United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm United States District Judge.
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. 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.
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.
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).
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
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
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)).
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