Opinion
Civil Action No. CCB-08-1697.
December 31, 2008
MEMORANDUM
Now pending before the court is a motion to dismiss for failure to state a claim, filed by defendant Maryland Stadium Authority ("MSA") against plaintiff Edward Keplin. Mr. Keplin is suing MSA for allegedly engaging in unlawful religious harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42. U.S.C. §§ 2000e et seq. The issues in this case have been fully briefed and no hearing is necessary. For the reasons stated below, the defendant's motion to dismiss will be granted.
BACKGROUND
The following facts are presented in the light most favorable to Mr. Keplin based on his complaint. On June 14, 2006, Mr. Keplin, a law enforcement officer with 28 years of experience and an adherent of the Roman Catholic faith, accepted a position in the MSA's Public Safety and Security Division. In his position with MSA, he was to oversee organization of the security program for a new Baltimore museum, the Geppi Entertainment Museum ("GEM"), and supervise the contract security officers hired to work at GEM. Mr. Keplin understood that his position would also include other duties such as training security staff and assisting with MSA's Campus Police organization. His supervisor in this position was James F. Slusser, Director of MSA's Public Safety and Security Division.
Soon thereafter, in July 2006, the Southern Baptist minister Reverend Billy Graham and his son Franklin Graham came to Baltimore to host a religious revival at Oriole Park at Camden Yards, an event for which MSA's Public Safety and Security Division was tasked with providing security. Mr. Slusser allegedly made many religious jokes and sarcastic religious statements in the week before this event, including comments like "Praise the Lord — we're all going to be saved." (Compl. ¶ 7.) During the event, when Reverend Graham was about to ask audience members to come forward onto the field to be saved, Mr. Slusser allegedly attempted to pressure members of his security team, including Mr. Keplin, to go out onto the field with him to be saved as a joke. Mr. Keplin refused, and an "unpleasant exchange" between the two of them ensued. ( Id.) Mr. Keplin claims that when he next reported to work, Mr. Slusser's attitude toward him was hostile. This led Mr. Keplin to speak to the MSA's Executive Director at the time, Alison Asti, after which Mr. Slusser's attitude toward Mr. Keplin apparently continued to worsen.
"Saved" is a term used primarily in the evangelical Christian community to refer to having one's soul "rescued from eternal punishment." Webster's New International Dictionary 2020 (3d ed. 1981).
In early September 2006, GEM hosted its opening gala, an event for which Mr. Keplin organized security in coordination with Mr. Slusser. After the gala, several cases of nonalcoholic beverages were left behind by the caterer, and the gala's event coordinator made arrangements with Mr. Keplin to donate them to his church. When Mr. Slusser learned of this planned donation, he allegedly made several offensive comments to Mr. Keplin about the Roman Catholic Church and its members. When Mr. Keplin returned at a later time to retrieve the beverages and take them to his church, Mr. Slusser is alleged to have made similar offensive comments. These two exchanges led Mr. Keplin to make complaints to MSA's Fairness Officer on or about September 6, 2006. Mr. Keplin claims that he was retaliated against for these complaints by then being excluded from management meetings.
Mr. Keplin complained again to the Fairness Officer in October 2006, contending that Mr. Slusser was creating a hostile work environment, but MSA took no action against Mr. Slusser, and Mr. Keplin claims that the relationship between him and Mr. Slusser subsequently deteriorated. On January 15, 2007, Mr. Keplin learned that he was being demoted to a nonsupervisory position, Security Officer, which he describes as "effectively demot[ing] [him] to being a security guard." (Compl. ¶¶ 12-13.) Two days later, on January 17, Mr. Keplin filed a complaint with the Equal Employment Opportunity Commission ("EEOC"), in which he described the events above, noted his recent demotion, and alleged religious harassment and retaliation. In his complaint before this court, Mr. Keplin states, incongruously, that he "filed a complaint with the EEOC in January 2007" and that his demotion to Security Officer on January 15 "[f]ollow[ed] the filing of that [EEOC] complaint." (Compl. ¶ 12.)
No specific incident of religious discrimination is alleged in connection with the October complaint.
Over the succeeding months, the EEOC investigated Mr. Keplin's Title VII charges, and found that his demotion was retaliatory. It issued him a right-to-sue letter on April 2, 2008, and this lawsuit followed.
ANALYSIS
"[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999) (internal quotation marks and alterations omitted). When ruling on such a motion, the court must "accept the well-pled allegations of the complaint as true," and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1965 (2007) (internal citations omitted). Thus the plaintiff's obligation is to set forth sufficiently the "grounds of his entitlement to relief," offering more than "labels and conclusions." Id. (internal quotation and alterations omitted); see Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001) ("the presence [in a complaint] . . . of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support" the necessary legal finding).
Mr. Keplin asserts two Title VII claims in his complaint: religious harassment and retaliation stemming from his complaints about the religious harassment. To survive a motion to dismiss for failure to state a claim, Mr. Keplin must succeed in sufficiently pleading each element of these claims. See Jordan v. Alternative Resources Corp., 458 F.3d 332, 346-47 (4th Cir. 2006) (affirming a district court's dismissal of a plaintiff's employment discrimination claim because the plaintiff failed to plead facts sufficient to show each element of the claim). A. Religious Harassment Claim
A plaintiff claiming religious harassment under Title VII must allege facts suggesting that he experienced harassment that was "(1) unwelcome, (2) because of religion, (3) sufficiently severe or pervasive to alter the conditions of employment and create an abusive atmosphere, and (4) imputable to the employer." E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 313 (4th Cir. 2008). Here the religious harassment Mr. Keplin allegedly endured took the form of two sets of experiences, one in July 2006 — where he and his coworkers were made to endure his supervisor's religious jokes and pressure to mockingly participate in religious exercises — and one in September 2006 — where the same supervisor subjected him to derisive remarks about his faith on two occasions related to the opening of GEM. I assume without deciding that the first, second, and fourth elements are met.
These elements are virtually identical to those of other Title VII harassment claims (e.g., harassment based on race or sex). Courts analyzing Title VII religious harassment claims may refer to cases involving Title VII harassment claims in other contexts. See, e.g., Sunbelt Rentals, Inc., 521 F.3d at 313.
The central issue, then, is whether Mr. Keplin has sufficiently alleged facts showing the third element of his religious harassment claim, namely that the harassment was "severe or pervasive [enough] to alter the conditions of employment and create an abusive atmosphere." As the Fourth Circuit has recognized, "plaintiffs must clear a high bar in order to satisfy the severe or pervasive test." Sunbelt Rentals, Inc., 521 F.3d at 315. It is insufficient to merely plead facts establishing "callous behavior by [one's] superiors." Id. at 315-16 (quoting Bass v. E.I. Dupont de Nemours Co., 324 F.3d 761, 765 (4th Cir. 2003)); see Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (the "`mere utterance of an . . . epithet which engenders offensive feelings in a employee[]' does not sufficiently affect the conditions of employment to implicate Title VII") (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)) (internal citation omitted). Rather, the plaintiff must plead facts showing both that he perceived the harassment to be hostile or abusive, and that the harassment was "sufficiently severe or pervasive" so as to "create[] an environment that a reasonable person would find hostile or abusive." Jennings v. Univ. of N. Carolina, 482 F.3d 686, 696 (4th Cir. 2007) (internal quotations omitted); see Harris, 510 U.S. at 21-22 ("if the victim does not subjectively perceive the environment to be abusive, . . . there is no Title VII violation"). Thus, the plaintiff must bring forward facts showing both subjective and objective "severe or pervasive" harassment. See Ocheltree v. Scollon Prods., Inc., 335 F.3d 325, 333 (4th Cir. 2003) (en banc) (citing Harris, 510 U.S. at 21-22).
Since MSA does not appear to challenge Mr. Keplin's subjective view that the harassment he experienced was severe or pervasive, this court will focus on whether Mr. Keplin has pleaded sufficient facts to show that the harassment was objectively severe or pervasive. Courts reviewing this objective aspect of the "severe or pervasive" element are encouraged to examine the totality of the circumstances, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Sunbelt Rentals, Inc., 521 F.3d at 315 (quoting Harris, 510 U.S. at 23); see Jennings, 482 F.3d at 696. Here, several factors combine to convince this court that Mr. Keplin has failed to sufficiently allege that a reasonable person might find his harassment to have been "severe or pervasive."
First, Mr. Keplin only alleges experiencing religious harassment on three occasions during the approximately seven months he was employed by MSA prior to his filing the EEOC complaint: once, albeit over the course of one week, in July 2006, and twice in September of that year, both times relating to the contribution of beverages to his church. No such comments are alleged to have been made after his September 6, 2006 complaint, and Mr. Keplin apparently still remains in MSA's employ to this day. This infrequent exposure to allegedly discriminatory comments does not amount to pervasive conduct. See Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) ("isolated incidents (unless extremely serious) will not amount to discriminatory changes in the `terms and conditions of employment'"); Sunbelt Rentals, Inc., 521 F.3d at 318 ("No employer can lightly be held liable for single or scattered incidents."); see also Rivera v. Puerto Rico Aqueduct Sewers Auth., 331 F.3d 183, 191 (1st Cir. 2003) (finding offensive antics, including ones with anti-religious overtones, not to amount to a Title VII violation); Freedman v. MCI Telecommunications Corp., 255 F.3d 840, 848 (D.C. Cir. 2001) (finding an isolated offensive comment about an employee's religion not to be enough to show a hostile work environment under Title VII).
Although Mr. Keplin alleges other instances or periods where Mr. Slusser displayed a hostile attitude toward him ( see Compl. ¶¶ 8, 9, 12), none of the behaviors described in these allegations involve expressions of religious animosity.
Second, the harassment Mr. Keplin alleges cannot be considered severe. Every recent Fourth Circuit case finding harassment severe enough to be actionable under Title VII involved frequent, targeted, distinctly abusive behavior. See, e.g., Sunbelt Rentals, Inc., 521 F.3d at 316-17 (finding harassment to be severe where coworkers' repeated religious slurs, directed undeniably at Muslim plaintiff, caused the workplace to be "permeated with anti-Muslim hostility"); Jennings, 482 F.3d at 698-99 (finding harassment to be severe where harassing incidents "were part of an abusive pattern that instilled fear and dread"); Ocheltree, 335 F.3d at 329-33 (finding harassment to be severe where the plaintiff was subjected to a "stream" of offensive comments and other offensive behaviors over an extended period of time). Here, the sum total of religious harassment Mr. Keplin experienced directed at his own Roman Catholic faith was two groups of derogatory comments made in September 2006; Mr. Slusser's conduct before and during the July 2006 Reverend Billy Graham revival was aimed at a different Christian tradition (the Roman Catholic faith not being one that emphasizes revival-style evangelism). This court is of course at liberty to consider harassment in the workplace besides that targeted solely at Mr. Keplin, see Harris, 510 U.S. at 23; Spriggs v. Diamond Auto Glass, 242 F.3d 179, 184 (4th Cir. 2001), but even doing so, the July and September incidents together do not describe harassment severe enough to render Mr. Keplin's workplace one "permeated with discriminatory intimidation, ridicule, and insult." Harris, 510 U.S. at 21.
A document sent by Mr. Keplin to the court in response the court's request for a verified copy of the EEOC charge does little to strengthen his claim of religious harassment. Its quotations of Mr. Slusser's religiously derogatory comments are unverified and, regardless, are still inadequate to render his claim actionable. Its additional allegations do not involve religious harassment at all, but rather the sorts of slights and annoyances that fall outside the scope of Title VII's protections. See Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Because Mr. Keplin has failed to allege facts sufficient to suggest that his treatment at MSA was so "severe or pervasive" as to "alter the conditions of employment and create an abusive atmosphere," his complaint is deficient as to this element of his religious harassment claim. Accordingly, this court cannot conclude that Mr. Keplin's allegations of religious harassment raise his right to relief under Title VII above the speculative level. See Faragher, 524 U.S. at 788 (approving the "filter[ing] out [of Title VII] complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language") (internal quotations omitted); Sunbelt Rentals, Inc., 521 F.3d at 315-16 (acknowledging that "callous behavior" is not sufficient to create a right to relief under Title VII).
B. Retaliation Claims
There are three elements that a plaintiff must set forth in order to successfully plead a VII retaliation claim: (1) "that he engaged in a protected activity," (2) "that the employer took an adverse action against him," and (3) "that a causal relationship existed between his protected activity and the employer's adverse action." Baqir v. Principi, 434 F.3d 733, 747 (4th Cir. 2006) (citing Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004)). An employee's protected activities are those activities that "oppose[] any practice made an unlawful employment practice" by Title VII, 42 U.S.C. § 2000e-3(a), and an "unlawful employment practice" includes the maintenance of a workplace permeated with a severe or pervasive level of discriminatory harassment. Jordan, 458 F.3d at 339; see 42 U.S.C. § 2000e-2. In Jordan v. Alternative Resources Corp., the Fourth Circuit held that an employee's opposition activity is protected only "when it responds to an employment practice that the employee reasonably believes is unlawful," 458 F.3d at 338 (emphasis in original), and that the standard courts should use when determining whether his belief is reasonable is one of objective reasonableness. Id. at 339. Because the standard is objective, courts may determine the reasonableness of an employee's belief as a matter of law. Id.
If the defendant can then put forth a nonretaliatory reason for its action, the plaintiff must proffer evidence demonstrating that the defendant's reason is pretextual. Id.
Mr. Keplin alleges two discrete instances of retaliation with distinct consequences. First, he alleges that, in retaliation for complaining to MSA's Fairness Officer about the September 2006 incidents, he was "excluded from management meetings." (Compl. ¶ 11.) Second, he alleges that, in retaliation for filing a charge with the EEOC in January 2007 concerning both the September and the July incidents, he was retaliated against by "being demoted to the position of security officer, and . . . relieved of any supervisory duties at his work site." (Compl. ¶ 12.) As already shown above, the harassing incidents about which Mr. Keplin complained in each instance do not amount to religious harassment that an employee would reasonably believe to be unlawfully "severe or pervasive." Accordingly, Jordan compels the conclusion that Mr. Keplin did not engage in a protected activity when he complained about his perceived harassment, and so his retaliation claim fails to state a claim upon which relief can be granted. Jordan, 458 F.3d at 343.
Even assuming that it was objectively reasonable for Mr. Keplin to believe that his harassment was unlawful, it is not at all clear from the materials presented to the court that his exclusion from meetings and demotion were caused by his complaining about religious harassment. For example, in his complaint Mr. Keplin alleges that his exclusion from management meetings was in retaliation for his complaints to MSA's Fairness Officer "on or about September 6, 2006" concerning the beverage incidents. (Compl. ¶ 11.) Yet in a document he submitted to the court from that time period, he states that those incidents did not occur until September 12 and 16, after his complaints to the Fairness Officer were lodged. Likewise, in his complaint Mr. Keplin alleges: "Following the filing of [the EEOC] complaint, on January 15, 2007, [he] was informed that he was being demoted. . . ." (Compl. ¶ 12.) Yet Mr. Keplin's EEOC charge was filed on January 17; therefore, he was demoted before the charge was filed. These incongruous accounts raise serious questions about the viability of Mr. Keplin's retaliation claims.
This is not to say that retaliation claims will be precluded in all Title VII cases where the court finds harassment or discrimination not to be actionable. The Jordan analysis only serves to filter out retaliation claims involving opposition to conduct that no objectively reasonable person could have believed to be actionable. Id. at 341. In close cases, the Jordan analysis is meant to "protect an employee's judgment," allowing even those retaliation claims based on erroneous beliefs in harassment or discrimination to survive dismissal, so long as the beliefs are objectively reasonable. Id. at 342-43. This is not such a case.
Further, nothing in Mr. Keplin's opposition to the motion to dismiss or the additional document submitted to the court makes it likely that a motion to amend the complaint would be successful.
CONCLUSION
For the foregoing reasons, defendant MSA's motion to dismiss will be granted. A separate Order follows.ORDER
For the reasons stated in the accompanying Memorandum, it is hereby ORDERED that:
1. The defendant's motion to dismiss (docket entry no. 3) is GRANTED;
2. The case is DISMISSED with prejudice; and
3. The clerk shall CLOSE this case.