United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
Roberto Marley filed this action against his former employer,
Defendant Kaiser Foundation Health Plan of the Mid-Atlantic
States, Inc. (“Kaiser”), bringing claims of
gender-based hostile work environment and retaliation under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000
et seq., retaliation under the Family Medical Leave
Act, 28 U.S.C. § 2601 et seq., and wrongful
termination. Presently pending before the Court are
Defendant's Motion to Dismiss, ECF No. 19, and
Plaintiff's Motion for Leave to File a Third Amended
Complaint, ECF No. 23. Both motions have been briefed, and a
hearing was held on February 2, 2018. For the following
reasons, Defendant's Motion is granted, in part, and
Plaintiff's Motion is denied.
began working for Kaiser in May of 2011 and regularly
received awards and positive performance reviews through July
of 2014. ECF No. 23-1 ¶¶ 6-7. In August of 2014,
Plaintiff accepted a benefits position at Kaiser and was
supervised by Tony Richardson. Id. ¶ 8.
Plaintiff alleges that between September and November of
2014, Richardson engaged in a pattern of harassment based on
Plaintiff's national origin and gender. The most
egregious allegations are as follows: Richardson told
Plaintiff that he was inferior because he was “a
foreigner, ” id. ¶ 9; Richardson told
Plaintiff that he knew he was gay by “instinct”
and that Richardson did not have the “Macho factor,
” Id. ¶ 10-11; Richardson slapped his
hand on Plaintiff's buttocks, id. ¶ 12;
Richardson told Plaintiff that he loved it when Plaintiff
wore “tight pants, ” id. ¶ 14;
Richardson told Plaintiff that he was “too soft”
and needed to “man up, ” id. ¶ 15;
Richardson physically assaulted Plaintiff by pushing him in
the chest, id. ¶ 16; Richardson told Plaintiff,
after Plaintiff requested to take a lunch break, that
“[Plaintiff] is not a woman that is pregnant which only
a woman that is pregnant . . . needs a break and lunch often.
You need to take it as a man.” Id. ¶ 17.
Plaintiff informed Richardson that he found his conduct to be
“offensive and harassive” and said he would go to
the Vice President, Richardson placed Plaintiff on a
Performance Improvement Plan in November of 2014,
id. ¶ 19, and threatened to terminate Plaintiff
after Plaintiff complained about Richardson's conduct to
Kaiser's internal “EEO office” in December of
2014. Id. ¶ 22. After his complaint, he applied
for a promotion and was told he would not be hired for the
position because he had a “big mouth.”
Id. ¶ 24. He was also told not to apply and
that he would not get the position because he was on a 30 day
Performance Improvement Plan and that he would not be
transferred or promoted for any other position during his
tenure with Kaiser. Id. ¶ 24. Thereafter,
Plaintiff contacted the Equal Employment Opportunity
Commission (“EEOC”) and completed an EEOC intake
questionnaire on December 22, 2014, alleging race and
national origin discrimination by Richardson. Id.
¶ 25; ECF No. 18-1 at 5-11. In the intake questionnaire,
Plaintiff stated that Richardson reprimanded him by issuing a
“30 days warning letter” on December 19, 2014,
which Plaintiff alleged was based on Richardson labeling him
as “being a foreigner.” Id. at 6.
Plaintiff further alleged that Richardson was treating him
less favorably than three female workers on his team.
Id. Plaintiff also supplemented his intake
questionnaire with a three-page letter describing specific
examples of Richardson mistreating Plaintiff. While Plaintiff
alleged that Richardson favored three female employees over
him, the acts of harassment, discrimination, and retaliation
underlying the statements in the letter are based on
Richardson's alleged animus towards Plaintiff based on
his national origin. See Id. at 9-11.
addition to Plaintiff's EEOC intake questionnaire, a
Charge of Discrimination (“Charge”) was drafted
against Kaiser. The Charge alleged Title VII discrimination
based on Sex, National Origin, and Retaliation from events
occurring in September of 2014 through January of 2015. ECF
No. 18-1 at 1-4. Specifically, the Charge alleged that
Richardson harassed Plaintiff because of his national origin,
told him he was “too soft” and needed to
“man up, ” placed Plaintiff on a 30-day
performance improvement plan after Plaintiff told Richardson
that he was not comfortable with his conduct, and threated to
fire Plaintiff after he filed a complaint of national origin
discrimination within Kaiser. Id. at 2. Plaintiff
signed the Charge on April 24, 2015.
March of 2015, Plaintiff informed Sheila Blackman,
Richardson's supervisor, that Richardson had manipulated
Plaintiff's timecard and intentionally provided false
dates of absence in retaliation for Plaintiff's EEO
complaint. ECF 23-1 ¶ 29. In May of 2015, Plaintiff
again complained to Blackman that Kaiser continued to fail to
investigate Richardson's allegedly discriminatory
conduct. Id. ¶ 31. Thereafter, on August 7,
2015, Plaintiff alleges that Blackman stated that Human
Resources had completed its EEO investigation, heard a rumor
that Plaintiff was going to sue Kaiser, and stated that she
was going to “keep track” of Plaintiff's
performance. Id. ¶ 32.
to Richardson's conduct, Plaintiff suffered a head injury
on August 10, 2015, resulting in neurological symptoms that
required “intense cognitive therapy, ” for which
Plaintiff needed to be out of work for at least three months.
Id. ¶¶ 33. Plaintiff alleges that his
supervisor discouraged him from seeking workers compensation
benefits, telling Plaintiff that he “should not have
involved an attorney” and that “they could have
taken care of it ourselves.” Id. ¶ 35. As
a result of the injury, Plaintiff was in and out of work
throughout August 2015 and was issued a certification that he
would need treatment for approximately two to three months.
Id. ¶ 40. That same month he was issued a
Performance Improvement Plan, and written warning.
Id. ¶¶ 37-40. In September and October,
Plaintiff commenced his FMLA leave after obtaining
certification from his health care provider and was on a
reduced 32-hour per week work schedule as he sought medical
treatment. Id. ¶ 42. Thereafter, Plaintiff
received a second written warning on October 16th,
a final written warning on November 2nd, and was
ultimately terminated on November 16, 2015. Id.
filed his initial Complaint pro se on May 2, 2017 in
the Circuit Court for Montgomery County and subsequently
filed an Amended Complaint on June 29, 2017 after retaining
counsel. ECF No. 2. On July 12, 2017, Defendant removed the
action to this Court, ECF No. 1, and filed its First Motion
to Dismiss on July 19, 2017. ECF No. 6. Thereafter, on
October 10, 2017, the Court granted Plaintiff's motion
for leave to file a Second Amended Complaint, ECF No. 11, and
denied Defendant's First Motion to Dismiss as moot.
See ECF No. 17. After Defendant filed its Second
Motion to Dismiss on October 24, 2017, ECF No. 19, and each
party filed its respective Response and Reply briefs, ECF
Nos. 20 and 22, Plaintiff filed another motion for leave to
amend his complaint on January 11, 2018. See ECF No.
23; ECF No. 23-1 (Third Amended Complaint). The parties
addressed both motions during the Court's February 2,
2018 motions hearing.
STANDARD OF REVIEW
moves for leave to file a Third Amended Complaint. ECF No.
23. Pursuant to Federal Rule of Civil Procedure 15(a)(2),
plaintiffs may amend their complaint with the court's
leave, and “[t]he court should freely give leave when
justice so requires.” “[T]he general rule is that
leave to amend a complaint under Federal Rule of Civil
Procedure 15(a) should be freely given, unless the amendment
would be prejudicial to the opposing party, there has been
bad faith on the part of the moving party, or the amendment
would have been futile.” Steinburg v. Chesterfield
Cnty. Planning Comm'n, 527 F.3d 377, 390 (4th Cir.
2008). Defendant's primary argument here is that the
Third Amended Complaint is futile. “[T]he Court may deny
as futile a motion to amend a complaint when the proposed
complaint would not survive a motion to dismiss.”
Dehaemers v. Wynne, 522 F.Supp.2d 240, 244 (D.D.C.
2007) (citing James Madison, Ltd. v. Ludwig, 82 F.3d
1085, 1099 (D.C. Cir. 1996); 3 Moore's Federal Practice
§ 15.15 (3d ed. 2000) (“An amendment is futile
if it merely restates the same facts as the original
complaint in different terms, reasserts a claim on which the
court previously ruled, fails to state a legal theory, or
could not withstand a motion to dismiss.”)). Thus, in
determining the futility of Plaintiff's Third Amended
Complaint, the Court will discuss whether the claims would
survive a Motion to Dismiss.
to Federal Rule of Civil Procedure 12(b)(6), the Court may
dismiss a complaint for failure to state a claim upon which
relief can be granted. To survive a 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.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
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.”
evaluating the sufficiency of Plaintiff's claims, the
Court “must accept as true all of the factual
allegations contained in the complaint” and “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 and internal quotation marks omitted). However,
the complaint must contain more than “legal
conclusions, elements of a cause of action, and bare
assertions devoid of further factual enhancement.”
Nemet Chevrolet, Ltd v. Consumeraffairs.com, Inc.,
591 F.3d 250, 255 (4th Cir. 2009). “Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not ...