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Kenion v. Skanska USA Building, Inc.

United States District Court, D. Maryland

September 13, 2019

THOMESENA KENION, Plaintiff,
v.
SKANSKA USA BUILDING, INC, et al. Defendants.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge

         Plaintiff Thomesena Kenion ("Plaintiff or "Kenion") alleges that her former employer, Defendant Skanska USA Building, Inc. and Skanska USA, Inc. (collectively, "Skanska") and her former supervisors, Defendant William Lemley ("Lemley") and Defendant Brian Leier ("Leier") (collectively, the "Defendants") discriminated against her on the basis of her race and sex between November 2016 and May 2018. Kenion's eight-Count Complaint brings claims under Tide VII of the Civil Rights Act of 1964 ("Tide VII"), as amended, 42 U.S.C §§ 2000e, et seq. and the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401.01, et seq. Now pending before this Court are two Motions: Defendants' Motion to Partially Dismiss Plaintiffs Complaint (ECF No. 3) and Plaintiffs Motion for Leave to File Sur-Reply (ECF No. 8). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons stated below, Defendants' Motion to Partially Dismiss Plaintiffs Complaint (ECF No. 3) is GRANTED and Plaintiffs Motion for Leave to File Sur-Rcply (ECF No. 8) is GRANTED. Specifically, Counts I, II, TV, and VIII are DISMISSED in their entirety, and the remaining Counts III, V, VI, VII are limited as noted. The following claims remain pending: Discriminatory Non-Selection for Promotion on the basis of sex in Violation of Title VII (Count III) and on the basis of both race and sex in violation of the DCHRA (Count VII); Discriminatory Hostile Work Environment on the basis of race in Violation of the DCHRA (Count V); and Retaliation under DCHRA (Count VI). Plaintiff is granted leave to file an Amended Complaint to clarify the nature and scope of her Hostile Work Environment Claim under the DCHRA as charged in Count V.

         BACKGROUND

         When reviewing a motion to dismiss, this Court accepts as true the facts alleged in the plaintiffs complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Kenion is an African American[1] female pursuing a career in the construction industry. (Compl. ¶ 2, ECF No. 1.) In April 2013, Skanska Civil Southeast, Inc. hired Kenion as a Carpenter Apprentice. (Id. at ¶ 21.) Subsequently, she received several promotions and was granted additional responsibilities in recognition of her successful work performance. In August 2014, she became a Carpenter and Punch List Foreman (Id. at ¶ 22.) By August 2015, Kenion was supervising a crew of 15 workers on the 1st Street Tunnel project in Washington, D.C. and was featured in Skanska's promotional advertisements throughout the District of Columbia. (Id.) In May 2016, Kenion accepted a transfer, pay raise, and career development plan position as a Craft Foreman in Skanska USA Building, Inc. at its 'American University Project." (Id. at ¶ 23.) A Project Assignment Letter pertaining to this business unit transfer dated May 10, 2016 indicates that Kenion was an "Assistant Superintendent." (Id.)

         Kenion alleges that she began experiencing discrimination in November 2016, after she was reassigned to Skanska's "DC Water Headquarters Project" and began working for Lemley and Leier, both of whom are identified in the Complaint as Caucasian males. (Id. at ¶¶ 3, 6, 25.) Lemley and Leier were allegedly "hostile, rude, or dismissive" toward Kenion and Skanska's African American subcontractors but did not treat White and Hispanic supervisors and workers in the same negative fashion. (Id. at ¶ 26.) For example, in December 2016 Leier rejected Kenion's request for stone to compact a potentially unsafe worksite, citing budgetary concerns. (Id. at ¶ 27.) Only one week later, however, Lemley requested and received two loads of stone for comparable work nearby. (Id.)

         Between January and March 2017, both Lemley and Leier allegedly made several disparaging remarks about African American laborers. Lemley is alleged to have stated that "they're not that smart" and that African Americans were "lazy." (Id. at ¶ 29.) Lemley also admonished a Black laborer as follows: "All I asked you to do was sweep and you can't even get that right. You don't need a college education to do that. Hispanic guys know how to work without someone holding their hand." (Id.) Kenion reports overhearing Lemley disparaging his daughter's African American boyfriend, referring to him as a "Baltimore thug." (Id. at ¶ 30.) Kenion claims to have been present during a conversation between Lemley and an African American laborer who had dreadlocks, during which Lemley asked "Do you wash your hair?" and said that "You couldn't pay me to have those things." (Id. at ¶ 31.) In response to a city Compliance Officer's request for the contact information of African American trainees, Leier allegedly told Kenion not to provide the information because the workers in question "don't speak well" and he did "not want them embarrassing us." (Id. at ¶ 32.) Leier instructed Kenion to deal with African American laborers "with a heavy hand," but did not make similar statements about Skanska's White or Hispanic workers.

         Lemley and Leier allegedly stymied Kenion's professional development and caused her to fear for her job security. For example, Lemley denied Kenion permission to attend a Skanska Women's Network professional development event even though he regularly allowed the White female Engineer on the DC Headquarter Water Project team to attend such events. (Id. at ¶ 35.) In March 2017, an Assistant Project Manager told Kenion that "Bill [Lemley]'s not really interested in developing you for [the Assistant Superintendent] role." (Id. at ¶ 36.) In the summer of 2017, Leier refused to grant Kenion permission to participate in a Leadership in Energy and Environmental Design (LEED) training because "it was not a priority for her." (Id. at ¶ 37.) On November 27, 2017, when Kenion informed Lemley that she needed one day of sick leave to care for her twin sons who were will, Lemley allegedly responded, “You need a job to do that." (Id. at ¶ 38.) Fearing for her job, Kenion promptly applied for Family Medical Leave Act ("FMLA") protections. (Id.) That same month, Leier informed Kenion that, because she was a Craft employee, she would not receive a 3% pay increase that every other Skanska Building employee would be receiving.[2] (Id. at ¶ 39.) Also in November 2017, Leier allegedly denied Kenion the opportunity to complete a self-evaluation for her annual performance rating necessary for her advancement at Skanska. (Id. at ¶ 40.) Leier explained that Kenion was not entitled to this evaluation because she was a Craft employee earning an hourly wage. (Id.) Kenion challenges the veracity of this assertion, alleging she had completed a self-evaluation in 2017 while assigned as a Craft Foreman to Skanska Building's American University Project under different managers. (Id.)

         Kenion complains that Lemley and Leier failed to promote her to the position of Assistant Superintendent for discriminatory reasons. In the summer of 2017, Lemley and Leier advised Kenion that James Moffitt, a college intern hired by Skanska and a Caucasian male in his early twenties, would be shadowing her on the DC Water Headquarters Project construction site and would be supervising the laborers there. (Id. at ¶ 41.) In contrast, another college intern hired that summer, Danielle Hendricks, a Black female in her early twenties, was tasked with performing office administrative work, but was not assigned to supervise staff. (Id. at ¶ 42.) For several months, Kenion trained Moffitt while carrying out supervisory job duties which were "functionally equivalent" to the duties of an Assistant Superintendent. (Id. at ¶ 43.) Skanska even identified Kenion as the Assistant Superintendent for the D.C. Water Headquarters Project on its organizational chart, although she did not formally hold this position. (Id.) On December 11, 2017, Kenion learned that Moffitt would be hired for the position instead of her, even though Moffitt did not meet the job's requirement of "5 years of industry experience." (Id. at ¶¶ 44, 46, 47.) The position was never advertised, and Kenion was not afforded the opportunity to apply or compete for it, even though she had far more industry experience than Moffitt. (Id. at ¶ 45.) Whereas Kenion had by that time worked for several years at Skanska, Moffitt had allegedly only worked two summers as a college intern at two different construction companies. (Id. at ¶¶ 45, 47.) On December 11, 2017, Skanska Building's Vice President of Operations, Darick Edmond, told Kenion that she was not selected for the position because the decisionmakers "would not feel comfortable putting her in a position that she didn't know 100%." (Id. at ¶ 48.) Kenion alleges that this explanation was pretextual; Moffitt himself allegedly did not have a full grasp of the position and frequently turned to Kenion for guidance concerning his job duties. (Id. at ¶ 49.)

         In late 2017, Kenion complained about the unfair treatment she was experiencing. In November 2017, Kenion discussed Lemley's actions with Leier and stated that she felt discriminated against "either because she was a woman or Black." (Id. at ¶ 50.) Leier took no corrective action and instead merely responded "that's just the way Bill is." (Id.) On December 11, 2017, Kenion met with Skanska USA, Inc.'s Human Resources Director and Leier to address the discrimination she perceived on the job. (Id. at ¶ 51.) Specifically, she complained about Lemley's treatment of her and discrimination against minorities; being denied a 3% pay raise; having no opportunity to complete a self-assessment for her annual performance evaluation; the lack of support from Lemley and Leier concerning her job advancement; and her non-selection for promotion to Assistant Superintendent. (Id.) This was not the first time Human Resources had heard complaints about Lemley. (Id. at ¶ 52.) Kenion alleges, "upon information and belief that in the Spring of 2016, a male African American Craft Foreman complained that Lemley had called him a "nigger." (Id.) In response to Kenion's complaints, Skanska gave Kenion the 3% pay raise that she had requested and allowed her to complete a self-assessment. (Id. at ¶ 54.) Skanska also directed her and Lemley to "have a conversation regarding communication styles." (Id.)

         Kenion was allegedly retaliated against for making her complaints. After the December 11, 2017 meeting with Human Resources, Skanska changed her work hours. In an effort to bring up to speed the lagging DC Water Headquarters Project, Kenion ordinarily worked nine to ten hours per workday, resulting in one to two hours of overtime pay each day of the workweek. (Id. at ¶ 56.) After she made her complaint, however, Lemley prohibited Kenion from working more than eight hours per day, causing her to lose overtime pay. (Id.) Lemley further instructed Kenion to work on weekends, allegedly knowing that Kenion would have difficulty accommodating this request because she was raising two children and taking classes in pursuit of an Associate's Degree in Construction Management. (Id. at ¶ 57.) No. White employees were required to work weekends regularly. (Id.) Lemley also routinely required Kenion to report to work on Saturdays and Sundays after her classes and during periods of inclement weather, a requirement he did not impose on other employees. (Id. at ¶ 58.) Skanska further retaliated against Kenion by requiring her to submit her self-assessment outside of her supervisory chain rather than to her supervisor, Lemley, as was customary and by failing to ensure that she received feedback on her self-assessment and obtained career development guidance as required by company policy. (Id. at ¶¶ 59, 60.)

         Kenion alleges that Skanska's failure to adequately address her concerns left her no choice but to resign. She alleges that she waited between December 2017 and March 2018 for Skanska to take further action to remedy the discrimination she was experiencing. (Id. at ¶ 61.) Finally, unable to tolerate the on-going retaliation and roadblocks to advancement, Kenion submitted a letter of resignation on March 2, 2018. (Id. at ¶¶ 62-63.)

         On February 22, 2018 Kenion contacted the Equal Employment Opportunity Commission ("EEOC") and complained of discrimination at Skanska. (Id. at¶ 18.) On June 15, 2018 Kenion filed a Charge of Discrimination which alleged as follows:

I was employed with the above-named Respondent since spring of 2011, until I resigned on or about spring of 2018.
I was subjected to different terms and conditions of employment by the above-named Respondent. For example, Respondent failed to keep its promised [sic] of promoting me officially to the position of Assistant Superintendent. Instead evidence would show that I was named the Acting Assistant Superintendent while also performing the duties of a Foreman [my primary job title/duties], but was never paid officially as an Assistant Superintendent. Instead Respondent hired a less qualified male who I had trained as an intern.
I believe I have been discriminated against due to my sex [female] in violation of Title VII of the Civil Rights Act of 1964, as amended.

(Def. Ex. 1, ECF No. 3-2.) On September 5, 2018, the EEOC issued a final dismissal and notice of right to sue. (Id. at ¶ 19.) On October 29, 2018, within 90 days of receiving her right-to-sue notice, Kenion commenced this lawsuit. (Id. at ¶ 20.) The Complaint brings eight counts, styled in the following manner: Discriminatory Hostile Work Environment in Violation of Title VII (Count I); Retaliatory Hostile Work Environment in Violation of Title VII (Count II); Discriminatory Non-Selection for Promotion in Violation of Title VII (Count III); Constructive Discharge in Violation of Title VII (Count IV); Discriminatory Hostile Work Environment in Violation of the DCHRA (Count V); Retaliatory Hostile Work Environment in Violation of the DCHRA (Count VI); Discriminatory Non-Selection for Promotion in Violation of the DCHRA (Count VII); and Constructive Discharge in Violation of the DCHRA (Count VIII). On January 2, 2019, Defendants filed a Motion to Partially Dismiss Plaintiffs Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

         STANDARD OF REVIEW

         I. Motion to Dismiss Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

         Defendants have moved to dismiss the Complaint based on Plaintiffs failure to satisfy Tide VII's administrative exhaustion requirements. At the time Defendants filed their Motion, the courts of this circuit adhered to the rule that the failure to exhaust administrative remedies under Tide VII deprives federal courts of subject matter jurisdiction over subsequently asserted claims. See Jones v. Calvert Group, Ltd., 551 F.3d 297 (4th Cir. 2009). Accordingly, Defendants invoked Rule 12(b)(1) of the Federal Rules of Civil Procedure. In this most recent Term of Court, the United States Supreme Court held that Title VII's administrative exhaustion requirements are not jurisdictional in nature and therefore "must be timely raised to come into play." Fort Bend Cty. v. Davis, 139 S.Ct. 1843 (2019). The exhaustion requirements are more properly considered "claim-processing rules" which, although not jurisdictional in nature, nevertheless must be followed. Id. at 1849, 1851 (holding that Tide VII's claim-processing rules are "mandatory" and that the court must enforce them). The import of Fort Bend is that Defendants may waive arguments related to administrative exhaustion by failing to raise them in a timely fashion. Timely raised, such objections may still warrant dismissal under Rule 12(b)(6) of the Federal Rules. See, e.g., Stewart v. Jancu, 912 F.3d 693, 701-702 (4th Cir. 2019) (holding that Tide VII's mandatory 180-day waiting period requirement is akin to a mandatory claim-processing rule and further considering whether dismissal was appropriate under Rule 12(b)(6) for plaintiffs alleged failure to adhere to the rule); see also Carter v. Montgomery Cty., TDC-18-2249, 2019 WL 3804765, at *2 (D. Md. Aug. 13, 2019) (construing motion to dismiss under Rule 12(b)(1) for failure to exhaust administrative remedies as a motion to dismiss under Rule 12(b)(6) in light of the Supreme Court's decision in Fort Bend).

         II. Motion to Dismiss Pursuant to Rule 12(b)(6) of the Feder ...


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