Goddard v. Apogee Retail LLC

Full title: MELVIN M. GODDARD v. APOGEE RETAIL LLC, et al.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Date published: Jun 25, 2021

Civil Action No. DKC 19-3269 (D. Md. Jun. 25, 2021)

Opinion

Civil Action DKC 19-3269

06-25-2021

MELVIN M. GODDARD v. APOGEE RETAIL LLC, et al.

DEBORAH K. CHASANOW United States District Judge

MEMORANDUM OPINION

DEBORAH K. CHASANOW United States District Judge

Presently pending and ready for resolution in this employment discrimination and workers' compensation case is the motion to dismiss filed by Apogee Retail, LLC. (ECF No. 23). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted, albeit without prejudice as to the attempted addition of pendant state law claims.

I. Factual Background

This dispute arises out of allegations that pro se Plaintiff Melvin Goddard, a resident of Washington D.C., has made against his former employer, Defendant Apogee Retail, LLC (“Apogee”), arising from his employment in one (or more) of its Maryland offices. Plaintiff reports beginning his job at Apogee in “early to mid[-]June of 2008” as a “driver's helper” but says that he transitioned to a “driver position” because he held a commercial learner's permit. It was in this position that Plaintiff reports involvement in a car accident that was “life chang[ing, ] completely.” (ECF No. 3, at 9).

Plaintiff's first amended complaint clarifies that the car accident occurred on September 3, 2008.¹ He says that when he regained consciousness after the collision, “[his] left leg and arm w[ere] hanging in the air by splint hanging from [] poles around the bed” and that he “sustained damages to the whole left side of my body.” (ECF No. 10, at 15-16). The first amended complaint also quotes from an orthopedic evaluation, made shortly after the accident, on September 24, 2008, that purportedly read:

1 This understanding of the facts and events is based on piecing together bits of information contained in Plaintiff's original complaint, first amended complaint, second amended complaint (the “operative complaint”), and multiple supplemental filings.

Mr. Goddard is a 29-year-old male who presents for consultation following a severe injury which occurred when he was driving a work truck. There was a loss of consciousness and patient struck some trees. He sustained multiple injuries including a dislocation of his left hip with a fracture of the acetabulum, a volar plate fracture of his 3^rdfinger, a severe multi-ligamentous injury with left eye problems, multiple abrasions and lacerations with glass fragments into his scalp on the left side and into his left arm and for[e]arm . . .

The patient has been using Percocet to control pain. He do[es] not have any of the original imaging studies available for review today but he had reviewed the reports from

INOVA Hospital outlining my injuries. I was walking with crutches.^[2]

Apparently in the hospital there was no obvious medical reason, which accounted for the patient's loss of consciousness. He may just have fallen asleep.

[2] These kind of lapses between first and third person appear in a number of what Plaintiff claims are verbatim transcriptions of third-party documents. For the purposes of this motion, however, such allegations will be taken as true.

(ECF No. 10, at 21) (emphasis added by Plaintiff).

Plaintiff's administrative complaint also helps fill in some blanks by reporting that, in or around September 2008, he was “wrongfully terminated” “due to multiple disabling injuries sustained on the job and was unable to get further evaluation and medical treatment of [his] injuries.” (ECF No. 1-1, at 4). While Plaintiff was still recovering in the hospital, he learned that there were “problems” with his insurance. After his release and while continuing to recover, his mother suggested that he hire a lawyer to pursue “getting long term medical care.” That search ended with his hiring Steven C. Rohan to help “represent [him] in a work accident situation.” (ECF No. 10, at 15-16).

Plaintiff, with Mr. Rohan's help, submitted a claim to the Maryland Worker's Compensation Commission (“WCC”), but what happened after that is far from clear. In his first amended complaint, Plaintiff vacillates between (apparently) quoting his attorney and interjecting his own commentary in a way that makes it nearly impossible to follow. Plaintiff's narration is, at times, also at odds with the facts and dates presented in his other filings. (See ECF No. 10, at 24). Mr. Goddard does, however, include, with his original complaint, an order from the WCC that states, “Hearing was held in the above claim in Laplata, Maryland on April 8, 2009, and as a result thereof, the Commission finds on the issue presented that the complainant's average weekly wage is $320.00.” (ECF No. 1-1, at 37). Mr. Goddard suggests that he did not receive notice of the Agency's determination of his Average Weekly Wage and that this was a purported violation of Maryland code. (See ECF No. 18, at 4 & 5) (listing purported violations of Maryland code as he “had no notice of agency action, ” “no notice of hearing . . . on 1/15/2009 . . . on Average Weekly Wage hearing . . . [and] no knowledge of 4/08/2009 hearing”). Plaintiff alleges that, by April 13, 2009, he was not “getting the proper medical treatment-care within the [WCC] system” that he believes was owed to him. (ECF No. 1, at 10).

II. Procedural Background

Nearly a decade later, Plaintiff “found out about” the Equal Employment Opportunity Commission (“EEOC”) and, on July 10, 2019, filed a complaint.³ This complaint not only alleged wrongful termination based on his injuries/disabilities but goes on to state:

3 Also attached to Plaintiff's original complaint is a response to a grievance he filed on May 16, 2019, with the Government of the District of Columbia Department of Behavioral Health (“DBH”) complaining that he did not receive “a copy of my assessment done with APRA [presumably the Addiction Prevention & Recovery Administration].” He reports that reaching out to the DBH was his attempt to seek some form of “professional help”, not knowing where else to turn, and that he did not report the “discriminatory acts” that he allegedly endured in seeking treatment for his purported disabilities at the time, because he “never knew of the Civil Rights Division.” (ECF No. 18, at 5). This grievance is only included as background, as the failure to produce records is not asserted as a ground for relief in his operative complaint or subsequent filings. These claims do seem to relate to his later allegation, in his operative, amended complaint, that there were “inconsistencies in the provisions of determining my disability status under Social Security” pursuant to 42 U.S.C. § 405(b). (Id.).

I believe I have been discriminated against on the basis of my Race (African American), Color (Black), Sex (Male), Religion (Islam), National Origin (African American) and retaliated against for engaging in protected activity under the law in violation of Title VII of the Civil Rights Act of 1964 [“Title VII”], as amended.

I believe I have been discriminated against on the basis of my disabilities and retaliated against for pursuing a workers compensation claim with an attorney, in violation of the Americans with Disabilities Act of 1990 [“the ADA”], as amended.

I believe I have been discriminated against on the basis of my Genetic Information and retaliated against for engaging in protected activity in violation of the Genetic Information Nondiscrimination Act of 2008.

(ECF No. 1-1, at 4). He checked the boxes in his Charge of Discrimination for discrimination based on 1) race, 2) color, 3) sex, 4) religion, 5) national origin, 6) retaliation, 7) disability, and 8) genetic information. The complaint reports this discriminatory conduct as having occurred on September 9, 2008. (ECF No. 1-1, at 4). Five days later, Mr. Goddard received a response dismissing his administrative complaint and noting that, “Your charge was not timely filed with EEOC; in other words, you waited too long after the date(s) of the alleged discrimination to file your charge.” (ECF No. 1-1, at 1).

Plaintiff ultimately filed a complaint in the United States District Court of the District of Columbia (“D.C. Court”) on October 1, 2019, that named fifty-two Defendants. (ECF No. 1). That complaint seemingly omitted passages when photocopied, so Plaintiff submitted a corrected version to the court the next day. (ECF No. 3). This corrected filing concludes by referencing various subsections of 42 U.S.C. § 2000e, the codification of Title VII of the Civil Rights Act of 1964 (“Title VII”). That same month, Mr. Goddard filed a “Motion to Seal Personal Information” with the D.C. Court (ECF No. 4). Based on the allegations and Mr. Goddard's attachment of his EEOC complaint, the D.C. Court determined that Plaintiff meant primarily to sue his former employer, Apogee, for employment discrimination pursuant to Title VII and transferred the case to this court. (ECF No. 7).

Mr. Goddard subsequently filed a first amended complaint on November 15, 2019 (ECF No. 10) but was informed that this complaint failed to meet the pleading requirement of Fed.R.Civ.P. 8(a); he was directed to file a second amended complaint within twenty-eight days that provided brief, clear, and concise allegations regarding the multitude of named Defendants. (ECF No. 11). On January 21, 2020, Plaintiff filed what he entitled a “Request for Affirmative Relief” (ECF No. 12) (filed under seal), which he supplemented with numerous exhibits two days later (ECF No. 13) (filed under seal), along with a motion to seal all personal information in his previous filings (ECF No. 14) that largely mirrored his earlier, still-pending motion to seal. (ECF No. 4). On February 20, 2020, Plaintiff submitted yet another request for affirmative relief (ECF No. 17), and six days later resubmitted a nearly identical filing but with added information and allegations. (ECF No. 18).

Ultimately, an order was issued on July 31, granting the two motions to seal (keeping ECF Nos. 12 and 13 under seal), and ordering the Clerk to edit the docket to reflect that ECF No. 18 would be treated as the “operative second amended complaint.” The order also dismissed the two earlier motions for affirmative relief, (ECF Nos. 12 and 17), as moot, and allowed the case to proceed against Apogee only and based on the new complaint, while dismissing the other Defendants, without prejudice. (ECF No. 19).

On September 14, 2020, Apogee filed the currently pending motion to dismiss. (ECF No. 23). Apogee argues that the operative complaint fails in its entirety to state a claim upon which relief could be granted and fails in its entirety to conform with the pleading standards laid out by Fed.R.Civ.P. 8(a) (thereby depriving “the Defendant of an opportunity to frame a responsive pleading”). Apogge also argues that claims are barred under “workers' compensation immunity” and/or the relevant statute of limitations.

Notice was subsequently sent to Plaintiff informing him that his failure to respond adequately could be fatal to his complaint. After he was granted an extension, Plaintiff filed a document on October 23, 2020, entitled “Subject-Matter Jurisdiction” that was construed and docketed as his opposition. (ECF No. 27). On November 16, however, he submitted another letter to the court that signaled his intention to supplement this response which was construed as a motion for an extension and for leave to file a supplement (ECF No. 28) (filed under seal). These requests were granted by order two days later (ECF No. 29), and Plaintiff filed the supplemental response on December 23. (ECF No. 31).⁴ Defendant has not filed a reply and the time to do so has passed.

4 ECF No. 31 explains in further detail that one of Plaintiff's central qualms is that he was not afforded due process when the WCC determined his level of compensation. (See, e.g., ECF No. 31, at 1) (citing § 14.09.01.07(B) of the Code of Maryland Regulations (COMAR) governing the duties of the WCC's Commissioner). Like many of Plaintiff's other filings, however, this supplement also refers to a host of issues not in dispute (i.e. subject-matter jurisdiction, proper venue, and personal jurisdiction). It also serves as an outline to his penultimate submission laying out, without much discussion, the elements of various torts like medical malpractice, and assault and battery, while also floating various legal theories that Plaintiff has woven into his ever-expanding allegations, like the duty of care, the definition of a fiduciary, and the “Business Judg[]ment Rule.” (See ECF No. 31, at 12-34).

III. Belated Attempts to Supplement

Plaintiff has also filed four additional documents that belatedly seek to add to his claims. Initially, Plaintiff filed letters to the court on February 19 and May 7, 2021. (ECF Nos. 32 and 33). The first letter makes unsubstantiated allegations that his computer systems are being interfered with by Defendant and renewed claims that his medical needs are still not being met. Plaintiff offers no factual basis beyond speculation for the first claim nor explains its relevance to allegations against his employer; the latter involves the decision of the Workers' Compensation Commission which is beyond the jurisdiction of this court. The second letter references discrepancies and a purported “conflict of laws” under Plaintiff's alleged medical insurance. It also requests legal assistance in this matter and makes separate, unsubstantiated allegations regarding what he asserts are “worms/parasites” being put in his water supply that similarly offer no connection to Plaintiff's central allegations.

More recently, Plaintiff filed two more documents: another attempted “motion for Request of Affirmative Relief” (ECF No. 34), and a letter raising various unrelated legal theories that builds on his operative complaint. (ECF No. 35). ECF No. 34 attaches over 200 pages of exhibits that consist of a meandering and, at times, entirely incoherent recitation of various laws and issues not actually in dispute or even relevant, including subject matter (despite the presence of clear Federal Question jurisdiction); the elements of assault and battery; various tort concepts (i.e. foreseeability and the duty of care); standing; SEC violations; the separation of powers between state and federal governments; and, once again, the Business Judgment Rule. At times, Mr. Goddard also ventures into foreign and inapplicable law including citation to the regulatory code of Brussels.

ECF No. 35 starts by quoting the Eleventh Amendment and the authority for “Citizen suits” under 42 U.S.C. §§ 6972 and 7604 even though a suit against a state is not at issue (as to the former) and the fundamental right of Plaintiff to bring civil suit is not in question (as to the latter). The filing goes on to reiterate that Plaintiff has suffered “an injury in fact” - even though, again, standing is not at issue - and expounds upon four legal theories against nondefendants: 1) that Mr. Goddard's insurance provider violated various Maryland Insurance codes, 2) that the WCC violated his “constitutional rights” (while citing to the Maryland Lab. & Emp. Code dealing with the Injured Worker's Insurance Fund and Chesapeake Employers' Insurance Company), 3) a violation of ethical responsibilities by his former lawyer and the Food and Drug Administration, the latter of whom he claims took his DNA without consent, and, finally, 4) his theory of medical malpractice by the various physicians who treated him, but with passing reference to the (unrelated) duties of a fiduciary. At one point, he seems to summarize all his claims by writing: “All of This is about Breach of Contract & medical and legal malpractice.” (ECF No. 35).

It is not even clear what Mr. Goddard attempts to supplement with this latest filing. The main letter, entitled a “motion for Request of Affirmative Relief, ” would appear to be a supplement to the underlying complaint. It argues that Apogee's insurer “has rewritten the individual health coverage ‘Individual Contract'” right after his accident in September of 2008. Its first attachment states “NO JURY TRIAL DEMANDED” (in contradiction to his explicit Jury Demand in ECF No. 31) in its header and begins a long litany of statutory references and legal theories either to state new claims or to operate as a further supplement of his opposition to the motion to dismiss; it also makes reference to many of the formerly named defendants who he seemingly seeks to re-add to the case. (ECF No. 34-1).

The majority of the “allegations” in all four filings, moreover, contain little if any factual revelations related to Apogee's conduct. The filings confuse rather than sharpen the relevant legal issues. Insofar as they seek to supplement or amend Mr. Goddard's operative complaint or opposition, these requests will be denied. Such filings are considered with respect to Apogee only insofar as they add color and background to Plaintiff's Equal Protection, Fair Housing, and Title VII claims that animate his operative complaint. The request for counsel at this late stage of motion practice, found in ECF No. 33, will be denied.

IV. Standard of Review

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4^th Cir. 2006). “[T]he district court must accept as true all well-pleaded allegations and draw all reasonable factual inferences in plaintiff's favor.” Mays v. Sprinkle, 992 F.3d 295, 299 (4^th Cir. 2021) (reversing a district court's dismissal of a complaint because “we must accept the well-pleaded facts and draw reasonable inferences in favor of the plaintiff”). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 873 (4^th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), as are conclusory factual allegations devoid of any reference to actual events. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4^th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4^th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.

Pro se pleadings are liberally construed and held to a less stringent standard than pleadings drafted by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520 (1972). Liberal construction means that the court will read the pleadings to state a valid claim to the extent that it is possible to do so from the facts available; it does not mean that the court should rewrite the complaint to include claims never presented. Barnett v. Hargett, 174 F.3d 1128, 1132 (10^th Cir. 1999). That is, even when pro se litigants are involved, the court cannot ignore a clear failure to allege facts that support a viable claim. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4^th Cir. 1990); Forquer v. Schlee, No. RDB-12-969, 2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) (“[E]ven a pro se complaint must be dismissed if it does not allege a plausible claim for relief.” (citation and internal quotation marks omitted)).

V. The Operative Complaint

As a threshold matter, Defendant's claim that the operative complaint is largely incomprehensible and thereby deprives them of any meaningful opportunity to respond is well taken. (See ECF No. 23-1, at 4) (citing Weller v. Dep't of Soc. Servs., 901 F.2d 387, 291 (4^th Cir. 1990)). In particular, Defendant objects to the fact that Mr. Goddard “cites over a dozen separate Maryland COMAR Regulations and provisions of the United State Code” that entirely lack clarity as to what claims Plaintiff actually is asserting. (ECF No. 23-1, at 3); (See, e.g., ECF No. 18, at 4) (referencing, among others, 49 CFR § 21.5, prohibiting discrimination in federally assisted programs of the Department of Transportation under Title VI of the Civil Rights Act of 1964). Indeed, review of the operative complaint reveals that most (if not all) of these regulations are listed without any attendant explanation or linkage to the allegations. Insofar as the operative complaint attempts to raise claims under Maryland and U.S. regulations in this fashion, it will be dismissed. Defendant's request to dismiss the operative complaint in its entirety on this ground, however, will be denied.

As Defendant acknowledges, Mr. Goddard is afforded a liberal standard as a self-represented individual, untrained in the law. Moreover, a number of Mr. Goddard's claims, particularly in his operative complaint, are identifiable, as evidenced by the fact that Defendant responds to the merits of several of them in its motion. The operative complaint, as it relates to Apogee, makes out allegations under the following statutes: 1) 42 U.S.C. § 1981, 2) 42 U.S.C. § 1983, 3) The Due Process Clause of the Fifth and Fourteenth Amendments, 4) The Religious Freedom Restoration Act of 1933, 42 U.S.C. § 2000bb, 5) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 6) Md. Code, Lab. & Empl. § 9-101 et seq. (Maryland Workers' Compensation Law), and 7) The Fair Housing Act, 42 U.S.C. § 3601, et seq.

In addition to challenging the sufficiency of the allegations, Apogee contends that the claims are untimely. The statute of limitations is an affirmative defense that must be pled and proven by a defendant. It is ordinarily not appropriate to consider such defense on a motion to dismiss. Long v. Welch & Rushe, Inc., 28 F.Supp.3d 446, 456 (D.Md. 2014). When, however, the facts clearly appear on the face of a complaint, it is possible to address it on a motion to dismiss.

Courts generally do not “‘resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses'” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243 (quoting Republican Party v. Martin, 980 F.2d 943, 952 (4^th Cir. 1992)). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4^th Cir. 2007) (en banc); accord Pressley v. Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4^th Cir. 2009). Because Rule 12(b)(6) “is intended [only] to test the legal adequacy of the complaint, ” Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle only applies ... if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of the complaint.' ” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added in Goodman). A defense based on the statute of limitations therefore may be considered by a motion to dismiss, if facts sufficient to rule are contained within the Complaint's allegations. Id.

Desgraviers v. PF-Frederick, LLC., 501 F.Supp.3d 348, 351 (D.Md. 2020).

A. 42 U.S.C. 1981

42 U.S.C. § 1981 ensures that members of racial minorities enjoy equal rights under the law, which means ensuring their general rights to do things like make and enforce contracts, sue and be sued, and to be free from any penalties, taxes, and the like that are not levied against white citizens. See 42 U.S.C. § 1981(a). This claim requires a showing that the plaintiff is in fact a member of a protected racial class, the defendant had the requisite intent to discriminate against the plaintiff based on this protected status, and that the discrimination involved one of the protected activities listed under the statute. (ECF No. 23-1, at 6) (quoting Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2^d Cir. 1993)).

Defendant correctly explains that claims under this statute are governed by a four-year statute of limitations period that runs from when the alleged injuries occurred. Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004). The most recent conduct complained of by Apogee occurred in 2009 with Mr. Goddard's allegedly improper termination. This was over a decade ago and thus this claim is time-barred, without question. Even if the failure properly to redress Plaintiff's continued complaints, regarding both his termination and ongoing medical treatment, could somehow be imputed to Apogee, this claim would still fail. As Defendant points out, Mr. Goddard makes no attempt to explain what relevant, adverse conduct by Apogee was motivated by his race or any other protected status, or that any of the alleged, nondescript “discrimination” involved the kind of activities laid out in the statute. (ECF No. 23-1, at 6). This claim will be dismissed with prejudice as any attempt to amend allegations dating back this far would be futile. Fed.R.Civ.P. 15.

B. 42 U.S.C. § 1983

It is similarly unclear what exact conduct or theory is meant to animate Plaintiff's 42 U.S.C. § 1983 claim. It may be that Mr. Goddard means to assert that either his termination or Apogee's involvement in the aftermath of his accident and the proceedings before the WCC somehow constitute the kind of discrimination this law prohibits. The exact nature of the claim is irrelevant, at least as to Apogee, as Plaintiff has not shown, or even stated, Apogee's conduct is covered by § 1983. § 1983 serves to ensure that any person, acting under the color of law, does not deprive any citizen of the United States of the “rights privileges, or immunities” secured under the Constitution. “To state a claim under § 1983, a plaintiff must aver that a person acting under color of state law deprived him of a constitutional right or a right conferred by a law of the United States.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 (4th Cir. 2009). “Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful.” Id. (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (internal quotation marks omitted).

Moreover, this claim is not timely. The Fourth Circuit has explained the applicable limitations period in this context:

Section 1983 does not contain a statute of limitations. Thus, to determine the timely filing of a § 1983 claim, courts borrow the statute of limitations from the most analogous state-law cause of action. See 42 U.S.C. § 1988(a). For § 1983 suits, that cause of action is a personal-injury suit. See Owens v. Okure, 488 U.S. 235 (1989). Maryland law affords plaintiffs three years to file a personal-injury action. See Md.Code Ann., Cts. & Jud. Proc. § 5-101. Hence, a three-year limitations period applies . . .

Owens v. Balt. City State's Att'ys. Off., 767 F.3d 379 (4^th Cir. 2014). As both Plaintiff's termination and the WCC hearings took place more than a decade ago, this claim clearly is time-barred. Moreover, there is no indication that Apogee is a state actor, and so this claim would fail even if was timely. Accordingly, Plaintiff's § 1983 claim will be dismissed with prejudice.

C. Due Process Claims Under the Fifth and Fourteenth Amendments

Plaintiff also broadly declared “due process” claims that seem to stress only his employer's alleged role in denying Plaintiff the proper process before the WCC. (See ECF No. 23-1, at 5) (Defendant construing the claim in this way). Such claims also have been treated under § 1983. See Henson v. Bethlehem Steel Corp. 564 F.Supp. 497, 501 (D.Md. 1983). Mr. Goddard, in essence, argues that his substantive due process rights were violated because he failed to receive the required notices of the hearing before the WCC to determine his “Average Weekly Wage.” While referencing a number of other unrelated portions of the Bill of Rights, Plaintiff appears to bring this claim under both the Fifth and Fourteenth Amendments. (ECF No. 18, at 3-4).

As a threshold matter, the Fifth Amendment is inapplicable as Apogee is not the federal government.⁵ See Amador v. Mnuchin, 476 F.Supp.3d 125, 148 (D.Md. 2020) (citing Mathews v. Eldridge, 424 U.S. 319, 332 (1976) and quoting Reno v. Flores, 507 U.S. 292, 301-02 (1993), among others) (explaining procedural and substantive due process jointly ensure that the government both “employs fair procedures” when depriving an individual of liberty or property and “forbids the government to infringe certain ‘fundamental' liberty interests.”).

5 Nor does this claim have any relation to Plaintiff's criminal matters.

Any Fourteenth Amendment claim is duplicative of his § 1983 claim and also time-barred under the same statute of limitations, three years. See Issacs v. Balt. City. Fire Dept., No. GLR-12-1060, 2014 WL 6065965, at *3 (D.Md. Nov. 12, 2014) (“A claim for a violation of the Fourteenth Amendment for intentional employment discrimination under § 1983 is subject to the statute of limitations that the forum state provides for general personal injury cases.”).

Even if the claim was timely, moreover, the Fourteenth Amendment (like § 1983 itself) is not a viable basis for a claim, as Apogee is not a state actor or an extension of one. Judge Grimm has explained that “[i]ndividual invasion of individual rights is not the subject-matter of the [Fourteenth] [A]mendment.” Rivero v. Montgomery Cty., Md., 259 F.Supp.3d 334, 351 (D.Md. 2017) (quoting Civil Rights Cases, 109 U.S. 3 (1883)). The only way such a claim can survive against a private party is if such party exercises power “traditionally associated with sovereignty.” Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974)); see also Henson, 564 F.Supp. at 502, 505 (finding § 1983 does not reach the conduct of private actors who allegedly conspired with an “agent of the state, to deprive plaintiff of their federally-secured rights”).

Here, there is no suggestion that Apogee is a state actor, an agent of a state actor, or held power over Plaintiff akin to a state actor. The crux of this complaint is directed at WCC, which again, as a matter of workers' compensation law, is beyond the purview of this court, and related to allegations against a previously dismissed Defendant. Defendant rightly asserts, “Plaintiff fails to plead any facts which support a finding that the Defendant, Apogee Retail, LLC, violated any rights secured to him by the United States Constitution.” (ECF No. 23-1, at 5). Any purported claims brought under the Fifth or Fourteenth Amendment will be dismissed with prejudice.

D. The Religious Freedom Restoration Act of 1993

Plaintiff makes multiple references to discrimination against his religion and, in one paragraph in his operative complaint, repeated twice, declares “TO HAVE THE RIGHT TO PROTECTION in the free exercising of my religion - 42 U.S.C. § 2000bb-1(a).” (ECF No. 18, ¶¶ 12 and 14). This claim, however, does not come with any explanation of who is alleged to have discriminated against Plaintiff on the basis of his religion or how.⁶ Defendant does not even respond to this allegation. As Judge Bennett has explained,

6 Mr. Goddard first raised complaints of religious persecution, along with a request for medical treatment, within his second motion to seal. Mr. Goddard asserted therein that he feared openly exercising his religion lest he be harassed or face retaliation, but who threatened such harassment is left equally unclear. (ECF No. 14, at 2). These two requests were noted, but not addressed directly in the previous order (ECF No. 19). They will be considered here insofar as they build on the allegations in the operative complaint.

The Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq., prohibits the “Government [from] substantially burden[ing] a person's exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

Goodman v. Archbishop Curley High Sch., Inc., 149 F.Supp.3d 577, 588 (D.Md. 2016). This statute places restrictions on the government, not private parties, and so any claim predicated on RFRA against Apogee fails and will be dismissed with prejudice.

E. Title VII

Since transfer from the D.C. Court, this case has been about Plaintiff's Title VII claim against Apogee. (ECF No. 7). Indeed, the underlying administrative complaint, filed on July 10, 2019, and attached to his original complaint, describes (at least in conclusory terms) various forms of discrimination that ultimately ended with his being “wrongly terminated.” (ECF No. 1-1, at 1). But the operative complaint makes only sparse reference to Title VII. In one of the only paragraphs explicitly mentioning the statute, Plaintiff writes simply, “My employer is liable for Harassment.” (ECF No. 18, at 5) (citing 42 U.S.C. 2000e-2 § (a)(1) & (2); (k)(1)(A)(i)) (describing unlawful employment practices and the burden of proof in a disparate impact case, respectively). Plaintiff also generally argues his “employer and its creditor/insurer [] use a pattern & practice of discrimination” but does not provide any further detail. (Id., at 6).

Plaintiff entirely fails to state any facts to support a Title VII claim under a theory of harassment, discrimination or retaliation, however, even if his earlier filings are incorporated by reference. Any claim of disparate impact on a protected status equally fails, as Plaintiff points to no comparators from similarly situated nonmembers of a protected class.

More importantly, the EEOC dismissal letter itself notes on its face that Plaintiff did not bring his claims in a timely fashion. (ECF No. 1-1, at 1). Plaintiff, in fact, acknowledges this but pursued this claim anyway, presumably in the belief that he was still entitled to relief. (ECF No. 1, at 14). As this court has stated:

Title VII requires a plaintiff to file an EEOC charge of discrimination within a prescribed limitations period. See 42 U.S.C. § 2000e-5(e)(1). In deferral states, like Maryland, the limitations period is 300 days from the date of the allegedly discriminatory act. Id. Title VII opens the door for a private citizen to bring a civil action only upon either: (1) the dismissal of the administrative action by the EEOC, or (2) after 180 days have elapsed from the filing of the administrative claim with the EEOC. 42 U.S.C. § 2000e-5(f)(1). Once the door opens, the plaintiff has 90 days to file a claim. Id.

Qiydaar v. Balt. City. Bd. Of Sch. Comm'rs, No. DKC 19-1371, 2020 WL 5747189 at *6 & n. 10 (D.Md. Sep. 23, 2020) (explaining that “a ‘deferral state' is one that has its own state or local agency with authority to grant or seek relief from employment discrimination or to institute criminal proceedings on behalf of the alleged victim, ” omitted). Judge Messitte has written, “Filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Petway v. Doyle Printing & Offset Co., Inc., No. 12-3731 PJM, 2013 WL 4454633, at *2 (D.Md. Aug. 15, 2013) (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)). Plaintiff did not file his original administrative complaint with the EEOC within the required 300-day period necessary to satisfy this exhaustion requirement of Title VII. See § 2000e-5(e)(1).⁷ Thus, Plaintiff's Title VII claim will be dismissed with prejudice.

7 Moreover, there are no grounds for equitable tolling. Plaintiff filed two notices of “related civil cases pending” that actually reference two separate criminal cases of his. (ECF No. 5); (ECF No. 6). Other than the fact that the latter had an appeal that was pending at the time of filing, neither has any bearing on the timeliness or adequacy of his complaint.

F. Md. Code., Lab. & Empl. § 9-101 et. seq.

Plaintiff also argues that the previously dismissed WCC did not comply with Maryland's code surrounding its Workers' Compensation provisions. In particular, the operative complaint quotes a passage from what purports to be the WCC's previous order, dated January 20, 2009, ordering Apogee and its insurer to “Promptly provide said Claimant medical treatment and other necessary medical services as provided by Section 9-101 (b) or (g), Labor and Employment Article, Maryland Annotated Code.” (ECF No. 18, at 2). As Defendant argues, all of the claims along these lines amount to grievances with the WCC processes arising out of his workers' compensation claim. Md. Code. Lab & Empl. § 9-509(a) clearly states that “the liability of an employer under this title is exclusive” and that the remedies it provides for personal injury of a covered employee are “in place of any right of action against any person.” Such grievances with the WCC and its processes, even as they directly relate to Apogee and may be severe, are not within this court's jurisdiction. Thus, any claim under Maryland's Worker's Compensation Law will be dismissed, albeit without prejudice to any permissible action in the proper forum.

G. 42 U.S.C. § 3601 et. seq.

Finally, Plaintiff purports to bring a claim under the Fair Housing Act (“FHA”), pursuant to 42 U.S.C. § 3601 et seq. Plaintiff cites an existing claim he has open with the “D.C. Housing Authority, ” a purported sub-division of the U.S. Department of Housing & Urban Development. He implies that his “employer and its creditor/insurer” have violated the laws prohibiting housing discrimination, but the conduct in question is not described in any concrete terms. Beyond baldly stating that they “violated numerous of my rights, especially housing” he does not explain how the conduct ending with his termination and the alleged failure to secure adequate workers' compensation relates to his housing situation. Instead, he states FHA prohibits discrimination from “direct providers of housing, ” and that “this inappropriateness of discrimination is attempting to cause[] me to look like, as well as, to be seen as a laughingstock.” (ECF No. 18, at 6).

Defendant asserts that “Plaintiff does not allege that the Defendant is his landlord, mortgage lender or has any authority whatsoever involving his housing situation.” (ECF No. 23-1, at 7). Plaintiff attempts to argue in one of his late filings that “respondent is a person who is liable” under the FHA, but this statement cannot amend the operative complaint and is wholly lacking in factual or statutory support (despite bald references to various code sections). (ECF No. 34-2, at 51). Plaintiff does not (and all but certainly cannot) supply facts sufficient to show that his employer or its insurer was involved with Mr. Goddard's housing in any way, and so any claims against them under the FHA are dismissed with prejudice, even if timely.

VI. The Attempted Addition of New Defendants

Outside of stray references to the WCC, over which this court has no jurisdiction, the operative complaint, at least facially, is aimed solely at Apogee and/or its “creditor/insurer.” In Plaintiff's additional supplements, however, he also seemingly attempts to raise allegations against new defendants, including defendants previously dismissed from this case. While all of the re-raised allegations against purported defendants other than Apogee clearly fail at making the short, plain statement demanded by Fed.R.Civ.P. 8(a), and while most are improperly added by filings responsive to the motion to dismiss, this does not make their re-addition necessarily futile. Fed.R.Civ.P. 15(a).

Nonetheless, all of these claims improperly attempt to add state law claims that bear either only a tangential relation to the underlying action against Apogee or no relation to it at all. These surround conduct that largely occurred in Washington D.C., where Plaintiff resides, or in Northern Virginia, where at least some of the treatment following his accident occurred. None would be properly brought in this court.

The court declines to exercise supplemental jurisdiction over any purported state law claims appearing in supplemental filings but not raised in the operative complaint.⁸ Plaintiff declares in his latest attempt to supplement his complaint that, “All of This is about Breach of Contract & medical and legal malpractice.” (ECF No. 35, at 3). These claims include various (ill-defined) alleged torts, purportedly committed by a host of individual physicians that treated Mr. Goddard after his accident. Plaintiff also seemingly attempts to re-allege claims against Apogee's insurer in one of his belated supplements. Once the purported federal claims have been dismissed, the court has discretion to decline to exercise discretion over any remaining state law claims. United Mine Workers v. Gibbs, 383 U.S. 715 (1966)); 28 U.S.C. § 1367(c)).

8 Plaintiff alleges that “complete diversity” exists in his opposition's supplement, but this is clearly belied by Plaintiff's own listing of the purported residencies of many of the parties he named in his original complaint. (ECF No. 31, at 9-10).

VII. Conclusion

For the foregoing reasons, the motion to dismiss filed by Defendant will be granted and all claims against Apogee Retail, LLC will be dismissed. A separate order will follow.