United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
Adebusoye, who is from Nigeria, worked as a Correctional
Officer at the Prince George's County Correctional
Center. After his employment was terminated for use of
excessive force, Adebusoye challenged the decision in state
court, filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”), and ultimately
filed suit in this Court pursuant to Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000 et seq. Compl., ECF No. 1. Defendants
Prince George's County Department of Corrections
(“DOC”) and its Director, Mary Lou McDonough,
filed a pre-motion letter, seeking to file a motion to
dismiss on Rooker- Feldman abstention grounds or under
the doctrine of collateral estoppel, based on the state court
litigation affirming the DOC's decision. Defs.' Ltr.,
ECF No. 4. Noting that Adebusoye alleged that his termination
was discriminatory and retaliatory, Defendants also asserted
that, for his retaliation claim, Adebusoye failed to exhaust
his administrative remedies or state a claim. See
id.; see also Defs.' Supp. Ltr, ECF No. 11.
filed an Amended Complaint to name only Prince George's
County (the “County”) as a
Defendant; to clarify the claims he brings (one for
discrimination based on national origin and one for
retaliation, both in violation of Title VII); and to address
the other perceived deficiencies. ECF No. 15. Believing that
some of the alleged defects still exist, the County filed the
pending Motion to Dismiss, ECF No. 16. Adebusoye failed
to exhaust his administrative remedies for his retaliation
claim, and it must be dismissed for lack of subject matter
jurisdiction. As for the discrimination claim, dismissal is
not warranted under either Rooker-Feldman or
collateral estoppel, although Adebusoye is estopped from
re-litigating the issues decided by the state court. This
litigation is beyond the scope of the state court litigation,
as Adebusoye now claims that the termination of his
employment, even if justified by his use of excessive force,
was discriminatory. Accordingly, I will grant the
County's motion in part and deny it in part.
20, 2011, Adebusoye, who was a Correctional Officer at the
Prince George's County Correctional Center at that time,
“used force to protect himself” from a detainee
who “advanced towards the Plaintiff in an aggressive
manner, ” causing Adebusoye to “fear for his
safety” because he knew that the detained had “a
history of hostile and unsafe interactions with employees of
the Department.” Am. Compl. ¶¶ 20-22.
Following the incident, “a disciplinary proceeding was
commenced against the Plaintiff . . . .” Id.
¶ 23. The administrative hearing board (the
“Board”) “ultimately found the Plaintiff
guilty as charged and recommended a sanction, including (1) a
demotion in rank and pay, and (2) a suspension without
pay.” Id. ¶ 24. The Director, whose
approval was required, instead “imposed a sanction of
termination.” Id. On February 17, 2012, the
County terminated Adebusoye's employment. Id.
completed an EEOC Intake Questionnaire on February 21, 2012,
claiming discrimination based on race and national origin, as
well as retaliation, disparate treatment, and defamation.
Intake Questionnaire, ECF No. 1-2, at 3, 5. The next day,
February 22, 2012, he signed and filed a formal EEOC Charge
of Discrimination, narrowing his claim to discrimination
based on national origin. EEOC Charge, ECF No. 1-2, at 7. He
alleged: “I believe I have been discharge[d] because of
my national origin (Nigerian) in violation of Title VII of
the Civil Rights Act of 1964, as amended.” Id.
filed a handwritten Supplement, alleging that when his
employment was terminated on February 17, 2012, a conflict
arose regarding the return of his vest. ECF No. 1-2, at 9-11.
According to Adebusoye, he returned his “ID card, keys,
& badge” and was asked to remove his “vest,
which [he] wore under [his] uniform dress, ” but not
given privacy to remove it. Id. at 9. He claims that
he was intimidated and threatened with arrest and forcible
removal of the vest, id., and although in the end he
was able to remove the vest in an office with only one other
officer present, he was “so embarrassed” because
afterwards, a “group . . . escorted [him] out”
and “the entire lobby was packed with nosy employees
& visitors who could tell [he] was fired, ”
id. at 10-11. Notably, he did not mention race or
retaliation in the EEOC Charge or Supplement or check the box
next to either basis of discrimination on the EEOC Charge.
also appealed the decision to terminate his employment to the
Circuit Court for Prince George's County, Maryland on
February 28, 2012. Tr. 2:16-20, ECF No. 16-7; State Ct.
Docket 1, ECF No. 16-7. He did not raise discrimination or
retaliation before the state court. Rather, he asserted that
the Department's collective bargaining agreement with its
employees required that any disciplinary sanctions had to be
either identified in the Board's disciplinary action
recommendation within 120 days of the date of the incident or
imposed by the Department within that timeframe. Hr'g Tr.
3:10-11, 4:1-25. He argued for reversal of his termination
because, although the Board issued its recommendations within
120 days of the incident, termination of employment was not
one of the Board's recommendations, and the Department
did not terminate his employment within the 120-day period,
such that its decision (in his view) was untimely.
state court rejected his argument and affirmed the
Board's decision. Hr'g Tr. 21:2-3; see Id.
at 22:1-12 (“[T]he whole point of the disciplinary
action recommendation is to determine whether or not these
events occurred. And that Board gets to make their
recommendations and, of course, it's ultimately at the
discretion of the director. To me, this procedure is very
clear. You have to serve the notice within 120 days and then
you have to have a hearing 45 days after. In this case, he
waived his right to a hearing within the 45 days. The
subsections of that [collective bargaining agreement
provision] would be totally meaningless if I interpreted it
any other way. So I am going to affirm the decision of the
administrative hearing court.”). The state court issued
an order on August 24, 2012 that “the decision of the
Prince George's County Department of Corrections is
AFFIRMED.” State Ct. Docket 5. Adebusoye appealed to
the Maryland Court of Special Appeals but then dismissed his
appeal on April 29, 2013. Id. at 5-6.
29, 2017, the EEOC found that the DOC “violated Title
VII with regards to discharge due to [Adebusoye's]
national origin (Nigerian).” Determination, ECF No.
1-2, at 13. It issued a Notice of Right to Sue on November
24, 2017. Notice, ECF No. 1-2, at 16.
then filed suit in this Court on January 17, 2018, alleging
that “there was a long standing and notorious animosity
within the Department toward foreign born correctional
officers, specifically, correctional officers of African
descent, ” Am. Compl.. ¶ 26, and that
“African born correctional officers were subject to
racial slurs, derogatory language, systematic denial of
promotional and employment opportunities, and severe
sanctions as a result of infractions, ” id.
¶ 27. Adebusoye “made multiple Complaints to
the Department [of Corrections] regarding the treatment of
African born correctional officers, ” and
“[t]hese complaints were well known and dr[e]w disfavor
for the Plaintiff.” Id. ¶ 37.
view, his “disciplinary proceedings were intentionally
manipulated to produce the desired result; the Plaintiffs
guilt.” Id. ¶ 28. He alleges that the
County “has previously adjudicated excessive use of
force complaints against other correctional officers, not
originating from Africa, ” and “[t]hose
correctional officers were not subject to termination.”
Id. ¶ 30. He claims that the County's
termination of his employment was an act of discrimination
based on his national origin and retaliation for his
complaints about the County's alleged discriminatory
“treatment of African born correctional officers,
” in violation of Title VII. Id. ¶ 37;
see also Id. ¶¶ 25-45. He seeks
reinstatement, back pay, and other monetary damages.
Id. at 7-8.
County moves to dismiss both claims for lack of jurisdiction
or, alternatively, for failure to state a claim.
defendant moves to dismiss under Fed.R.Civ.P. 12(b)(1) for
lack of subject matter jurisdiction, asserting that “a
complaint simply fails to allege facts upon which subject
matter jurisdiction can be based, ” as the County does
here for failure to exhaust administrative remedies and under
Rooker-Feldman,  “the facts alleged in the
complaint are assumed to be true and the plaintiff, in
effect, is afforded the same procedural protection as he
would receive under a 12(b)(6) consideration.”
Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982);
see Lutfi v. United States, 527 Fed.Appx. 236, 241
(4th Cir. 2013); Fianko v. United States, No.
PWG-12-2025, 2013 WL 3873226, at *4 (D. Md. July 24, 2013).
Thus, “the motion must be denied if the complaint
alleges sufficient facts to invoke subject matter
jurisdiction.” Kerns v. United States, 585
F.3d 187, 192 (4th Cir. 2009); see In re KBR, Inc., Burn
Pit Litig., 925 F.Supp.2d 752, 758 (D. Md. 2013)
(quoting Kerns, 585 F.3d at 192). Adebusoye attached
his EEOC filings to his Complaint and Amended Complaint, ECF
No. 1-2, at 7; ECF No. 15-3, at 7, and such documents
attached to a complaint are a part of the pleadings.
See Fed. R. Civ. P. 10(c). Further, where
allegations in the operative complaint conflict with an
attached written instrument, “the exhibit
prevails.” Fayetteville Inv'rs v. Commercial
Builders, 936 F.2d 1462, 1465 (4th Cir. 1991).
to Rule 12(b)(6), Adebusoye's Amended Complaint is
subject to dismissal if it “fail[s] to state a claim
upon which relief can be granted.” Fed.R.Civ.P.
12(b)(6). A complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), and must state
“a plausible claim for relief, ” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). “A claim has
facial plausibility 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. Rule 12(b)(6)'s purpose
“‘is to test the sufficiency of a complaint and
not to resolve contests surrounding the facts, the merits of
a claim, or the applicability of defenses.'”
Velencia v. Drezhlo, No. RDB-12-237, 2012 WL
6562764, at *4 (D. Md. Dec. 13, 2012) (quoting Presley v.
City of Charlottesville, 464 F.3d 480, 483 (4th Cir.
County asserts collateral estoppel as an affirmative defense.
The Court may consider affirmative defenses such as
collateral estoppel on motions to dismiss only when they
“clearly appear on the face of the complaint.”
Kalos v. Centennial Sur. Assocs., No. CCB-12-1532,
2012 WL 6210117, at *2 (D. Md. Dec. 12, 2012) (quoting
Andrews v. Daw, 201 F.3d 521, 524 n.1 (4th Cir.
2000) (citation and quotation marks omitted)). That is the
case here, as Adebusoye filed suit after the circuit court
issued its ruling and after he dismissed his appeal to the
Maryland Court of Special Appeals, and collateral estoppel
may apply when there is a final adjudication on the merits.
GAB Enters., Inc. v. Rocky Gorge Devel., LLC, 108
A.3d 521, 530 (Md. Ct. Spec. App.), cert. denied sub nom.
Rocky Gorge Dev. v. GAB Enters., 114 A.3d 711 (Md.
2015). Therefore, I will consider collateral estoppel as a
basis for dismissal. See Kalos, 2012 WL 6210117, at
to Exhaust - Retaliation Claim
exhaust his administrative remedies for Title VII purposes,
Adebusoye must “bring  a charge with the EEOC.”
Smith v. First Union Nat'l Bank, 202 F.3d 234,
247 (4th Cir. 2000); see Jones v. Calvert Grp.,
Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Adebusoye filed
an EEOC Charge of Discrimination on February 22, 2012 and
attached it to his Complaint and Amended Complaint.
given that the claims that Adebusoye now brings in federal
court predate the EEOC Charge, he must have raised them in
the EEOC Charge. See Hunter v. Vilsack, No.
DKC-07-2655, 2010 WL 1257997, at *8 (D. Md. Mar. 26, 2010)
(quoting Cherry v. Bealefeld, No. CCB-08-1228, 2010
WL 917421, at *7 (D. Md. March 9, 2010)) (holding that rule
from Nealon v. Stone, 958 F.2d 584, 590 (4th Cir.
1992), and Hill v. W. Elec. Co., 672 F.2d 381, 390
n.6 (4th Cir. 1982)- that claims are exhausted if related to
claims in an EEOC charge-does not apply if the claims
“could have been raised in her EEOC charge, but were
not” because a later-filed EEOC charge suggests that
the plaintiff was not “reluctant to file additional
charges for fear of further ...