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Wleh v. New Age Protection, LLC

United States District Court, D. Maryland

November 6, 2018

NORRIS WLEH, Plaintiff


          James K. Bredar Chief Judge

         I. Background

         Plaintiff 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).

         Pending 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.

         II. Standard for Dismissal for Lack of Subject-Matter Jurisdiction

         The 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).

         III. Standard of Dismissal for Failure to State a Claim

         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.

         IV. Allegations of the Complaint

          In his 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. ¶¶3, 4.)

         Wleh 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.[1]) The MSA also included a confidentiality agreement. (Id. 2.)

         In 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."[2] (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. (Id.)

         Wleh 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.)

         On 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; ...

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