United States District Court, D. Maryland
L. Russell, III United States District Judge.
MATTER is before the Court on Defendant United Parcel
Service, Inc.'s (“UPS”) Motion to Dismiss
Amended Complaint or, in the Alternative, for Summary
Judgment (ECF No. 17). This action arises from UPS's
employment of Plaintiff Khalilah Johnson as a package
delivery driver. The Motion is ripe for disposition, and no
hearing is necessary. See Local Rule 105.6 (D.Md.
2016). For the reasons outlined below, the Court will grant
in part and deny in part the Motion.
2014, Johnson filed a lawsuit against UPS and others
asserting discrimination based on race, sex, and religion.
See Johnson v. United Parcel Service, Inc., No.
RDB-14-4003 (D.Md. removed Dec. 23, 2014). The Court
ultimately entered summary judgment in favor of UPS on
Johnson's claims against it. See Johnson v. United
Parcel Service, Inc., No. RDB-14-4003, 2016 WL 4240072
(D.Md. Aug. 11, 2016). The United States Court of Appeals for
the Fourth Circuit affirmed the Court's decision. See
Johnson v. United Parcel Service, Inc., 681 Fed.Appx.
177 (4th Cir. 2017).
returned to work from an injury around May 1, 2015, at which
point her supervisor confronted her about her prior lawsuit.
(Am. Compl. ¶ 2, ECF No. 13). Subsequently, her delivery
truck began to be overloaded with disorganized packages.
(Id.). The over-packing occurred every day.
(Id. ¶ 5). Johnson believed the overloading of
her truck was retaliatory. (Id. ¶ 2(A)). When
she came to work on a day she was not scheduled to appear,
she found the truck packed neatly and safely for her
replacement driver. (Id.). On Friday, May 15, 2015,
Johnson's truck was so over packed that she was forced to
work past sundown, even though she had received a religious
accommodation allowing her to observe the Sabbath beginning
at sundown on Friday evenings. (Id. ¶ 10). When
Johnson warned her managers that they were violating her
religious accommodation, they expressed a lack of concern.
(Id. ¶¶ 10-13). In fact, Johnson alleges
that one of her supervisors would go out of his way to make
her work late on Friday afternoons, for the express purpose
of interfering with her religious accommodation.
(Id. ¶ 13).
June 1 and July 30, 2015, Johnson injured herself trying to
move around inside her truck in order to retrieve packages
and unload them for delivery. (Id. ¶ 2(D)). As
a result of these injuries, she was out of work beginning in
July 2015. (Id. ¶ 3). At this point, Johnson
filed complaints with UPS and sought workers'
compensation for her injuries. (Id. ¶¶
2(E), (G)). When Johnson returned to work in August 2017, the
over-packing resumed and she was again injured. (Id.
filed a separate Charge of Discrimination with the United
States Equal Employment Opportunity Commission
(“EEOC”), alleging retaliation and discrimination
based on sex and religion (the “Charge”). (Am.
Compl. Ex. D [“EEOC Charge”] at 16-17, ECF No.
13-4). On March 29, 2017, the EEOC issued Johnson
a Dismissal and Notice of Right to Sue. (Id. at 15).
filed the present action on June 27, 2017. (ECF No. 1).
Johnson filed an Amended Complaint on December 15, 2017. (ECF
No. 13). In her three-count Amended Complaint, Johnson
alleges: Retaliation Due to Protected Activity (Count I);
Retaliation for Requesting and Maintaining a Religious
Accommodation as a Sabbath Keeping Christian (Count II); and
Discriminatory Unequal Terms and Conditions of Employment Due
to Religion, Creating a Hostile Work Environment (Count III).
(Am. Compl. ¶¶ 1-24). Johnson seeks various
damages, front and back pay, pre- and post-judgment interest,
attorney's fees and costs, remedial training for UPS
management, and out-of-pocket medical expenses. (Id.
moves to dismiss each claim for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1)
and failure to state a claim upon which relief can be granted
under Rule 12(b)(6) or, in the alternative, for summary
judgment under Rule 56. Johnson filed an Opposition on
February 5, 2018. (ECF No. 20). UPS filed a Reply on March 5,
2018. (ECF No. 24).
Standard of Review
challenges, inter alia, whether Johnson exhausted
her administrative remedies for her claims. Motions to
dismiss for failure to exhaust administrative remedies are
governed by Rule 12(b)(1) for lack of subject matter
jurisdiction. Ferdinand-Davenport v. Children's
Guild, 742 F.Supp.2d 772, 777 (D.Md. 2010) (quoting
Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D.Md.
2003)). As a result, courts treat such motions as motions to
dismiss for lack of subject matter jurisdiction for the
purpose of this argument. Id.
defendant challenging a complaint under Rule 12(b)(1) may
advance a “facial challenge, asserting that the
allegations 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.'” Hasley v. Ward
Mfg., LLC, No. RDB-13-1607, 2014 WL 3368050, at *1
(D.Md. July 8, 2014) (alteration in original) (quoting
Kerns v. United States, 585 F.3d 187, 192 (4th Cir.
2009)). When a defendant raises a facial challenge, the Court
affords the plaintiff the “the same procedural
protection as he would receive under a Rule 12(b)(6)
consideration.” Kerns, 585 F.3d at 192
(quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th
Cir. 1982)). Because UPS raises a facial challenge to whether
Johnson exhausted her administrative remedies, the Court will
evaluate its Motion on subject matter jurisdiction grounds
under a Rule 12(b)(6) standard.
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint, ” not to “resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” King v.
Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting
Edwards v. City of Goldsboro, 178 F.3d 231, 243-44
(4th Cir. 1999)). A complaint fails to state a claim if it
does not contain “a short and plain statement of the
claim showing that the pleader is entitled to relief, ”
Fed.R.Civ.P. 8(a)(2), or does not “state a claim to
relief that is plausible on its face, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550
U.S. at 556). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Id. (citing Twombly,
550 U.S. at 555). Though the plaintiff is not required to
forecast evidence to prove the elements of the claim, the
complaint must allege sufficient facts to establish each
element. Goss v. Bank of Am., N.A., 917 F.Supp.2d
445, 449 (D.Md. 2013) (quoting Walters v. McMahen,
684 F.3d 435, 439 (4th Cir. 2012)), aff'd sub
nom., Goss v. Bank of Am., NA, 546 Fed.Appx.
165 (4th Cir. 2013).
considering a Rule 12(b)(6) motion, a court must examine the
complaint as a whole, consider the factual allegations in the
complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff. Albright v.
Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of
Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th
Cir. 2005) (citing Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)). But, the court need not accept unsupported or
conclusory factual allegations devoid of any reference to
actual events, United Black Firefighters v. Hirst,
604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at
Conversion to a Motion for Summary Judgment
case, UPS filed a Motion to Dismiss or, in the Alternative,
for Summary Judgment. (ECF No. 17). A motion styled as a
motion to dismiss or, in the alternative, for summary
judgment implicates the Court's discretion under Rule
12(d). See Kensington Vol. Fire Dept., Inc. v. Montgomery
Cty., 788 F.Supp.2d 431, 436-37 (D.Md. 2011),
aff'd sub nom. Kensington Volunteer Fire Dep't,
Inc. v. Montgomery Cty., 684 F.3d 462 (4th Cir. 2012).
This Rule provides that when “matters outside the
pleadings are presented to and not excluded by the court, the
[Rule 12(b)(6)] motion must be treated as one for summary
judgment under Rule 56.” Fed.R.Civ.P. 12(d).
Court “has ‘complete discretion to determine
whether or not to accept the submission of any material
beyond the pleadings that is offered in conjunction with a
Rule 12(b)(6) motion and rely on it, thereby converting the
motion, or to reject it or simply not consider
it.'” Wells-Bey v. Kopp, No. ELH-12-2319,
2013 WL 1700927, at *5 (D.Md. Apr. 16, 2013) (quoting 5C
Wright & Miller, Federal Practice &
Procedure § 1366, at 159 (3d ed. 2004, 2012
the Court exercises its discretion to decline to consider any
material beyond the pleadings. See id. (quoting
Wright & Miller, supra § 1366, at 159).
Thus, the Court will construe UPS's Motion as a motion to
dismiss under Rules 12(b)(1) and 12(b)(6).