United States District Court, D. Maryland
MICHAEL W. JOHNSON, Plaintiff
UNITED PARCEL SERVICE, INC., Defendant
K. Bredar Chief Judge.
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.
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.)
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. 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2017) (unpublished).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).
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.)
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 *
March 29, 2019, Johnson filed another EEOC charge ("2019
charge") based on discrimination and
retaliation. (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.) 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.)
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. (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.)
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).
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
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.
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).
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.
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
Consideration of Facts in Johnson 's Response to the
Motion to Dismiss
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 ...