United States District Court, D. Maryland
Lipton Hollander United States District Judge
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). 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.
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.
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.
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.
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.
Factual and Procedural Background
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.
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
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.
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.
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.
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.
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.
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.
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.
Motion for Surreply
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.
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).
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.
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).
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.
Motion to Dismiss - Legal Standards
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.
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 ...