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Vaziri v. Levindale Hospital/Life Bridge Health

United States District Court, D. Maryland

March 8, 2018

AKRAM VAZIRI, Plaintiff,
v.
LEVINDALE HOSPITAL/LIFE BRIDGE HEALTH. Defendants.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         Akram Vaziri, the self-represented plaintiff, filed this employment discrimination action on June 6, 2017, against her former employer, Levindale Hospital (“Levindale”), and against Life Bridge Health (“LifeBridge”). ECF 1 (Complaint).[1] Plaintiff alleges discrimination on the basis of her national origin (Iranian); religion (unspecified); age (unspecified); and disability (her daughter's “Generalized Anxiety disorder”), as well as retaliation. Id. at 4-8. In particular, plaintiff claims that she was denied training, denied a preferable shift at the hospital, and ultimately terminated as a result of this discrimination and in retaliation for filing a discrimination complaint. Id.

         Suit is founded on Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17; the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 to 634; and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12112 to 12117. ECF 1 at 5.

         Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6), defendants filed a motion to dismiss nearly all of plaintiff s claims. ECF 5. The motion to dismiss is supported by a memorandum of law (ECF 5-1) (collectively, “Motion”). In particular, defendants seek to dismiss LifeBridge as a defendant (ECF 5-1 at 7-8); to dismiss plaintiffs claims of discrimination based on religion, age, and disability as unexhausted (id at 8-10); to dismiss all of plaintiff s discrimination claims for failure to state a claim; and to restrict plaintiffs retaliation claim to events that occurred after December 31, 2014. Id. at 14-16.

         Plaintiff opposes the Motion. ECF 13 (“Opposition”). Defendants replied. ECF 14 (“Reply”). More than two months after defendants' Reply, plaintiff moved for leave to file a surreply. ECF 16 (“Motion for Surreply”). Plaintiff attached over 150 pages of exhibits to her proposed surreply, which were not posted to ECF. Defendants oppose the Motion for Surreply. ECF 17. Plaintiff did not reply.

         No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion for Surreply, and I shall grant the Motion in part and deny it in part. Plaintiff may amend her Complaint by March 30, 2018.

         I. Factual and Procedural Background[2]

         Plaintiff alleges that she began her employment with Levindale on March 21, 2011, as a Nursing Supervisor. ECF 1 at 5. According to plaintiff, she was “denied Training that was given to less qualified & younger employees . . . who were subsequently selected for positions denied to [plaintiff].” Id. at 4. Furthermore, over the course of her tenure at Levindale, plaintiff allegedly “reported wrong doing [sic] of some of the employees to [her] supervisor, ” Virginia Saunders. Id. at 5. Plaintiff claims that Saunders “provoked those employees against” Vaziri. Id.

         Vaziri asserts that her daughter, whose age does not appear to be mentioned, suffers from “Generalized Anixiety disorder” (id. at 8) and that plaintiff therefore requested a position with a day shift so she could be home with her daughter at night. Id. at 5. Vaziri complains that her request was denied, yet the requests of “younger, less experienced” employees were granted. Id.

         Plaintiff also notes that she “was the only Iranian nurse in the Hospital's employ, ” and asserts that she has “complained of being discriminated against on more than one occasion.” Id. at 4. It appears that she complained of such discrimination on October 22, 2015, and “on October 23, 2015 [she] was placed on a Performance Improvement Plan (PIP) without clear explanation.” Id. As a result, she filed a Charge of Discrimination with the Baltimore Community Relations Commission and the EEOC on October 27, 2015. Id.; see ECF 1-1 at 2. In November 2015, plaintiff's employment with Levindale was terminated. ECF 1 at 4.

         Plaintiff attached her EEOC charge to the Complaint (ECF 1-1 at 2, “Charge”), as well as the EEOC's Dismissal and Notice of Rights, which was issued on March 9, 2017. Id. at 1. The Charge, filed on October 27, 2015, named both defendants. Id. Vaziri checked boxes on the Charge form indicating that she was discriminated against on the basis of national origin, and that she suffered retaliation. Id. at 2. In her description of the claims, Vaziri stated that she had “not been selected for a day shift position while younger, less experienced employees have been given day shift positions.” Id. She also stated that she believed she had been retaliated against because of her national origin. Id.

         The Charge contains no mention of Vaziri's religion or her age. Nor does it include any facts as to LifeBridge. But, plaintiff entered her date of birth in the corresponding box on the Charge form, indicating that she was born in 1956. ECF 1-1 at 2. Therefore, Vaziri was over 40 years of age when she filed suit in June 2017.

         Also attached to plaintiffs Complaint is the EEOC's Dismissal and Notice of Rights. Id. at 1. The EEOC closed the matter on March 9, 2017, and informed plaintiff of her right to file a lawsuit within 90 days. Id. This suit followed on June 6, 2017. ECF 1.

         Although LifeBridge is named in the suit, it is not mentioned anywhere in the underlying facts. On her civil complaint form, plaintiff checked boxes indicating that the discriminatory conduct of which she complained included her termination, defendant's failure to promote her, and retaliation. Id. at 6. She checked a box indicating that the defendants “are still committing these acts against me, ” although she did not explain the basis for her assertion. Id. Plaintiff also checked boxes indicating that defendants discriminated against her on the basis of her religion, national origin, age, and disability. Id. In the Complaint, plaintiff identified her national origin as Iranian (Id. at 4) and the disability as belonging to her daughter. Id. at 5. However, she did not mention her religion or her age.

         Defendants moved to dismiss nearly all of plaintiff s claims on August 11, 2017, under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). ECF 5. As noted, defendants seek to dismiss LifeBridge as a defendant (ECF 5-1 at 7-8); to dismiss plaintiffs religion, age, and disability discrimination claims as unexhausted (id. at 8-10); to dismiss all her discrimination claims for failure to state a claim; and to restrict her retaliation claim to events that occurred after December 31, 2014. Id. at 14-16.

         Plaintiffs Opposition responds to some aspects of the Motion. ECF 13 at 3-4. It also contains a more detailed narrative of the alleged events underlying plaintiffs claims, styled as “Plaintiffs amendment to statement of Claim # III.Id. at 1-3. Defendants replied, opposing plaintiffs attempt to amend as noncompliant with the Federal Rules of Civil Procedure and the Local Rules of this Court. ECF 14 at 1-2. Defendants also assert that the proposed amendment is futile. Id. at 2-8.

         II. Motion for Surreply

         More than two months after defendants filed their Reply, plaintiff filed her Motion for Surreply. ECF 16. The proposed surreply clarifies that plaintiffs intent was not to amend her complaint via her Opposition, and contains another clarified set of factual allegations. Id. Plaintiff attached over 150 pages of exhibits to her proposed surreply. As indicated, the exhibits are not docketed on CM/ECF. Defendants oppose plaintiffs Motion for Surreply. ECF 17.

         Local Rule 105.2(a) provides that a party is not permitted to file a surreply without permission of the court. The filing of a surreply “is within the Court's discretion, see Local Rule 105.2(a), but they are generally disfavored.” EEOC v. Freeman, 961 F.Supp.2d 783, 801 (D. Md. 2013), aff'd in part, 778 F.3d 463 (4th Cir. 2015); see also, e.g., Chubb & Son v. C & C Complete Servs., LLC, 919 F.Supp.2d 666, 679 (D. Md. 2013). A surreply may be permitted when the party seeking to file the surreply “would be unable to contest matters presented to the court for the first time” in the opposing party's reply. Clear Channel Outdoor, Inc. v. Mayor & City Council of Baltimore, 22 F.Supp.3d 519, 529 (D. Md. 2014) (quotations and citations omitted). However, a surreply is generally not permitted where the reply is merely responsive to an issue raised in the opposition. See Khoury v. Meserve, 268 F.Supp.2d 600, 605-06 (D. Md. 2003).

         Plaintiffs Motion for Surreply does not assert that defendants raised new issues for the first time in their Reply. Rather, plaintiff states: “The defendants raised several issue in its [sic] motion. The Plaintiff seeks a fair opportunity to respond to those issues. Accordingly the Plaintiff, Akram Vaziri request that the court accept a brief surreply for this purpose.” ECF 16 at 1.

         In my view, a surreply is not warranted. Defendants did not raise any issues in their Reply that were not responsive to plaintiff's Opposition. See Khoury, 268 F.Supp.2d at 605-06. Moreover, even if I were to consider plaintiff's surreply, that document does not contain arguments opposing defendants' Motion so much as it contains a retelling of the facts underlying plaintiff's claims. “It is well-established that parties cannot amend their complaints through briefing or oral advocacy.” S. Walk at Broadlands Homeowner's Ass'n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013); see also Mylan Laboratories, Inc. v. Akzo, 770 F.Supp. 1053, 1068 (D. Md. 1991), aff'd, 2 F.3d 56 (4th Cir. 1993); Zachair Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4 (D. Md. 1997) (stating that a plaintiff “is bound by the allegations contained in its complaint and cannot, through the use of motion briefs, amend the complaint”), aff'd, 141 F.3d 1162 (4th Cir. 1998).

         In addition, plaintiff's surreply comes with over 150 pages of exhibits related to her employment history, including email chains between plaintiff and her coworkers, work schedules, prior complaints to her supervisors, and documents related to plaintiff's Performance Improvement Plan (“PIP”). These documents may be relevant to the claims, but they do not “give rise to the legal rights asserted, ” and so are not integral to the Complaint. Chesapeake Bay Found., Inc. v. Severstal Sparrows Point, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011) (citation omitted). At this stage of litigation, it is not appropriate to consider evidence beyond the pleadings that is not integral to the complaint. See Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). Therefore, I shall deny the Motion for Surreply.

         III. Motion to Dismiss - Legal Standards

         A. Rule 12(b)(1)

         A challenge to a federal court's subject matter jurisdiction is reviewed pursuant to Fed.R.Civ.P. 12(b)(1). Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const, Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A test of subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “‘that the jurisdictional allegations of the complaint [are] not true.'” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). A factual challenge can also assert that facts outside the four corners of the complaint preclude the exercise of subject matter jurisdiction. Id.

         Defendants bring a factual challenge because they argue that Vaziri failed to exhaust her administrative remedies under Title VII, the ADEA, and the ADA, in regard to her claims based on religion, age, and disability. ECF 5-1 at 8. Defendants argue that the failure to ...


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