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Johnson v. Silver Diner, Inc.

United States District Court, D. Maryland, Southern Division

August 7, 2019

KOREY JOHNSON, Plaintiffs,
SILVER DINER, INC., et al., Defendants.


          Paul W. Grimm United States District Judge.

         Plaintiff Korey Johnson, an African-American man who is over forty years old, filed this lawsuit against Silver Diner, Inc. and its subsidiary Silver Diner Development, LLC, alleging that they discriminated against him based on race, national origin, and age; retaliated against him; and failed to pay him all wages due during the time that he worked for them as a restaurant Floor Manager. Am. Compl. ¶¶ 1-2, ECF No. 27. Defendants' motion to dismiss Johnson's claims in part, ECF No. 28, is pending.[1] Because, based on Johnson's well-pleaded allegations, Defendants are substantially identical, I will not dismiss his discrimination and retaliation claims against Silver Diner, Inc. for failure to name that entity on his administrative complaints. Nor will I dismiss his retaliation claims for failure to exhaust administrative remedies based on his failure to check the boxes for “age” and “race, ” as he did check the box for “retaliation, ” and did not need to check additional boxes. I will, however, limit Johnson's claims for retaliation and discrimination, Counts 4, 5, 6 and 7, to the conduct alleged in the administrative claims, and I will limit his state law claims for wages due, Counts 2 and 3, to claims for wages from October 3, 2015 and later.


         Johnson alleges that Defendants “do business as a family restaurant called ‘Silver Diner.'” Am. Compl. ¶¶ 1-2. He claims that they discriminated against him, retaliated against him, and failed to pay him all wages due during the time that they “jointly employed” him “as a Floor Manager at Silver Dollar locations in both Virginia and Maryland.” Id. He filed two EEOC charges, one against “Silver Diner Development Corporation” on April 2, 2018, and a second against “Silver Diner” on June 18, 2018. Apr. 2, 2018 EEOC Charge, ECF No. 28-2; June 18, 2018 EEOC Charge, ECF No. 28-4 (together, “EEOC Charges”). He alleged race and age discrimination from January 10, 2016 to January 26, 2018 in his first EEOC Charge; in his second EEOC Charge, he alleged retaliation and national origin discrimination from December 17, 2017 to January 26, 2018. Id.

         After receiving a Dismissal and Notice of Rights in response to each EEOC Charge, ECF Nos. 28-3, 28-5, Johnson filed suit in this Court on October 2, 2018. Compl., ECF No. 1. His Amended Complaint includes seven counts against both Defendants: a Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 - 219, claim for failure to pay overtime wages (Count I); a Maryland Wage and Hour Law (“MWHL”), Lab. & Empl. §§ 3-401 - 3-431, claim for failure to pay overtime wages (Count II); a Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann, Lab. & Empl. §§ 3-501 - 3-509, claim for failure to pay all wages due (Count III); an Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., claim for age discrimination (Count IV); an ADEA claim for retaliation (Count V); a claim under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., for race and national origin discrimination (Count VI); a Title VII claim for retaliation (Count VII); and a claim pursuant to the Comprehensive Omnibus Budget Reconciliation Act, 29 U.S.C. § 1161 et seq., for failure to provide notice of continuing healthcare coverage (Count VIII).

         Standard of Review

         Defendants raise failure to exhaust administrative remedies as a basis for dismissing various aspects of Johnson's discrimination and retaliation claims, and they move to dismiss parts of his state law wage claims based on the statute of limitations. The parties disagree about whether the exhaustion argument should be considered as a Rule 12(b)(1) motion to dismiss for lack of jurisdiction or a Rule 12(b)(6) motion to dismiss for failure to state a claim. Pl's Opp'n 3 n.1; Def.'s Reply 1 n.1. For years, the law in the Fourth Circuit has been that “federal courts lack subject matter jurisdiction over Title VII [and ADEA] claims for which a plaintiff has failed to exhaust administrative remedies.” Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013); see Jones v. Calvert Grp., 551 F.3d 297, 300, 301 (4th Cir. 2009). Recently, however, the Supreme Court held that the exhaustion of administrative remedies is not a jurisdictional issue:

Title VII's charge-filing requirement is not of jurisdictional cast. Federal courts exercise jurisdiction over Title VII actions pursuant to 28 U.S.C. § 1331's grant of general federal-question jurisdiction, and Title VII's own jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3) (giving federal courts “jurisdiction [over] actions brought under this subchapter”). Separate provisions of Title VII, § 2000e- 5(e)(1) and (f)(1), contain the Act's charge-filing requirement. Those provisions “d[o] not speak to a court's authority, ” EME Homer, 572 U.S. at 512, 134 S.Ct. 1584, or “refer in any way to the jurisdiction of the district courts, ” Arbaugh, 546 U.S. at 515, 126 S.Ct. 1235 (quoting Zipes, 455 U.S. at 394, 102 S.Ct. 1127).
Instead, Title VII's charge-filing provisions “speak to ... a party's procedural obligations.” EME Homer, 572 U.S. at 512, 134 S.Ct. 1584. They require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. Like kindred provisions directing parties to raise objections in agency rulemaking, id., at 511-512, 134 S.Ct. 1584; follow procedures governing copyright registration, Reed Elsevier, 559 U.S. at 157, 130 S.Ct. 1237; or attempt settlement, Union Pacific, 558 U.S. at 82, 130 S.Ct. 584, Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.

Fort Bend Cty., Texas v. Davis, 139 S.Ct. 1843, 1850-51 (2019) (footnotes omitted). Accordingly, I will consider the exhaustion issue under Rule 12(b)(6). See id.

         Pursuant to Rule 12(b)(6), a plaintiff's claims are subject to dismissal if they “fail[ ] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). A pleading 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)).

         Johnson contends that “[t]he statute of limitations is an affirmative defense typically raised in pleadings under Rule 8(c) and is generally not a proper basis for 12(b)(6) dismissal.” Pl.'s Opp'n 16 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002)). He is correct that, generally, a Rule 12(b)(6) motion to dismiss does not “permit an analysis of potential defenses a defendant may have to the asserted claims.” J&J Sports Prods., Inc. v. Pro Street Shop, LLC, t/a Pro St. Cafe, No. DKC 18-1000, 2019 WL 3290161, at *2 (D. Md. July 22, 2019). Nonetheless,

dismissal may be appropriate when a meritorious affirmative defense is clear from the face of the complaint. Brooks v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996) (citing Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 250 (4th Cir. 1993)). “The statute of limitations is an affirmative defense that should only be employed to dismiss claims pursuant to Rule 12(b)(6) when it is clear from the face of the complaint that the claims are time barred.” Long v. Welch & Rushe, Inc., 28 F.Supp.3d 446, 456 (D. Md. 2014) (citations omitted); see also 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357, at 352 (3d ed. 2019) (“A complaint showing that the governing statute of limitations has run on the plaintiff's claim for relief is the most common situation in which the affirmative defense appears on the face of the pleading[, ]” rendering dismissal appropriate).

Id. Therefore, I will apply the Rule 12(b)(6) standard to Defendants' statute of limitations argument ...

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