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Marley v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc.

United States District Court, D. Maryland, Southern Division

September 20, 2018




         Plaintiff 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.

         I. BACKGROUND

         A. Factual Background[1]

         Plaintiff 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.

         After 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.[2] 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.

         In 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. Id.[3]

         In 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.

         Unrelated 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. ¶¶ 44-46.

         B. Procedural Background

         Plaintiff 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.


         Plaintiff 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.[4] “[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[3] (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.

         Pursuant 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.” Id.

         In 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., 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 ...

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