Milo v. Cybercore Technologies, LLC

          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 ...