United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE
a pregnancy and disability discrimination claim brought by
Plaintiff Ariel Brown-Wicks against Defendant PPE Casino
Resort Maryland, LLC d/b/a Maryland Live! Casino pursuant to
the Americans with Disabilities Act ("ADA").
Defendant has filed a Partial Motion to Dismiss, claiming
that Plaintiff's disability claim is barred by her
failure to exhaust her administrative remedies. ECF No. 8.
Defendant's Motion alleges a lack of subject-matter
jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). However,
subsequent to the parties' briefing in this case, the
United States Supreme Court decided Fort Bend Cty, Tex.
v. Davis, 139 S.Ct. 1843, 1850 (2019), in which it held
that the bar on consideration of a claim that has not been
filed with the EEOC is a nonjurisdictional claim-processing
rule. While the Court's disposition of Fort Bend
has no bearing upon the outcome of this case, it suggests
that the matter is better construed as a Partial Motion to
Dismiss pursuant to 12(b)(6). No. hearing is necessary. Loc.
R. 105.6. (D. Md. 2016). For the reasons stated below,
Defendant's Partial Motion to Dismiss is DENIED.
was employed as a Table Games Dealer by Defendant beginning
in 2014, and she became pregnant in 2016. ECF No. 1
¶¶ 20-22. During her first trimester, Plaintiff
began suffering from morning sickness, experiencing constant
nausea and vomiting for approximately four hours a day.
Id. ¶¶ 23-24, 33.
Plaintiff's morning sickness was sufficiently severe that
she was prescribed medication to alleviate her symptoms by
her medical provider, whom she saw more than twice related to
her illness. Id. ¶ 25. Plaintiff's morning
sickness substantially impacted her eating, working, and the
functioning of her digestive system. Id. ¶
around April 2016, Defendant assigned Plaintiff to the 4am to
12pm shift. Id. ¶ 30. On April 22, 2016,
Plaintiff disclosed her pregnancy during a meeting with her
direct shift supervisor and her shift manager. Id.
¶¶ 31-32. At that meeting, Plaintiff also disclosed
that she had developed severe morning sickness in the form of
severe nausea and vomiting, and informed her coworkers that
her absences were due to the morning sickness. Id.
¶ 34. After that meeting, Plaintiff requested minor
scheduling adjustments to accommodate her pregnancy and
morning sickness, but Defendant did not respond. Id.
¶39-40. Plaintiff also expressed her intent to use FMLA
leave, but on April 29, 2016, she was terminated.
Id. ¶¶ 41-42. Plaintiff brought a charge
of pregnancy discrimination and retaliation with the U.S.
Equal Employment Opportunity (“EEOC”) in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”) on or around August 23, 2016.
Id. ¶ 8. On her Charge, Plaintiff checked the
box for “Sex” discrimination, but not the box for
“Disability” discrimination. ECF No. 8-2 at
STANDARD OF REVIEW
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court “must accept the
factual allegations of the complaint as true and construe
them in the light most favorable to the nonmoving
party.” Rockville Cars, LLC v. City of Rockville,
Md., 891 F.3d 141, 145 (4th Cir. 2018). To overcome a
12(b)(6) motion, the “complaint must contain sufficient
factual matter, accepted as true, ‘to state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plaintiff must “provide sufficient
detail” to show “a more-than-conceivable chance
of success on the merits.” Upstate Forever v.
Kinder Morgan Energy Partners, 887 F.3d 637, 645 (4th
Cir. 2018) (citing Owens v. Balt. City State's
Attorneys Ofice, 767 F.3d 379, 396 (4th Cir. 2014)). The
mere recitation of “elements of a cause of action,
supported only by conclusory statements, is not sufficient to
survive a motion made pursuant to Rule 12(b)(6).”
Walters v. McMahen, 684 F.3d 435, 439 (4th Cir.
2012). Nor must the Court accept unsupported legal
allegations. Revene v. Charles Cnty. Commis., 882
F.2d 870, 873 (4th Cir. 1989). A plausibility determination
is a “context-specific inquiry” that relies on
the court's “experience and common sense.”
Iqbal, 556 U.S. at 679-80.
requires that plaintiffs exhaust their administrative
remedies by filing a charge with the EEOC before filing suit
in federal court. See Sydnor v. Fairfax Cnty., 681
F.3d 591, 593 (4th Cir. 2012). This requirement serves the
purpose of placing “the employer on notice of the
alleged violations” such that it can have the
opportunity “to address the alleged discrimination
prior to litigation.” Id. A federal court may
only “consider those allegations included in the EEOC
charge.” Balas v. Huntington Ingalls Indus.,
Inc., 711 F.3d 401, 407 (4th Cir. 2013). Therefore, only
those discrimination claims stated in the initial charge,
those reasonably related to the original complaint, and those
developed by reasonable investigation of the original
complaint may be maintained in the Title VII lawsuit.
Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th
this exhaustion requirement “should not become a
tripwire for hapless plaintiffs.” Sydnor, 681
F.3d at 594. “EEOC charges must be construed with the
utmost liberality since they are made by those unschooled in
the technicalities of formal pleading.” Alvarado v.
Bd. of Trs. of Montgomery Cty. Cmty. Coll., 848 F.2d
457, 460 (4th Cir. 1988). Therefore, the central question is
whether “the factual allegations in the administrative
charge are reasonably related to the factual allegations in
the formal litigation.” Chacko, 429 F.3d at
contends that because Plaintiff did not check the box for
“Disability, ” and did not specifically use the
phrase “reasonable accommodation, ” she failed to
sufficiently exhaust her remedies as to her ADA claim.
Plaintiff's EEOC Charge alleges that she informed
Defendant of her pregnancy, became ill with severe morning
sickness and took time off due to this pregnancy-related
sickness. She also alleged that she informed Defendant of her
need for minor schedule adjustments due to her
pregnancy-related sickness. These claims are both
“reasonably related” to Plaintiff's ADA claim
and likely to develop from a reasonable investigation of the
original complaint. In particular, Plaintiff's allegation
that she sought “minor schedule adjustments” due
to an illness constitutes an invocation of rights at the very
heart of the ADA's requirement that employers offer
reasonable accommodations. Even the most nascent
investigation of Plaintiff's allegations would have
revealed that she was terminated after requesting this
accommodation. And furthermore, because Plaintiff's ADA
claim centers on her allegation of severe morning
sickness-and only on that allegation-Defendant was
sufficiently placed on notice as to substance of the claim it
might face in litigation.
contends that the courts' holdings in Jones v.
Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009),
abrogated on other grounds by Fort Bend Cty., 139
S.Ct. at 1849, and Penaloza v. Target Corp., 549
Fed.Appx. 844, 849 n.2 (11th Cir. 2013) suggest a
different result. Defendant's reliance on
Calvert is misplaced. In Calvert, the
Fourth Circuit held that the plaintiff failed to exhaust her
race, sex, and age discrimination claims because the EEOC
charge alleged only retaliation. Calvert, 551 F.3d
at 301. But a bare allegation of retaliation does not place
an employer on notice that it may face race, sex, or age
discrimination claims, while pregnancy complications are
routinely found to qualify as impairments under the ADA.
See, e.g., Wenzlaff v. NationsBank, 94 F.Supp. 899,
890 (D. Md. 1996) (holding that pregnancy complications or
conditions arising out of, but distinguishable from, the
pregnancy may constitute an impairment under the ADA).
contends that the Eleventh Circuit held in Penaloza
that morning sickness is not necessarily a disability; in
fact, that court said nothing about morning sickness, but did
explain that a “pregnancy-related impairment may be
considered a disability if it substantially limits a major
life activity.” Penaloza, 549 Fed.Appx. at 849
n.2. In any case, the touchstone for the exhaustion
requirement before the Court is whether plaintiff's
administrative and judicial claims are reasonably related.
Sydnor, 681 F.3d at 595.
in a supplemental brief filed with the Court, Defendant
submits an Intake Questionnaire Plaintiff completed before
the EEOC Charge was prepared. ECF No. 14. On that
questionnaire, Plaintiff crossed out the questions related to
claims of discrimination based on disability. Id.
Even assuming it is proper to consider these supplemental
arguments at this stage of the litigation, Defendant cites to
no authority holding that Plaintiffs subjective intentions
are relevant to the exhaustion of her administrative
remedies. Plaintiff alleged that Defendant refused to
accommodate her ...