United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
se Plaintiff Kenneth Conney (“Plaintiff” or
“Conney”) brings this action against Defendant
Ameri-Klean Services, Inc. (“Defendant” or
“Ameri-Klean”) alleging that his termination
violated Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e, et seq. Currently pending before
this Court is Defendant's Motion to Dismiss, or in the
alternative, Motion for More Definite Statement. (ECF No. 5.)
The parties' submissions have been reviewed, and no
hearing is necessary. See Local Rule 105.6 (D. Md.
2016). For the reasons stated below, Defendant's Motion
to Dismiss (ECF No. 5) is GRANTED.
reviewing a motion to dismiss, this Court accepts as true the
facts alleged in the plaintiff's complaint. See Aziz
v. Alcolac, Inc., 658 F.3d 388, 390 (2011). Plaintiff
Conney, an African-American male, filed the instant Complaint
on December 1, 2017 using a pro se Complaint for
Employment Discrimination form. (ECF No. 1.) He indicated on
the form that his statement of claims could be found on the
attached U.S. Equal Employment Opportunity Commission
(“EEOC”) Charge document, filed more than ten
months earlier on January 20, 2017. (Id.; ECF No.
1-2.) The Charge alleges that he began working as a
housekeeper for Ameri-Klean Services on April 16, 2010. As a
male, he asserts that he was given a larger workload than
female employees. He also asserts that he was subjected to
harassment and intimidation because of his race.
Specifically, on March 11, 2016 a supervisor referred to
Conney as “your kind” and “made uttering
threats, such as, stating ‘horrible things will happen
to your kind.'” Conney also asserts that shortly
after filing a complaint, he was discharged. Conney then
checked the boxes indicating that he was discriminated
against on March 11, 2016 based on his race and gender and as
a result of retaliation. After filing his Charge, Plaintiff
subsequently received a Notice of Right to Sue letter on
October 25, 2017, indicating that the EEOC was unable to
conclude that there was reasonable cause to believe
motion to dismiss for failure to exhaust administrative
remedies is governed by Federal Rule of Civil Procedure
12(b)(1), which requires dismissal when the court lacks
subject matter jurisdiction. Khoury v. Meserve, 268
F.Supp.2d 600, 606 (D. Md. 2003); Clarke v. DynCorp
Intern. LLC, 962 F.Supp.2d 781, 786 (D. Md. 2013). The
plaintiff bears the burden to show that subject matter
jurisdiction exists. Piney Run Preservation Ass'n v.
Cnty. Comm'rs of Carroll Cnty., 523 F.3d 453, 459
(4th Cir. 2008). A motion to dismiss for failure to
state a claim is governed by Rule 12(b)(6), which authorizes
the dismissal of a complaint if it fails to state a claim
upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The
purpose of Rule 12(b)(6) 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.” Presley v. City of Charlottesville,
464 F.3d 480, 483 (4th Cir. 2006); see also Goines v.
Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir.
2016). The sufficiency of a complaint is assessed by
reference to the pleading requirements of Rule 8(a)(2), which
provides that 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). To survive a
motion under Rule 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is
plausible on its face.” Bell Atl., Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009). Further, a pro
se plaintiff's pleadings are “to be liberally
construed” and are “held to less stringent
standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Alley v. Yadkin County Sheriff Dept., No. 17-1249,
___ Fed App'x ___, 2017 WL 4415771 (4th Cir. Oct. 5,
2017). However, even a pro se litigant's
complaint must be dismissed if it does not allege a
“plausible claim for relief.” Iqbal, 556
U.S. at 679.
ruling on motion to dismiss, a court's evaluation is
generally limited to allegations contained in the complaint.
Goines v. Calley Cmty. Servs. Bd., 822 F.3d 159,
166-67 (4th Cir. 2016). However, courts may also consider
documents explicitly incorporated into the complaint by
reference. Id. at 166 (citing Tellabs, Inc. v.
Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127
S.Ct. 2499 (2007)). In addition, a court may “consider
a document submitted by the movant that was not attached to
or expressly incorporated in a complaint, so long as the
document was integral to the complaint and there is no
dispute about the document's authenticity.”
Id. (citing Sec'y of State for Defence v.
Trimble Nav. Ltd., 484 F.3d 700, 705 (4th Cir. 2007)). A
document is “integral” when “its
‘very existence, and not the mere information it
contains, gives rise to the legal rights
asserted.'” Chesapeake Bay Found., Inc. v.
Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611
(D. Md. 2011) (citation omitted) (emphasis omitted).
Considering such documents does not convert a motion to
dismiss to one for summary judgment. Goldfarb v. Mayor
& City Council of Baltimore, 791 F.3d 500, 508 (4th
in ruling on Defendant's Motion to Dismiss, this Court
will consider Plaintiff's EEOC Charge. See Stennis v.
Bowie State Univ., 236 F.Supp.3d 903, 907 n. 1 (D. Md.
2017) (explaining that “the EEOC charge and its related
documents are integral to the Complaint”); Bowie v.
Univ. of Maryland Med. Sys., No. ELH-14-03216, 2015 WL
1499465, at *3 n.4 (D. Md. Mar. 31, 2015) (“Courts
commonly consider EEOC charges as integral to a
plaintiff's Complaint, i.e., effectively a part
of the pleading, even if the EEOC charge is not filed with
the Complaint.” (citations omitted)).
asserts that Plaintiff's Title VII claims should be
dismissed because he failed to timely exhaust his
administrative remedies and fails to state a claim. (ECF No.
5.) Before bringing a Title VII discrimination claim in
federal or state court, a plaintiff must meet certain
statutory requirements. First, Title VII requires that a
plaintiff file a “charge” of discrimination with
the EEOC or appropriate agency before proceeding to court. 42
U.S.C. § 2000e-5(e)(1). The charge must be filed within
a specified time “after the alleged unlawful employment
practice occurred.” Id. In Maryland, a
deferral state,  a Title VII claim of discrimination must
be filed with the EEOC within 300 days of the alleged
discriminatory action. EEOC v. R & R Ventures,
244 F.3d 334, 338 n.1 (4th Cir. 2001). If the EEOC dismisses
the charge, a plaintiff has ninety days from receiving his or
her notice of dismissal and right to sue letter to file an
action in court. 42 U.S.C. § e-5(f)(1). Finally, a
plaintiff's suit is limited to the grounds asserted in
the underlying EEOC charge. Jones v. Calvert Group,
Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Failing to
exhaust administrative remedies deprives this Court of
subject matter jurisdiction over the claims. Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009).
filed his Charge on January 20, 2017. (ECF No. 1-2.)
Accordingly, any alleged conduct occurring before March 26,
2016 is untimely under the 300 day rule. Conney alleges in
his Charge that the discriminatory conduct occurred on March
11, 2016. Because this conduct falls outside of the 300 day
window, it is untimely. Further, although Plaintiff checked
the box “I believe that defendant is still committing
these acts against me” on the Complaint form, his
Charge did not indicate an ongoing violation. First, he did
not check the “continuing action” box on his EEOC
Charge. Second, he listed only March 11, 2016 for the date of
discrimination and in the particulars of the charge only
described conduct on March 11, 2016. Accordingly, he cannot
now allege a continuing violation, and Plaintiff has not
exhausted his administrative remedies.
Conney had exhausted his administrative remedies, the
Complaint fails to allege plausible claims under Title VII.
First, the Charge alleges that he was retaliated against. The
elements of a Title VII retaliation claim are: “(1)
engagement in a protected activity; (2) adverse employment
action; and (3) a causal link between the protected activity
and the employment action.” Coleman v. Maryland
Court of Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010).
Plaintiff alleges that he “filed a complaint” and
“shortly thereafter” was terminated. The
Complaint, however, does not provide any details about what
type of complaint he filed or where he filed the complaint.
Further, Plaintiff sufficient facts to plausibly show that he
was terminated because he filed such complaint.
Charge also alleges that he was discriminated against on the
basis of his race and gender. As the United States Court of
Appeals for the Fourth Circuit recently explained in
Swaso v. Onslow County Bd. of Educ., No. 16-2347,
698 Fed. App'x. 745 (4th Cir. 2017), a plaintiff may
establish a discrimination claim under Title VII by showing
direct or circumstantial evidence that the plaintiff's
status in a protected class was a motivating factor in an
adverse employment action or by relying on the
burden-shifting scheme established by the United States
Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Swaso, 698 Fed. App'x. at
747 (citing Holland v. Wash. Homes, Inc., 487 f.3d
208, 213-14 (4th Cir. 2007)). Under the McDonnel
Douglas framework, the plaintiff must first make out a
prima facie case of discrimination by showing that
(1) she or he is a member of a protected class; (2) her or
his job performance was satisfactory; (3) she or he was
subjected to an adverse employment action; and (4) “the
adverse employment action occurred ‘under circumstances
giving rise to an inference of unlawful discrimination'
[which can be] met if ‘similarly-situated employees
outside the protected class received more favorable
treatment.'” Id. (quoting Adams v. Tr.
of Univ. of N.C. -Wilmington, 640 F.3d 550, 558 (4th
Cir. 2011); White v. BFI Waste Servs., LLC, 375 F.3d
288, 295 (4th Cir. 2004)); see also Mackin v. Charles
Schwab & Co., Inc., No. DKC-16-3923, 2017 WL
4547423, at *3 (D. Md. Oct. 12, 2017) (applying this test to
the plaintiff's unequal terms and conditions of
employment claim). While a plaintiff does not need to plead a
prima facie case to survive a motion to dismiss, the
plaintiff must meet the ordinary pleadings standard under
Twombly and Iqbal. McCleary-Evans v.
Md. Dep't of Transp., 780 F.3d 582, 584-85 (4th Cir.
2015) (explaining that a plaintiff is still “required
to allege facts to satisfy the elements of a cause of
action” under Title VII).
the Complaint alleges no facts concerning whether
Plaintiff's job performance was satisfactory. Second, it
also does not allege that he was terminated under conditions
giving rise to an inference of unlawful discrimination. A
plaintiff may make this showing in at least two ways: by
showing “a general pattern of racial discrimination in
the practices of defendant” or by relying on
“comparator evidence.” Swaso v. Onslow County
Bd. of Educ., No. 16-2347, 698 Fed. App'x. 745 (4th
Cir. Aug. 10, 2017). As the Fourth Circuit explained,
“[w]here a plaintiff attempts to rely on comparator
evidence to establish circumstances giving rise to an
inference of unlawful discrimination, . . . ‘[t]he
similarity between comparators . . . must be clearly
established in order to be meaningful.'” (quoting
Lightner v. City of Wilmington, N.C. , 545 F.3d 260,
265 (4th Cir. 2008)). Conney has not shown an inference of
unlawful discrimination under either approach. The only
reference to gender he makes is that women arrived late and
left early without any disciplinary action being taken.
Conney neither alleges that he himself was disciplined for
arriving late or leaving early nor alleges that the women
were his comparators. See Haywood v. Locke, No.
09-1604, 387 Fed. App'x. 355, 359 (4th Cir. July 6, 2010)
(explaining that a plaintiff must show that he is
“similar in all relevant respects” to his
comparator). The only reference to race Plaintiff makes is
that his supervisor referred to him as “your
kind” and “stated horrible things.” This
single incident is not sufficient to ...