Manley v. Washington Adventist Hospital

          MEMORANDUM OPINION AND ORDER

          Paul W. Grimm United States District Judge

         Plaintiff Susan M. Manley was a registered nurse at Washington Adventist Hospital in Montgomery County, Maryland for 10 years. Compl. 7, ECF No. 1. On October 13, 2016, the hospital administration fired her, citing a string of unscheduled absences over the preceding 10 months. See Id. at 9; Termination Report 5, ECF No. 1-4. Ms. Manley responded with this lawsuit, asserting a series of federal employment discrimination claims against the hospital, her supervisor, and various colleagues. Her Complaint also asserts a claim under a recently enacted county ordinance that aims that protects workers' rights to accrue and use "sick and safe leave." Defendants have moved for dismissal under Rule 12(b)(5) of the Federal Rules of Civil Procedure, arguing Ms. Manley failed to properly serve them with a summons and a copy of her Complaint before the Court-ordered deadline. See Defs.' Mem. 3-8, ECF No. 15-2. Failing that, they say, the Court should dismiss most of her claims under Rule 12(b)(6) for failure to state a claim.

         Defendants are correct that Ms. Manley failed to effect service of process before the court-ordered deadline of November 5, 2018. I choose, nevertheless, to exercise my discretion to extend the deadline. The case will proceed, but in a streamlined form, as I agree with Defendants that Ms. Manley has failed to state any claims against the individual defendants and, further, has not stated a plausible claim under the county ordinance.

         FACTUAL BACKGROUND

         Ms. Manley, who is representing herself, has brought this suit against Washington Adventist Hospital and four of her colleagues on her unit: Miriam Prudente, who was the director of the unit; Elizabeth Karley and Nancy Wetmore, who were assistant directors; and Laurien Yeneberi, a "patient care tech." See Compl. 7-9; ECF No. 1-5. The Complaint identifies the director, Ms. Prudente, as Filipino. See Id. at 10. It also identifies all of the individual defendants as members of the Seventh Day Adventist Church. See Id. at 8-9. Ms. Manley herself is white and Catholic. See Id. at 7; EEO Charge 3, ECF No. 1-1. She states that, at 62, she was the "oldest one" on the day shift. Compl. 10.

         Events Preceding Termination

         Ms. Manley's Complaint is voluminous, with more than 150 pages of exhibits. Among those exhibits are several "corrective action" reports Ms. Manley received in the course of her final year and a half of employment at the hospital. An April 2015 report alleges Ms. Manley "incurred 5 unscheduled absences from January 1 to Dec. 31, 2014." Corrective Actions 9, ECF No. 1-4. An October 2015 report states, similarly, that she "incurred 5 unscheduled absences from January 1 to Oct. 1, 2015." Id. at 11. Ms. Manley disputes these accusations. See Attendance R. 14-18, ECF No. 1-2. She also asserts that a spate of tragedies between 2014 and 2016, including the deaths of several family members, had forced her to take more time off of work during this period than she otherwise might have. See Compl. 7.

         On January 23, 2016, Ms. Manley was unable to make it into work because of a major snowstorm. See Compl. 8-9. Ms. Prudente spoke with her the following week and issued another corrective action report, citing her "[f]ailure to plan for inclement weather and meet [her] responsibility of working [her] assigned shift even during inclement/hazardous weather conditions." Corrective Actions 1. The report noted that administrators had emailed the staff two days before the storm, reminding those who were scheduled to work during the storm that "it is expected they will be there" and advising them "to begin making arrangements to ensure attendance." Id. Ms. Prudente, who signed the report, labeled it as a "final written" warning and wrote: "Failure to report to work when scheduled will result in additional disciplinary action, up to and including termination of employment." Id.

         Four months later, after Ms. Manley phoned in saying she "had been sick for a week," Ms. Prudente sent her an email under the heading "Unscheduled absences." ECF No. 1-4. The email, which opened with a wish for Ms. Manley's speedy recovery, counted three unscheduled absences over the preceding four months and said that, while her supervisors were "trying to be very understanding," they wanted to "make it clear that because we are stewards of the patients we serve and the people we work with, it is with extreme importance that you have to make a personal plan on how to manage your work attendance." Id.

         The situation came to a head toward the end of that summer, when Ms. Manley requested approval for a one-week vacation in November 2016. See Aug.-Sept. 2016 Emails 20-21, ECF No. 1-7. Ms. Prudente hesitated to approve the request, explaining that it did not appear that Ms. Manley had enough hours of paid leave to cover it. See Id. at 20. Ms. Manley insisted she did. See Id. A few weeks later, Ms. Manley's niece died, and Ms. Manley asked for time off to attend the funeral. See Compl. 7. Ms. Prudente's response, allegedly, was, "It looks like you have a lot going on[.] [A]re you going to retire?" Id.

         Ms. Prudente issued a final corrective action report, terminating Ms. Manley's employment, on October 13, 2016, shortly after the latter took what Ms. Prudente counted as her fourth unscheduled absence since February 2016. See Termination Report 5.

         Procedural History

         Ms. Manley filed a charge with the U.S. Equal Employment Opportunity Commission ("EEOC") on September 10, 2017. EEO Charge. The charge accused Ms. Prudente of consistently chastising her for seeking to take time off and treating her less favorably than her coworkers. See Id. The EEOC dismissed the claim on October 25, 2017. See ECF No. 1-1.

         This lawsuit followed. Ms. Manley, acting without the assistance of counsel, filed the Complaint on January 5, 2018, asserting what appear to be three claims:^[1] (1) racial and religious discrimination under Title VII of the Civil Rights Act of 1964, (2) age-based discrimination under the Age Discrimination in Employment Act ("ADEA"), and (3) violation of the Montgomery County Earned Sick and Safe Leave Act.

         On February 15, 2018, I issued an order directing Ms. Manley to effect service on each defendant and to have the server promptly notify the Court, through an affidavit, that this has been done. ECF No. 3. The order noted that service was due 90 days after the Complaint was filed and that the failure to provide proof of service could result in the dismissal of her case. Id.

         I revisited this issue in an October 5, 2018 letter order, noting that Ms. Manley had not effected service within the 90-day timeframe. I reasoned, though, that a pair of motions she had filed seeking the benefit of court-appointed counsel^[2] had demonstrated "good cause for the delay," and so I extended the deadline to November 5, 2018. ECF No. 7.

         Ms. Manley later notified me in a letter that she effected service via certified mail on October 31, 2018. ECF No. 8. Defendants, however, countered that she had failed to request "restricted delivery" in compliance with Maryland procedural rules and, for that matter, had failed to include a copy of the Complaint. See ECF No. 9. Defendants also pointed out that she had not served the hospital's resident agent and that none of the individual defendants received anything until sometime after the November 5, 2018 deadline. See id.

         Ms. Manley continued to keep me apprised of her efforts to effect service, see ECF No. 13, even after I approved Defendants' request to file a motion to dismiss the Complaint, see ECF No. 12. Defendants filed their motion on January 23, 2019. Mot. to Dismiss, ECF No. 15. Five days later, Ms. Manley filed proof that she served all five defendants via certified mail, receipt requested, on January 24, 2019. ECF No. 18.

         The motion to dismiss has been fully briefed. See ECF Nos. 15-2, 21, 26, 27. There is no need for a hearing. See Loc. R. 105.6.

         STANDARD ...