United States District Court, D. Maryland, Southern Division
W. Grimm United States District Judge
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.
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. 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.
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.
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.
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
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.
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. He is not represented by
counsel. Am. Compl.
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
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
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
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
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.
to Exhaust Administrative ...