United States District Court, D. Maryland, Southern Division
STARSHA M. SEWELL, Plaintiff,
STRAYER UNIVERSITY, et al., Defendants.
W. Grimm United States District Judge
Starsha M. Sewell's former employer Strayer University
(“Strayer”) reduced her salary and terminated her
employment in 2008, and she filed an unsuccessful lawsuit
against it in 2012. Compl., ECF No. 1; Sewell v. Strayer
University (“2012 Action”), No. DKC-12-2927
(filed D. Md. Oct. 10, 2012), appealed, No. 14-2123
(filed 4th Cir. Oct. 17, 2014), cert. denied, No.
14-10114 (2015). When Strayer then rejected her applications
for employment in 2014, Sewell, a former adjunct faculty
member and associate campus dean at Strayer, filed this
employment discrimination suit against Defendants Robert
Silberman and Karl McDonnell (the “Individual
Defendants”) and Strayer (collectively,
“Defendants”) on January 14, 2016. Compl. 1.
Sewell claims race-based employment discrimination, in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e
et seq. (Count 1); retaliation, also in violation of
Title VII (Count 2); retaliation in violation of the Family
Medical Leave Act (“FMLA”), 29 U.S.C.
§§ 2601 - 2654 (Count 3); and “Wrongful
Termination from Online Adjunct Professor Position and the
Associate Dean position, due to the Plaintiff's race and
because she engaged in formal and informal protected
activity, ” which appears to be another retaliation
claim (Count 4). Compl. 1. Buried within the body of the
Complaint, Sewell alleges as “Count 5” what
appears to be another Title VII discrimination and
retaliation claim based on the reduction in her salary.
Id. at 4. She also states that she brings this
action pursuant to 42 U.S.C. § 1981. Id. at 7.
have moved to dismiss most claims against Strayer under the
doctrine of res judicata, ECF No. 13, arguing that,
“with the exception of Plaintiff's purported Title
VII retaliation claim related to Strayer's decision to
not hire Plaintiff for two positions in 2014, Plaintiff
previously litigated these exact claims against Strayer
through resolution by the United States Court of Appeals for
the Fourth Circuit” in the 2012 Action. Defs.' Mem.
2-3, ECF No. 13-1. And, they contend that Sewell's
failure-to-hire claims from 2014 are “nothing more than
the ‘unadorned, the defendant-unlawfully harmed me
accusation, ' which is non-compliant with the requisite
pleading standards.” Id. at 3. According to
Defendant, “the complaint makes no allegations about
Defendants Silberman or McDonnell, ” and therefore the
claims against them should be dismissed. Id.
Additionally, Defendants seek sanctions in the form of
attorneys' fees and a pre-filing injunction
“against Plaintiff for her continued vexatious
litigation and harassment of Defendants.” Id.
judicata and collateral estoppel bar the claims against
Strayer based on events before 2014, and Sewell fails to
state a claim against Strayer based on events in 2014.
Moreover, amendment of her later claims would be futile.
Therefore, I will dismiss her claims against Strayer with
prejudice. And, because she concedes that “Sewell is
not suing Robert Silberman or Karl McDonnel[l]. . . . Sewell
is suing Strayer University, INC., ” Pl.'s
Opp'n 3, I will dismiss the claims against the Individual
Defendants. Because Strayer has demonstrated that Sewell is
attempting to relitigate previously litigated claims and
attempting to file additional claims in a pleading that fails
to state a claim and for which amendment would be futile, I
find that Strayer has established grounds for a narrowly
tailored pre-filing injunction. I will grant Strayer's
request for a pre-filing injunction, deny the Individual
Defendants' request for a pre-filing injunction, and deny
Defendants' request for attorneys' fees.
began working for Strayer in February 2006, and she filed an
internal complaint of race-based discrimination against a
manager in October 2007. Compl. 3. It appears that, from
December 2007 through March 2008, she was on
pregnancy-related medical leave. Id. at 4, 6. Upon
returning to work in March 2008, she was given a
“discriminatory financial demotion” in which
Strayer took away her adjunct part-time professor salary of
$18, 000 that she had received in addition to her $60, 000
salary as a dean. Id. at 4. She alleges that her
“financial demotion” was “because of her
race, color, and gender” and in retaliation for her
discrimination complaint. Id. As best I can discern,
she also views her “demotion” as retaliation for
her exercise of her FMLA rights. Id.
March 30, 2008, shortly after having returned to work, Sewell
“was granted additional FMLA medical leave pursuant to
the Pregnancy Discrimination Act (PDA) [42 U.S.C. §
2000e(k)] that she remained on until she delivered her child
on June 19, 2008.” Id. Sewell claims that,
three days after she returned from maternity leave on August
18, 2008, Strayer terminated her employment, in violation of
the FMLA. Id.
filed suit against Strayer in 2012, based on these events.
Compl., ECF No. 1 in 2012 Action. She claimed race, color,
and gender discrimination and retaliation in violation of
Title VII, as well as race discrimination and retaliation
under § 1981. Id. She did not allege violations
of the FMLA. She also filed a motion for recusal, asking
Judge Chasanow to recuse herself from the case because
“Sewell ha[d] been prejudiced by Chief Judge Chasanow,
in another litigation.” ECF No. 23. Judge Chasanow denied
the motion. ECF No. 26.
moved to dismiss, and Judge Chasanow granted the motion,
dismissing Sewell's discrimination claims under Title VII
for lack of subject matter jurisdiction because Sewell failed
to exhaust her administrative remedies and dismissing her
§ 1981 claims as untimely. July 9, 2013 Mem. Op. &
Order, ECF Nos. 25 & 26 in 2012 Action. Judge Chasanow
noted that even if Sewell had exhausted her administrative
remedies, her Title VII claims would have been subject to
dismissal for failure to state a claim because she failed to
make factual allegations that stated a plausible claim for
intentional discrimination. Id. Judge Chasanow
granted Sewell leave to amend with regard to her Title VII
retaliation claim based on her demotion. Id.
amended, ECF No. 27 in 2012 Action; Strayer moved to strike
portions of the amended complaint and to dismiss it, ECF No.
29 in 2012 Action; and Judge Chasanow dismissed the amended
complaint with prejudice for failure to state a claim. ECF
Nos. 38 & 39 in 2012 Action. Sewell filed two motions for
relief from judgment, a motion for reconsideration and
another motion for recusal of Judge Chasanow, and the Court
denied the motions. ECF Nos. 40-42, 44, 48-52 in 2012 Action.
motion for reconsideration, Sewell argued that “[t]he
state court perpetrated fraud against Sewell's property
and her minor children and discriminated against both on the
basis of their race. These issues were overlooked and
unaddressed by Judge Chasanow in the opinion issued on April
18, 2014.” ECF No. 42 in 2012 Action. Likewise, in her
second motion for recusal, she insisted that Judge Chasanow
is conflict of interest [sic] as has prejudiced the proper
administration of Justice in this matter and in another case
involving the Plaintiff's minor children, who are both
African American Christian males. Not only has this Judge
discriminated on the basis of the Plaintiff['s] race, but
[she] has done everything in her power to advance the
interest of the State of Maryland.
ECF No. 44 in 2012 Action. In her Rule 60(b)(4) motion for
relief, Sewell similarly asserted that Judge Chasanow
is disqualified . . . as she has and continues to utilize the
prestige of her position to bully, harass and intimidate the
plaintiff and her minor children, because of the[ir] religion
and race in violation of 42 USC 1981, and has conspired with
various female Judges in violation of 42 USC 1985 ranging
from the State of Maryland, Richmond, VA, and St. Louis, MO,
most of who have utilized their positions to advance the
interest of their judicial family members and friends . . . .
ECF No. 49. She also contended that “[t]his court also
has a history of Title 42, U.S.C., Section 14141 violations
in majority of their cases . . . and have specifically
treated minorities who file employment litigations Pro Se
adversely.” Id. She reiterated the same
allegations of prejudice and discrimination by the Court in
her second Rule 60(b)(4) motion. ECF No. 51. Sewell appealed
the denial of her last motion to the Fourth Circuit, ECF No.
53 in 2012 Action, and the Fourth Circuit affirmed “for
the reasons stated by the district court.” ECF Nos. 56
& 56-1 in 2012 Action.
February 2014, Sewell applied for two assistant dean of
faculty positions and a campus dean position at Strayer but
was not selected, a decision she attributes to Strayer's
“ongoing willful violation of FMLA Pregnancy
Discrimination Act (PDA) and FMLA Retaliation on the basis of
the Plaintiff's race.” Compl. 6. Plaintiff alleges
that “Mr. Silberman has not responded to the
Plaintiff's concerns” regarding Strayer's
“willful FMLA violation.” Id. at 7.
move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Under this
Rule, Sewell's Complaint is subject to dismissal if it
“fail[s] to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). 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, ” Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). “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. Rule 12(b)(6)'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.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012) (quoting Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). If
an affirmative defense “clearly appears on the face of
the complaint, ” however, the Court may rule on that
defense when considering a motion to dismiss. Kalos v.
Centennial Sur. Assocs., No. CCB-12-1532, 2012 WL
6210117, at *2 (D. Md. Dec. 12, 2012) (quoting Andrews v.
Daw, 201 F.3d 521, 524 n. 1 (4th Cir. 2000) (citation
and quotation marks omitted)). Two such affirmative defenses
are res judicata, also known as claim preclusion,
and collateral estoppel, also known as issue preclusion.
is proceeding pro se, and her Complaint is to be
construed liberally. See Haines v. Kerner, 404 U.S.
519, 520 (1972). However, liberal construction does not
absolve Plaintiff 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
against Individual Defendants
mentions Silberman once in her Complaint, alleging that
“Mr. Silberman has not responded to the Plaintiff's
concerns” about Strayer's “willful FMLA
violation.” Id. at 7. She does not allege who
Silberman is or how he could be liable under the FMLA for
Strayer's alleged violation based on his alleged failure
to respond to her concerns. Sewell does not mention McDonnell
at all in her Complaint. These allegations - or failures to
make allegations - are insufficient to state a claim because
they do not provide the Court with facts from which it could
“draw the reasonable inference that [either individual]
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. Moreover, Sewell concedes in
her Opposition that “Sewell is not suing Robert
Silberman or Karl McDonnel[l]. . . . Sewell is suing Strayer
University, INC.” Pl.'s Opp'n 3; see also
Id. at 1 (insisting that the Individual Defendants are
“two people who aren't even being sued”);
id. at 2 (noting that Defense counsel ...