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Gorham v. State, Department of General Services

United States District Court, D. Maryland

July 19, 2018



          Ellen L. Hollander United States District Judge

         In this employment discrimination case, plaintiff Michael J. Gorham filed suit against defendant State of Maryland, Department of General Services (“MDGS” or “Department”). ECF 1. He alleges disparate treatment on the basis of race as well as retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Id.

         Pending before this court is defendant's pre-discovery motion to dismiss under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) or, in the alternative, for summary judgment. ECF 4. The motion is supported by a memorandum of law (ECF 4-1) (collectively, the “Motion”) and several exhibits. Plaintiff opposes the Motion (ECF 7), supported by a memorandum (ECF 7-1) (collectively, “Opposition”), and has also submitted exhibits. Defendant did not file a reply.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, the Motion will be granted in part and denied in part.

         I. Factual Background [1]

         In 2007, MDGS hired plaintiff, an African-American, as a Maintenance Supervisor within the Facilities Operation and Maintenance, Multi-Service Division (“FOM”). ECF 1 ¶¶ 14-15; ECF 4-1 at 2. As a Maintenance Supervisor, plaintiff's responsibilities included reporting to and assisting the Regional Manager in matters of procurement, building maintenance operation, and supervising subordinate employees. ECF 1, ¶ 16. Throughout the course of plaintiff's employment, as positions became available, he “continuously” applied for promotions to become a Regional Manager. Id. ¶ 18.

         Barbara Bauman, who is Caucasian, is the Superintendent of the Department. She “has been the selecting official for the Regional Manager positions from 2008 to present.” Id. ¶ 19. According to plaintiff, instead of selecting him, MDGS hired several less qualified Caucasian employees to fill Regional Manager positions. Id. ¶¶ 20-21. They included Delbert Stallings, who was promoted from a Maintenance Mechanic in or around 2008, and Nicole Leary, who was promoted in 2016 from the position of Administrative Assistant. Id. ¶ 21. Additionally, the Department hired Mike Ireland in 2011 and Michael Kane in 2013 to serve in the position of Regional Manager. Id.

         In the beginning of 2016, Adrian Randall, an African-American, held the Regional Manager position for Region 3 (South Baltimore). Bauman Aff., ECF 4-3 at 1-5, ¶ 5. Randall informed MDGS that he intended to retire, on or about June 30, 2016. Id. at 3, ¶ 12. Accordingly, to fill the impending vacancy, Bauman issued an email announcement notifying “a broad range of employees in FOM who expressed interest in [the] position, ” including plaintiff, of the opportunity to be considered for the position. ECF 4-3 at 6 (email); see also ECF 4-3 at 2, ¶ 6; Pl.'s Opp., ECF 7-1 at 7. The email provided the job specifications, requested that potential applicants “make sure” they met the minimal job qualifications, and advised that candidates would be required to bring an application or resume to a subsequent interview. ECF 4-3 at 6. According to plaintiff, he inquired why the position was not publicly advertised, but Bauman did not provide any explanation. ECF 1, ¶¶ 23-24.

         Nine employees, including plaintiff and two other African-Americans, responded to Bauman's email and were scheduled for interviews. Bauman Aff., ECF 4-3 at 2, ¶ 7. According to the Department, because Bauman's brother, Brian Kramer, applied for the position, “[a] group of panelists were selected to conduct the interview process in order to distance [] Bauman from the selection process.” ECF 4-1 at 2 n.1.

         The four-person MDGS panel included one African-American employee. Bauman Aff., ECF 4-3, at 2, ¶ 8. During the interviews, the panel asked each candidate fourteen identical questions, and took notes on the responses, and included their positive and negative impressions. Id. ¶¶ 9-10. The panelists scored the candidates' responses and tallied their scores from each response to reach a total. Id. at 3, ¶ 11. A candidate's final rating equaled the sum of each of the panelist's individual scores. Id.

         The interview notes for Gorham are docketed at ECF 4-3 at 12-19. The rating sheets are docketed at ECF 4-3 at 20-36. The totals for each candidate for found at ECF 4-3 at 37-38.

         In June 2016, the panel selected Kramer to succeed Randall as Regional Manager for South Baltimore, because he was the candidate with the highest combined total score. ECF 4-3 at 3, ¶ 11; ECF 4-3 at 37-38; ECF 1, ¶ 25. According to the Department, plaintiff scored the lowest of all nine applicants. ECF 4-3 at 37-38. However, plaintiff contends that he was more experienced than Kramer, because he had three more years at MDGS and had worked in a supervisory capacity, while Kramer had not. ECF 1, ¶¶ 26-27.

         Additionally, plaintiff contends that Caucasian Maintenance Supervisors have a 7:00 a.m. to 3:00 p.m. work schedule, while he, the sole African-American Maintenance Supervisor, has a less favorable work schedule of 8:30 a.m. to 5:00 p.m. Id. ¶ 29.[2] Although plaintiff has requested that Bauman “change his schedule to match those of his colleagues, ” Bauman has repeatedly denied his requests. Id. ¶ 30. Moreover, after plaintiff changed his schedule to match those of the Caucasian Maintenance Supervisors, Bauman reinstituted his original schedule “without adequate justification.” Id. ¶¶ 31-32.

         On or about July 22, 2016, “because of his non-selection” to replace Randall as Regional Manager of South Baltimore, plaintiff filed a complaint of employment discrimination against MDGS with the Equal Employment Opportunity Commission (“EEOC”). ECF 1-1 at 1. The EEOC informed plaintiff that it “had complied with the law and notified the employer that [he] filed a charge” and instructed plaintiff to sign and return the attached “Charge of Discrimination” (“Charge”) form. Id.

         Plaintiff signed the Charge on July 30, 2016, alleging discrimination based only on race. Id. at 4. Plaintiff did not allege that he was subject to any other type of discrimination, such as retaliation. See Id. (the specific box to be checked for retaliation is left blank). In his Charge, under the section “DATE(s) DISCRIMINATION TOOK PLACE, ” plaintiff alleged that he was subject to discrimination only on one Dated: June 28, 2016. Id. In the section titled “The Particulars Are, ” plaintiff said, in part, id.: “In late June [2016] I was afforded an interview for [the position of Maintenance Supervisor] which I have continually expressed an interest in. However, despite my years of experience and record of performance, I was rejected in favor of a lessor [sic] qualified White Male . . . .” Further, he said, id.: “I believe I have been denied a promotion because of my race, Black . . . .”

         As a MDGS employee, plaintiff is subject to biannual performance evaluations from his Regional Manager. Bauman Aff., ECF 4-3, ¶ 13. As the “appointing authority” of Regional Managers, Bauman reviews and countersigns the performance evaluations. Id. ¶ 14. According to plaintiff, prior to Randall's retirement on or about June 30, 2016, Randall completed and signed plaintiff's performance evaluation. ECF 1, ¶ 34. Further, plaintiff contends that, because he filed an EEOC Charge and Bauman believed that Randall had given him an improper score, Bauman reevaluated plaintiff in August 2016 and “inexplicably lowered [his score] to Satisfactory, with a score of 2.41.” Id. ¶¶ 33, 35-36, 59. According to plaintiff, his lowered evaluation score was “used against” him by MDGS as a basis not to promote him. ECF 4-3 at 45.

         The Department, on the other hand, contends that Bauman countersigned the evaluation on August 23, 2016, when the Department had no knowledge of plaintiff's EEOC Charge. It claims that plaintiff's Charge “was not received by the State of Maryland until August 23, 2016.” ECF 4-1 at 3. MDGS relies on the affidavit of Glynis Watford as to the date that the State received notice. See Watford Aff., ECF 4-4.

         Since 2007, Watford has been the Statewide EEO Coordinator of the Department of Budget and Management. Id. ¶ 1. As part of her duties, Watford “often receive[s] Notices of Charges of Discrimination when complaints have been filed with the [EEOC] by Maryland State employees. Id. ¶ 4. According to Watford, she received an email notice from the EEOC as to plaintiff's Charge “on or about August 23, 2016.” Id. ¶ 5. See also ECF 4-4 at 3 (email notice). The Charge itself was received on August 23, 2016. ECF 4-4 at 2, ¶ 6. Thereafter, she forwarded the EEOC Charge to Robert A. McFarland, Assistant Attorney General, Department of General Services. Id.

         Moreover, MDGS contends that Bauman did not reduce Randall's initial evaluation score. ECF 4-1 at 12. Instead, because Randall had improperly entered plaintiff's scores as “mid-term evaluations, ” Bauman merely corrected the evaluation “by entering the identical scoring information on the end-cycle column and submitted the corrected version to the plaintiff for review and signature.” Id. (citing Bauman Aff., ECF 4-3, ¶¶ 12-16) (emphasis in original). According to MDGS, the performance evaluation from Bauman “was identical to that actually done by [] Randall before his retirement . . . .” ECF 4-1 at 12.

         II. Legal Standards

         Plaintiff alleges that, in violation of Title VII, MDGS discriminated against him on the basis of his race and retaliated against him for filing an EEOC Charge. ECF 1. MDGS seeks dismissal and/or summary judgment as to each of plaintiff's claims. ECF 4.

         In particular, the Department contends that this court lacks subject matter jurisdiction to consider the failure to change work schedule claim under Count One and Count Two, and plaintiff's retaliation claim in Count Two, because plaintiff failed to exhaust his administrative remedies, as required by Title VII. ECF 4-1 at 6-11. Further, MDGS posits that, with respect to plaintiff's retaliation claim, because the dates of the alleged retaliatory actions are prior to MDGS having received notice of plaintiff's EEOC Charge, plaintiff has failed to state a claim upon which relief can be granted. Id. at 11-13. Finally, MDGS argues that, with respect to plaintiff's claim of racial discrimination, there is no dispute of any material fact, thereby entitling it to summary judgment as a matter of law. Id. at 13-17.


         “Motions to dismiss for failure to exhaust administrative remedies are governed by [Federal Rule of Civil Procedure] 12(b)(1) for lack of subject matter jurisdiction.” Clarke v. DynCorp Int'l LLC, 962 F.Supp.2d 781, 786 (D. Md. 2013) (quotation marks and citation omitted). 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 The Piney Run Pres. Ass'n v. The Cty. Comm'rs Of Carroll Cty., MD, 523 F.3d 453, 459 (4th Cir. 2008). A Rule 12(b)(1) motion should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Clarke, 962 F.Supp.2d at 786 (quotation marks and citation omitted).

         A challenge to 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) (alteration in original); see also Durden v. United States, 736 F.3d 296, 300 (4th Cir. 2013). A factual challenge can assert that facts outside the four corners of the complaint preclude the exercise of subject matter jurisdiction. Id.

         In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192. On the other hand, in a factual challenge, “the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.” Id. In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009); Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999).

         Notably, the court may take judicial notice of the existence and contents of EEOC proceedings “if necessary to decide issues like exhaustion of administrative remedies[.]” Clarke, 962 F.Supp.2d at 787. But, “it may not take judicial notice of the truth of matters outside the challenged pleading.” Id. (emphasis in Clarke).


         Under Rule 12(b)(6), a defendant may test the legal sufficiency of a complaint by way of a motion to dismiss. In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th Cir. 2010), aff'd sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.”

         Whether a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). That rule provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

         To survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions' . . . .”); see also Willner v. Dimon, 849 F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v. City of Shelby, Miss., __ U.S. __, 135 S.Ct. 346, 346 (2014) (per curiam).

         Nevertheless, the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555; see Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action, ” it is insufficient. Twombly, 550 U.S. at 555. Rather, to satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at 556 (internal quotation marks omitted).

         In reviewing a Rule 12(b)(6) motion, 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 de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. MTA, 845 F.3d 564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v. Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986). “A court decides whether [the pleading] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).

         Courts generally do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses'” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint, ” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.'” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman ).

         In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a court ordinarily “may not consider any documents that are outside of the complaint, or not expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013); see Bosiger, 510 F.3d 442, 450 (4th Cir. 2007). However, a court may properly consider documents incorporated into the complaint or attached to the motion to dismiss, “‘so long as they are integral to the complaint and authentic.'” U.S. ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v. Pitt Cty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see Six v. Generations Federal Credit Union, 891 F.3d 508, 512 (4th Cir. 2018); Goldfarb v. Mayor & City Council of Balto., 791 F.3d 500, 508 (4th Cir. 2015); Anand v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014); Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979 (2004).

         To be “integral, ” a document must be one “that by its ‘very existence, and not the mere information it contains, gives rise to the legal rights asserted.'” Chesapeake Bay Found., Inc. v. Severstal Sparrows Pint, LLC, 794 F.Supp.2d 602, 611 (D. Md. 2011) (citation omitted; emphasis in original). See also Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”).

         However, “before treating the contents of an attached or incorporated document as true, the district court should consider the nature of the document and why the plaintiff attached it.” Goines, 822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 455 (7th Cir. 1998)). “When the plaintiff attaches or incorporates a document upon which his claim is based, or when the complaint otherwise shows that the plaintiff has adopted the contents of the document, crediting the document over conflicting allegations in the complaint is proper.” Goines, 822 F.3d at 167. Conversely, “where the plaintiff ...

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