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Kelly v. Giant of Maryland LLC

United States District Court, D. Maryland

June 17, 2019

ANGELA KELLY, Plaintiff,



         Pending 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's motions.

         I. Background[1]

         A. Factual Background

         Pro se 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 hostility.” Id.

         Kelly 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.” Id.

         Beginning 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.

         On 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.

         B. Procedural History

         On May 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 4.

         On 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 turn.

         II. Motion for Appointment of Counsel

         The 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. 2012).

         In 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).

         III. Motion to Dismiss

         A. Standard of Review

         Giant 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.

         A 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 ...

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