United States District Court, D. Maryland, Southern Division
J. HAZEL United States District Judge
Michael Briscoe filed a Complaint on June 19, 2017, alleging
that his employer, Defendant W.A. Chester, LLC, discriminated
against him on the basis of race over the course of nearly
eight years. Defendant filed a Motion to Dismiss for
Failure to State a Claim on October 24, 2017, which was
granted in part and denied in part by the Court on May 15,
2018. On July 30, 2018, Plaintiff filed a motion for leave to
file an Amended Complaint to add hostile work environment
claims under Title VII and 42 U.S.C. § 1981. ECF No. 27.
Defendant opposed this motion. ECF No. 28. No. hearing is
necessary. See Loc. R. 105.6 (D. Md. 2016). For the following
reasons, Plaintiff's Motion for Leave to Amend is denied.
a black man, has been employed as a Journeyman Lineman at
W.A. Chester since March 16, 2005. ECF No. 27-1 ¶ 9. On
March 11, 2007, he was promoted to Foreman. Id.
¶ 12. As part of his job duties, he was required to
monitor safety conditions on the jobsite and report to the
General Foreman. Id. ¶¶ 10. He also
deputized for Robert L. Ezzell, Jr., the General Foreman,
when Mr. Ezzell was unavailable. Id. ¶ 13. When
he served as General Foreman, he was paid accordingly.
August 18, 2008, Mr. Ezzell was transferred to another job
and ceased to be the General Foreman. Id. ¶ 22.
From that date until February 11, 2015, Plaintiff worked as
the General Foreman, but was never paid as such. Id.
at ¶ 22. On several occasions, Plaintiff made requests
to be paid as a General Foreman, but these requests were
denied. Id. In June 2013, Plaintiff learned that a
white male would be hired as the General Foreman.
Id. ¶ 23. The position was never posted as a
general vacancy, so Plaintiff had no opportunity to formally
apply for the position. Id. ¶ 17. Nevertheless,
Plaintiff continued to perform the duties required of a
General Foreman without being paid as such. Id.
¶ 24. Plaintiff alleges that this failure to
promote him, as well as a subsequent demotion on February 9,
2015, was motivated by racial discrimination in violation of
Title VII and 32 U.S.C. § 1981.
15, the Court granted a Partial Motion to Dismiss. ECF No.
21. In its opinion, the Court held that it would not hear
Plaintiffs failure-to-promote claim for two reasons. First,
Plaintiff did not include any reference to the lack of
promotion in his Charge of discrimination filed with the
Equal Employment Opportunity Commission; thus, Plaintiff
failed to exhaust his administrative remedies, which robs the
Court of jurisdiction. ECF No. 20 at 5. Second, the
failure to promote occurred in 2008, outside of the statute
of limitations both for Title VII and § 1981 claims.
Id. at 6-7. On July 30, Plaintiff filed a motion for
leave to amend his complaint, seeking to add hostile work
environment claims under both Title VII and § 1981. ECF
No. 27-1 ¶¶ 54-61. Defendant opposes the motion for
leave to amend, contending it is unduly delayed and futile.
ECF No. 28 at 1.
STANDARD OF REVIEW
leave to amend a pleading “shall be freely given when
justice so requires, ” Fed.R.Civ.P. 15(a), a motion for
leave to amend should be denied when the amendment would be
futile. Devil's Advocate, LLC v. Zurich Amer. Ins.
Co., 666 Fed.Appx. 256, 267. An amendment to a complaint
is futile when the amended complaint could not survive a
motion to dismiss under Fed.R.Civ.P. 12(b)(6). Id.
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court “must accept the
factual allegations of the complaint as true and construe
them in the light most favorable to the nonmoving
party.” Rockville Cars, LLC v. City of Rockville,
Md., 891 F.3d 141, 145 (4th Cir. 2018). To overcome a
12(b)(6) motion, the “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Plaintiffs must “provide sufficient
detail” to show “a more-than-conceivable chance
of success on the merits.” Upstate Forever v.
Kinder Morgan Energy Partners, 887 F.3d 637, 645 (4th
Cir. 2018) (citing Owens v. Balt. City State's
Attorneys Ofice, 767 F.3d 379, 396 (4th Cir. 2014)). The
mere recitation of “elements of a cause of action,
supported only by conclusory statements, is not sufficient to
survive a motion made pursuant to Rule 12(b)(6).”
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012). Nor must the Court accept unsupported legal
allegations. Revene v. Charles Cnty. Commis., 882
F.2d 870, 873 (4th Cir. 1989). A plausibility determination
is a “context-specific inquiry” that relies on
the court's “experience and common sense.”
Iqbal, 556 U.S. at 679-80.
racially hostile work environment exists “when the
workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive
to alter the conditions of the victim's employment and
create an abusive working environment.”
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,
276 (4th Cir. 2015) (quoting Meritor Sav. Bank, FSB v.
Vinson, 477 U.S. 57, 65-67 (1986)). To establish a
hostile work environment claim under either Title VII or 42
U.S.C. § 1981, the plaintiff “must show that there
is (1) unwelcome conduct; (2) that is based on the
plaintiff's race; (3) which is sufficiently severe or
pervasive to alter the plaintiff's conditions of
employment and to create an abusive work environment; and (4)
which is imputable to the employer.” Id. at
third element of this inquiry requires “‘looking
at all the circumstances,' which ‘may include the
frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably
interferes with an employee's work
performance.'” Id. (quoting Harris v.
Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). A discrete
discriminatory act is distinguishable from the
“repeated conduct” typically characteristic of a
hostile work environment claim. Id. For an
“isolated incident of harassment” to amount to
“discriminatory changes in the terms and conditions of
employment, ” the incident must be “extremely
serious.” Id. For example, in
Boyer-Liberto, the Fourth Circuit held that the
singular use of the racial epithet “porch monkey”
was sufficient to establish a racially hostile work
environment. Id. at 280.
Plaintiff offers only his racially motivated underpayment and
his demotion as evidence of a hostile work environment. The
Court has already determined that Plaintiff's allegations
of racial discrimination rooted in the failure to promote him
in June 2013 are outside of the statute of limitations for
both Title VII and § 1981, and that, in any case, these
allegations were not made in Plaintiff's EEOC Charge,
meaning he did not exhaust his administrative remedies before
bringing this claim. ECF No. 20 at 6-8.
now attempts to re-characterize Defendant's failure to
promote as a matter of pay discrimination, but these
allegations still were not made in Plaintiff's EEOC
Charge, so the Court cannot take jurisdiction over them.
See ECF No. 20 at 6. Therefore, in evaluating
Plaintiff's hostile work environment claim,
Plaintiff's demotion stands alone and it is insufficient
to support such a claim. Plaintiff makes no other allegations
of serious racial epithets, repeated harassment, or any other
behavior that could be considered severe or pervasive enough
to create an abusive work environment. Additionally,
Plaintiff's allegation ...