United States District Court, D. Maryland, Southren Division
PAUL W. GRIMM, District Judge.
Plaintiff Rafael Mason, an African-American, filed suit in April 2013, bringing claims of racial discrimination, hostile work environment and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; the Maryland Fair Employment Practices Act ("Maryland Act"), Md. Code Ann., State Gov't §§ 20-601 et seq. and 20-1001 et seq.; and 42 U.S.C. § 1983, and a separate claim for equitable relief, against Defendants Montgomery County, Maryland (the "County") and Montgomery County Police Department (the "Department"). Compl., ECF No. 1 in PWG-13-1077 (" Mason I "). Plaintiff's ongoing employment difficulties eventually culminated in his termination. While the County's second motion to dismiss and Plaintiff's second request for leave to amend both were pending in Mason I, Plaintiff filed a separate suit against the County on November 28, 2014, alleging that his termination was an act of race discrimination and retaliation, in violation of Title VII and the Maryland Act, and bringing another claim for equitable relief. Compl., ECF No. 1 in PWG-14-3718 (" Mason II "). The County has moved to dismiss both suits, and Plaintiff has opposed the motions, incorporating motions to amend into his oppositions. The motions are ripe for resolution. See ECF Nos. 22, 26, 27 in Mason I; ECF Nos. 5, 8, 9 in Mason II. A hearing is not necessary. See Loc. R. 105.6. Because these claims all should be part of the same suit, I will consolidate the cases and, because Plaintiff fails to state a claim as to all but his Title VII and Maryland Act retaliation claims based on his termination, I will grant Defendant's motions as to Plaintiff's claims in Mason I and all but Plaintiff's Title VII and Maryland Act retaliation claims in Mason II, dismissing all but these retaliation claims based on his termination, as presented in his proposed amended complaint in Mason II. I will deny Plaintiff's motions to amend as to all but these two termination-related retaliation claims as well.
Plaintiff was employed as a police officer at the Department's Division of Security Services, beginning in 1995. Am. Compl. in Mason I ¶¶ 1, 14, ECF No. 21 in Mason I. He filed his first complaint of racial discrimination against the Department in 2008, while working in the Rockville facility. Id. ¶ 17. "[T]o obtain relief from the discriminatory and hostile work environment, " he was transferred to Germantown. Id. ¶ 18.
Plaintiff was transferred back to Rockville in Spring 2011, at which time he was a Security Officer II. Id. ¶¶ 14, 19. He began to "regularly complain" informally to his supervisors, and he filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") in September 2011, late 2012, and September 2013. Id. ¶¶ 94-98. Plaintiff alleges that his white supervisors started to harass and discriminate against him upon his transfer to the Rockville facility, and when he complained, they retaliated. Id. ¶¶ 20, 99-103. He claims that he, but not his white co-workers, had to follow "arduous procedures" to request training and he, but not a white co-worker, was denied opportunity to attend a training session that "would make [him] more desirable for future promotions and future opportunities." Id. ¶¶ 21, 22, 24. His supervisors allegedly "circulat[ed] false information" about him, id. ¶ 26, and they assigned him to more dangerous posts than white co-workers and then "ignored" his request to change posts, id. ¶¶ 28, 31-32
Plaintiff was demoted, suspended and placed on leave without pay when criminal charges, based on allegations his girlfriend made, were brought against him, while "[s]imilarly situated White co-workers (no known EEO activity) [were] allowed to use their annual leave or were permitted to continue working... when they were suspended and/or being investigated for the same, similar or more egregious conduct." Am. Compl. in Mason I ¶¶ 40-43, 54. The charges were dismissed and expunged but, in December 2012, Plaintiff's supervisor placed him on paid leave, without opportunity for overtime, "for Conduct Unbecoming an Officer, " based on the expunged criminal charges, while the Department conducted an internal investigation. Id . ¶¶ 51, 57. Also, in June 2013, "several White Sergeants, with Plaintiff's supervisors' approval, passed around a petition for White Security Officers to sign stating that they did not want Plaintiff to work with them." Id. ¶ 61. According to Plaintiff, he "performed exemplary work and received many letters of appreciation for his dedication and operating beyond his assigned duties, " and he "generally worked well with his peers and there were no issues until he began to complain about discrimination." Id. ¶¶ 15, 16.
Mason II begins where Mason I ends: Plaintiff was terminated on November 19, 2013 "for conduct unbecoming an officer and other charges associated therewith." Compl. in Mason II ¶¶ 12, 21-22. Yet, "[s]imilarly situated White employees (no known EEO activity) and of a different race than Plaintiff have committed similar acts as Plaintiff was accused of but they were not disciplined, or even in the same or similar instances proposed for discipline." Id. ¶ 25. Plaintiff provides examples of various activities by three white males who were not disciplined. Id. ¶¶ 26-33. Again, Plaintiff brings claims of race discrimination and retaliation, in violation of Title VII and the Maryland Act, and he recites many of the same allegations that he made in Mason I with regard to his supervisors' actions that allegedly violated these Acts. Id. ¶¶ 12-24, 35-39.
Plaintiff filed Mason I in April 2013. Defendants moved to dismiss, ECF No. 7, which Plaintiff opposed while alternatively seeking leave to amend, ECF No. 11, and the Court granted Defendants' motion but allowed Plaintiff the opportunity to amend to cure the deficiencies that Defendants asserted. Dec. 13, 2013 Mason I Mem. Op. & Order, ECF Nos. 13, 14. The Court "caution[ed] Plaintiff that the failure to state facially plausible claims a second time around may result in the dismissal of his claims with prejudice." Id. at 12.
Having had the benefit of Defendants' motion to dismiss and this Court's memorandum granting that motion with leave to amend to provide guidance on how to overcome his pleading deficiencies, Plaintiff amended his Complaint, eliminating his claims against Montgomery County Police Department and his § 1983 claim, and augmenting his factual allegations. Am. Compl. in Mason I. The County then filed a second motion to dismiss in October 2014 - the currently pending motion in Mason I -, arguing that "Plaintiff's allegations relating to a workers' compensation claim and a matter before the Merit System Protection Board [Board'] are not properly before this Court"; Plaintiff failed to comply with the Local Government Tort Claims Act, Md. Code Ann., Cts. & Jud. Proc. § 5-304(b)(2) - (c)(3)(ii), for his Maryland Act claims; and, despite amending, Plaintiff still failed to state a claim for discrimination, hostile work environment, or retaliation. Def.s' Mason I Mot. ¶¶ 3-5, ECF No. 22 in Mason I. In response, Plaintiff filed an opposition and, again, sought leave to amend on November 19, 2014, ECF No. 26 in Mason I. In his Opposition, Plaintiff stated that he "inadvertently included" the Maryland Act claims (Counts III and IV), and that he included the worker's compensation and Board allegations "as background evidence, not [as bases for] relief, " Pl.'s Opp'n 6, 17, such that the Amended Complaint comprises only the Title VII claims for race discrimination, hostile work environment, and retaliation, as well as the equitable relief claim. Plaintiff insists that he sufficiently stated his claims under Title VII. Id. at 6-17.
Less than two weeks after seeking leave to amend his claims in Mason I, Plaintiff filed a second suit against the County on November 28, 2014, alleging the same five causes of action. Compl. in Mason II. The County moved to dismiss the second suit as well, insisting that it fails to state a claim and "is duplicative of the claims already before this Court" in Mason I and therefore "is barred by the claim splitting doctrine." Def.'s Mason II Mot. ¶¶ 4-6, ECF No. 5 in Mason II. In response, Plaintiff voluntarily dismissed the equitable relief claim (Count V) and clarified that the remaining claims pertain only to his termination, for which he did not file his EEOC Charge until September 2013 and did not have his Right to Sue letter from the EEOC until August 29, 2014, months after the January 13, 2014 deadline for amending in Mason I. Pl.'s Mason II Mem. 5, 6, 8 n.1, ECF No. 8 in Mason II; see EEOC Ltr., Pl.'s Mason II Mem. Ex. 1, ECF No. 8-1. He also seeks leave to amend yet again to state a viable claim on the remaining four causes of action. Id. The County maintains that, even if recast as a suit focused on Plaintiff's termination, Mason II must nonetheless be dismissed because, as pleaded, Plaintiff could not have exhausted his administrative remedies.
II. CLAIM SPLITTING
Defendant argues that the claim splitting doctrine bars Mason II because Mason I "contain[s] the same claims and decidedly similar allegations." Def.'s Mason II Mem. 2; see Def.'s Mason II Reply 1-2. Claim splitting "prohibits a plaintiff from prosecuting its case piecemeal, and requires that all claims arising out of a single wrong be presented in one action." Lacy v. Nat'l R.R. Passenger Corp., No. RDB-14-179, 2014 WL 6967957, at *5 (D. Md. Dec. 8, 2014) (quoting Sensormatic Sec. Corp. v. Sensormatic Elecs. Corp., 329 F.Supp.2d 574, 579 (D. Md. 2004). This doctrine, "[l]ike res judicata, ... will bar the second suit... if the claim involves the same parties or their privies and arises out of the same transaction or series of transactions' as the first claim.'" Id. (quoting Sensormatic Sec. Corp., 329 F.Supp.2d at 579). The Court considers (1) whether the second suit "arises out of the same operative facts'" as the first and (2) "whether the interests of judicial economy and avoiding vexatious litigation outweigh the plaintiff's interest in bringing the second suit'" to determine whether the claims presented should have been brought as part of the prior lawsuit. Id. at *6 (quoting Jenkins v. Gaylord Entmt. Co., 840 F.Supp.2d 873, 883 (D. Md. 2012)). If the claim splitting doctrine applies, the Court "may stay the second suit, dismiss it without prejudice, or consolidate the two actions." Hare v. Opryland Hospitality, LLC, No. DKC-11-1439, 2011 WL 6153128, at *2 n.3 (D. Md. Dec. 9, 2011).
Here, Plaintiff's termination, the basis for Mason II, is the final act in the series of allegedly discriminatory acts that Plaintiff alleges in Mason I. But, contrary to the County's assertion that "[a]ny such attempt at claim splitting' must be dismissed, " Def.'s Reply 1 (quoting Chihota v. Fulton, Friedman & Gullace, LLP, No. WDQ-12-975, 2012 WL 6086860, at *2 (D. Md. Dec. 5, 2012) (emphasis added), the Court simply "is empowered to dismiss the duplicative suit, " Chihota, 2012 WL 6086860, at *2, while it also may use its discretion to stay the second suit or consolidate the two. See Hare, 2011 WL 6153128, at *2 n.3. Often, dismissal is appropriate where the plaintiff files a second suit after being denied leave to amend to add those claims to the first action, see Chihota, 2012 WL 6086860, at *2 n. 18, but that is not the case here. Because I may consolidate these matters, "the interests of judicial economy and avoiding vexatious litigation'" do not "outweigh the plaintiff's interest in bringing the second suit.'" Lacy, 2014 WL 6967957, at *6. Therefore, I will consolidate Mason I and Mason II for purposes of ruling on the pending motions in each case, with the result that only a pair of retaliation claims under Title VII and the Maryland Act rise, phoenix-like, from the ashes of the two separate suits. See id.
III. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court may dismiss a claim or complaint if it fails to state a claim upon which relief can be granted. Tucker v. Specialized Loan Servicing, LLC, ___ F.Supp. 3d ___, 2015 WL 452285, at *8 (D. Md. Feb. 3, 2015). In resolving a Rule 12(b)(6) motion, the Court bears in mind the requirements of Rule 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). 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 v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012) (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.
In an employment discrimination case such as this, "pleadings need not contain specific facts establishing a prima facie case of discrimination under the framework set forth' in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." Westmoreland v. Prince George's Cnty. (" Westmoreland I "), No. AW-09-2453, 2010 WL 3369169, at *3 (D. Md. Aug. 23, 2010) (quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002)). Such a requirement "would essentially create a heightened pleading standard' under which a plaintiff without direct evidence of discrimination would need to plead a prima facie case even though she might uncover direct evidence during discovery." Id. (quoting Swierkiewicz, 534 U.S. at 511-12). If this were the case, a plaintiff claiming employment discrimination would have "to plead more facts than [s]he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.'" Id. (quoting Swierkiewicz, 534 U.S. at 512). Nonetheless, a plaintiff "must plead facts sufficient to state each element of the asserted claim." Lopez v. BMA Corp., No. DKC-13-2406, 2013 WL 6844361, at *9 (D. Md. Dec. 24, 2013) (discussing Swierkiewicz holding and citing Bass v. E.I. Dupont De Nemours & Co., 324 F.3d 761, 765-65 (4th Cir. 2003)). While Iqbal and Twombly highlight the danger of pleading a complaint that is so factually parsimonious that it fails to assert a plausible claim, Swierkiewicz is a counterbalancing reminder that a plaintiff need not (and ...