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Allen v. Discovery Communications, LLC

United States District Court, D. Maryland, Southern Division

August 16, 2016

KENYA T. ALLEN, Plaintiff,



         Plaintiff Kenya T. Allen[1] 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. ¶¶ 27-38.

         She 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.[2]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.


         When a 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).

         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.

         Notably, 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).


         “‘[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)). “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).

         To 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.[3]

         A 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. at 113.

         The 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 action.”).

         Allen 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.

         Thus, 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 ...

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