United States District Court, D. Maryland
Xinis United States District Judge.
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.
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
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.
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.
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.
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.
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.
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. The EEOC issued a right-to-sue letter
for Plaintiff's claims against Defendant Leidos on August
8, 2016. ECF No. 43-1.
Defendant Burwell (The Agency)
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.”
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
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.
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). Against Defendant Leidos, Plaintiff
alleges claims of race discrimination under 42 U.S.C. §
1981. And against Defendant Burwell, Plaintiff
asserts claims of race discrimination under Title VII, the
Maryland Human Relations Act, and the Montgomery County Human
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.
Defendant Leidos' Motion to Dismiss for Lack of Subject
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
Administrative Exhaustion Requirements
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)). 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).
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).
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).
Plaintiff's Disability Discrimination Claims against
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.
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 ...