United States District Court, D. Maryland
K. Bredar Chief Judge
Norris Wleh filed this case in the Circuit Court for
Baltimore City against his former employer, New Age
Protection, LLC ("New Age"), claiming unlawful
retaliation under Maryland and federal law for engaging in
protected employment activity, fraud, and breach of contract
and asserting a request for "equitable relief to
establish an independent inquiry and for damages to make
Plaintiff whole." (Compl., ECF No. 1-2; Am. Compl., ECF
No. 1-8.) New Age removed the case to this Court because of
federal-question jurisdiction over the claim brought pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-3(a). (Notice of Removal, ECF No. 1.)
Supplemental jurisdiction over the state law claims exists
under 28 U.S.C. § 1367(a).
before the Court is New Age's Motion to Dismiss for Lack
of Subject Matter Jurisdiction Pursuant to Rule 12(b)(1) and
for Failure to State a Claim Pursuant to Rule 12(b)(6) or, in
the Alternative, to Transfer Venue. (ECF No. 8.) The motion
has been briefed (ECF Nos. 12, 14), and no hearing is
necessary, Local Rule 105.6 (D. Md. 2016). The motion to
dismiss will be granted as to the federal claim and the case
will be remanded to Maryland state court for resolution of
the state claims.
Standard for Dismissal for Lack of Subject-Matter
burden of proving subject-matter jurisdiction is on the
plaintiff. A challenge to jurisdiction may be either facial,
i.e., the complaint fails to allege facts upon which
subject-matter jurisdiction can be based, or factual,
i.e., jurisdictional allegations of the complaint
are not true. Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982). See also Kerns v. United States,
585 F.3d 187, 192 (4th Cir. 2009) (same); Richmond,
Fredericksburg & Potomac Ry. Co., 945 F.2d 765, 768
(4th Cir. 1991) (same). In the case of a factual challenge,
it is permissible for a district court to "consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment." Richmond,
Fredericksburg, 945 F.2d at 768 (citing Adams,
697 F.2d at 1219).
Standard of Dismissal for Failure to State 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) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility
exists "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. An inference of a mere
possibility of misconduct is not sufficient to support a
plausible claim. Id. at 679. As the Twombly
opinion stated, "Factual allegations must be enough to
raise a right to relief above the speculative level."
550 U.S. at 555. "A pleading that offers 'labels and
conclusions' or 'a formulaic recitation of the
elements of a cause of action will not do.' . . . Nor
does a complaint suffice if it tenders 'naked
assertion[s]' devoid of 'further factual
enhancement'" Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 555, 557). Although
when considering a motion to dismiss a court must accept as
true all factual allegations in the complaint, this principle
does not apply to legal conclusions couched as factual
allegations. Twombly, 550 U.S. at 555.
Allegations of the Complaint
amended complaint, Wleh alleges he worked for New Age from
May 2013 through June 2015. (Am. Compl. ¶ 2.) New Age
provides security services in the State of Maryland, and
during the time of Wleh's employment with New Age, he was
a security officer in good standing. (Id.
filed a charge of discrimination ("First Charge")
with the Equal Employment Opportunity Commission
("EEOC") around April 2, 2015, alleging a
failure to promote based upon sex and national origin.
(Id. ¶ 9.) As a result of mediation, Wleh and
New Age executed a Mediation Settlement Agreement
("MSA") on June 2, 2015. (Id. ¶¶
10, 11; Ex. A, MSA, ECF No. 1-8.) Under the MSA, Wleh agreed
not to institute a lawsuit based on his First Charge,
requested closure of the same, and agreed to resign his
employment on the effective date of the MSA in exchange for
New Age's payment, within fourteen days of the MSA's
execution, of four weeks of pay at Wleh's then-current
pay rate, with the "usual payroll deductions"; its
agreement to provide Wleh with a positive letter of
reference; and its agreement not to contest any claim made by
Wleh for unemployment compensation. (MSA 1-2.) The MSA
also included a confidentiality agreement. (Id. 2.)
accordance with the MSA, Wleh resigned his position effective
immediately on June 2, 2015. (Am. Compl. ¶ 12-E.)
Although New Age apparently tendered a check for the four
weeks of wages, Wleh alleges New Age made unusual deductions
that erroneously deprived him of $636.56 and that New Age
refused to correct the error at any time within 2015 or 2016.
(Id. ¶ 14.) Wleh does not say whether he cashed
the check or not. Wleh "within a week or so discovered
his claim for unemployment benefits had been denied by the
State of Maryland." (Id. ¶ 15.) Wleh
"appealed his unemployment denial, had a phone hearing
with the State, and during this phone call hearing, [New Age]
vigorously opposed [Wleh's] claim for unemployment
benefits, stating that he had received severance as well as
quit voluntarily." (Id. ¶ 16.) As a
result, Wleh was denied unemployment benefits. (Id.
¶ 17.) At an in-person hearing, New Age's
representative "appeared and opposed" Wleh's
claim, citing facts from the confidential EEOC mediation and
indicated that Wleh had voluntarily quit. (Id.
¶ 18; Ex. B, Unemp. Ins. Appeals Decision.) This hearing
resulted in an affirmance of the claim's denial.
found work in September 2015, but was denied unemployment
benefits of approximately $3, 267 during Summer and early
Fall 2015. (Am. Compl. ¶¶ 19, 27.) Wleh complained
to the EEOC about New Age's conduct and New Age then
filed with the EEOC Check Number 4710, dated January 31,
2017, "with an illegible signature, indicating payment
in full to [Wleh] for the lost unemployment benefits,"
although the check was never provided to Wleh. (Id.
¶ 20.) Around December 31, 2017, New Age issued Check
Number 3267 to Wleh "for full payment of the value of
his denied unemployment benefits." (Id. ¶
21.) Wleh alleges this payment "was pursuant to a small
claims court enforcement action that sought solely recovery
of the value of the wrongfully denied unemployment
benefits." (Id. ¶ 22.)
August 1, 2017, Wleh filed a Charge of Discrimination
("Second Charge") with the EEOC alleging New Age
had retaliated against him by breaching the MSA;
specifically, Wleh alleged that New Age had breached the MSA
by "denying [his] unemployment," giving to the
unemployment agency a copy of the MSA, not paying him all of
his final pay, and taking out too much tax (from his wage
payment check). (Am. Compl., Second Charge, Ex. C.) The
Second Charge notes the acts of discrimination took place on
June 2, 2015; ...