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Philogene v. Data Networks, Inc.

United States District Court, D. Maryland, Southern Division

February 26, 2018

DATA NETWORKS, INC., [1] Defendant.


          Paul W. Grimm United States District Judge

         Plaintiff Clark Philogene, a Black male, began working for Defendant Data Networks, Inc. (“Company”) in June 2014. Am. Compl. 1, ECF No. 17. Mr. Philogene believes that he was harassed and discriminated against by individuals at the Company based on his race, national origin, and color, and that he was retaliated against for having complained to Human Resources about other employees' actions. Id. at 3-4. Ultimately, Mr. Philogene's employment at the Company was terminated, id. at 5; he filed a charge with the EEOC, EEOC Charge, ECF No. 1-1; and then he filed this litigation, ECF No. 1. He alleges discrimination (in the form of both harassment and termination) based on race, color, and national origin and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Am. Compl.

         The Company has filed a motion to dismiss Mr. Philogene's Amended Complaint in its entirety for lack of subject matter jurisdiction over his claims for national origin-based discrimination and for failure to state a claim on his remaining claims. Def.'s Mot., ECF No. 20.[2] Because this Court does not have subject matter jurisdiction over Mr. Philogene's national origin-based discrimination claims and Mr. Philogene has failed to state a claim for discrimination based on race or color, or a claim for retaliation, I will grant Defendant's motion and dismiss this case with prejudice.


         Mr. Philogene began working for the Company in June 2014. Am. Compl. 1. He contacted the Human Resources Department on October 1, 2015 and on May 19, 2016 to complain about perceived harassment. See Pl.'s Ex. 20-22, ECF No. 1-3. In particular, the email exchange from May 19, 2016 contains the subject line “uncomfortable work environment” and details that he is “being constantly harassed.” Id.

         Mr. Philogene alleges that supervisors Crystal Ray and Bryan Hennessy discriminated against him in the following ways: Mr. Philogene was told to sit at a desk and not to move; Ms. Ray told fabricated stories about Mr. Philogene to other employees at a weekly meeting; Ms. Ray took away Mr. Philogene's assigned cubicle and instituted a first come, first served policy for office seating; Mr. Philogene was forced to use the conference room when a desk was not available; and Mr. Philogene was yelled at and talked to in a condescending manner. Id. at 2-4.

         Mr. Philogene also alleges that Ms. Ray and Mr. Hennessey made inappropriate comments to him and others and allegedly did so to instigate a confrontation with him. Id. at 3 (e.g., Mr. Hennessey stated to Ms. Ray “Let's poke the Bear, ” apparently referring to Mr. Philogene). Mr. Philogene also alleges that Lora Neal (who presumably is his coworker) told him that “Ray told her ‘Slavery is the best thing that ever happened to America.'” Id. at 4. Mr. Philogene alleges that their final act of discrimination was to have his employment terminated. Id. Specifically, he alleges that he “performed satisfactorily for almost three years and received 3 rases [sic], ” yet was terminated, while “Darren Disque (white) performed sub-par and was never reprimanded.” Id.

         Based on these actions, Mr. Philogene claims that he “was [treated] differently and unfairly by Crystal Ray and Bryan Hennessy based on [his] race.” Id. Mr. Philogene believes that these actions, in addition to having been motivated by his race and color, were retaliation for his having spoken to Human Resources. Id. at 4-5.

         On February 21, 2017, Mr. Philogene filed a charge with the EEOC alleging discrimination on the basis of race and color, retaliation, and “other, ” which he specified as “conflict of interest/Libel.” EEOC Charge. After receiving a right to sue notice from the EEOC, ECF No. 1-2, Mr. Philogene filed this lawsuit, alleging that he was discriminated against and harassed on the basis of race, national origin, and color and that he was retaliated against during his employment (e.g. being called to meetings and being talked to in a condescending manner) and by his employment having been terminated.[4] He is not represented by counsel. Am. Compl.

         Consistent with the order that I issued at the start of this case governing the filing of motions, the Company filed a pre-motion letter, stating the grounds for a motion to dismiss that it wanted to file, which included Mr. Philogene's failure to exhaust his national origin-based claims, and his failure to establish a prima face case of discrimination, harassment, and retaliation by failing to plead sufficient facts. Pre-Mot. Ltr., ECF No. 9. I allowed Mr. Philogene the opportunity to amend his complaint to address the deficiencies the Company identified in its letter, ECF No. 15, and he did so. The Company, still believing the pleading to be deficient for the reasons previously disclosed to Mr. Philogene in its pre-motion letter, has moved to dismiss. Mr. Philogene filed an Opposition, mostly reiterating the allegations of the Amended Complaint and not addressing directly the Company's reasons why dismissal would be proper. Further, Mr. Philogene's Opposition requested that the Court “not focus on the technicalities, but to please focus on the fact, the violation of the civil rights act of 1964 (Title VII), events, and occurrences.” Pl.'s Opp'n 5.

         Notably, when a defendant's motion to dismiss a complaint states specific deficiencies that warrant dismissal, and presents supporting legal arguments, it is the plaintiff's obligation to respond substantively to address them. Failure to respond to the defendants' arguments constitutes abandonment of those claims. See Whittaker v. David's Beautiful People, Inc., No. DKC-14-2483, 2016 WL 429963, at *3 n.3 (D. Md. Feb. 4, 2016); Sewell v. Strayer Univ., 956 F.Supp.2d 658, 669 n.9 (D. Md. 2013); Ferdinand-Davenport v. Children's Guild, 742 F.Supp.2d 772, 777 & 783 (D. Md. 2010). Any abandoned claims are subject to dismissal with prejudice. Sewell, 2013 WL 6858867, at *4 (“retaliation claim was dismissed with prejudice . . . because she abandoned [the] claim by failing to address it in the reply brief.”); Farrish v. Navy Fed. Credit Union, No. DKC-16-1429, 2017 WL 4418416, at *3 (D. Md. Oct. 5, 2017). While abandonment of claims by failing to respond to them in his opposition alone may be a sufficient reason to dismiss a complaint, I nonetheless will independently consider the substantive sufficiency of his claims.

         Standards of Review

         “[F]ederal courts lack subject matter jurisdiction over Title VII claims for which a plaintiff has failed to exhaust administrative remedies.” Murphy v. Adams, No. DKC-12-1975, 2014 WL 3845804, at *7 (D. Md. Aug. 4, 2014) (quoting Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013)). For this reason, Defendant moves to dismiss Mr. Philogene's claim of discrimination on the basis of national origin, under Fed.R.Civ.P. 12(b)(1). In considering Defendant's motion, “the Court may . . . consider matters beyond the allegations in the complaint” because Defendant asserts that “the jurisdictional allegations in the complaint are not true.” Fontell v. MCGEO UFCW Local 1994, No. AW-09-2526, 2010 WL 3086498, at *3 (D. Md. Aug. 6, 2010); see Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). The Court “regard[s] the pleadings' allegations as mere evidence on the issue, ” and its consideration of additional evidence does not “convert[] the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac Ry. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see Adams, 697 F.2d at 1219 (“A trial court may consider evidence by affidavit, depositions or live testimony without converting the proceeding to one for summary judgment.”).

         Defendant also moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), which provides for “the dismissal of a complaint if it fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule'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.” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, 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, ” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” Iqbal, 556 U.S. at 678-79; see Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly). Similarly, “unsupported legal allegations need not be accepted.” Nam v. 2012 Inc., No. DKC-15-1931, 2016 WL 107198, at *3 (D. Md. Jan. 11, 2016) (citing Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989)). Although the filings of self-represented parties are afforded a more generous construction by the Court than those submitted by counsel, see Haines v. Kerner, 404 U.S. 519, 520 (1972), that deference does not absolve them from complying with the essential requirements of 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)).

         In an employment discrimination case such as this, the plaintiff “is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, ” but “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Nam, 2016 WL 107198, at *3 (quoting Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002). “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.


         Failure to Exhaust Administrative ...

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