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Allen v. Discovery Communications, LLC

United States District Court, D. Maryland, Southern Division

September 28, 2016

KENYA T. ALLEN, Plaintiff,


          Paul W. Grimm United States District Judge.

         Plaintiff Kenya T. Allen, [1] who worked as an Operation Specialist, processing sales for Defendant Discovery Communications, LLC (“Discovery”) for eleven years, 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., as well as failure 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. Am. Compl., ECF No. 15. Discovery moved to dismiss for lack of subject matter jurisdiction and failure to adequately plead claims. Def.'s Mot., ECF No. 16. On the record before me at the time, Allen failed to show that she filed a verified charge with the Equal Employment Opportunity Commission (“EEOC”). Because that deficiency left this Court without subject matter jurisdiction over her sex discrimination and failure to accommodate claims, I dismissed them on that basis without reaching the grounds Defendant raised in its motion. Aug. 16, 2016 Mem. Op. & Order, ECF No. 19. I did not dismiss Plaintiff's claims for retaliation, however.

         Allen promptly moved for reconsideration of the dismissal of her sex discrimination and failure to accommodate claims, asserting that she erroneously failed to include the page containing her signature verifying the EEOC charge when she submitted her filings in this Court. ECF No. 20. And she attached the missing page to her motion. ECF No. 20-2. In response to Allen's motion for reconsideration, Discovery raised the same arguments it raised-and I did not reach-in its motion to dismiss, arguing that dismissal was proper on these alternative grounds. ECF No. 25. I held a conference call on September 20, 2016 with regard to Allen's motion. ECF No. 27. I noted that the Fourth Circuit strongly favors the resolution of cases on the merits. See Colleton Preparatory Acad., Inc. v. Hoover Universal, Inc., 616 F.3d 413, 417 (4th Cir. 2010). Therefore, even though I was not convinced that Allen met the standard under Fed.R.Civ.P. 54 for reconsideration of a ruling that is not a final judgment, given that the error was hers or her attorney's and not the Court's, I granted the motion. ECF No. 28.

         These counts still may be subject to dismissal on other grounds, however. I informed the parties that I would reconsider Discovery's original arguments for dismissal of these four counts, as presented in its motion to dismiss and reply, ECF Nos. 16 and 18, as well as Allen's opposition to that motion, ECF No. 17.[2] Having done so, I conclude that Allen failed to exhaust her administrative remedies as to some, but not all, of her discrimination claims, and an overlapping subset of her discrimination claims are untimely. To the extent Allen has brought timely discrimination claims for which she has exhausted her administrative remedies, she has failed to state a claim. Consequently, I once again must dismiss her discrimination claims. But she has stated claims for failure to accommodate, and I will deny Discovery's motion as to these claims.


         Discovery contends that “Plaintiff fails to allege adequately that she exhausted her administrative remedies, ” her “allegations concerning events that allegedly occurred before November 16, 2011 are untimely and should be dismissed, ” and she otherwise fails to state a claim. Def.'s Mem. 9, 11, 13, ECF No. 16-1. 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). Similarly, “unsupported legal allegations need not be accepted.” Nam v. 2012 Inc., No. DKC-15-1931, 2016 WL 107198, at *3 (D. Md. Jan. 11, 2016) (citing Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989)). In an employment discrimination case such as this, the plaintiff “is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, ” but “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (quoting Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002). “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)). Allen attached an EEOC Notice of Charge of Discrimination to her Amended Complaint, indicating that she filed an EEOC Charge of Discrimination (“EEOC Charge”) on September 11, 2012. Am. Compl. Ex. 8, ECF No. 15-1, at 30;[3] see also EEOC Charge, ECF No. 20-2 (copy of EEOC Charged Dated: November 16, 2012); Fed.R.Civ.P. 10(c) (written instrument attached to complaint is part of pleading).

         Additionally, in the EEOC Charge, Allen must have raised the claims that she now brings in federal court, as well as any claims that predate the EEOC Charge. See Hunter v. Vilsack, No. DKC-07-2655, 2010 WL 1257997, at *8 (D. Md. Mar. 26, 2010) (quoting Cherry v. Bealefeld, No. CCB-08-1228, 2010 WL 917421, at *7 (D. Md. March 9, 2010)) (holding that rule from Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992), and Hill v. W. Elec. Co., 672 F.2d 381, 390 n.6 (4th Cir. 1982)-that claims are exhausted if related to claims in an EEOC charge-does not apply if the claims “could have been raised in her EEOC charge, but were not” because a later-filed EEOC charge suggests that the plaintiff was not “reluctant to file additional charges for fear of further reprisal, ” and therefore the plaintiff should not be excused from exhausting administrative remedies for claims “that predate the filing of an EEOC charge”); see also Jones v. Calvert Grp., Ltd., 551 F.3d 297, 303 (4th Cir. 2009).

         In the EEOC Charge, Allen claimed that her supervisor “retaliated against [her] for filing a hostile work environment complaint” and “discriminated against [her on the basis of] sex by giving a man with less seniority and experience [her] sales contract in 2011” and “subject[ing her] to disciplinary and probationary actions” when men who were “low performing sales people” were not subjected to such actions. EEOC Charge ¶¶ I, III. She also claimed that her supervisor and Discovery “failed to provide reasonable accommodations for [her to] perform [her] duties as an employee upon returning back to work in May of 2012, ” because they did not “put[] [her] in a different department or less stressful department, ” as her “physician requested.” Id. ¶ II.

According to Discovery, the EEOC Charge did not encompass
Plaintiff's claims that: (a) Ms. Childress and/or Ms. Timberlake harassed her in 2010 (and, to the extent the Court considers Compl. Ex. 1 to be incorporated by reference, any allegations of harassment in 2009); (b) she made a complaint to Ms. Coyne in August 2010; and (c) she discussed an unspecified “concern” and the number of her accounts with Ms. Timberlake on October 21, 2011[.]

Defs.' Mem. 10-11. Allen does not disagree (and would have no basis for doing so). Instead, she relies on Discovery's Position Statement before the EEOC, see Def.'s Position Stmt., Pl.'s Opp'n Ex. 1, ECF No. 17-2, to insist that Defendant “was placed on notice of Plaintiff's claim” and therefore, in her view, she exhausted her administrative remedies. Pl.'s Opp'n 3.[4] Allen cites Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005), in which the Fourth Circuit observed that “an administrative charge notifies the employer of the alleged discrimination, ” which “gives the employer an initial opportunity to voluntarily and independently investigate and resolve the alleged discriminatory actions” and “prevents the employer from later complaining of prejudice, since it has known of the allegations from the very beginning, ” and the charge also “initiates agency-monitored settlement.” But Chacko did not hold that, with proof of notice, exhaustion of administrative remedies is not required, and Allen has not identified any other case law to that effect.

         Even if Discovery's purported notice were sufficient to obviate Allen's need to exhaust administrative remedies, the Position Statement simply does not show that Discovery had notice of any of these claims. In arguing that “Discovery did not discriminate against Ms. Allen on the basis of her sex” in its Position Statement, Discovery discussed Allen's “2011 claim” that a “sales contract . . . was taken away from Ms. Allen” and her “2012 claim” that “she was placed on the performance plan.” Def.'s Position Stmt. 2, 9-10. Discovery did not mention alleged harassment by either Childress or Timberlake, an August 2010 complaint to Coyne, or Allen's October 2011 discussion with Timberlake. Therefore, these claims are unexhausted. See Hunter, 2010 WL 1257997, at *8; Cherry, 2010 WL 917421, at *7.


         Under Title VII, discrimination claims in Maryland must be filed with the EEOC no later than 300 days after the alleged discriminatory conduct. See Williams v. Giant Food Inc., 370 F.3d 423, 428 (4th Cir. 2004); Abdi v. Giant Food, LLC, No. PWG-14-2988, 2016 WL 808775, at *4 (D. Md. Mar. 2, 2016). Allen originally filed her claims with the EEOC on September 11, 2012. Notice of Charge, ECF No. 15-1, at 30.[5] November 16, 2011 was 300 days prior to September 11, 2012. Yet, Allen alleges actions beginning in 2010 in support of her discrimination claim. Am. Compl. ¶¶ 10-13.

         As best I can discern, Plaintiff attempts to invoke the continuing violation theory by arguing that “the taking away of accounts was a continuous action.” Pl.'s Opp'n 4. It is true that the Fourth Circuit previously held that this theory applied to discriminatory and hostile work environment claims alike, such that “[i]ncidents outside of the statutory window” were not time-barred if they “related to a timely incident as a ‘series of separate but related acts' amounting to a continuing violation.” Beall v. Abbott Labs., 130 F.3d 614, 620 (4th Cir. 1997) (quoting Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980) (per curiam)). But, the Supreme Court differentiated hostile environment claims from claims of “discrete acts” of discrimination in National Railroad Passenger Corp. v. Morgan, holding that “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges, ” because “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act.” 536 U.S. 101, 113 (2002); see also Green v. Brennan, 136 S.Ct. 1769, 1781 n.7 (2016) (noting that Morgan held that, “unlike a hostile-work-environment claim that may comprise many discriminatory acts, discrete claims of discrimination based on independent discriminatory acts cannot be aggregated to extend the limitations period”); Smith v. Vilsack, 832 F.Supp.2d 573, 581 (D. Md. 2011) (“[T]he ‘continuing violation' theory, which ‘allows for consideration of incidents that occurred outside the time bar when those incidents are part of a single, ongoing pattern of discrimination, ' . . . only applies . . . when an employee asserts a hostile work environment claim.” (quoting Holland v. Wash. Homes, Inc., 487 F.3d 208, 219 (4th Cir. 2007))); Mallik, 964 F.Supp.2d at 541 (same).

         While Allen alleges retaliation for her earlier administrative complaint of a hostile work environment, she pointedly has conceded that does not make a hostile work environment claim in this Court, instead focusing her discrimination claims on discrete acts. See Am. Compl. ¶¶ 44-55; Pl.'s Opp'n 5 (“Concerning the hostile work environment claim, Plaintiff has alleged no such cause of action/count.”).[6] Thus, Allen's invocation of the continuing violations theory with regard to her claims of discrimination is unavailing. See Morgan, 536 U.S. at 113; Green, 136 S.Ct. at 1781 n.7. Consequently, ...

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