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Adebusoye v. Prince George's County

United States District Court, D. Maryland, Southern Division

March 12, 2019



          Paul W. Grimm United States District Judge.

         Adebayo 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[1] 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.

         Adebusoye filed an Amended Complaint to name only Prince George's County (the “County”) as a Defendant;[2] 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.[3] 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.


         On June 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. ¶ 29.

         Adebusoye 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. ¶ III.

         He also 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. See id.

         Adebusoye 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.[4] 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. Id.

         The 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.

         On June 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.

         Adebusoye 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.

         In his 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.

         Standard of Review

         The County moves to dismiss both claims for lack of jurisdiction or, alternatively, for failure to state a claim.

         When a 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, [5] “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).

         Pursuant 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. 2006)).

         The 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 *2.

         Failure to Exhaust - Retaliation Claim

         To 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.

         Additionally, 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 ...

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