United States District Court, D. Maryland
PAUL W. GRIMM, District Judge.
Plaintiff brings this action against her former employer for disability and sex discrimination, failure to accommodate, and retaliation against her former employer. According to Plaintiff, she was subjected to unfavorable treatment on the basis of sex, was not accommodated when she later became disabled, and eventually was fired as a result of either her disability, her gender or her complaints about discrimination. Defendant has moved to dismiss for failure to state a claim, arguing that Plaintiff's sparse factual allegations do not suffice to make out a prima facie case on any of her claims. Plaintiff opposes the motion arguing that her pleadings are sufficient, but also seeks leave to amend her complaint a second time to add further allegations. Defendant opposes amendment as untimely and futile. I find that Plaintiff has pleaded a retaliation claim and that her amended complaint pleads a claim for failure to accommodate, but otherwise she has failed to state the remainder of her claims. Accordingly, both motions are granted in part and denied in part, as more fully explained below, and Plaintiff may proceed with the failure to accommodate and retaliation claims pleaded in her amended complaint
For the purposes of considering Defendant's motion, I accept the facts that Plaintiff has alleged in her Amended Complaint, ECF No. 3, as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011). Plaintiff Sylvia Young is an African-American woman residing in Fort Washington, Maryland. Am. Compl. ¶ 3. Young was an employee of Defendant Giant of Maryland LLC ("Giant") from approximately July 12, 2004 until her termination in December of 2011. Id. ¶¶ 9, 28.
Young's complaint does not discuss her experiences at Giant prior to March 2011, when Charles Bentley became her supervisor. Id. ¶ 10. At that time, Young was one of two females among the approximately ten individuals supervised by Bentley. Id. According to Plaintiff, Bentley "exhibited a particular disdain and disrespect for her as compared to her male colleagues, " frequently yelling at her, "refusing to provide her with the resources he provided to male co-workers to do their jobs, " and ignoring her attempts to contact him. Id. ¶ 11.
On or about July 28, 2011, Young met with another individual, Rob Rosoto and "complained about Mr. Bentley's disparate treatment of her as compared to her male co-workers. Mr. Rosoto became upset at Ms. Young's complaint, yelled at her and told her that he would terminate her employment if she ever came to him again with another complaint." Id. ¶ 13. Young was so distressed by this response that she became physically ill, went to the hospital that day, and was hospitalized for the next week. Id. ¶ 14. At this time, she was diagnosed with "stress-related blood clots, " which incapacitated her to the point that she was unable to work "between September 2011 and October 2011." Id. ¶ 15.
As a result of her condition, combined with medication related to a 2005 stroke she had suffered, Young "could not sit for long periods of time, could not drive for long periods of time, could not lift heavy objects, and could not bend or twist." Id. ¶ 16. She sought reasonable accommodations for her disability, but Giant "refused to even engage in the interactive process." Id. ¶ 17. Rather, on October 18, 2011, Jodie Kans, a human resources representative informed Young that she would be suspended from October 18 through November 5, 2011 "because she allegedly could not properly perform her duties." Id. ¶ 18. On October 24, 2011, Kans advised Young that she was eligible for short-term disability coverage from Giant's third-party insurance carrier, but Young did not want to go on disability leave because she believed she was able to work. Id. ¶ 19.
On December 2, 2011, Young's attorney sent a letter to Rosoto and Kans advising them that his firm would be representing Young "regarding her employment for claims of gender discrimination, disability discrimination, and retaliation based on harassment and adverse actions." Id. ¶ 20. On December 5, 2011, Giant acknowledged receipt of that letter in writing and also summoned Young to a mandatory meeting with Rosoto, Kans, and Susette Stevens (whose position is not made clear in the Complaint). Id. ¶¶ 21-22. At the meeting, Young was ordered to provide information about her whereabouts on four specific days in October 2011: October 2, 4, 8, and 16. Id. ¶ 23. When Young could not account for those days from memory, she was suspended and told that she could present any evidence of her whereabouts on those days to Rosoto in a meeting to take place on December 9, 2011. Id. ¶ 24.
Rosoto was not available to meet with Young when she showed up on December 9, 2011 with her notes showing the work she had done on the days in question. Id. ¶ 25. Instead, the head of human resources, Ira Crest, and another human resources representative, Ted Garrett, came to speak with Young. Id. ¶ 26. Crest asked her, "Are you still planning on filing this suit against us?'" Id. After Young confirmed that she was, she was not given an opportunity to present her notes and, instead, was told that she would be suspended while Giant "conduct[ed] a thorough investigation of the matter." Id. ¶ 27.
On December 15, 2011, Rosoto telephoned Young to inform her that, because "he could not verify her whereabouts on the dates in question, she was fired." Id. ¶ 28. Rosoto told Young that he had not spoken with the person who had controlled her schedule on the dates in question. Id. ¶ 29. Young later learned that her health insurance had been terminated effective December 11, 2011. Id. ¶ 30.
Young filed a Charge of Discrimination (the "EEOC Charge") with the United States Equal Employment Opportunity Commission ("EEOC") and cross-filed with the Prince George's County Office of Human Rights ("OHR"). Id. ¶ 5. Though the procedural history of her case is somewhat confusing, it appears that she first received a Dismissal and Notice of Rights letter in June 2012, Compl. Ex., Young v. Giant Food, No. PJM-12-2772 (D. Md. Sept. 17, 2012) ( Young I), ECF No. 1-6, and initially filed suit in this Court, pro se, on September 17, 2012, Compl, ECF No. 1 in Young I. Judge Peter J. Messitte initially appointed a pro bono attorney to prepare a written report evaluating the viability of Young's case, Mem., ECF No. 5 in Young I, before declining to appoint counsel, Marginal Order, ECF No. 7 in Young I.  Eventually, Young voluntarily dismissed her case without prejudice before serving Giant, stating that "the letter of right to sue was sent in error." Mot. for Voluntary Dismissal, ECF No. 11 in Young I; Order of Dismissal, ECF No. 12 in Young I.
On March 21, 2014, the EEOC issued another Dismissal and Notice of Rights letter (the "Right-to-Sue Letter"), which she received March 26, 2014. Am. Compl. ¶ 7. She filed her new complaint in this Court on June 20, 2014, Compl., ECF No. 1, but amended it on Sept. 3, 2014 before serving Giant, Am. Compl. The Amended Complaint comprises eight counts: (I) gender discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (II) disability discrimination and failure to accommodate under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; (III) retaliation under Title VII; (IV) hostile work environment under Title VII; (V) gender discrimination under the Prince George's County Code; (VI) disability discrimination and failure to accommodate under the county code; (VII) retaliation under the county code; and (VIII) hostile work environment under the county code.
On September 29, 2014, Giant filed its Motion to Dismiss Plaintiff's Amended Complaint ("Def.'s Mot. to Dismiss"), ECF No. 7, with supporting Memorandum ("Def.'s Dismiss Mem."), ECF No. 8. Young has opposed the motion ("Pl.'s Dismiss Opp'n"), ECF No. 14, and Giant has replied ("Def.'s Dismiss Reply"), ECF No. 15. On December 23, 2014, Young filed a Motion for Leave to File a Second Amended Complaint ("Pl.'s Mot. to Am."), ECF No. 16, with a supporting Memorandum ("Pl.'s Am. Mem."), ECF No. 16. Giant has opposed the motion ("Def.'s Am. Opp'n"), ECF No. 18, and Young has replied ("Pl.'s Am. Reply"), ECF No. 20. Both the Motion to Dismiss and the Motion to Amend are ripe and are before me. Having reviewed the filings, I find a hearing is not required. Loc. R. 105.6.
II. STANDARDS OF REVIEW
A. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides for "the dismissal of a complaint if it fails to state a claim upon which relief can be granted." Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose "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.'" Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, 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), and must state "a plausible claim for relief, " as "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, " Iqbal, 556 U.S. at 678-79; see Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly ). "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.
B. Motion to Amend
Fed. R. Civ. P. 15(a)(2) provides that, when the time to amend as a matter of course pursuant to Rule 15(a)(1) does not apply, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Whether to grant a motion for leave to amend is within this Court's discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). However, leave to amend a complaint "should [be] freely give[n] when justice so requires, ' and a motion to amend should be denied only when it would be prejudicial, there has been bad faith, or amendment would be futile." Pilger v. D.M. Bowman, Inc., No. WDQ-10-597, 2011 WL 2579822, at *1 (D. Md. June 24, 2011) (quoting HCMF Corp. v. Alien, 238 F.3d 273, 276-77 (4th Cir. 2001)); see Foman, 371 U.S. at 182 (stating that the court also may deny leave if the plaintiff has amended more than once already without curing the deficiencies in the complaint); Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006). An amendment is futile if it "fails to satisfy the requirements of the federal rules.'" Guardian Life Ins. Co. v. Reinaman, No. WDQ-10-1374, 2011 WL 2133703 (D. Md. May 26, 2011) (quoting United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008) (citation omitted)). Put another way, an amendment is futile if it "would not survive a motion to dismiss." Rawlings v. City of Baltimore, No. BEL-10-2077, 2011 WL 1375603, at *4 (D. Md. April 12, 2011).
A. Defendant's Motion to Dismiss
First, Giant argues that all of Young's claims under the Prince George's County Code are barred by the applicable, two-year statute of limitations. Def.'s Dismiss Mem. 6-7. Young has conceded this point, Pl.'s Dismiss Opp'n 3, and therefore counts V through VIII shall be dismissed.
1. Count IV: Hostile Work Environment
Count IV of the Amended Complaint alleges a hostile work environment under Title VII. Am. Compl. 14-16. Under Title VII, it is "an unlawful employment practice for an employer... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's... sex...." 42 U.S.C. § 2000e-2(a)(1). To be actionable under 42 U.S.C. § 2000e-2(a)(1), discrimination need not be "economic" or "tangible." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (citations and quotation marks omitted). Rather, "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult' that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, ' Title VII is violated." Id. (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 (1986) (internal brackets and quotation marks omitted)).
A claim for hostile work environment based on sex is actionable under Title VII if the plaintiff shows that "the offending conduct (1) was unwelcome, (2) was because of her sex,  (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment, and (4) was imputable to her employer.'" Westmoreland v. Prince George's County, Md., 876 F.Supp.2d 594, 614 (D. Md. 2012) (quoting Hoyle v. Freightliner, LLC, 650 F.3d 321, 331 (4th Cir. 2011) (internal citation and quotation marks omitted)). "In a case where an employee is sexually harassed by a co-worker, the employer may be liable in negligence if it knew or should have known about the harassment and failed to take effective action to stop it." Hoyle, 650 F.3d at 335 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759 (1998)).
Giant challenges only the second and third elements of Young's claim in its Motion to Dismiss. See Def.'s Mem. 10.
To establish the second element of a sex-based hostile environment claim, a plaintiff must show that "but for" her gender she "would not have been victim of the alleged discrimination." In other words, a plaintiff needs to show that they were the target of the conduct because of their gender. A plaintiff need not show that "sexual advances or propositions" were involved.
Engler v. Harris Corp., No. GLR-11-3597, 2012 WL 3745710, at *5 (D. Md. Aug. 28, 2012) (internal citations omitted). Additionally, "[t]he plaintiff must show that she subjectively felt that the work environment was hostile or abusive and that the work environment was objectively hostile or abusive to a reasonable person." Id. (citing Harris, 510 U.S. at 22). The Court determines whether the work environment was sufficiently hostile by considering "the totality of the circumstances, which include: (1) the frequency of the discriminatory conduct'; (2) its severity'; (3) whether it is physically threatening or humiliating, or a mere offensive utterance'; and (4) whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Harris, 510 U.S. at 23); see Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011) (same).
This Court has discussed the "high bar'" set in E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008), which a plaintiff must clear to establish that the ...