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Sewell v. Strayer University

United States District Court, D. Maryland, Southern Division

January 5, 2017

STARSHA M. SEWELL, Plaintiff,
v.
STRAYER UNIVERSITY, et al., Defendants.

          MEMORANDUM OPINION

          Paul W. Grimm United States District Judge

         Plaintiff 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.

         Defendants 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.[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.

         Res judicata and collateral estoppel[2] 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.

         Background[3]

         Sewell 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.

         On 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.

         Sewell 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.”[4] ECF No. 23. Judge Chasanow denied the motion. ECF No. 26.

         Strayer 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.

         Sewell 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.

         In her 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.

         In 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.

         Standard of Review

         Defendants 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.

         Plaintiff 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 Cir. 1977)).

         Discussion

         Claims against Individual Defendants

         Sewell 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 ...


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