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Sillah v. Burwell

United States District Court, D. Maryland

March 22, 2017

FANSTA SILLAH, Plaintiff,
v.
SYLVIA BURWELL, et al., Defendants.

          MEMORANDUM OPINION

          Paula Xinis United States District Judge.

         Pending in this employment discrimination case is a motion for partial dismissal of the amended complaint filed by Defendant Leidos Biomedical Research, Inc. (“Leidos”), ECF No. 15, a motion to dismiss the amended complaint, or in the alternative, for summary judgment filed by Defendant Sylvia Burwell (“Burwell”), ECF No. 25, and Plaintiff Fantah Sillah's (“Plaintiff”) emergency “motion to convert portions of Defendant Burwell's motion to dismiss into a motion for summary judgment and to deny the motion, without prejudice until the completion of discovery, ” ECF No. 28, incorporated by reference into Plaintiff's response to Defendant Burwell's motion, ECF No. 30. The issues have been fully briefed, and the parties were granted a hearing on the matter, which took place on March 17, 2017. See ECF No. 45. For the reasons stated below, Defendant Leidos' Motion is GRANTED IN PART and DENIED IN PART, Defendant Burwell's Motion is GRANTED IN PART and DENIED IN PART, and Plaintiff's Motion is GRANTED.

         I. BACKGROUND[1]

         A. Factual Background

         Plaintiff worked for Leidos and the National Institutes of Health (“NIH”) as a Patient Care Coordinator in the National Institute of Arthritis and Musculoskeletal and Skin Diseases in Bethesda, Maryland between February 2012 and August 2015. ECF No. 14 at 4. Plaintiff is a black female who qualified as a person with a disability because of her high-risk pregnancy. ECF No. 14 at 4. The National Institute of Arthritis and Musculoskeletal and Skin Diseases is an institute within the U.S. Department of Health and Human Services (the “Agency”). ECF No. 25-3 at 1. Leidos is a Maryland corporation and contracts with the federal government to provide support services. ECF No. 25-4 at 1.

         In December 2014, Plaintiff experienced complications of her first pregnancy that led to the loss of her child, surgeries and a protracted recovery for which she used lengthy approved leave in late 2014 and early 2015. ECF No. 14 at 7. On April 20, 2015, Leidos issued Plaintiff's performance appraisal based entirely on feedback provided by NIH staff and rated Plaintiff as “Generally Meets Expectations.” ECF No. 14 at 7.

         In early June 2015, Leidos and NIH learned that Plaintiff was pregnant again. ECF No. 14 at 7. On June 24, 2015, shortly after learning of Plaintiff's second pregnancy, Leidos placed Plaintiff on a 60-day Performance Improvement Plan (“PIP”). ECF No. 14 at 7. Plaintiff was told she was placed on a PIP because she was not in the practice of updating her voicemail or finding coverage for her duties when she was away from the office. ECF No. 14 at 8. Plaintiff alleges that her supervisors also held her to higher standards than her white colleagues. According to Plaintiff, none of Plaintiff's white and/or nonpregnant colleagues were subjected to the same requirements. ECF No. 14 at 8.

         On July 6, 2015, Plaintiff provided her NIH and Leidos first-line supervisors with a doctor's note stating that Plaintiff would need to take leave from July 7, 2015 through July 15, 2015 to accommodate a surgery related to her pregnancy. ECF No. 14 at 8. Upon her return on July 14, 2015, Plaintiff provided her Leidos supervisors with another doctor's note which cautioned that Plaintiff should avoid walking and excessive climbing of stairs. ECF No. 14 at 8. Then, on August 12, 2015, Plaintiff provided her Leidos supervisors a third doctor's note explaining that Plaintiff was restricted to desk duty and that she should not be walking or using the stairs at work because of her high-risk pregnancy. ECF No. 14 at 8.

         At the request of Plaintiff, Plaintiff met with her Leidos and NIH supervisors on August 18, 2015. ECF No. 14 at 8. During the meeting, Plaintiff advised Leidos and NIH of her high-risk pregnancy due to an incompetent cervix. ECF No. 14 at 9. Plaintiff asked that she be limited to working at her desk and excused from picking up and delivering blood samples from the lab each Thursday on an hourly basis. ECF No. 14 at 9. In response, one of Plaintiff's Leidos supervisors, Cheryl Talar-Williams, treated her request for a reasonable accommodation with derision and rejected it. ECF No. 14 at 9. Ms. Talar-Williams also ridiculed Plaintiff's suggestion that NIH couriers perform the blood runs for her. ECF No. 14 at 9. Plaintiff then informed Ms. Talar-Williams that, in light of Ms. Talar-Williams' response, Plaintiff would be lodging a complaint with the NIH Equal Employment Opportunity Office (“EEO”). ECF No. 14 at 9.

         On August 19, 2015, Plaintiff contacted both the NIH Ombudsman and EEO office. ECF No. 14 at 9; ECF No. 21-10 at 1. Six days later, on August 25, 2016, NIH and Leidos told Plaintiff that she had failed the PIP and she was terminated her from both her NIH and Leidos positions. ECF No. 14 at 9. Because Leidos announced Plaintiff's termination, Plaintiff instead resigned. ECF No. 14 at 10.

         B. Procedural History

         1. Defendant Leidos

         On September 2, 2015, Plaintiff initially filed an intake form with the Montgomery County Office of Human Rights (“MCOHR”), alleging Leidos discriminated against her by placing Plaintiff on a PIP, failing to accommodate her doctor's recommendations, and terminating her employment. ECF No. 21-2 at 3. Plaintiff checked the boxes for “sex/gender, ” “race, ” “disability/physical, ” and “family responsibility” as the bases for these discrimination claims. ECF No. 21-2 at 2. On December 23, 2015, Plaintiff filed a Complaint of Alleged Discrimination (“MCOHR Complaint”) against Leidos with the MCOHR. ECF No. 15-2. In the MCOHR Complaint, Plaintiff recounts the timeline of her pregnancy, her placement on a PIP, her requests for restricting her physical activity, the August 18, 2015 meeting with her supervisors, and Leidos' response to her request. ECF No. 15-2 at 2. Plaintiff expressly alleged that Defendant “denied me a reasonable accommodation and terminated my employment based on my sex, [sic] and marital status.” ECF No. 15-2 at 2. MCOHR cross-filed Plaintiff's MCOHR Complaint with the Equal Employment Opportunity Commission.[2] The EEOC issued a right-to-sue letter for Plaintiff's claims against Defendant Leidos on August 8, 2016. ECF No. 43-1.

         2. Defendant Burwell (The Agency)

         Plaintiff contacted the Agency's EEO office on August 28, 2015. ECF No. 25-2 at 20. On September 25, 2015, the Agency issued Plaintiff a Notice of Right to File Formal Complaint. ECF No. 25-2 at 27. On October 12, 2015, Plaintiff filed her formal complaint of discrimination (“EEOC Charge”) within the fifteen-day window instructed by the Notice of Right to File. ECF No. 25-2 at 15; see also ECF No. 25-2 at 32 (Agency's Notice of Receipt). The Agency provided Plaintiff with a letter acknowledging receipt of the formal filing and noting that “[u]nless an amendment is submitted or there is an agreement in writing to extend the time period, the investigation of your client's complaint must be completed within 180 days.” ECF No. 25-2 at 30. The letter of receipt also stated that, “in the absence of an amended complaint or agreed-upon extension, your client also has the right to file a civil action within 180 days of filing this complaint, if no appeal has been filed or final action taken.” Id. at 31. On December 22, 2015, the Agency then sent a letter informing Plaintiff that it had accepted her claim of discrimination for investigation. ECF No. 25-2 at 32. The Agency identified Plaintiff's claim as discrimination on the bases of her race (Black), sex (female) and disability (physical) when “on August 25, 2015, Complainant was terminated from her contract position as a Patient Care Coordinator II. Complainant alleges that she was terminated by her supervisors upon learning of her high risk pregnancy.” Id. The notice further instructed Plaintiff that “if you believe that the claim is not correctly identified, you must notify this office in writing within seven (7) calendar days after receipt of this letter as to why you believe the claim is not correctly identified.” Id.

         Eighty-six days later, on March 17, 2016, Plaintiff's counsel emailed the Agency's EEO office requesting an amendment to her EEOC Charge to add a claim of retaliation. ECF No. 25-2 at 36; ECF No. 30-3 at 1. Plaintiff explained that her original claim had been incorrectly identified, and Plaintiff had raised the retaliation claim in her formal complaint. Id. The Agency did not respond. Plaintiff emailed the Agency again on April 4, 2016, requesting the status of her amendment to her complaint, ECF No. 25-2 at 38, and on April 21, 2016 requesting that the amendment be acknowledged in writing. ECF No. 25-2 at 36. And again, the Agency did not respond.

         On April 11, 2016, 182 days after the filing of Plaintiff's EEOC Charge, Plaintiff signed a form entitled “Notice of Extension, ” which states that the Agency may investigate her complaint for an additional period up to 90 days. ECF No. 25-2 at 35. On May 13, 2016, twenty-two days later, Plaintiff filed her Complaint in this Court. ECF No. 1. On May 16, 2016, Plaintiff informed the EEO investigator that she had filed a complaint in this Court. ECF No. 25-2 at 42. Plaintiff filed an Amended Complaint on June 21, 2016. ECF No. 14.

         Against both Defendants, Plaintiff asserts claims of (1) sex/pregnancy discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Maryland Human Relations Act, Md. Code, State Government, §§ 20-606, 20-1013, 20-1202, and the Montgomery County Human Rights Act, Montgomery County Code 27-9; (2) disability discrimination under the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. §§ 12101 et seq., the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-797 (the “Rehabilitation Act”), the Maryland Human Relations Act, and the Montgomery County Human Rights Act; and (3) retaliation under Title VII, the ADA, Rehabilitation Act, the Maryland Human Relations Act, and the Montgomery County Human Rights Act (collectively Count IV).[3] Against Defendant Leidos, Plaintiff alleges claims of race discrimination under 42 U.S.C. § 1981.[4] And against Defendant Burwell, Plaintiff asserts claims of race discrimination under Title VII, the Maryland Human Relations Act, and the Montgomery County Human Rights Act.

         Plaintiff claims that she was held to standards “that were more strict than her colleagues who were either white or not pregnant.” ECF No. 14 at 8. Plaintiff also claims that the Agency “acted derisively” when she requested an accommodation due to her high-risk pregnancy, and in response, Plaintiff contacted the EEO Office. ECF No. 14 at 9. Plaintiff alleges that she was ultimately terminated as a result of discrimination based on her sex (pregnancy), disability, and race. Plaintiff claims that this same conduct constitutes a failure to accommodate claim under the Rehabilitation Act and ADA and a retaliation claim in violation of Title VII, the Rehabilitation Act, and the ADA.

         II. ANALYSIS

         A. Defendant Leidos' Motion to Dismiss for Lack of Subject Matter Jurisdiction

         Defendant Leidos first argues that the Court lacks subject matter jurisdiction over some or all of Plaintiff's claims against it for failure to exhaust her administrative remedies. For this reason, Defendant Leidos contends Plaintiff's disability discrimination, race discrimination, and retaliation claims must be dismissed.[5]

         1. Administrative Exhaustion Requirements

         Before a plaintiff may file suit in federal court under Title VII, she must first exhaust her administrative remedies. Medlock v. Rumsfeld, 336 F.Supp.2d 452, 462 (D. Md. 2002) (citing 42 U.S.C. § 2000e-16(c); Brown v. General Serv. Admin., 425 U.S. 820, 832 (1976); Zografov v. V.A. Medical Center, 779 F.2d 967, 968-69 (4th Cir. 1985)); Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 (4th Cir. 2000); Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 593 (4th Cir. 2012). Plaintiff's ADA, Rehabilitation Act, Maryland Human Relations Act, and Montgomery County Human Rights Act claims are governed by the exhaustion requirements and filing procedures applicable to Title VII claims against federal employers. Lewis v. MV Transp., Inc., 2012 WL 4518541, at *3 (D. Md. Sept. 28, 2012) (“Under the ADA, the exhaustion requirements and filing procedures are identical to those applicable to claims under Title VII.”); Kim v. Potter, No. DKC 09-2973, 2010 WL 2253656, at *4 (D. Md. June 2, 2010), aff'd, 416 F. App'x 297 (4th Cir. 2011) (Rehabilitation Act claims governed by the exhaustion requirements and filing procedures applicable to Title VII claims); Moore v. Sprint Communications Co., No. RDB-11-00290, 2012 WL 4480696 (D. Md. Sept. 27, 2012) (“Title 20's administrative requirements are akin to those of Title VII.”) (citing Cuffee v. Verizon Commc'ns Inc., 755 F.Supp.2d 672, 678 (D. Md. 2010)); Whittaker v. David's Beautiful People, Inc., No. DKC 14-2483, 2016 WL 429963, at *2 (D. Md. Feb. 4, 2016) (“Maryland courts construe . . . claims [under the Montgomery County Human Rights Act] similarly to those made under Title VII.”); cf. Anderson v. Discovery Commc'ns, LLC, 814 F.Supp.2d 562, 569 (D. Md. 2011), aff'd, 517 F. App'x 190 (4th Cir. 2013), as amended (May 3, 2013) (“As a general matter, Maryland courts rely on ADA case law for guidance when interpreting the MCHRA.”) (citing Ridgely v. Montgomery Cnty., 164 Md.App. 214, 883 A.2d 182, 193 (2005)).[6] Failure to exhaust “deprives the federal courts of subject matter jurisdiction over the claim.” Kim, 2010 WL 2253656, at *4; accord Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing Davis v. North Carolina Dep't of Corr., 48 F.3d 134, 138-40 (4th Cir. 1995)); Melendez v. Sebelius, 611 F. App'x 762, 764 (4th Cir. 2015).

         Importantly, the scope of the plaintiff's federal causes of action is circumscribed by the contents of the formal administrative complaint as identified and investigated by the EEOC or its County counterpart. Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (internal quotation marks omitted). Claims in a judicial complaint then may be advanced in this Court where they are “reasonably related” to the administrative charge and “can be expected to follow from a reasonable administrative investigation.” Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 594 (4th Cir. 2012). See also McCray v. Maryland Dep't of Transportation, 662 F. App'x 221, 223 (4th Cir. 2016); Jones v. Southpeak Interactive Corp. of Del., 777 F.3d 658, 669 (4th Cir. 2015); Calvert Group, Ltd., 551 F.3d at 300; Evans v. Tech. Applications & Servs. Co., 80 F.3d 954, 963 (4th Cir. 1996). “The touchstone for exhaustion is whether plaintiff's administrative and judicial claims are ‘reasonably related, ' . . . not precisely the same . . . .” Id. at 595 ((citation omitted); accord Johnson v. SecTek, Inc., No. ELH-13-3798, 2015 WL 502963, at *4 (D. Md. Feb. 4, 2015).

         Where a complainant alleges a basis for discrimination for the first time in federal court, the claim cannot proceed for failure to exhaust. See Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 132-33 (4th Cir. 2002) (plaintiff failed to exhaust claim for sex discrimination because EEOC charge alleged only racial discrimination); Calvert Grp., Ltd., 551 F.3d at 301 (plaintiff failed to exhaust claim for race, age, or sex discrimination because EEOC charge only alleges retaliation). Generally, “a plaintiff has failed to exhaust administrative remedies where a charge of discrimination references ‘different time frames, actors, and discriminatory conduct' than the allegations found in a complaint.” Wright v. Kent Cty. Dep't of Soc. Servs., No. ELH-12-3593, 2014 WL 301026, at *11 (D. Md. Jan. 24, 2014) (quoting Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005)). By contrast, a plaintiff satisfies the exhaustion requirement when “both the EEOC charge and the complaint included claims of retaliation by the same actor, but involved different retaliatory conduct, ” Sydnor, 681 F.3d at 594 (citing Smith, 202 F.3d at 248), or when the administrative charge and formal litigation concerned “discriminat[ion] in promotions” but involved different aspects of the “promotional system.” Chisholm v. U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981).

         2. Plaintiff's Disability Discrimination Claims against Defendant Leidos[7]

         Defendant Leidos asserts that Plaintiff's disability discrimination claims under the ADA, Rehabilitation Act, Maryland Human Relations Act, and the Montgomery County Human Rights Act (collectively, the “disability discrimination claims”) exceed the scope of those preserved in her MCOHR Complaint, thus depriving this Court of subject matter jurisdiction as to those newly asserted grounds for relief. The Court is not persuaded.

         Plaintiff's disability discrimination claims as alleged in her MCOHR Complaint are reasonably related to the exhausted sex and marital status claims since all claims arise out of alleged wrongful termination and denial of “reasonable accommodations” due to plaintiff's pregnancy and its complications. In Plaintiff's initial intake form with the Maryland Commission on Civil Rights, she notes “sex/gender, ” “race, ” “family responsibilities, ” and “disability/physical” as her basis for discrimination. ECF No. 21-2 at 2. In Plaintiff's MCOHR Complaint, Plaintiff alleges that she informed her supervisor “that [her] pregnancy was high risk and [she] needed to limit [her] physical activity at work and limit [herself to ‘desk duty.' ” ECF No. 15-2 at 2. The MCOHR Complaint further alleges that she communicated her doctor's instructions to ...


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