United States District Court, D. Maryland, Southern Division
KENYA T. ALLEN, Plaintiff,
DISCOVERY COMMUNICATIONS, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
W. GRIMM UNITED STATES DISTRICT JUDGE
Kenya T. Allen worked as an Operation Specialist,
processing sales for Defendant Discovery Communications, LLC
(“Discovery”) for eleven years. Am. Compl.
¶¶ 6- 7, ECF No. 15. According to Allen, her
supervisor Stephanie Timberlake created a hostile work
environment in 2010 and Discovery did nothing in response to
Plaintiff’s complaint about Timberlake, which led to
Allen having to take medical leave. Id. ¶¶
10-11. When she returned, Timberlake “took away her
major accounts, ” and she had a “drastic decrease
in her sales numbers.” Id. ¶ 12.
Thereafter, Timberlake monitored her performance, while not
monitoring the performance of a male with similar sales
numbers. Id. ¶¶ 15-16. Allen complained to
the Human Resources department and then took a second medical
leave. Id. ¶¶ 16-24. This time when she
returned, she was presented with a performance improvement
plan and, within weeks, terminated. Id. ¶¶
filed suit against her former employer, alleging sex
discrimination and retaliation in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq., and the Maryland Fair Employment Practices
Act (“MFEPA”), Md. Code. Ann., State Gov’t
§§ 20-601 et seq. Am. Compl. Allen also
claims that Discovery failed to provide reasonable
accommodations for her disability, in violation of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101 - 12213, and the MFEPA.
Id. Discovery has moved to dismiss for lack of
subject matter jurisdiction and failure to adequately plead
claims. Def.’s Mot., ECF No. 16.Because Allen has
not shown that she filed a verified charge with the Equal
Employment Opportunity Commission (“EEOC”), her
sex discrimination and failure to accommodate claims will be
dismissed. I find that Plaintiff has stated valid claims for
retaliation, and I will not dismiss those claims.
defendant moves to dismiss under Fed.R.Civ.P. 12(b)(1) for
lack of subject matter jurisdiction, asserting that “a
complaint simply fails to allege facts upon which subject
matter jurisdiction can be based, ” as Defendant does
here for failure to exhaust administrative remedies,
“the facts alleged in the complaint are assumed to be
true and the plaintiff, in effect, is afforded the same
procedural protection as he would receive under a 12(b)(6)
consideration.” Adams v. Bain, 697 F.2d 1213,
1219 (4th Cir. 1982); see Lutfi v. United States,
527 F. App’x 236, 241 (4th Cir. 2013); Fianko v.
United States, No. PWG-12-2025, 2013 WL 3873226, at *4
(D. Md. July 24, 2013). Thus, “the motion must be
denied if the complaint alleges sufficient facts to invoke
subject matter jurisdiction.” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009); see In re
KBR, Inc., Burn Pit Litig., 925 F.Supp.2d 752, 758 (D.
Md. 2013) (quoting Kerns, 585 F.3d at 192).
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.
although at this stage of the proceedings, I accept the facts
as alleged in Allen’s Amended Complaint as true,
see Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir.
2011), when reviewing a motion to dismiss, I “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).
TO EXHAUST ADMINISTRATIVE REMEDIES
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)). “Modeled after
Title VII . . ., the ADA incorporates that statute’s
enforcement procedures, including the requirement that a
plaintiff must exhaust his administrative remedies by filing
a charge with the EEOC before pursuing a suit in federal
court.” Sydnor v. Fairfax Cty., Va., 681 F.3d
591, 593 (4th Cir. 2012) (citations omitted). The MFEPA also
“follow[s] the procedural requirements of Title VII,
” including the administrative exhaustion requirement.
See Garey v. Wal-Mart Stores East, LP, No.
MJG-15-778, 2016 WL 1642945, at *2 (D. Md. Apr. 26, 2016).
exhaust her administrative remedies for Title VII and ADA
purposes, Allen must “bring  a charge with the
EEOC.” Smith v. First Union Nat’l Bank,
202 F.3d 234, 247 (4th Cir. 2000); see Jones v. Calvert
Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Under the
MFEPA, she may exhaust her administrative remedies by filing
a complaint with either the Maryland Commission on Human
Relations or “‘[a] complaint with a federal or
local human relations commission within 6 months after the
date on which the alleged discriminatory act
occurred.’” Ferdinand-Davenport v.
Children’s Guild, 742 F.Supp.2d 772, 778 (D. Md.
2010) (quoting Md. Code Ann., State Gov’t §
20-1004(a), (c)). Here, the charge that Allen attached to her
Amended Complaint is an EEOC Charge of Discrimination
(“EEOC Charge”). Am. Compl. Ex. 8.
claimant does not exhaust his or her administrative remedies
simply by filing a charge. The claimant must provide “a
written statement sufficiently precise to identify the
parties, and to describe generally the action or practices
complained of.” 29 C.F.R. §1601.12(b).
Additionally, the charge must be timely filed and
verified, that is, the complainant must “affirm or
swear that the allegations are true.” Edelman v.
Lynchburg Coll., 535 U.S. 106, 108-09 (2002) (citing 42
U.S.C. § 2000e-5(b), (e)(1)); see Merchant’s
v. Prince George’s Cnty., 948 F.Supp.2d 515, 520
(D. Md. 2013) (citing 29 C.F.R. § 1601.9, which provides
that a Title VII charge “shall be in writing and shall
be verified”). “The verification requirement has
the. . . object of protecting employers from the disruption
and expense of responding to a claim unless a complainant is
serious enough and sure enough to support it by oath subject
to liability for perjury.” Edelman, 535 U.S.
verification requirement “is a mandatory prerequisite
to the validity of the charge.” Balazs v.
Liebenthal, 32 F.3d 151, 156 (4th Cir. 1994);
Merchant’s, 948 F.Supp.2d at 520 (same). In
the Fourth Circuit, failure to comply with §
2000e-5(b)’s verification requirement “is fatal
to an action seeking relief under Title VII.”
Balazs, 32 F.3d at 156; see
Merchant’s, 948 F.Supp.2d at 520 (same).
Therefore, even though in its argument that Allen failed to
exhaust her administrative remedies, Discovery did not
address the verification requirement, I will consider it
sua sponte. See Fed. R. Civ. P. 12(h)(3)
(“If the court determines at any time that it lacks
subject matter jurisdiction, the court must dismiss the
insists that she has exhausted all administrative remedies by
filing a charge with the EEOC and receiving a right to sue
letter prior to filing her Complaint with this Court.
Pl.’s Opp’n 2. Along with her EEOC Charge, she
attached the EEOC Notice of Charge of Discrimination
(“Notice of Charge”) to her Amended Complaint.
Am. Compl. Ex. 8. The EEOC Charge is signed by a notary, but
Allen’s signature does not appear on it. Id.
Notably, the signature boxes that state “I declare
under penalty of perjury that the above is true and
correct” and “I swear or affirm that I have read
the above charge and that it is true to the best of my
knowledge, information and belief” are unsigned.
Id. The Notice of Charge, which is signed by Acting
Director Judy Cassell, states that “a perfected charge
will be forwarded to [Allen] for a complete response.”
Id. Allen did not attach a perfected charge,
although she did attach the EEOC Dismissal and Notice of
Rights, which states that “the EEOC is closing its file
on this Charge, ” notified Allen of her right to file
suit in federal or state court, and is signed by Director
Rosemarie Rhodes. Am. Compl. Ex. 10.
Allen’s EEOC Charge is neither signed by Allen nor
verified. See EEOC Charge. Consequently, it is
insufficient in and of itself to exhaust administrative
remedies because it is not signed by Plaintiff under oath or
affirmation. See Edelman, 535 U.S. at 108-09
(stating that “complainant must affirm or
swear that the allegations are true” (emphasis added));
Balazs, 32 F.3d at 156; Merchant’s,
948 F.Supp.2d at 520. Certainly, an unverified charge may be
verified at a later date and that verification will relate
back to the date of filing of the unverified charge. See
Edelman, 535 U.S. at 109; see Id. at 113
(noting that the purpose of the verification requirement
“demands an oath only by the time the employer is
obliged to respond to the charge, not at the time an employee
files it with the EEOC”); Merchant’s,
948 F.Supp.2d at 520 (“An unverified document that
satisfies the other substantive requirements for a charge can
be cured by a later-filed charge that is verified, in which
case the verified charge relates to the filing date of the
unsworn charge.”). But, as noted, Allen did not attach
the perfected charge that the Notice of Charge stated she
would receive. Nor did she attach any later filing under oath
or affirmation to verify the EEOC Charge. Therefore, she has
not exhausted her administrative remedies to be able to
maintain a sex discrimination or failure to accommodate ...