United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE.
before the Court in this employment discrimination action are
Plaintiff's Motion for Appointment of Counsel (ECF No.
11) and Motion for Leave to File a Surreply (ECF No. 21), as
well as Defendant's Motion to Dismiss (ECF No. 14). The
motions are fully briefed and no hearing is necessary.
See Loc. R. 105.6. For the following reasons, the
Court GRANTS Defendant's motion and DENIES
Plaintiff Angela Kelly (“Kelly”) has been
employed by Defendant Giant of Maryland LLC
(“Giant”) since 1994. ECF No. 1 at 9. From 2011
to 2013, Kelly worked in Giant's deli at the Germantown,
Maryland location under the direct supervision of Deli
Manager Tom George (“George”). Id.
Kelly, a Caucasian woman, asserts that George gave
“preferential treatment to both [H]ispanic and male
employees regarding shift scheduling, position openings, and
work assignments” and “frequently harassed
[Kelly] and other females expressing anger and
avers that George gave away one of her early shifts to Victor
Herrera, despite Kelly's seniority, and that George
“falsely accused” Kelly of not performing her
assigned duties when she complained of the scheduling switch.
Id. Kelly also asserts that, beginning in March
2012, George assigned “easier kitchen duties” to
male and Hispanic employees, while assigning female employees
“more difficult customer/counter duties.”
Id. When Kelly brought these issues to the attention
of the store manager Keith McDaniels
(“McDaniels”) in July 2012, McDaniels relayed to
Kelly that George found Kelly not dependable and reported
that Kelly “took too many bathroom breaks.”
in September 2012, George re-assigned all of Kelly's
morning shifts to “male and [n]on-Caucasian employees,
” leaving her with only night shifts as her scheduled
work. Id. George also yelled at her and other female
employees on multiple occasions, and on April 2, 2013,
“threw trash cans around [her] in an aggressive
manner.” Id. About a month later, on May 3,
2013, Kelly “sent a letter to Giant” in which she
accused George of discriminating against her on “the
basis of sex and thereby creating a hostile work
environment.” Id. at 9-10.
February 14, 2014, McDaniels informed Kelly that she was
being transferred to a Giant in the District of Columbia
“outside of [her] district” because she had the
“least amount of seniority” among full-time deli
employees. Id. at 10. Kelly details a variety of
incidents after her transfer to the D.C. store, between June
2014 and September 2015, in which Kelly believes she was
treated less favorably than African American employees by
several different managers and was forced “to work in a
very hostile work environment.” Id. at 10-11.
Specifically, Kelly points to her receiving a disciplinary
warning in June 2014 for charging her cell phone, while other
“workers who were African American” did not
receive the same warning. Id. at 10. In early 2015,
Kelly was transferred to a store in Oxon Hill, “over an
hour from where [she] lived.” Id. at 11. Kelly
recounts several other disciplinary warnings she received for
taking breaks and not completing assigned tasks at this
store. Id. After notifying her union representative
of the “hostile work environment” in September
2015, Kelly was transferred to the Silver Spring store in
Montgomery County. Id.
13, 2013, Kelly filed a Charge of Discrimination with the
U.S. Equal Employment Opportunity Commission
(“EEOC”), alleging sex and race-based
discrimination and retaliation. ECF No. 14-2 at 2. Kelly
described in the Charge facts from September 2011 to May 2013
and also checked a box noting a “continuing
action.” Id. at 2-4. Kelly amended her Charge
on August 14, 2013, adding that George failed to process
Kelly's schedule change request properly. Id. at
5, 7. On April 1, 2014, Kelly again filed an amendment to her
Charge (“Amended Charge”), to include an
allegation regarding her February 2014 transfer. Id.
at 12. The EEOC issued a determination letter on December 11,
2017, “finding reasonable cause that unlawful
employment practices have occurred.” ECF No. 1-2 at 1.
After conciliation efforts failed, the EEOC determined it
would not bring a suit against Giant and issued a Notice of
Right to Sue letter to Kelly on May 25, 2018. Id. at
August 14, 2018, Kelly filed this action against Giant,
alleging sex and race-based discrimination, retaliation, and
harassment in violation of Title VII of the Civil Rights Act
of 1964. See ECF No. 1 at 9-12. Giant moved to
dismiss the Complaint in its entirety, arguing Kelly has
failed to exhaust administrative remedies as to certain
claims and has failed to state a claim for relief with
respect to the remaining claims. See ECF No. 14-1 at
1. Kelly has moved for court appointed pro bono counsel.
See ECF No. 11. The Court addresses each motion in
Motion for Appointment of Counsel
Court first considers Kelly's request for the appointment
of counsel. See ECF No. 11. 42 U.S.C. §
2000e-5(f)(1) provides the avenue for appointment of counsel
in a Title VII case under “such circumstances as the
court may deem just.” Id. Whether a civil case
warrants the appointment of counsel depends on the
characteristics of the claim and the litigant. Whisenant
v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984),
abrogated on other grounds by Mallard v. U.S. Dist. Ct.
for S. Dist. of Iowa, 490 U.S. 296, 298 (1989). When an
unrepresented litigant maintains a “colorable claim but
lacks the capacity to present it, ” the Court should
appoint counsel. See Gordon v. Leeke, 574 F.2d 1147,
1153 (4th Cir. 1978). In making this determination, the Court
should consider the plaintiff's financial ability to
retain an attorney, the efforts of the plaintiff to retain
counsel, and the merits of the case. Scott v. Health Net
Fed. Servs., LLC, 463 Fed.Appx. 206, 209 (4th Cir.
2013, Kelly had retained counsel to assist her with the EEOC
administrative process. ECF No. 11 at 1. Kelly could not
afford counsel's quoted rate to pursue her case in
federal court and efforts to find new counsel were
unavailing. Id. Kelly, however, has submitted
several pro se filings and appears capable of pursuing her
claims. Furthermore, as discussed below, Kelly's claims
fail as a matter of law. Therefore, the Court declines to
appoint counsel pursuant to 42 U.S.C. § 2000e-5(f)(1).
Motion to Dismiss
Standard of Review
brings this motion to dismiss in part under Federal Rule of
Civil Procedure 12(b)(1), challenging the Court's subject
matter jurisdiction based on Kelly's alleged failure to
exhaust administrative remedies. ECF No. 14-1 at 7. While
this Court has reviewed such claims under Rule 12(b)(1) in
the past, Young v. Montgomery Cty., Md., No.
18-002054-PX, 2019 WL 1596992, at *2 (D. Md. Apr. 15, 2019),
the United States Supreme Court recently held the Title VII
charge-filing requirement is a non-jurisdictional,
“mandatory claim-processing rule.” Fort Bend
Cty., Texas v. Davis, 139 S.Ct. 1843, 1851 (2019)
(abrogating Jones v. Calvert Group, Ltd., 551 F.3d
297 (4th. Cir. 2009)). The decision in Fort
Bend suggests that exhaustion is properly challenged
under Federal Rule of Civil Procedure 12(b)(6). However, even
if Giant brings a timely “facial challenge” to
subject matter jurisdiction, this affords a plaintiff
“the same procedural protection as he would receive
under a Rule 12(b)(6) consideration.” Kerns v.
United States, 585 F.3d 187, 192 (4th Cir. 2009)
(citation omitted). Accordingly, Fort Bend does not
alter the standard of review in this case.
motion to dismiss brought pursuant to Rule 12(b)(6) tests the
sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The
Court accepts “the well-pled allegations of the
complaint as true, ” and construes all facts and
reasonable inferences most favorably to the plaintiff.
Ibarra v. United States, 120 F.3d 472, 474 (4th Cir.
1997). To survive a motion to dismiss, a complaint's
factual allegations “must be enough to raise a right to
relief above the speculative level on the assumption that all