United States District Court, D. Maryland, Southern Division
PATRICIA A. FORD, Plaintiff,
MASTER SECURITY COMPANY, LLC,  Defendant.
MEMORANDUM OPINION AND ORDER
Paul W. Grimm, United States District Judge.
Plaintiff Patricia Ford filed suit against her employer, Master Security Company, LLC ("Master Security") on May 20, 2015, alleging retaliation and discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. Compl. 1, ECF No. 2. Ford felt that Master Security discriminated against her based on her sex and age by withholding her vacation pay and refusing to grant her request for a transfer to another job site, and that Master Security suspended her in retaliation for filing a claim with the Equal Employment Opportunity Commission ("EEOC") in August 2013. See Id. Master Security moved to dismiss the original complaint, arguing that Ford failed to file the grievance procedure outlined in the Collective Bargaining Agreement ("CBA") that applied to her, and that Ford failed to exhaust her administrative remedies, as she had a pending EEOC charge. ECF No. 12. Ford opposed the motion, ECF Nos. 17, 20, 23, and amended her complaint, ECF No. 18. In her amended complaint, she again claims age and sex discrimination, as well as retaliation for filing an EEOC claim on October 19, 2013, based solely on her employer withholding her vacation pay. Am. Compl. 1.
Master Security then filed a pre-motion conference request, ECF No. 21, seeking to move to dismiss the amended complaint on the grounds that it failed to cure the deficiencies in the original complaint. In Defendant’s view, although Ford now attaches as an exhibit, Am. Compl. Ex. D, at 20, ECF No. 18-5, a June 12, 2013 grievance that she filed with the union at the Census Bureau, where she worked in 2013, she nonetheless failed to comply with the CBA because the grievance she filed was based on different alleged acts of discrimination (denial of overtime) than those she now alleges, and she still failed to exhaust administrative remedies. I denied Master Security’s original motion to dismiss as moot in light of the amended complaint and the pre-motion conference request, and I established a briefing schedule with regard to the proposed motion to dismiss. ECF No. 25.
Now pending is Master Security’s motion to dismiss on the basis that Ford failed to “plead that she arbitrated and grieved her statutory claims pursuant to the binding Collective Bargaining Agreement” and failed to exhaust her administrative remedies because an EEOC claim of hers still is pending. Def.’s Mem. 1, 3, ECF No. 26-1. Because Ford exhausted her administrative remedies with regard to the claims she brings in this lawsuit and sufficiently alleges that she did not have to comply with the CBA, Master Security’s motion will be denied.
Standard of Review
When deciding Master Security’s motion to dismiss, I must accept the facts as alleged in Ford’s amended complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011). Ford is proceeding pro se, and her amended complaint is to be construed liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972). However, liberal construction does not absolve Ford from pleading plausible claims. See Holsey v. Collins, 90 F.R.D. 122, 128 (D. Md. 1981) (citing Inmates v. Owens, 561 F.2d 560, 562-63 (4th Cir. 1977)).
“‘[F]ederal courts lack subject matter jurisdiction over Title VII claims for which a plaintiff has failed to exhaust administrative remedies.’” Murphy v. Adams, No. DKC-12-1975, 2014 WL 3845804, at *7 (D. Md. Aug. 4, 2014) (quoting Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013)). Because Master Security “contend[s] ‘that [the] complaint simply fails to allege facts upon which subject matter jurisdiction can be based, ’ . . . ‘the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as [s]he would receive under a Rule 12(b) (6) consideration.’” Fontell v. MCGEO UFCW Local 1994, No. AW-09-2526, 2010 WL 3086498, at *3 (D. Md. Aug. 6, 2010) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)), aff’d, 410 F. App’x 645 (4th Cir. 2011).
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 678.
When reviewing a motion to dismiss, “[t]he court may consider documents attached to the complaint, as well as documents attached to the motion to dismiss, if they are integral to the complaint and their authenticity is not disputed.” Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28, 2013); see CACI Int’l v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009); see also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). Moreover, where the allegations in the complaint conflict with an attached written instrument, “the exhibit prevails.” Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991); see Azimirad v. HSBC Mortg. Corp., No. DKC-10-2853, 2011 WL 1375970, at *2-3 (D. Md. Apr. 12, 2011). In considering Master Security’s motion to dismiss, I have looked only at those exhibits attached to Ford’s pleadings or those exhibits attached to the parties’ filings with respect to this motion that are integral to the amended complaint and whose authenticity has not been disputed.
When a defendant challenges subject matter jurisdiction, the burden is on the plaintiff to prove that subject matter jurisdiction exists. See Evans v. B.F. Perkins, Co., 166 F.3d 642, 647 (4th Cir. 1999); El-Amin v. Int’l Longshoremen’s Ass’n Local No. 333, No. CCB-10-3653, 2011 WL 2580630, at *2 (D. Md. June 28, 2011). “A court should grant a Rule 12(b)(1) motion ‘if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.’” El-Amin, 2011 WL 2580630, at *2 (quoting Evans, 166 F.3d at 647).
Failure to Exhaust Administrative Remedies
Master Security argues that “Plaintiff’s failure to exhaust her administrative remedies with the EEOC prior to filing suit defeats her Complaint.” Def.’s 1st Mem. 10. To exhaust her administrative remedies, Ford must have filed a charge with the EEOC. Smith v. First Union Nat’l Bank, 202 F.3d 234, 247 (4th Cir. 2000); see Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Ford has filed at least three Charges of Discrimination with the EEOC: 846-2013-49018 (“2013 Charge”), 570-2014-01533 (“2014 Charge”), and 570-2015-01387 (“2015 Charge”). Compl. Ex., at 1, 24-5, ECF No. 2-1; Am. Compl. Ex. D, at 2-18, 23, ECF No. 18-5; Def.’s 1st Mot. Ex. B, ECF No. 12-4; Pl.’s Opp’n Ex. 1, ECF No. 28-1.
Ford’s claim that Master Security withheld her vacation pay appears in the 2014 Charge, in which she claimed that her employer discriminated and retaliated against her (for filing the 2013 Charge), in violation of Title VII and the Equal Pay Act, 29 U.S.C. § 206(d), between April 8, 2014 and May 27, 2014 by withholding her vacation pay. Pl.’s Opp’n Ex. 1, ECF No. 28-1. The Vacation Request Forms that Plaintiff attaches are for requests in April and July 2014. Am. Compl. Ex. D, at 31-33. With regard to the 2014 Charge, Ford exhausted her administrative remedies because the EEOC issued a right to sue letter on February 20, 2015. Am. Compl. Ex. D, at 23; Compl. Ex., at 1 ECF No. 2-1; see Davis v. N. Carolina Dep’t of Corr., 48 F.3d 134, 140 (4th Cir. 1995) (“[R]eceipt of, or at least entitlement to, a right-to-sue letter is a jurisdictional prerequisite . . . .”). Further, her May 20, 2015 Complaint was timely. See 42 U.S.C. § 2000e-5(f)(1) (stating that, if the Commission dismisses a charge or decides not to file a civil action or enter into a settlement agreement, “the Commission . . . shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge . . . by the person claiming to be aggrieved”).
Nonetheless, Master Security contends that this suit is subject to dismissal because Ford “has a pending EEOC Charge which contains allegations that she is simultaneously trying to litigate in this Court.” Def.’s Mem. 3. It is true that administrative proceedings must conclude before this Court may exercise jurisdiction. See Davis, 48 F.3d at 140. It also is true that, in the 2015 Charge, Ford alleged sex and age discrimination and retaliation between January 9, 2015 and January 29, 2015, in violation of Title VII and the ADEA based on the denial of her transfer request, Def.’s 1st Mot. Ex. B, ECF No. 12-4, and Ford raised similar allegations in her original complaint. As noted, her amended complaint refers only to the withholding of vacation pay, not the denial of her transfer request. Still, arguably, Ford could have brought these claims in this Court following receipt of a right-to-sue letter for her 2015 Charge. See Thoopsamoot v. Reg’l Servs. Ctr., No. PWG-13-1663, 2014 WL 1120239, at *6 (D. Md. Mar. 19, 2014) (“The Fourth Circuit has ‘found exhaustion where . . . both the EEOC charge and the complaint included claims of retaliation by the same actor, but involved different retaliatory conduct.’ Here, Plaintiff’s new claims of discrimination and retaliation involve ‘the same actor, but . . . different . . . conduct.’ Thus, they reasonably follow from the facts alleged in Plaintiff’s EEOC complaint. Therefore, Plaintiff has not failed to exhaust her administrative remedies by failing to include allegations about Defendant’s failure to promote or ...