United States District Court, D. Maryland
MEMORANDUM OPINION
RICHARD D. BENNETT UNITED STATES DISTRICT JUDGE
Plaintiff
Megan Milo ("Milo") is a transgender woman who
brings this action against CyberCore Technologies, LLC
("CyberCore") and "Northrop Grumman
Corporation ("Northrop") (collectively,
"Defendants") alleging discrimination under Tide
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e, et seq. ("Title VII"), and
under Tide I of the Civil Rights Act of 1991, 42 U.S.C.
§ 1981a ("Tide I"). (Compl, ECF No. 1.) Milo
alleges that Defendants subjected her to a hostile work
environment (Count 1) and terminated her (Count 2) because of
her sex, gender identity, and gender expression as a
transgender woman. (Id.) Milo further alleges mat
Defendants harassed and terminated her in retaliation for
making internal complaints about the alleged discrimination
(Count 3). (Id.)
Currendy
pending before this Court is Defendant CyberCore
Technologies, LLC's Motion to Dismiss or, in the
Alternative, for Summary Judgment (ECF No. 22); Defendant
Northrop Grumman Corporation's Motion to Partially
Dismiss Plaintiffs Complaint (ECF No. 23); Defendant
CyberCore Technologies, LLC's Objection to and Motion to
Strike the Declaration of Nicolas Salter, Ph.D. (ECF No. 33);
and Plaintiff Ms. Megan Milo's Motion for Leave to File
Surreply in Response to Defendant CyberCore Technologies,
LLC's Motion to Dismiss or, in the Alternative, for
Summary Judgment (ECF No. 36). The parties' submissions
have been reviewed, and no hearing is necessary. See
Local Rule 105.6 (D. Md. 2018).
For the
reasons that follow, CyberCore's motion, treated as a
motion to dismiss, shall be GRANTED, and all claims against
CyberCore shall be DISMISSED WITHOUT PREJUDICE;
Northrop's motion to dismiss Count 1 shall be GRANTED and
Count 1 against Northrop shall be DISMISSED WITHOUT
PREJUDICE; and Counts 2 and 3 shall proceed against Northrop.
With regard to CyberCore's motion to strike Milo's
expert declaration, this type of advance expert testimony
opinion on a legal conclusion has previously been rejected by
this Court, and CyberCore's motion to strike it shall be
GRANTED. The declaration and report of Nicholas Salter, Ph.D.
shall be STRICKEN from Milo's Opposition to
CyberCore's dismissal motion. Finally, Milo's motion
seeking to file a surreply in response to CyberCore's
dismissal motion, shall be GRANTED. The proposed Surreply
(ECF No. 36-2) shall be considered by this Court in reaching
a decision on CyberCore's dismissal motion.
BACKGROUND
In
ruling on a motion to dismiss, this Court "accept[s] as
true all well-pleaded facts in a complaint and construe[s]
them in the light most favorable to the plaintiff."
Wikimedia Found, v. Nat'l Sec. Agency, 857 F.3d
193, 208 (4th Or. 2017) (citing SD3, LLC v. Black &
Decker (U.S.) Inc., 801 F.3d 412, 422 (4th Cir. 2015)).
CyberCore is a professional services job placement agency
that provides skilled personnel to staff government
contracts. (CyberCore Mot. Mem. 1, ECF No. 22-1.) On December
1, 2012, Milo was hired by CyberCore as a Senior Software
Engineer to work on a classified government contract managed
by a federal government agency and the prime contractor,
Northrop. (Id. at 3; Compl. ¶ 37, ECF No. 1.)
Milo alleges that CyberCore and Northrop were joint
employers, although Milo was the only CyberCore employee at
the location, and Milo's managers were from Northrop.
(Compl. ¶¶ 37-38, 41-43, 45-52, ECF No. 1.) At that
time, Milo was known as a male named Doug Milo. (CyberCore
Mot Mem. 3, ECF No. 22-1.)
Milo
began living full-time as a female named Megan Milo on or
about March 28, 2013. (Compl. ¶ 40, ECF No. 1.) Before
Milo's gender transition, managers from CyberCore,
Northrop, and the federal government agency held a meeting,
during which they explained to everyone that she would be
transitioning to the female sex, that she would use
"she" and "her" pronouns, and that she
should be treated with dignity and respect. (Id. at
¶ 53.) Milo alleges that some of her co-workers ignored
this directive and engaged in discriminatory harassing
conduct because of her sex. (Id. at ¶ 54.) For
example:
• In April 2013, Ms. Anderson, Milo's supervisor at
CyberCore, told her that her skirt was too short, and when
Milo pointed out another employee with a short skirt, Ms.
Anderson responded: "Well that doesn't matter. She
doesn't work for me, you do." (Id. at
¶ 55.)
• A co-worker told her that she "hated"
transgender people because her ex-husband was transgender.
(Id.) Milo alleges that she reported this statement
to Ms. Anderson in June 2013. (Id.)
• In June 2013, Milo had a loud contentious discussion
with a male co-worker and was later corrected by Ray Wise,
the Office Manager, even though her male . co-worker was not
corrected. (Id.)
• A manager, Tom Morehead, witnessed
misgendering[1] by two of Milo's coworkers, Alex Davis
and Theresa Olson. (Id.) Milo alleges that in
September 2013, Tom Morehead told Milo to "lay low"
because she was being targeted, and if she were to complain,
she would be in worse trouble. (Id.)
• Alex Davis brought a complaint against her to Human
Resources, stating that he was "walking on
eggshells" around Milo because of her request to be
called by her female name and the proper pronouns.
(Id.)
• In October 2013, Ms. Anderson, Milo's supervisor,
Jeremy Knapp, a Northrop representative, the Human Resources
manager, and a Northrop program manager met with Milo and put
her on a 30-day probationary period based on Alex Davis'
complaint. (Id.) Milo explained that Alex Davis'
conduct was discriminatory and requested that the
misgendering and poor treatment stop. (Id.) Milo
alleges that Jeremy Knapp responded: "What you think
really doesn't matter." (Id.)
• A Performance Improvement Plan ('TIP") was
issued as part of Milo's probationary period, stating as
a reason "interaction with coworkers is causing Megan to
perform at a subpar level." (Id.) Milo was
given a list of concerns to address during probation, which
included not complaining in public forums, treating all
customers and coworkers with respect, and the statement:
"Northrop Grumman management recognizes that there are
extenuating circumstances, but Megan must extend the same
understanding and latitude to her coworkers that she expects
for herself. The team is walking on eggshells in fear of
creating a perceived slight or offense." (Id.)
After
30 days, around the end of November 2013, Milo's
supervisor spoke with Northrop and confirmed that Milo was no
longer on probation. (Id. at ¶ 62.) In February
2014, Milo spoke to Alex Davis again about the misgendering.
(Id. at ¶ 63.) Milo alleges that around this
same time, she believes that Theresa Olson had a meeting with
Jeremy Knepp, a Northrop representative, about Milo's
employment, and at this meeting, Northrop requested
Milo's termination. (Id. at ¶¶ 64-65.)
On February 28, 2014, Milo's supervisor, Ms. Anderson,
called Milo into a meeting and terminated her, giving her a
choice to take a layoff or be fired because of her "bad
attitude." (Id. at ¶¶ 66-67.) Milo
alleges that Ms. Anderson advised her to take the layoff
because if she were terminated, she would never be able to
work in the Intelligence Community again. (Id. at
¶¶ 69-70.) No other person was "laid
off." (Id. at ¶ 72.)
On or
about August 28, 2014, Milo filed a charge of discrimination
with the Equal Employment Opportunity Commission
("EEOC") alleging violations of Tide VII.
(Id. at ¶¶ 15-18.) The EEOC must assume
its own investigation of the charge to determine whether
there is reasonable cause to believe that unlawful
discrimination has occurred. See 42 U.S.C. §
2000e-5(b). After making its determination, the EEOC must
either dismiss the charge, reach a conciliation agreement, or
institute a civil action. 42 U.S.C. § 2000e-5(b). If the
EEOC has not taken these actions after the required period of
time has passed, the plaintiff may submit a written request
that the EEOC issue a notice of right to sue, commonly called
a "right-to-sue letter." 29 C.F.R. §
1601.28(a)(1). In this case, Milo received the right-to-sue
letter and within 90 days of receipt, on October 11, 2018,
Milo filed the instant three-count lawsuit. (See
Compl. ¶ 18. ECF No. 1.)
On
December 13, 2018, CyberCore filed a motion to dismiss, and
Northrop filed a motion to dismiss in part. (ECF Nos. 22,
23.) These motions are now fully briefed and ripe for
decision. For the reasons that follow, these motions shall be
GRANTED. Specifically, all claims against CyberCore and Count
1 against Northrop shall be DISMISSED WITHOUT PREJUDICE;
Counts 2 and 3 shall proceed against Northrop.
Additionally,
CyberCore filed a motion to strike a declaration that Milo
attached to her response to CyberCore's motion. (ECF No.
33.) This type of advance expert testimony opinion on a legal
conclusion has previously been rejected by this Court, and
CyberCore's motion to strike it shall be GRANTED. The
declaration and report of Nicholas Salter, Ph.D. shall be
STRICKEN from Milo's Opposition to CyberCore's
dismissal motion.
Milo
also filed a motion seeking to file a surreply in response to
CyberCore's dismissal motion, which this Court shall
GRANT. (See ECF No. 36.) The proposed Surreply (ECF
No. 36-2) shall be considered by this Court in reaching a
decision on CyberCore's dismissal motion.
STANDARD
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