United States District Court, D. Maryland
J. HAZEL UNITED STATES DISTRICT JUDGE
case. Plaintiff Pauline Fagbuyi filed suit against her former
employers. Defendants Prince George's County and Prince
George's County Department of Health, for wrongful
termination and discrimination under Title VII of the Civil
Rights Act of 1964 ("Title VII") and the Age
Discrimination in Employment Act of 1967 ("ADEA").
ECF No. 9 at 1-2. Now-pending before the Court is
Defendants" Motion to Dismiss the Amended Complaint, or.
in the Alternative. Motion for Judgment on the Pleadings
("Motion to Dismiss"). FCF No. 10. The Motion has
been fully briefed and no hearing is necessary. See
foe. R. 105.6 (D. Md. 2016). For the following reasons.
Defendants' Motion to Dismiss is granted.
Pauline Fagbuyi worked for Defendant Prince George's
County (the "County") from October 2005 until the
date of her termination in August or September
2015. FCF No. 9 ¶ 7. Plaintiff is an
"adult black female whose national origin is
Nigeria." Id. ¶ 4. Plaintiff was born in
1947. and was over 65 years old when she was terminated,
Id. In 2015. Plaintiff was working for the County as
a Community Health Nurse within the family Health Services
department. Id. ¶7. During her entire tenure as
a Community Health Nurse. Plaintiff had never received any
written performance warnings or been the subject of other
disciplinary actions. Id. ¶ 8. When she began
working for the County. Plaintiff "was required to have
and did have a valid nursing license.""
Id. ¶ 10.
alleges that her immediate supervisor. Inga Lewis,
"repeatedly made discriminatory remarks to Ms. Fagbuyi
about her age. such as inquiring about her age. which was 68
at that time, and asking when she was going to retire."
Id. ¶ 12. Plaintiff further alleges that in the
summer of 2015. Lewis told a supervisor that she "hated
to see Ms. Fagbuyi around her." Id. On July 21,
2015. Lewis discovered that Plaintiffs nursing license had
expired on June 28. 2015. Id. ¶¶ 13-14.
Plaintiff was notified of the lapse, and she renewed her
license the same day. Id. ¶13. Plaintiff
alleges that "[a]ccording to Maryland State law. [she]
had a 30-day grace period in which to renew her license after
expiration." Id. ¶ 16. On August 4. 2015.
Plaintiff was served with a Notice of Proposed Disciplinary
Action and informed that she would be terminated for
"failing to renew her nursing license."
Id. ¶ 1 7. She was further advised that she
could "protest the proposed termination" within ten
days, which she did. Id. ¶¶ 22-23, On
September 2. 2015. Plaintiff was informed that she was being
terminated, effective the next day. Id. ¶ 24.
Plaintiff alleges generally that ""[u]pon
information and belief, other similarly situated nurses not
in Ms. Fagbuyi"s age. race and nationality protected
class were not similarly disciplined as a result of an
expired license." Id. ¶ 18.
1. 2016. Plaintiff tiled a Charge of Discrimination with the
Equal Employment Opportunity Commission ("EEOC")
for discrimination based on race, color, national origin and
age. Id. ¶ 25. On September 28. 2017. Plaintiff
initiated this lawsuit by filing a Complaint against the
Defendants. ECF No. 1. which she amended on December 21.
2017. ECF No. 9. In her Amended Complaint. Plaintiff alleges
that the Defendants are liable for Violation of Title VII
-Race. Color and National Origin, id. at 5
("First Cause of Action""): Violation of 29
U.S.C. Section 621 - Age Discrimination. id. at 6
("Second Cause of Action"): and Wrongful
Termination, id at 7 ("Third Cause of
Action"). On January 4. 2018. the County tiled the
now-pending Motion to Dismiss, and Plaintiff opposed the
Motion on January 18. 2018. ECF Nos. 10 and 11. The County
tiled a reply brief on January 31. 2018. ECF No. 13.
STANDARD OF REVIEW
survive a Rule 12(b)(6) motion to dismiss, "a complaint
must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face."" Asheroft v. Iqbal, 556 U.S. 662.
678 (2009) (citing Bell Atlantic Corp. v. Twombly.
550 U.S. 544. 570 (2007)). "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. "Threadbare recitals of
the elements of a cause of action, supported by mere
conciusory statements, do not suffice." Id.
(citing Twombly, 550 U.S. at 555 ("a plaintiffs
obligation to provide the 'grounds" of his
'entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of a cause of
action's elements will not do."')).
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) (citation and internal
quotation marks omitted). When deciding a motion to dismiss
under Rule 12(b)(6). a court "must accept as true all of
the factual allegations contained in the complaint." and
must '"draw all reasonable inferences [from those
facts in favor of the plaintiff." E.I du Pont tie
Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435.
440 (4th Cir. 2011) (citations and internal quotation marks
omitted). The Court need not. however, accept unsupported
legal allegations, see Reverie v. Charles County
Comm'rs, 882 F.2d 870. 873 (4th Cir. 1989). legal
conclusions couched as factual allegations. Papasan v.
Alluin, 478 U.S. 265. 286 (1986). or conclusory factual
allegations devoid of any reference to actual events.
United Black Firefighters of Norfolk v. Hirst, 604
F.2d 844, 847 (4th Cir. 1979).
Timeliness of Plaintiffs Claims
VII establishes two potential limitations periods within
which a discrimination charge may be filed with the
EEOC." Holland v. Washington Homes. Inc., 487
F.3d 208. 219 (4th Cir. 2007). See 42 U.S.C.A.
§ 2OOOe-5(e)(1). "In a State that has an entity
with the authority to grant or seek relief with respect to
the alleged unlawful practice, an employee who initially
files a grievance with that agency must file the charge with
the EEOC within 300 days of the employment
practice: in all other States, the charge must be
filed within 180 days. A claim is time barred if it is not
tiled within these time limits." Nat 7 R.R.
Passenger Corp. v. Morgan, 536 U.S. 101. 109 (2002). The
ADEA has the same limitation period. 29 U.S.C.A. §
626(d). "As Maryland is a deferral state. Plaintiff was
required to file a charge with the EEOC within 300 days of
the alleged unlawful employment practice." Miller v.
Kramon & Graham, P.A., No. GJH-15-1 OKI. 2016 WL
4379229. at *2(D. Md. Aug. 16. 2016).
Plaintiff received a "Notice of Proposed Disciplinary
Action- Dismissal" from Health Officer Pamela B.
Creekmur on August 4. 2015. ECF No. 11-2 at 1. The Notice
advised Plaintiff of Creekmurs "intent to dismiss you
from County employment effective the close of business August
18. 2015." hi The Notice further informed her
that she should "continue in a work status pending my
final decision in regard to this matter" and that she
had ten days "to respond in writing to the proposed
disciplinary action set forth herein." Id.
Defendants argue that Plaintiffs 300-day limitations period
began when she received her Notice of Proposed Disciplinary
Action on August 4. 2015. and that her Charge of
Discrimination was thus submitted 303 days after the
allegedly discriminatory conduct. ECF No. 10-2 at 6.
Plaintiff, on the other hand, argues that she did not receive
a definite notice of termination until September 3. 2015. and
that her Charge of Discrimination was properly submitted 272
days after she was notified of her termination. F.CF No. 11
Notice of Proposed Disciplinary Action was not a definitive
adverse employment action against Plaintiff. "An adverse
employment action is a discriminatory act that adversely
affect[s] the terms, conditions, or benefits of the
plaintiffs employment." Holland, 487 F.3d at
219 (internal quotation marks omitted). Although
"[c]onduct short of ultimate employment decisions can
constitute adverse employment action, " James v.
Booz-Allen & Hamilton. Inc.,368 F.3d 371. 375-76
(4th Cir. 2004) (internal quotation marks omitted),
"adverse employment action . . . denotes some direct or
indirect impact on an individual's employment as opposed
to harms immaterially related to it." Adams v. Anne
Arundel Cly. Pub. Schs.,789 F.3d 422. 431 (4th Cir.
2015). "An adverse action is one that constitutes a
significant change in employment status. such as hiring,
firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing
a significant change in benefits."'
Hayle v. Freightliner, LLC,650 F.3d 321. 337 (4th
Cir. 2011) (internal quotation marks omitted). On its face,
the Notice conveyed only Creekmur's "intent" to
terminate Plaintiff on August 18, 2015. and gave her the
opportunity to continue working and respond to the Notice.
Furthermore, the Notice stated that Creekmur's
"final decision" was forthcoming, making it clear
that the Notice was not a final decision. The Notice did not
have a "direct or indirect impact" on Plaintiffs
employment, nor was there a change in her "employment
status" or "benefits." Thus, the Notice did