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,  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.
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.
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. 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.
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).
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.
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)). 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; 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).
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).
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. 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.
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.
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. 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.
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).
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.”). 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,