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Johnson v. United Parcel Service, Inc.

United States District Court, D. Maryland

January 15, 2020



          James K. Bredar Chief Judge.

         Pro se Plaintiff Michael Johnson filed suit against Defendant United Parcel Service, Inc. ("UPS") alleging retaliation and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. UPS filed a motion to dismiss, and the matter is fully briefed. No hearing is required. See Local Rule 105.6 (D. Md. 2018). For the reasons set forth below, UPS's motion to dismiss will be granted.

         I. Background [1]

         Johnson has been employed by UPS since 1989 and has worked as a driver since 2000. (Compl., Ex. 3, ECF No. 1-3.) Johnson and his wife, who formerly worked at UPS, are Seventh Day Adventists who observe the Sabbath beginning at sundown on Friday. (Opp'n Mot. Dismiss at 1-2, ECF No. 28.) On May. 1, 2013, Johnson and his wife requested a religious accommodation so that they would not have to work on Friday after sundown in order to respect their Sabbath. (Id.) As part of their religious accommodation, Johnson and his wife would not work on Fridays for half of the year and would pay for this out of their vacation days. (Id. at 2.)

         On June 16, 2014, Johnson's wife, Khalilah Johnson ("Mrs. Johnson"), filed a case against UPS and two Union entities which was subsequently removed to this court.[2] Johnson v. United Parcel Serv., Inc., Civ. No. RDB-14-4003, 2015 WL 4040419 (D. Md. June 30, 2015). In that case, Mrs. Johnson brought a variety of claims for breach of contract, retaliation, and discrimination based on race, gender, and religion. Id. The court ultimately granted summary judgment in favor of UPS and the United States Court of Appeals for the Fourth Circuit affirmed that ruling. Johnson v. United Parcel Serv., Inc., 681 Fed.Appx. 177, 178 (4th Cir. 2017) (unpublished). Mrs. Johnson filed another suit in this court on June 27, 2017 alleging retaliation and a hostile work environment, which remains pending. Johnson v. United Parcel Serv., Inc., Civ. No. GLR-17-1771, 2018 WL 3956623, at *2 (D. Md. Aug. 16, 2018).

         Johnson alleges that UPS harassed him and retaliated against him because of his participation in and support for his wife's lawsuit. (Compl. at 6, ECF No. 1.) Johnson also alleges that he was retaliated against because of his religious accommodation. (Id.) Specifically, Johnson states that he has a contractual right in his Collective Bargaining Agreement ("CBA") with UPS to work 9.5 hours a day, and that UPS has repeatedly violated this right by forcing him to work more than 9.5 hours a day when other drivers were able to leave earlier. (Opp'n Mot. Dismiss at 2.) Johnson also states that he has had to attend multiple disciplinary hearings, requiring him to miss work and pay, as a result of pretextual discipline. (Id. at 3.)

         This is not the first case against UPS that Johnson has brought in this court. Johnson filed a separate complaint against UPS in 2017 alleging retaliation and discrimination. Johnson v. United Parcel Serv., Inc., Civ. No. ELH-17-1546, 2018 WL 2237469, *1 (D. Md. May 16, 2018). The court found that Johnson had failed to exhaust his administrative' remedies with respect to his claims of discrimination based on religion, retaliation based on his request for religious accommodation, and retaliation for his participation in his wife's lawsuit because he had failed to include these facts in his EEOC charge ("2016 charge"), and the court therefore dismissed those claims. Id. at *12-13. The court found that Johnson's 2016 charge only alleged retaliation based on an EEOC inquiry that he filed in January 2016 and his request to work 9.5 hours. Id. Judge Hollander dismissed the claims stemming from the 2016 charge, finding that Johnson had failed to adequately plead these causes of action. Id. at *18. The court provided Johnson one month to amend his complaint, but he failed to do so and his case was closed. Id. at * 19.

         On March 29, 2019, Johnson filed another EEOC charge ("2019 charge") based on discrimination and retaliation.[3] (Compl., Ex. 1 at3, ECF No. 1-1.) Johnson's 2019 charge includes several attachments providing additional details regarding his allegations. In Attachment A, Johnson states that "UPS started ignoring" his "contractual right" to work 9.5 hours and his religious accommodation to not work Friday evenings in retaliation for his support of his wife's lawsuits and his "religious identity," (Id., Ex. 2, ECF No. l-2.)[4] Johnson attaches an affidavit as Exhibit B, which contains complaints about being overworked in January and February 2017. (Compl. Ex. 3, ECF No. 1-3.) Attachment C is Johnson's declaration from his wife's case, dated February 23, 2016. (Id., Ex. 4, ECF No. 1-4.) In his declaration, Johnson states that he observed members of UPS management speak to him, but not his wife, after they made their request for religious accommodation in May 2013. (Id., Ex. 4 at 2.) He also states that her truck was "overloaded with packages" following their request. (Id.) In addition, Johnson states his workload began to increase in January 2015, and that he asked to be placed on the list of employees working 9.5 hours, but his request had not been accepted. (Id.) Instead, he states his truck was overloaded "[i]n retaliation," though he does not specify what the retaliation was for. (Id.) He also states that another driver told him once "that they will not give [him] any help when [he] request[s] it, because [his] religious accommodation provides [him] with a day off on Friday[]." (Id., Ex. 4 at 3.)

         Exhibit D, titled "Continued Complaint," contains several pages worth of grievances from January 21, 2015 through February 15, 2017, and was also filed in Johnson's 2017 litigation. (Id., Ex. 5, ECF No. 1-5.) The document includes a list of dates on which he: was required to work over 9.5 hours; experienced disputes over paid leave and time off (including an unexplained discharge); contested disciplinary action; experienced the rescheduling of a deposition; served suspensions without pay; and attended several hearings which appear to be related to alleged performance issues.[5] (Id.) Johnson also states that on Friday, April 15, 2016 he sent several messages to the "center" because he was given too much work and needed help to honor the Sabbath. (Id., Ex. 5 at 4.) He said this was the second time his truck was overloaded on a Friday, though it is unclear whether he actually had to work after sundown on Friday. (Id.)

         Johnson filed his Complaint on June 28, 2019. (Compl., ECF No. 1.) UPS filed a motion to dismiss on August 12, 2019 (ECF No. 10), and filed a supplemental motion to dismiss on August 15, 2019 (ECF No. 14.) Johnson filed a motion for an extension of time to respond to UPS's motion to dismiss on August 29, 2019, in which he requested an additional two weeks to respond, which he said would be "honored on or before September 13, 2019" (ECF No. 19). This Court granted that request (ECF No. 20).

         On September 16-three days after Johnson was required to respond to UPS's motion to dismiss-Johnson submitted an amended complaint and a further motion for an extension of time which would allow him to respond to UPS's motion to dismiss by November 13, 2019 (ECF No. 21). This Court granted that request (ECF No. 25). Johnson's Amended Complaint "changes," rather than replaces, his original complaint, and he states that he incorporates the allegations in the attachments into his complaint. (Am. Compl. at 1, ECF No. 21.) Johnson attaches his 2016 charge to his amended complaint, which details the alleged retaliation he faced for filing an EEOC inquiry and requesting to work 9.5 hours. (Id., Ex. 2 at 4, ECF No. 21-2.) Johnson also attaches his EEOC "Intake Questionnaire," dated January 1, 2016, which makes a general complaint regarding religious discrimination. (Id., Ex. 2 at 5-8.) Johnson-also attaches a letter to a "Committee" dated September 4, 2015 in which he complains of overwork and disciplinary actions related to his request to be on the "9.5 list." (Id., Ex. 1 at 2-3, ECF No. 21-1.) In this letter, . Johnson alleges that he is being retaliated against by UPS because he has filed several grievances against UPS for making him work more than 9.5 hours. (Id.)

         On September 26, UPS filed a motion to dismiss Johnson's amended complaint, which incorporated its prior supplemental motion to dismiss. (ECF No. 23.) On November 15-two days after the deadline provided in this Court's Order granting Johnson's request for an extension-Johnson filed his opposition to UPS's motion to dismiss (ECF No. 28).[6] This document contained a section entitled "Amended Pleadings," in which Johnson clarifies that he is making three claims: retaliation based on protected activity (Count I); retaliation for requesting and maintaining a religious accommodation (Count II); and hostile work environment on the basis of religion (Count III). (Opp'n Mot. Dismiss at 3.) In addition, Johnson attached several new exhibits to this document, including: a Record of Grievance made to his Union in 2016 for working more than 9.5 hours and not having his religious accommodation honored; correspondence between Johnson and the EEOC in 2017 regarding Johnson's complaints about advice he received; documentation related to his original request for religious accommodation in May 2013; documentation regarding suspensions; what appears to be a photograph of a full truck; electronic messages Johnson sent to "Center and Dispatch Site" regarding being overworked and needing help to finish before the Sabbath; and excerpts from what appears to be his CBA. (Opp'n Mot. Dismiss, Exs. 1-3.) UPS filed its reply on November 29, 2019 (ECF No. 29).

         II. Legal Standard

         UPS filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Mot. Dismiss at 1.) A 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)). Facial plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." . Iqbal, 556 U.S. at 678. An inference of the mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. Courts must "accept the well-pled allegations of the complaint as true, ... constru[ing] the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra, 120 F.3d at 474. "A pleading that offers 'labels and conclusions' or... 'naked assertion[s]' devoid of 'further factual enhancement'" will not suffice. Iqbal, 556 U.S. at 678 (alteration in original) (citation omitted) (quoting Twombly, 550 U.S. at 555, 557). Courts need not accept legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

         Plaintiffs need not "plead facts that constitute a prima facie case in order to survive a motion to dismiss." Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd sub nom. Coleman v. Court of Appeals of Maryland, 566 U.S. 30 (2012). However, the plaintiff must present facts that "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.

         III. Analysis

         1. Consideration of Facts in Johnson 's Response to the Motion to Dismiss

         As a preliminary matter, UPS argues that Johnson should not be allowed to amend his complaint through his response to UPS's motion to dismiss, in which Johnson provides additional details supporting his claims and includes a section titled "Amended Pleadings." (Reply at 3-4.) UPS argues that Johnson has already amended his complaint once as a matter of course under Federal Rule of Civil Procedure 15(a), and that any other amendments require leave of the court or permission of the opposing party. (Id. at 3.) Though courts should ''freely give leave [to amend] when justice so requires," Fed.R.Civ.P. 15, courts need not allow a party to amend a pleading where such amendment would be futile, United States v. Pittman,209 F.3d 314, 317 (4th Cir. 2000). An amendment is futile where the amended complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6). U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc.,525 F.3d 370, 376 (4th Cir. 2008). As explained below, because Johnson's complaint, including the additional supporting facts in his opposition brief, fails to state a claim to relief, it would ...

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