days later, Regional Manager Tesfaye and other Safeway employees met with Plaintiff to discuss her concerns and "threatened [Plaintiff] [with] terminat[ion].'" Id. at ¶ 40. Safeway then issued a memorandum documenting Plaintiff's recent violations of its policies on January 7, 2013. Id. at ¶ 41. Shortly thereafter, Plaintiff amended her charge with the EEOC on January 17, 2013 to include sex- and age-based discrimination under Title VII of the Civil Rights Act, retaliation, and disability-based discrimination under the Americans with Disabilities Act. Def.'s Mot. for Leave to File Mem. in Supp. of Def.'s Mot. to Dismiss, or in the Alternative, for Summ. J. Ex. 2, at 6.[4] The amended charge alleged discriminatory incidents for the same period as the initial charge. Id. On January 30, 2013, Plaintiff participated in mandated training on pharmacy procedures to address her recent violations of Defendant's policies. Compl. ¶ 41.

The instant action ensued after the EEOC dismissed Plaintiff's charge of discrimination on August 21, 2013. Def.'s Mot. for Leave to File Mem. in Supp. of Def.'s Mot. to Dismiss, or in the Alternative, for Summ. J. Ex. 2, at 15. Plaintiff filed this Complaint against Defendant on November 11, 2013, alleging ten counts of discrimination, retaliation, and denial of overtime compensation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101, et seq., the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201, et seq., the Maryland Wage and Hour Law, Md. Code Ann., Lab. & Empl. §§ 3-401, et seq., and the District of Columbia Wage Payment and Collection Law, D.C. Code §§ 32-1301, et seq. (1956). Compl. ¶¶ 48-69. Defendant moved to dismiss Plaintiff's Complaint pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Def.'s Mot. to Dismiss, or in the Alternative, for Summ. J., ECF No. 8. Due to a late filing, Defendant then moved to file the memorandum supporting its earlier motion.[5] Def.'s Mot. for Leave to File Mem. in Supp. of Def.'s Mot. to Dismiss, or in the Alternative, for Summ. J., ECF No. 9.

Plaintiff did not respond to the substantive arguments of Defendant's motions, instead basing her opposition solely on procedural grounds. Pl.'s Resp. in Opp. to Def.'s Mot. to Dismiss, or in the Alternative, for Summ. J., ECF No. 13; Pl.'s Resp. in Opp. to Def.'s Mot. for Leave to File Mem. in Supp. of Def.'s Mot. to Dimiss, or in the Alternative, for Summ. J., ECF No. 14. Defendant subsequently filed a Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 15) and a Reply to Plaintiff's Opposition to Defendant's Motion for Leave to File Memorandum in Support of Defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment (ECF No. 16).

STANDARDS OF REVIEW

A. Motion for Leave to File Memorandum

A federal district court judge's power to extend a party's filing deadline under Federal Rule of Civil Procedure 6(b) is a discretionary one, and may be considered when a claimant presents "good cause." Fed.R.Civ.P. 6(b); see Lujan v. National Wildlife Federation, 497 U.S. 871, 895 (1990). When a party moves for an extension after the expiration of the filing deadline, the court may grant such an extension if the delay is due to "excusable neglect." Fed.R.Civ.P. 6(b)(1)(B). The court's inquiry is an equitable one, and hinges on the characteristics of the delay and the movant's culpability. See Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395 (1993); see also Fernandes v. Craine, 538 Fed.App'x 274, 276 (4th Cir. 2013).

B. Motion to Dismiss Under Rule 12(b)(1) of the Federal Rules of Civil Procedure

A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D. Md. 2005). This challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the complaint are insufficient to establish subject matter jurisdiction, or 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) (citation omitted). A plaintiff carries the burden of establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).

With respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter jurisdiction "where a claim fails to allege facts upon which the court may base jurisdiction." Davis, 367 F.Supp.2d at 799. Where the challenge is factual, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Kerns, 585 F.3d at 192. "[T]he court may look beyond the pleadings and the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.'" Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D. Md. 2003) (citation omitted). The court "may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also Sharafeldin v. Maryland Dept. of Public Safety & Correctional Services, 94 F.Supp.2d 680, 684-85 (D. Md. 2000).

C. Motion to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil Procedure

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, 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. 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).

The Supreme Court's recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), "require that 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). In Twombly, the Supreme Court articulated "[t]wo working principles" that 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. (stating that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to plead a claim); see also Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) ("Although we are constrained to take the facts in the light most favorable to the plaintiff, we need not accept legal conclusions couched as facts or unwarranted inferences, unreasonable conclusions, or arguments." (internal quotation marks omitted)).

Second, a complaint must be dismissed if it does not allege "a plausible claim for relief." Iqbal, 556 U.S. 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 678; 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 the employment discrimination context, this pleading standard should not be "onerous." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764 (4th Cir. 2003). The Supreme Court has indicated that an employment discrimination plaintiff need not plead particular facts conclusively satisfying each element of a prima facie case. Swierkiewicz v. Sorema, 534 U.S. 506 (2002).[6] Swierkiewicz, however, did not abrogate the requirement that the plaintiff allege "facts sufficient to state all the elements of her claim." Bass, 324 F.3d at 765 (emphasis added); see Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (explaining that Swierkiewicz does not nullify the heightened pleading requirements of Twombly and Iqbal ); Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002) ("[T]he Supreme Court's holding in Swierkiewicz v. Sorema did not alter the basic pleading requirement that a plaintiff set forth facts sufficient to allege each element of his claim." (internal citation omitted)).

Even with the degree of flexibility arguably given to employment discrimination plaintiffs, the court must consider whether plaintiff's complaint has met the plausibility requirement of Twombly and Iqbal. See Miller v. Carolinas Healthcare System, 561 F.Appx. 239, 241 (4th Cir. 2014) (explaining that, in the Fourth Circuit, " Swierkiewicz left untouched the burden of a plaintiff to allege facts sufficient to state all elements of her claim." (internal quotation marks and citation omitted)). In making this assessment, 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 679. "At bottom, a plaintiff must nudge [its] claims across the line from conceivable to plausible to resist dismissal." Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal quotation marks omitted).

ANALYSIS

I. Motion for Leave to File Memorandum

The first issue to be addressed is Defendant Safeway's Motion for Leave to File Memorandum (ECF No. 9). Defendant asserts that a series of well-documented computer glitches prevented it from filing the Memorandum contemporaneously with the Motion to Dismiss. In response, Plaintiff argues that Defendant's technology issues do not amount to "excusable neglect" within the meaning of Rule 6(b) of the Federal Rules of Civil Procedure.

Federal Rule of Civil Procedure 6(b) enables a court to extend a party's filing deadline for "good cause" under certain circumstances. Of relevance to this action is Rule 6(b)(1)(B), under which a court may extend the filing deadline "on motion made after the time has expired if the party failed to act because of excusable neglect." Fed.R.Civ.P. 6(b)(1)(B). The Supreme Court has not specifically defined "excusable neglect" in the context of Rule 6(b), instead emphasizing that the decision to grant an extension is within the district court's considerable "discretion." Lujan, 497 U.S. at 895. This discretion, however, does not mean that a court will always find "excusable neglect." Rather, a district court should look to several equitable factors, such as "(1) the danger of prejudice to the non-movant; (2) the length of the delay and its ...


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