United States District Court, D. Maryland
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this employment discrimination case are two motions: (1) a motion to dismiss filed by Defendant 7-Eleven, Inc. ("7-Eleven") (ECF No. 12); and (2) a motion for leave to file a second amended complaint filed by Plaintiff Keith Suggs (ECF No. 18). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion to dismiss will be denied and Plaintiff's motion for leave to file a second amended complaint will be granted.
A. Factual Background
Plaintiff, an African American male, has been employed as a Field Consultant with 7-Eleven since August 31, 2009. (ECF No. 10 ¶ 2). Plaintiff oversaw a subgroup of nine 7-Eleven stores in 7-Eleven's Market 2541. ( Id. ). 7-Eleven Field Consultants report to Market Managers, who evaluate them twice annually (mid-year and year-end) in performance appraisals, which are based on a combination of objective and subjective criteria:
Field Consultants are initially awarded a "red, " "yellow, " or "green" score on a nondiscretionary basis in several categories designed to measure objective factors such as the profitability, cleanliness, and organization of the stores that the[y] supervise, with "green" indicating that their stores are above-standard in a particular category, "yellow" indicating that their stores are at standard, and "red" indicating that their stores are below standard. The number of "green, " "yellow, " and "red" ratings are then tallied, and the Field Consultant is awarded a grade of "A, " "B, " and "C, " with "A" [being] the highest and "C" the lowest grade possible. These grades are not awarded on a discretionary basis by the Market Manager but are based [on a] comparison of either aggregate store revenue or percentages of stores meeting certain measurable benchmarks. Field Consultants also receive a grade of ", " "/" or "-" from their Market Managers on soft factors such as "Integrity, " "Guest Focus, " and "Accountability." 7-Eleven has claimed that it only considers Field Consultants for promotion to Market Manager if the Field Consultant has earned an A, B, or A/on his or her most recent full-year performance appraisal.
(ECF No. 10 ¶¶ 10-13). Plaintiff alleges that on his first full-year evaluation covering the 2010 calendar year he received a positive evaluation of B/from his supervisor, Scott Teachenor, a white male. In October 2011, Plaintiff's supervisor was replaced by Mike Crist ("Crist"), another white male. ( Id. ¶ 15). Plaintiff alleges that he observed Crist treating white Field Consultants more favorably than African American Field Consultants. ( Id. ¶ 16). As an example, Plaintiff alleges that in late 2011, Crist refused to let an African American employee, Dahir Amalo, who had been serving as a Customer Experience Consultant ("CEC"), return to his position as a Field Consultant, which was a typical transition after serving as a CEC. Crist allegedly informed Amalo that there were no Field Consultant positions available in Market 2541, and then two weeks later hired Alex Boland, a white male, as a Field Consultant in Market 2541. ( Id. ¶ 21).
In an October 2011 meeting, Plaintiff complained to Crist that Field Consultants were not being promoted within his market. Plaintiff also complained that African American Field Consultants had difficulty achieving promotions. ( Id. ¶ 19). On November 11, 2011, Plaintiff made an oral complaint to a member of 7-Eleven's Human Resources Department about the disparate treatment of African American and white Field Consultants in his market. ( Id. ¶ 20). Plaintiff formalized this complaint in an email to Defendant's Human Resources Department on November 13, 2011. ( Id. ).
On February 9, 2012, Plaintiff wrote a letter to Tom Brennan, a white male who was Plaintiff's Zone Manager, complaining of the disparate treatment by Crist of Plaintiff and other African American Field Consultants. ( Id. ¶ 22). Plaintiff also stated in this letter that he was "very fearful [he] will be retaliated [against] in a manner that will result in the loss of my job or movement to another market." ( Id. ) (alterations in original).
In February 2012, Plaintiff received his 2011 year-end performance appraisal from Crist. ( Id. ¶ 23). Plaintiff alleges that Crist visited Plaintiff's stores only twice during his three months as Market Manager, yet changed several ratings on Plaintiff's performance appraisal as compared to Plaintiff's mid-year review, despite his acknowledgement of the "limited amount of time that [he] had spent with [Plaintiff's] stores." ( Id. ). Plaintiff expressed disagreement with Crist's evaluation and refused to sign it. ( Id. ). On February 27, 2012, following receipt of his 2011 year-end performance appraisal, Plaintiff filed a Charge of Discrimination (Charge No. 531-2012-00897) with the EEOC alleging race discrimination and retaliation. ( Id. ¶ 25). On April 24, 2012, Defendant filed a response to Plaintiff's Charge No. 531-2012-00897. ( Id. ¶ 28).
In March 2012, Brennan indicated to Crist and other Market Managers that Field Consultants were needed to travel to Charlotte, North Carolina to assist with store conversion in that market. ( Id. ¶ 26). According to Plaintiff, Brennan stated that Field Consultants should not be asked to Charlotte more than once in order to expand the opportunity for Field Consultants to gain visibility, which was helpful for promotion. ( Id. ). Unlike other Market Managers, Crist did not share this posting with his Field Consultants. ( Id. ). Instead, Crist selected a new, white Field Consultant named Alex Boland, whom Plaintiff believed particularly needed to spend time in his stores because he was new, to attend two week-long stretches in Charlotte. ( Id. ).
On July 19, 2012, nearly five months after Plaintiff's initial filing of a charge with the EEOC, Crist placed Plaintiff on a performance improvement plan ("PIP"). ( Id. ¶ 29). According to Plaintiff, Crist's stated reasons for placing him on the PIP were for: (1) leaning back in his chair, rolling his eyes, turning his back, and sighing during a five minute teleconference with Brennan; (2) exhibiting unprofessional and disrespectful body language in three staff meetings; and (3) failing to turn in a one-page leadership essay that he was expected to write as part of his recognition for posting the highest cumulative score in his market in March. ( Id. ¶ 29). Defendant failed to follow its own Progressive Discipline Policy by placing him on the PIP, in part, because Crist purportedly did not verbally discuss the specific violation or consequences with Plaintiff before placing him on the PIP. ( Id. ¶ 30). Plaintiff also alleges that PIPs are supposed to be used for "job performance-related issues, " not as disciplinary procedures. ( Id. ¶ 31). According to Plaintiff, he did not exhibit disrespectful body language as alleged by Crist, nor is Plaintiff aware of an employee being placed on a PIP for such conduct. In addition, Plaintiff alleges that other Field Consultants were not disciplined for turning in leadership essays late. ( Id. ¶ 34). On July 20, 2012, the day after Plaintiff was placed on a PIP, he filed an amended charge with the EEOC alleging that he had been placed on the PIP in retaliation for his complaints of discrimination. ( Id. ¶ 37). Defendant filed a response to this amended charge on September 10, 2012. ( Id. ¶ 38).
On multiple occasions from 2011 to 2012, Plaintiff notified 7-Eleven of his interest in a promotion. For example, on his 2011 performance appraisal, Plaintiff indicated he was interested in a promotion to a managerial position. ( Id. ¶ 24). Again in July 2012, Plaintiff told his supervisor that he was interested in a promotion to the acquisitions team, and was told that no positions were available. ( Id. ¶ 39). Plaintiff inquired again in September 2012, and received the same response from Defendant that no positions were available. ( Id. ). Plaintiff alleges that in March and April 2012, he was a topperforming Field Consultant earning an "A" rating both months. ( Id. ¶ 27). Plaintiff asserts that through September 2012 he was performing at an "A" level based on the performance metrics used in 7-Eleven's performance appraisal, yet he was given an overall "B" rating for 2012.
Plaintiff also asserts that he had access to the "scorecards" of other field consultants in his market, which contained the non-discretionary components of their performance appraisals (green, yellow, and red ratings). ( Id. ¶ 40). On December 21, 2012, Plaintiff learned that 7-Eleven promoted Sean Kennedy, a white Field Consultant whom Plaintiff argues was less qualified than himself, to Division Logistics Manager. ( Id. ¶ 46). Plaintiff alleges that based on 7-Eleven's own stated policy of only promoting Field Consultants who achieved an A, A/, or B on their most recent full-year performance appraisal, Kennedy should have been ineligible for promotion in 2012. ( Id. ¶ 43). Specifically, Plaintiff asserts that Kennedy received a "C" on his 2011 performance appraisal, and continued to perform at a "C" level through at least July 2012. ( Id. ¶¶ 42, 44). Plaintiff also asserts that Kennedy had a reputation as "a lowperforming Field Consultant who did not regularly visit his stores and was prone to inappropriate comments." ( Id. ¶ 45). Plaintiff acknowledges that he never applied for this position, but alleges that 7-Eleven did not post or did not post conspicuously the Division Logistics Manager position, and that he would have applied for it had it had he been made aware of it. ( Id. ¶¶ 47, 49). Plaintiff additionally alleges that Defendant's promotion policy was vague and secretive and that employees were typically sought out by managers for promotion. ( Id. ¶ 51). In the alternative, Plaintiff excuses his failure to apply alleging that Defendant failed to notify him of its decision to relax or ignore its stated criteria for promotions. ( Id. ¶ 60). According to Plaintiff, Defendant had misleadingly stated on multiple occasions that it only promotes Field Consultants who receive an A, A/, or B on their most recent full-year performance appraisal. ( Id. ¶ 50). Because Plaintiff received a "B" on his most recent performance appraisal, Plaintiff believed he was ineligible and that it was futile to apply. ( Id. ). On January 23, 2013, Plaintiff filed Charge No. 531-2013-00734 with the EEOC, complaining of Defendant's discriminatory decision to promote Kennedy, a purportedly less qualified white Field Consultant, to the Division Logistics Manager position instead of Plaintiff. ( Id. ¶ 53).
B. Procedural Background
On January 27, 2014, the EEOC sent Plaintiff Right to Sue letters on both EEOC Charges (Charge No. 531-2013-00734 and Charge No. 531-2012-00897). ( Id. ¶ 54). Plaintiff filed and served his initial complaint in this action on June 12, 2014. (ECF No. 1). In his complaint, Plaintiff alleges that 7-Eleven discriminated against him on the basis of race and retaliated against him in violation of Title VII of the Civil Rights Act of 1964. In addition, Plaintiff asserts that Defendant discriminated and retaliated against him in violation of the Civil Rights Act of 1991, 42 U.S.C. § 1981 ("Section 1981"), and Md. Code Ann., State Gov't § 20-606 et seq. Specifically, Plaintiff alleges that 7-Eleven's placing him on a performance improvement plan ("PIP"), and its failure to promote him were discriminatory and in retaliation for filing of EEOC charges. Plaintiff seeks a declaratory judgment, compensatory damages, back pay and front pay, and attorneys' fees.
On August 11, 2014, Defendant moved to dismiss Plaintiff's complaint. (ECF No. 6). Plaintiff then filed a first amended complaint. (ECF No. 10). On September 15, 2014, Defendant again moved to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim. (ECF No. 12). This motion is fully briefed. (ECF Nos. 15 & 16). On December 12, 2014, Plaintiff moved to file a second amended complaint. This motion is also fully briefed. (ECF Nos. 19 & 20).
II. Defendant's Motion to Dismiss
A. Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff's complaint need only satisfy the standard of Rule 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "Rule 8(a) (2) still requires a showing, ' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 n.3, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). That showing must consist of more than "a formulaic recitation of the elements of a cause of action" or ...