United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge
pending and ready for resolution is a motion to dismiss or,
in the alternative, for summary judgment filed by Defendant
Prince George's County. (ECF No. 18). The issues have
been briefed, and the court now rules, no hearing being
deemed necessary. Local Rule 105.6. For the following
reasons, the motion to dismiss will be granted.
pro se complaint is fairly sparse. (See ECF
No. 1). In the complaint, Plaintiff alleges that
Defendant, his employer, discriminated against him on the
basis of his national origin. (Id. ¶ 5). He
contends that Defendant “fail[ed] to appoint [him] with
[his] required hour[s] of personal and sick leave.”
(Id. ¶ 3). He states, “[O]ther employees
were given better treatment even though their leaves were
also miscalculated. For example, one employee got paid for
his leave that was unknown and I didn't get paid for my
leave.” (Id. ¶ 6). After filing this
complaint, Plaintiff retained counsel (ECF No. 17), but
Plaintiff has not amended his original complaint.
filed the instant motion to dismiss on August 25, 2016. (ECF
No. 18). When Plaintiff failed to file a timely opposition to
the motion, the court issued a paperless notice to counsel on
September 29 requesting that Plaintiff promptly file a
response or advise the court if he did not intend to file an
opposition. (ECF No. 19). Plaintiff has not responded.
Standard of Review
moves to dismiss because Plaintiff has failed to exhaust his
administrative remedies. A failure to exhaust administrative
remedies under Title VII deprives the courts of subject
matter jurisdiction, see Balas v. Huntington Ingalls
Indus, Inc., 711 F.3d 401, 406 (4th Cir.
2013), requiring analysis under Rule 12(b)(1) at the motion
to dismiss stage, see Onuoha v. Grafton School, 182
F.Supp.2d 473, 481 (D.Md. 2002). In a Rule 12(b)(1) motion,
the court “is to regard the pleadings as mere evidence
on the issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment.” Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768
(4th Cir. 1991); see also Adams v. Bain,
697 F.2d 1213, 1219 (4th Cir. 1982). The court
should grant the motion to dismiss only “if the
material jurisdictional facts are not in dispute and the
moving party is entitled to prevail as a matter of
law.” Richmond, Fredericksburg & Potomac
R.R., 945 F.2d at 768. Moreover, the plaintiff has the
burden of proving that subject matter jurisdiction exists.
argues that Plaintiff has failed to exhaust his
administrative remedies because his claim in this court is
distinct from the claim he filed in his EEOC charge. (ECF No.
18, at 5). “Before filing suit under Title VII, a
plaintiff must exhaust h[is] administrative remedies by
bringing a charge with the EEOC.” Smith v. First
Union Nat'l Bank, 202 F.3d 234, 247 (4th
Cir. 2000); Lewis v. City of Chicago, 560 U.S. 205,
210 (2010). Title VII civil suits may not present entirely
new factual bases or entirely new theories of liability not
found in the initial EEOC complaint. Rather, the scope of the
initial administrative charge limits the scope of the civil
action to “those discrimination claims stated in the
initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of
the original complaint.” Jones v. Calvert Group,
Ltd., 551 F.3d 297, 300 (4thCir. 2009)
(quoting Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 963 (4th Cir. 1996)).
plaintiff fails to exhaust his claims when “his
administrative charges reference different time frames,
actors, and discriminatory conduct than the central factual
allegations in his formal suit.” Chacko v. Patuxent
Inst., 429 F.3d 505, 506 (4th Cir. 2005).
This limitation on the civil action is routinely applied
where a plaintiff's charge “alleges discrimination
on one basis - such as race - and he introduces another basis
in formal litigation - such as sex.” Id. at
509. It also applies, however, when “the administrative
charge alleges one type of discrimination - such as
discriminatory failure to promote - and the claim encompasses
another type - such as discrimination in pay and
benefits.” Id. (citing cases).
Plaintiff's EEOC charge alleged only that Defendant was
giving him a heavier workload than his Caucasian co-worker.
(ECF No. 18-1, at 3). His EEOC charge made no reference to
employee leave or any other benefits. (Id.). Nor was
the issue of leave “developed by reasonable
investigation.” After his charge was cross-filed, the
Maryland Commission on Civil Rights investigated the EEOC
charge and issued a written finding on August 6, 2015. (ECF
No. 18-2). That finding makes no mention of leave, benefits,
or any other issue outside of Plaintiff's workload.
(Id.). The comparators Plaintiff alleges highlight
the distinction between the allegations in the EEOC charge
and his claim in court. Plaintiff's EEOC charge compared
his workload to that of a female employee, Margaret Hayes.
(ECF No. 18-1, at 3). His complaint here compares the leave
he received with another employee who “got paid for
his leave, ” which indicates that the other
employee was male. (ECF No. 1 ¶ 6). Because
Plaintiff's complaint is based on factual allegations and
discriminatory conduct different from those alleged in his
EEOC charge, he has not exhausted his administrative remedies
for his claim in this court as Title VII requires. Therefore,
Defendant's motion to dismiss will be granted.
foregoing reasons, the motion to dismiss filed by Defendant
Prince George's County will be ...