Brade Stennis v. Bowie State University

MOTION to Dismiss for Failure to State a Claim

D. Md.October 14, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Southern Division) KESSLYN BRADE STENNIS, * Plaintiff, * vs. * Civil Action No. 8:16-cv-1362-RWT BOWIE STATE UNIVERSITY, * Defendant. * * * * * * * * * * DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant Bowie State University (the “University” or the “Defendant”) through its undersigned counsel and pursuant to F.R.C.P. 12(b)(6), hereby moves for dismissal of Plaintiff’s Complaint, with prejudice, on the following grounds: Plaintiff Kesslyn Brade Stennis (“Plaintiff”) filed the instant action alleging that the University engaged in unlawful retaliation against her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e (Count I), Title IX of the Civil Rights Act of 1964 (“Title IX”), 20 U.S.C. § 1681(a) (Count II), and Maryland’s Fair Employment Practices Act (“Title 20”), Md. Code Ann. State Gov’t § 20-606 (Count III). 1. Count I and Count III fail to state a claim for whic relief can be granted because Plaintiff’s alleged oppositional actions for which s e alleges she was subject to retaliation are not “protected activities” under either Title VII or Title 20; 2. Count I, Count II, and Count III all fail to state a claim for which relief can be granted because none of the adverse actions Plaintiff alleges the University took against her Case 8:16-cv-01362-RWT Document 6 Filed 10/14/16 Page 1 of 3 2 constitute an “adverse employment action” as a matter of law; and 3. Count I must be dismissed because Plaintiff failed to exhaust her administrative remedies under Title VII, and Count III must be dismi sed for failure to exhaust administrative remedies and violation of Title 20’s two-year statue of limitations. The grounds for this Motion are more fully set forth in Defendant’s Memorandum in Support of this Motion, which is filed herewith and incorporated herein. WHEREFORE, Defendant respectfully requests that this Motion to Dismiss be granted. Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland __________/s/_____________ MATTHEW P. REINHART Assistant Attorney General Federal Bar No. 29814 Office of the Attorney General 200 St. Paul Place, 17th Floor Baltimore, MD 21202-2021 Telephone: (410) 576-6562 Fax: (410) 576-6437 mreinhart@oag.state.md.us Attorneys for Defendant Bowie State University Case 8:16-cv-01362-RWT Document 6 Filed 10/14/16 Page 2 of 3 3 CERTIFICATE OF SERVICE This is to certify that, on the 14th day of October, 2016, a copy of Defendant’s Motion to Dismiss Plaintiff’s Complaint and Memorandum in Support was served on all counsel of record via ECF. ___________/s/____________ MATTHEW P. REINHART Case 8:16-cv-01362-RWT Document 6 Filed 10/14/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Southern Division) KESSLYN BRADE STENNIS, * Plaintiff, * vs. * Civil Action No. 8:16-cv-1362-RWT BOWIE STATE UNIVERSITY, * Defendant. * * * * * * * * * * MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendant Bowie State University (the “University” or the “Defendant”), through its undersigned counsel and pursuant to F.R.C.P. 12(b)(6), hereby submits this Memorandum in Support of its Motion to Dismiss Plaintiff’s Complaint. I. INTRODUCTION On May 5, 2016, Plaintiff Kesslyn Brade Stennis (“Plaintiff”), a former University Assistant Professor in the Department of Social Work (“DSW”), filed the instant action alleging that the University engaged in unlawful retaliation against her in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e (Count I), Title IX of the Civil Rights Act of 1964 (“Title IX”), 20 U.S.C. § 1681(a) (Count II), and Maryland’s Fair Employment Practices Act (“Title 20”), Md. Code Ann. State Gov’t § 20-606 (Count III). See Comp. ¶¶ 1, 11, 53-83. Plaintiff’s claims arise from alleged retaliatory acts taken by the University in response to an “Assessment” Plaintiff conducted of the DSW Department Chair involving student perceptions of the Chair, and Plaintiff’s alleged advocacy on behalf of minority and female students. See id. ¶¶ Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 1 of 17 2 21-23, 43-44. Plaintiff alleges that her “Assessment” and speaking out on behalf of minority and female students are “protected activities.” Id. However, Counts I and III fail to state a claim for which relief can be granted because such alleged oppositional actions are not “protected activities” under either Title VII or Title 20. Plaintiff further alleges, in all Counts, that as result of engaging in these protected activities, the University took adverse employment actions against her. The adverse employment actions allegedly taken by the University were “efforts to sabotage” her receiving tenure, and constructive discharge. Id. ¶¶ 35-38, 55, 66, 76. However, based on the facts which Plaintiff herself alleged in this case, none of these alleged actions constitutes an “adverse employment action” as a matter of law. As such, Counts I, II, and III all fail to state claims for which relief can be granted and must be dismissed. Additionally, Count I must be dismissed because Plaintiff failed to exhaust her administrative remedies under Title VII, and Count III must be dismissed for failure to exhaust administrative remedies and violation of Title 20’s two-year statute of limitations. II. FACTUAL BACKGROUND 1 Plaintiff worked at the University as an Assistant Professor in DSW from February 2009 until August 15, 2014. Comp. ¶ 11. Plaintiff’s immediate supervisor was Dr. Andre Stevenson (“Dr. Stevenson”), the DSW Department Chair. Id. ¶ 12. Plaintiff alleges that during her spring 2013 evaluation, conducted on May 5, 2013, she expressed concern to Dr. Stevenson about concerns students had voiced regarding their alleged treatment by faculty. As a result of this 1 For purposes of this Motion only, Defendant accepts as true, but does not concede the truth of, the non-conclusory allegations in Plaintiff’s Complaint. In fact, Defendant disputes the accuracy of several of Plaintiff’s allegations. Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 2 of 17 3 conversation, Plaintiff alleges that Dr. Stevenson directed her to go to the Social Work Club (“SWC”) and find out what they thought of him. Id. ¶ 17. Plaintiff allegedly did as she was directed, and during a May 23, 2013, SWC retreat, students allegedly “criticized Dr. Stevenson, including raising concerns about discrimination shown to them because of their gender and sexual orientation by Dr. Stevenson and other faculty.” Id. ¶ 18. During the summer of 2013, Plaintiff typed up the concerns expressed at the SWC retreat, and prepared an “Assessment of Dr. Andre Stevenson, Chair” (hereinafter, the “Assessment”). Id. ¶ 20. In August 2013, Plaintiff presented the Asses ment to the SWC executive board, which subsequently approved the document. Id ¶ 21. In mid-August 2013, Plaintiff forwarded the Assessment to Dr. Stevenson, who allegedly reacted negatively to the document, and proceeded to act hostilely towards Plaintiff. Id. ¶ 22. Plaintiff alleges that immediately after submitting the Assessment to Dr. Stevenson, she began receiving threating and intimidating emails from him that continued throughout the fall of 2013. Id. ¶ 23. Plaintiff further alleges that she was summoned to a meeting with Dr. Stevenson and the Dean of the College of Professional Studies, Dr. Jerome Schiele (“Dr. Schiele”), to be counseled about the Assessment. Id. ¶ 24. On October 11, 2013, Plaintiff submitted her tenur application, which Dr. Stevenson faulted for being disorganized. Id. ¶ 26. Plaintiff further alleges that, as a result of submitting the Assessment, during the fall of 2013, Dr. Stevenson (and Dr. Schiele) erected barriers to her tenure application by raising inaccurate claims about her professionalism and advisement of students (id. ¶ 28), sending her emails allegedly written in “a very demeaning and inappropriate manner” (id. ¶ 29), reducing her teaching duties and department roles (id. ¶ 35), and encouraging the DSW Faculty Review Committee to deny her tenure. Id. ¶ 37. “[D]espite the obstacles erected” by Dr. Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 3 of 17 4 Stevenson and others, she still received tenure on July 1, 2014. Id. ¶ 38. She then resigned her position on August 15, 2014, which she alleges amounted to a constructive discharge. Id. ¶ 39. After resigning from the University, Plaintiff went to work as “a professor at Coppin State University[,] another constituent institution of the University System of Maryland.” Id. ¶ 40. Based upon these allegations, Plaintiff filed a Charge of Discrimination (“Charge”) with the U.S. Equal Employment Opportunity Commission (the “EEOC”), which she alleges was filed on or about April 6, 2014, and assigned Charge No. 531-2014-01212C. See Comp. ¶ 6. However, the actual Charge, dated August 20, 2014, was assigned Charge No. 531-2014-01210. See Ex. 1, hereto.2 Plaintiff filed the instant action in this Court on May 5, 2016. See ECF Doc. No. 1. III. STANDARD OF REVIEW To survive a motion to dismiss for failure to state claim on which relief can be granted, “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)). Although the Court is equired to “‘take the facts in the light most favorable to the plaintiff,’” the Court “need not accept legal conclusions couched as facts or ‘unwarranted inferences, unreasonable conclusions, r arguments.’” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (internal citation omitted)). “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Iqbal, 556 U.S. at 679. “Factual 2 Because the EEOC Charge is integral to and explicitly relied on in Plaintiff’s Complaint, the Court may consider the document in determining a motion to dismiss under F.R.C.P. 12(b)(6). See Pasternak & Fidis, P.C. v. Recall Total Info. Mgmt., Inc., 95 F. Supp. 3d 886, 894 (D. Md. 2015) (“[T]he Court also may consider any document that the defendant attaches to its motion to dismiss if the document was integral to and explicitly relied on in the complaint and if the plaintiffs do not challenge its authenticity.” (citation and quotations omitted)). Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 4 of 17 5 allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “Generally, when a defendant moves to dismiss a complaint under Rule 12(b)(6), courts are limited to considering the sufficiency of allegations set forth in the complaint and the ‘documents attached or incorporated into the complaint.’” Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011)). “However, the Court also may consider ‘any document that the defendant attaches to its motion to dismiss if the document was integral to and explicitly relied on in the complaint and if the plaintiffs do not challenge its authenticity.’” Pasternak, 95 F. Supp. 3d at 894 (quoting Tucker v. Specialized Loan Servicing, LLC, 83 F. Supp. 3d 635, 648 (D. Md. 2015)). IV. ARGUMENT A. PLAINTIFF’S COMPLAINT FAILS TO STATE A CLAIM FOR RETALIATION All of Plaintiff’s Counts, which are based solely on a theory of retaliation, must be dismissed because they fail to state a claim for which relief can be granted. To state a prima facie case of retaliation under Count I (Title VII), Count II (Title IX), or Count III (Title 20), an employee must show that: (1) she engaged in a protected activity; (2) the employer took an adverse action against her; and (3) a causal connection existed between the protected activity and the asserted adverse action. See Adams v. Giant Food, Inc., 225 F. Supp. 2d 600, 605 (D. Md. 2002) (citing elements for a retaliation claim under Title VII); Doe v. Salisbury Univ., 107 F. Supp. 3d 481, 489 (D. Md. 2015) (applying framework for a Title VII retaliation claim to a Title IX Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 5 of 17 6 retaliation claim); Chappell v. S. Md. Hosp., Inc., 320 Md. 483, 496 (1990) (discussing former Art. 49B, § 16(f), from which State Gov’t § 20-606 is deriv d without substantive change, and applying same criteria for evaluation of a Title VII retaliation claim to a retaliation claim under Maryland state law).3 Here, Counts I and III must be dismissed because Plaintiff has failed to allege that she engaged in a “protected activity” under Title VII or Title 20. Additionally, Counts I, II, and III must be dismissed because plaintiff has failed to allege that the University took any “adverse employment action” against her. i. Counts I and III Must Be Dismissed Because Plaintiff Did Not Engage In A Protected Activity Covered Under Title VII or Title 20. The actions Plaintiff alleges which form the basis of her retaliation claim are not “protected activities” under Title VII or Title 20. “Protected activities fall into two distinct categories: participation or opposition. An employer may not retaliate against an employee for participating in an ongoing investigation or proceeding under Title VII, nor may the employer take adverse employment action against an employee for opposing discriminatory practices in the workplace.” Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998) (citing 42 U.S.C.A. § 2000e-3(a)); Theriault v. Dollar Gen., 336 F. App'x 172, 174 (3d Cir. 2009) (“To engage in protected activity, the employee must either participate in certain Title VII proceedings (the participation clause) or oppose discrimination made unlawful under Title VII (the opposition clause).”). 3 Title 20 of Maryland’s State Government Article is modeled after Title VII of the federal Civil Rights Act, and Maryland courts look to federal law to interpret and analyze claims under Title 20. Finkle v. Howard Cty., 12 F. Supp. 3d 780, 784 (D. Md. 2014) (“[Title 20] is the state law analogue of Title VII and its interpretation is guided by federal cases interpreting Title VII.”); Edgewood Mgmt. Corp. v. Jackson, 212 Md. App. 177, 200 n.8 (2013) (“Federal cases interpreting Section 2000e-3(a) of Title VII of the Civil Rights Act of 1964 are persuasive authority in interpreting Maryland's employment discrimination laws.”). Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 6 of 17 7 “Activities that constitute participation are outlined in the statute: (1) making a charge; (2) testifying; (3) assisting; or (4) participating in any manner in an investigation, proceeding, or hearing under Title VII.” Laughlin, 149 F.3d at 259 (citing 42. U.S.C.A. § 2000e-3(a)). Here, Plaintiff’s Complaint is devoid of any allegations that she was retaliated against for engaging in any protected activities that would constitute “participation” as defined under § 2000e-3(a). While the Complaint alleges she filed her EEOC Charge on April 6, 2014 (see Comp. ¶ 6), there are simply no allegations in the Complaint that the University ever had notice of her alleged EEOC Charge prior to her resignation. Indeed, the EEOC Charge is dated August 20, 2014, (see Ex. 1), which is five days after she resigned her position on August 15, 2014. See Comp. ¶ 39. As such, Notice of the EEOC Charge could not have been receiv d by the University until after she had already resigned, and any participation in an investigation based upon that EEOC Charge could not have been the basis for any alleged retaliatory actions taken against the Plaintiff. See Winslow v. Locke, No. CIV.A DKC 09-0071, 2010 WL 1141200, at *7 (D. Md. Mar. 22, 2010) (“[T]he EEOC process must have commenced in order for an employee to claim protection under the participation clause.”); Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1352-53 (11th Cir. 1999) (holding that the participation clause applies to participation in an internal investigation that follows notice of an EEOC charge such that the employer is “aware that the evidence gathered in that inquiry will be considered by the EEOC as part of i s investigation”). Because Plaintiff’s alleged protected activity is not cognizable as participation, it “must be oppositional or her case fails as a matter of law.” See Laughlin, 149 F.3d at 259 (“Opposition activity encompasses utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinions in order to bring attentio to an employer’s discriminatory activities.”). Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 7 of 17 8 However, an employee’s oppositional activity must be related to suspected adverse conduct that was “made an unlawful employment practice” under Title VII. 42 U.S.C. § 2000e–3(a); see Boyer- Liberto v. Fontainebleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (“Employees engage in protected oppositional activity when, inter alia, they complain to their superiors about suspected violations of Title VII.” (internal quotations and citation omitted)); Crockett v. SRA Int'l, 943 F. Supp. 2d 565, 574 (D. Md. 2013) (“An employee may stisfy the first element by showing that she opposed a practice that Title VII prohibits.”) (quoting Tasciyan v. Med. Numerics, 820 F. Supp. 2d 664, 675 (D. Md. 2011). “The plaintiff must … at a minimum have held a reasonable good faith belief at the time he opposed an employment practice that the practice was violative of Title VII.” Adams, 225 F. Supp. 2d at 606 (emphasis added) (citation omitted). “[A] plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented.” Id. (citation and quotations omitted) (emphasis added). Thus, the focus is not on what alleged employment actions were taken against the plaintiff; the focus is on whether the conduct about which Plaintiff objected (which allegedly resulted in subsequent retaliation) constituted adverse employment practices prohibited by Title VII. In other words, if the employee opposes conduct by the employer which is not discriminatory under Title VII, the employee’s oppositional conduct is not protected by Title VII. Here, the alleged oppositional activity underlying all of Plaintiff’s retaliation claims was not about a perceived unlawful employment practice, but rather perceived discrimination by University faculty against homosexual and female students. See, e.g., Compl. ¶ 17 (“Plaintiff expressed concern to Dr. Stevenson about voiced student concerns about their treatment by certain faculty.”); ¶ 18 (“[T]he Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 8 of 17 9 students … rais[ed] concerns about unfair discrimination shown to them because of their gender and sexual orientation . . . .”); ¶ 20 (“During Summer 2013, Plaintiff typed up the concerns that has been expressed at the Spring meeting of the Social Work Club and prepared an ‘Assessment of Dr. Andre Stevenson, Chair.’”); ¶ 31 (Plaintiff “expressed her emotional distress and her concern over the mounting paper trail that was accumulating after she had expressed the concerns of the gay and female students and her championing their concerns about unlawful discrimination against them because of their gender and sexual orientat on.”); ¶ 39 (“The hostile and offensive and abusive environment created and fostered by Dr. Stevenson after Plaintiff submitted the Assessment continued unabated from September 2013, until August 15, 2014, when Plaintiff was forced to resign her position at BSU.”). Discriminating against students (as opposed to employees) on the basis of gender or sexual orientation, however, is not an unlawful “employment practice,” and is not covered under Title VII (or Title 20). See Chika v. Planning Research Corp., 179 F. Supp. 2d 575, 584 (D. Md. 2002) (“Title VII’s protections extend only to adverse employment actions.”). Thus, Plaintiff’s alleged oppositional actions—speaking out about perceived discrimination against students—is unrelated to any employment practice covered by these statutes, and thus is not a “protected activity” under either Title VII or Title 20. In light of the facts alleged, no objectively reasonable person could have believed that alleged discrimination against students violated Title VII or Title 20. Consequently, Plaintiff’s alleged later complaints to University human resources and Elizabeth Stachura about Drs. Stevenson and Dean Schiele’s alleged retaliatory conduct based upon her speaking out about perceived discriminatio of students (see Comp. ¶¶ 54, 75) likewise cannot be a protected “oppositional activity” under Title VII or Title 20. “Protected activity does Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 9 of 17 10 not include opposition to ‘all unlawful practices’ or ‘practices the employee simply thinks are somehow unfair’; the employee must have ‘actually opposed employment practices made unlawful by the [Title VII].’” Ruffner v. MD OMG EMP LLC, No. CIV. WDQ-11-1880, 2012 WL 3542019, at *3 (D. Md. Aug. 13, 2012) (citation omitted) (noting that complaints about a supervisor’s “rude conduct” or other generalized complaints are not a protected activity). As such, Counts I and III fail to state a claim for which relief can be granted and must be dismissed. ii. Counts I, II, and III Must Be Dismissed Because No Adverse Employment Action Was Taken Against Plaintiff. Additionally, all of Plaintiff’s Counts must be dismissed because she has failed to sufficiently plead the second element of her retalia ion claim under Title VII, Title IX, or Title 20: that the University took an “adverse employment” action against her. It is well established that “[f]or an act to be adverse within the meaning of Title VII's antiretaliation provision, the plaintiff ‘must show that a reasonable employee would have found the challenged action materially adverse, which ... means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Crockett, 943 F. Supp. 2d at 574 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). “This standard is objective and, to a significant extent, depends on the facts and circumstances of each case.” Id. (emphasis added). “[T]o establish an adverse employment action there must be ‘evidence that the terms, conditions, or benefits of employment were adversely affected.’” Chika, 179 F. Supp. 2d at 585 (quoting Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997), cert. denied, 522 U.S. 1116 (1998)). “Therefore, … [a]lthough actions short of termination may constitute an adverse employment action ... not everything that mkes an employee unhappy is an actionable Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 10 of 17 11 adverse action.” Id. (quoting Settle v. Balt. Cty., 34 F. Supp. 2d 969, 989 (D. Md. 1999), aff'd sub nom. Harris v. Earp, 203 F.3d 820 (4th Cir. 2000), and aff'd sub nom. Settle v. Balt. Cty. Police Dep't, 203 F.3d 822 (4th Cir. 2000)). As under Title VII, an employee bringing a retaliation claim under Title IX similarly must show that they were subject to an “adverse employment action.” See Gordon v. Bd. of Trs. of the Univ. of Arkansas, 168 F. Supp. 3d 1148, 1161 (E.D. Ark. 2016) (“An employer engages in unlawful retaliation [under Title IX] when the employee participates in a protected activity and suffers an dverse employment action as a result of that activity.”) (emphasis added), judgment entered sub nom. Gordon v. The Bd. of Trs. of the Univ. of Arkansas, No. 4:15CV00518 JLH, 2016 WL 1301122 (E.D. Ark. Apr. 1, 2016). Here, Plaintiff has simply not alleged any action taken by the University amounting to an “adverse employment action” based upon the facts and circumstances of this case. Plaintiff’s alleged adverse actions include (1) “efforts to sabot ge” her receiving tenure, including vague references to receiving “threatening and intimidating” emails, and an alleged reduction in teaching duties and department roles, and (2) constructive discharge. Id. ¶¶ 22-23, 28-30; 35-38, 55, 66, 76. However, none of these alleged actions constitute an “adverse employment action.” First, Plaintiff’s nonspecific allegations of receiving “threatening and intimidating” emails, having her teaching duties and department roles allgedly reduced, and having other actions taken against her by University faculty in order to “sabotage” her receiving tenure cannot be adverse employment actions—these actions had no tangible effect on a term, condition or benefit of her employment. Indeed, notwithstanding these allegations, Plaintiff admits she received tenure. See Comp. ¶ 38 (“On July 1, 2014, Plaintiff was informed that she had received tenure.”). “Although conduct short of ultimate employment decisions can constitute adverse employment action, there Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 11 of 17 12 still must be a tangible effect on the terms and conditions of employment.” Blakes v. City of Hyattsville, 909 F. Supp. 2d 431, 436 (D. Md. 2012) (quoting Thorn v. Sebelius, 766 F. Supp. 2d 585, 598 (D. Md. 2011)) (emphasis added); see also Spriggs v. Pub. Serv. Comm'n of Maryland, 197 F. Supp. 2d 388, 394 (D. Md. 2002) (finding actions that were never taken or that were reversed or rescinded cannot form the basis of an adverse employment action). In short, Plaintiff cannot claim to have suffered an adverse employment action relating to her efforts to obtain tenure, when she in fact obtained tenure; she obtained the very employment benefit she was seeking. Additionally, none of Plaintiff’s allegations taken i dividually come close to setting forth an adverse employment action because they did not affect any term, condition, or benefit of Plaintiff’s employment. See Munday, 126 F.3d at 243 (finding manager’s conduct in yelling at employee and telling others to ignore and to spy on her was not an adverse employment action); see also Crockett, 943 F. Supp. 2d at 576 (finding “allegations [that] do no more than to suggest that Plaintiff was dissatisfied with her job and her employer’s evaluation of her” are not adverse employment actions (citing Cepada v. Bd. of Educ. of Balt. Cnty., 814 F. Supp. 2d 500, 515 (D. Md. 2011) (allegations that employee was “yelled at for complaining about his discriminatory treatment and ‘criticized’ ... are not materially adverse actions”); Thorn v. Sebelius, 766 F. Supp. 2d 585, 601 (D. Md. 2011) (citations and internal quotation marks omitted) (disagreement with the “management style or decisions” of supervisors and “shifting job responsibilities” amounting to a “mere inconvenience or an alteration” are not ma erially adverse actions)). Second, Plaintiff’s bald allegation that her resignation from the University on August 15, 2014, was involuntary, falls well short of what is required to sufficiently plead the high standard of intolerability necessary to show that she was constructively discharged. “Constructive Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 12 of 17 13 discharge occurs when an employer deliberately makes an employee’s working conditions intolerable and thereby forces him to quit his job.” Blakes, 909 F. Supp. 2d at 438 (quoting Tawwaab v. Va. Linen Serv., Inc., 729 F. Supp. 2d 757, 783 (D. Md. 2010)). “A plaintiff must prove (1) deliberateness of the employer’s action and (2) intolerability of the working conditions.” Id. (citation and quotations omitted). “Constructive discharge claims are held to a high standard, and even truly awful working conditions may not rise to the level of constructive discharge.” Id. (citation and quotations omitted); see Crockett, 943 F. Supp. 2d at 576 (“The doctrine of constructive discharge arises when an employer allows unlawful discrimination or harassment to rise to such a level that a reasonable employee would have no choice but to elect to resign, rather than continue to endure it.” (citation omitted)). Here, Plaintiff has insufficiently stated that her working conditions were so intolerable that a reasonable person would have no choice but to resign. Plaintiff’s own allegations belie any suggestion of intolerable working conditions, especially considering that just a month and a half before she resigned, Plaintiff was granted tenure at the University. See Comp. ¶¶ 38-39. After her resignation, she began working as a professor at ano her University System of Maryland institution, Coppin State University. See Comp. ¶ 40. Plaintiff’s generic allegations of job dissatisfaction, receipt of allegedly threatening and intimidating emails, and difficulty getting along with her supervisors are simply not the type of working conditions deemed so intolerable that a reason ble person would feel compelled to resign. See Blakes, 909 F. Supp. 2d at 438 (“[A]s this Court has held, dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not intolerable as to compel a reasonable person to resign.” (citations and quotations omitted)). Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 13 of 17 14 In addition, Plaintiff’s allegations are devoid of any facts suggesting that the University deliberately attempted to create intolerable working conditions such that her resignation was involuntary. See Evans v. Davie Truckers, Inc., 769 F.2d 1012, 1014 (4th Cir. 1985) (Title VII retaliation claim requires adverse employment action, which does not obtain where plaintiff voluntarily resigns). Plaintiff has failed to allege the University took any adverse employment action against her – to the contrary, she has admitted that, despite the alleged actions of Drs. Stevenson and Schiele, she was granted tenure. As such, Counts I, II, and III all fail to state a claim for which relief can be granted, and must be dismissed. B. COUNTS I AND III OF PLAINTIFF’S COMPLAINT ARE PROCEDURALLY BARRED i. Count I Must Be Dismissed Because Plaintiff Failed to Timely File her Administrative Charge under Title VII. In addition to the reasons set forth above, Count I must also be dismissed because the underlying discrete allegations of retaliation occurred more than 300 days before she filed her Charge with the EEOC. As this Court has stated: In Maryland, a deferral state, a Title VII charge of discrimination must be filed with the EEOC within 300 days of the alleged discriminatory conduct. If a charging party fails to comply with this filing requirement, alleged discriminatory acts which occurred more than 300 days prior to the filing of the EEOC charge may not be subsequently challenged i a Title VII suit. Mezu v. Morgan State Univ., 264 F. Supp. 2d 292, 294 (D. Md. 2003) (citations mitted). For purposes of a retaliation claim, “a discrete retalia ory or discriminatory act ‘occurred’ on the day that it ‘happened.’” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). Furthermore, “discrete discriminatory acts are not actionable if time barred, even when they are Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 14 of 17 15 related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. at 113. Here, Plaintiff’s EEOC Charge was not signed until August 20, 2014. See Ex. 1. As such, any allegations of retaliation occurring before October 24, 2013 (300 days earlier), must be dismissed because they were not the subject of a timely filed charge. The only allegations of retaliation occurring after October 24, 2013, concer alleged meetings with Dean Schiele regarding the tenure process, receiving notice that Dr. Stevenson non-recommended her for tenure, and that she was constructively discharged on August 15, 2014. For the reasons set forth above, however, meetings about tenure and non-recommendatio for tenure are not adverse employment actions, especially where Plaintiff actually received tenure. Additionally, Plaintiff has insufficiently stated that her working conditions were so intolerable that a reasonable person would have no choice but to resign, especially in light of he fact that Plaintiff received tenure just a month and a half before she resigned and began working as a professor at Coppin State University. See supra § IV.A.ii. For this additional reason, Count I of Plaintiff’s Complaint fails to state a claim for which relief can be granted, and must be dismissed. ii. Count III Must Be Dismissed Because Plaintiff Failed to Timely File her Administrative Charge, and Her Claim is Barred by Title 20’s Statute of Limitations. Civil actions brought under Md. Code Ann., State Gov’t § 20-606 must meet the following preconditions: Plaintiffs must initially file “a timely administrative charge or a complaint.” Id. § 20–1013(a)(1). For a charge or complaint to be tim ly, plaintiffs must file it “within 6 months after the date on which the alleged discriminatory act occurred.” Id. § 20–1004(c). Furthermore, plaintiffs must wait at least 180 Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 15 of 17 16 days from the filing of the charge or complaint to file suit. Id. § 20– 1013(a)(2). Additionally, plaintiffs must commence th ir civil action “within two years after the alleged unlawful employment practice occurred.” Id. § 20–1013(a)(3). Maryland law imposes specific requirements on the form and content of an administrative charge or complaint. See id. § 20–1004(b). Under section 20– 1004(b), the complaint shall (1) be in writing; (2)state the name and address of the person alleged to have committed the discriminatory act; (3) contain any other information the commission requires; and (4) be signed by the plaintiff under oath. Id. Crockett v. SRA Int'l, 943 F. Supp. 2d 565, 570–71 (D. Md. 2013). Here, Plaintiff’s EEOC Charge was not signed until August 20, 2014 (see Ex. 1), and any allegations of retaliation occurring before February 20, 2014 (six months earlier), must be dismissed because they are untimely. Md. Code Ann., State Gov’t § 20–1004(c)(2). Furthermore, because Plaintiff’s Complaint was filed on May 5, 2016, only allegations occurring on or after May 5, 2014 (two years earlier), are actionable. Id. § 20–1013(a)(3). As such, any allegations occurring before May 5, 2014, are time-barred. The only allegation of retaliation alleged in Plaintiff’s Complaint occurring on or after May 5, 2014, is her unsupported assertion that her resignation from the University on August 15, 2014, amounted to a constructive discharge. However, for the reasons set forth above, Plaintiff has insufficiently stated that her working conditions were so intolerable that a reasonable person would have no choice but to resign, especially in light of the fact that Plaintiff received tenure on July 1, 2014, just a month and a half before she resigned ad began working as a professor at Coppin State University. See supra § IV.A.ii. For this additional reason, Count III of Plaintiff’s Complaint fails to state a claim for which relief can be granted, and must be dismissed. Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 16 of 17 17 V. CONCLUSION WHEREFORE, for all the reasons set forth above, Defendant respectfully requests that its Motion to Dismiss Plaintiff’s Complaint, with prejudice, be granted as to all Counts. Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland __________/s/_____________ MATTHEW P. REINHART Assistant Attorney General Federal Bar No. 29814 Office of the Attorney General 200 St. Paul Place, 17th Floor Baltimore, MD 21202-2021 Telephone: (410) 576-6562 Fax: (410) 576-6437 mreinhart@oag.state.md.us Attorneys for Defendant Bowie State University Case 8:16-cv-01362-RWT Document 6-1 Filed 10/14/16 Page 17 of 17 Exhibit 1 Case 8:16-cv-01362-RWT Document 6-2 Filed 10/14/16 Page 1 of 6 EEoC Form 6 (1 1/09) x Agency(tes) Charge No(s): 531.2014.01210 Charge Presented To: FEPA EEOC Human and EEOCol CnnncEOFD ISCRIMINATION Prlnco tt'"Ei,rå[',i:l j'l,l[îfi,lli#ffi ;[111,iï,".,,liooodpj,eaovAo, Dr. Kesslyn A, Brade Nàm. (tndtoslo Mr,, Ma,, Mts,) Stennl¡ llomo PhonG (lnal, Ana Codal (30r) 500.0870 Date ol Elrlh .1972 Clty, 10517 Gentlan Couñ, Upper Martboro, MD 2OlTz Slr.ot Addlo!s StâtË ånd zlp Code Employor, Labor 0r otSt¡t€Commltteo, Local GovemmentMe 0r Others, Thal BellAgency sy0(ll moro lhan Namod le lhe Dlgcrlmlnated BOWIE STATE UNIVE Neme RSITY No, Emplo!¡.rr, lr{omùtra 500 or Moro Phonc No, /løoludo AtoÒ Coda) (301) 860.4000 14000 Jerlcho park Road, Bowle, MD 20715 Sùo¡t Addros¡ Clly, Shto snd ZIP Coda Nsmg |,1o, Emplèy€r!, MoÍÈôÌr Phone No, (lncludo Atèa codo) Slrcll Addrca8 clty, Ståle ¡nd Zlp Coda l-l neuoroN l--l runrrorunL onrcrN Drs^Bury f-l n=rrr,a rNFoRirAroNA0EDE sEx tr BASED ON (Check ÐWtoNlàtø RACE RETALIATION [_l cor-on D oTHÊR (Spntty) lTl co,,lrrr.rurNc AcroN DATE(S) 01.29.2014 Esrll¡st 08-01.2013 TOOK PLACE Latesl See attached. pap€r altaah ) )¡ I noaagtaryåny, lheh Oale Slgndlu,t and that ll ls lrue to AND SWORN ïo BEFORE THISME DATÊday, year) Case 8:16-cv-01362-RWT Document 6-2 Filed 10/14/16 Page 2 of 6 o o Questlon 4: lVhal is the reason (basis) for your claim of cmployment discrlminsllon? e Retaliation Queetlon 5: What happened to you úhat you belleve was discfiminatory? Include the date(s) of hatru, the nction(s), nnd úho name(r) and title(s) of the porson(s) who you believo dlscrlminated againot you. pleaoe ntt¡ch additionat pagcs lf nseded: Since February 2009, I h¿ve worked at Bowie State University ("BSU') as an Assistant Profossor in the Department of Social lvork ("DSW), within BSU's colloge of profossional Studies. My immediate supervísor is Dr. Andre Stevenson, the DSW DeparEnent Chair. My tenure application presently is pending. Throughout my tenwe at BSU, I have always becn rated as a successftrl performer. I long have been active and vocal ín advocating for the concçms of gay and womon students in the Social Wotk prograrn, particularly on behalf of Luis vatesqiez qnd Maxtin Chang' Mr, Valesquez is openly gey, À4r. Chang was disoreto about his sexual orientation, until he was "outsd" by Dr. Stevonson in 2013 in connection with attendancs at a sohool-approved trip by students to a oonference in South Carolina, Both are or wer€ active in classes and in the campus communþ in promoting gay issuos. They expressed to me their belief that gay students were being subjected to unlauÁ¡l disparato treatnent $rithiû the DSW, Both also are or were aotÍve in the BSU Socíal \ilork Club, with Mr, Valesquoz serving on the club,s oxecutive boa¡d. Duing my Spring 2013 ovatuation, I oxpressed concom to Dr, Stevenson about how the gay studonts within the DSW were belng troated by Dr, Stevenson, the faoulty and stafl as well as broader concems expressed by all students, Dr. stevenson directed rc io go to tho Social Work Club and find out '\vhat they thought of him." I did so and the students,,unloaded,, on Dr, stevensor¡ including raising oonceme about ur¡fair discrimination shown to them bccause of their sexual orientation and gender by Dr, stevenson and other facurty members. Aiso in spring 2013, Velasquezl asked me about DSW offering I course on homosexuality, I dlscussed this with Dr, stevenson and he rejected the idea, emphatically stating that there would be no such soutses ,,on his watoh,,, During Summe-r 2013, r tped up the concorns that had been expressed at the Spring meeting of the Sooial Work club and prepared an "Assessment of Dr. Andr€ Stevenson, chair,, representing the Social Work Club's oomments about Dr. Stevenson that Dr, Stevenson had I ovor tho summsr 2013, Vatosquez, who wa¡ ftustatod by the dlsparato tr€atmont based on hls sexual orientatlonthat ho roceived ffom Dr' stevenson, inchqing, but not limitod to, thwarting hts ability to take Mothods I whichínvolved work out ln the field, traneioned fi.d;ËSï, I Case 8:16-cv-01362-RWT Document 6-2 Filed 10/14/16 Page 3 of 6 I directed me to obtain ("Assessment'). In August 2013, I presented the Assessment to the socialÏi¡ork club executive board. The board approved the document, including the following "Th¡eat": "Favoritism: Students [g6y and lemaleJ feel that there is clear evidence of unfair discrimlnatlon and lavoritttm shwn to thetn by the Chair [Andre StevensonJ and specilicfqculty members, If not addressed, such actlons could wawant ø decreqse ln SOITK majors, morc clearly seen faculty dlscord, and even legal actlons (í.e, Law suits).,t on september 3, 2013, I forwarded the Assessmont to Dr. stevenson. He reactsdextromoly negatively and, sincc that time, has been oxtremely hostile toward me.2 Ho removod meas faculty advisor for thc sociat Work club. I was summoned to a meeting on september ll,2013, where I was questioned extensively by Dr, stevenson and the Dean of the college ofProfessional Studios, D¡, Jerome Schiele. on ootober ll,20l3,I submitted my tonure application, Dr. Stevenson faulted me forsubmitting a "disorganized" dossiet' oven though I clearly had submitted a complete, professional product in accordancc with BSU's tenure guidelines. In Fall 2013, at a Dean's Faculty Advisory committee meeting, I expressed concems that anumber of students and faculty had concerns slmilar to the ones that I previously had raised [in theAssessment] hut were aaaid to present them fot fear of reprisal. Dr. Stevenson wqs dismissive ofmy obsewation, In FaIl 2013,Dr, stevenson continued to display the same animus towards me that arosefiom the time that I had presented the Assossment. In Novembet 20l3,my husband, independently of me, called the BSU,' presjdent,s officetegarding concerns that he had about how the DSw had handled issues relatod to a BSU siudentthat was recelving assist¡nce from oru family, on Novernber 8, 2013, Dean Schiele met with me to explain the tenure process and toexp¡es8 his displeæure about my husband'e tolephone oall to yoru offrce, insinuating that Isomehow had influenced or instigated that oall. Thc Dean schìele told me that he found theoircr¡mstances of the call "suspicious." He also expressed some concem about rny aotivities inadvising students, cven though I never had been counsoled or otherwise disciplined about suchactivities' Nor had I ever been assessed negatively on any performanco appraisals about myadvisement activities. ¡ stevongon's hostite aotions toward me have caused severe emorional dÍstross and I am consulting medical provÍdersabout the stress and anxloty rosultlng tor úr, il*"n¡on,s aotions, o 2 Case 8:16-cv-01362-RWT Document 6-2 Filed 10/14/16 Page 4 of 6 , In late l¡all 2013, I learned that my teaching duties and departmont roles were being reduced. I wæ rsmoved ftom teoching coro socíal work classes and have been relogated tã teaching clective classes. Further, Dr, Stevenson has removed departmental duties and oommfthe responsibilities from me. Those aotions can hinder my tenure candidaoy. On Decembet 9,2013, after I had engaged ia protected EEO activities, the Dopartment of Social \ilork Faculty Review Committee voted not to reoommend me for tenwe. Dt, Stevenson concured with the deoision. I have engaged in protected activities, there have been an adverse employmont actions taken against me and the factual nexus is strong between the protected activity and the adverso employment aotion. Moreover, any explanations for donying ms tenure are very weak, including tJle advisement and the incomplctc dossicr o'issues." Regarding the dossier ,.issue," I have a reasonable explanation for my actions, including Dr, Stevenson's assent to submit ttrc dossier in the mannet that I did. Concerning the advisement "issue," I can demonstrate convinoingly ttrat no "mig-advisement" oocurred. or, if any mis-advisernent did ocow, it wa¡ at a level no different than rnis-advisement by othor faculty members, inoluding Dr. S(evenson. In othq words, the explanations offorod by Dr. Stevonson arc very weak and strongly domonstrate that they aro pretexts for thc real reason - unlauÂ¡l rotaliation against me for opposing unlawful actions and for participating in protoctod EEO activities. Quection 6: Why do you belleve these actlonr wore di¡criminatory? Please att¡ch additional page¡ lf noeded: The reasons given for the removing duties and resporuibilitíes from me and for opposing my tenure candídacy arc false and pretoxtual. Dr. Stovenson has expressed his disdaÍn for BSU policies, procedures and practices, refening to them an ,,niggerish,,' There is a shong faotual nexu¡¡ between my engaging in proteotecl activity in September 2013 by hforming Dr. Stevenson of the conoems of the gay and female students and ohampioning their conce¡ns about unlanrful discrimlnation based on tl¡eir sexual oriont¿tion and gender and the reEÍbution that I havo experienced sinoo I provided the Assessment to Dr. Stevenson, rüithin 3 months of submitting tho Assessment, my efforts ùo obt¿in tenure spem to be in jeopardy because of Dr' Stevenson's actions, Ho has removed rcsponsibilities from me, articulated a baseless objectíons surounding my tenure dossier and my advisoment activíties. Prior to my engaging in ptotected aotivitíes, no adverse actions had boen taken toward me by Dr, Stevenson. Nor had he prcviously exuded the hostility and anim.us that he has directed toward me since September 2013. Quostlon 7: r#h¡t roasou(s) wero givon to you for the actr you consider discriminatory? By whou? His or HerJob Tlfle? See my Responso to euestlon No. 5, abovo, o 3 Case 8:16-cv-01362-RWT Document 6-2 Filed 10/14/16 Page 5 of 6 o t Quertlon 8: DeccrÍbo who wac ln the sane or similrr as you and how they wero tre¡ted. X'or oxample, who olee applted for the oame Job you did, who etse had thc samo cttendance record, or who olse had the ¡¡me performanco? Provide the race, sox, age, national origln, rellgion or dicabiltty of thcse lndlvlduals, if known, and lf lt rslstes to your chim of dlscrlmlDatlon. For enmplo, if your complaint allegec rsce dlscrlmlnotion, proviilo the raco of each person; lf tt allogoo ser discrlminafion, provide the ssx of c¡ch p€nlon¡ aud so on. Use ndditlonal sheots if needsd. I am the only assistant professor that presently is applying for tenrrre ín the DSW. In the past, however, when assistant professors have applied fo¡ tonure, the deparünent chair has not oritioized those candidates' tenure dossiers. Nor, while those tenure applications have bcen pending, has the departnent chair removed important responsibilities from the tonure candidates or resüicted them from teaching core social work classos and relegated ttrsm to teaohing elective classes, , Other Ínstructors and profossors that have engaged ín protected activities, lnoluding opposing Dr. Stevenson's actions have suffered ratribution similar to me, including Dr, Emory PerkÍns, an æsistant professor and Ms. Velva Spriggs, an instructor. Dr. Stevenson hæ threatened to "get his [Perkin's] ass," and has ínformed Ms, Spriggs tlut he teaching oontract will not be renowed for the 2014-2015 aoademic year, in part, because he finds her condesoending and she has aligned herself with Dr. Perkins, Question 13: Are thcre any witnosso¡ to the alleged discriminatory incidents? If yer, plcare identlfy úhem below and tell us wh¡t they witl ray. (Pleare attach ¡dditÍonrl pages íf nooded to complete your response): Dr. Enrory Perkins has lnowledge of Dr, stevenson's animus toward anyone that opposes unlawful employment praotices and partíoþates in EEo activities; Ms. Velva Spriggs has knowledge of Dr, Stevenson's animus toward anyone that opposes unlau¡ñ¡l praotices and partictpatcs ln EEo activities. Dr, Stevenson admitted that he chose not to rene$, Ms. Spriggs' teaching conhaot bscause of he¡ assooiation with me. She also has knowledge that Dr, Stevenson has contempt for BSU policies, procedures and praotioes, rcfoning to thsm as ,,niggerish," a 4 Case 8:16-cv-01362-RWT Document 6-2 Filed 10/14/16 Page 6 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND (Southern Division) KESSLYN BRADE STENNIS, * Plaintiff, * vs. * Civil Action No. 8:16-cv-1362-RWT BOWIE STATE UNIVERSITY, * Defendant. * * * * * * * * * * ORDER Upon consideration of Defendant’s Motion to Dismiss, any opposition filed by Plaintiff, and any Reply thereto, it is hereby, this day of , 2016, ORDERED: That Defendant’s Motion to Dismiss Plaintiff’s Complaint with Prejudice is GRANTED. ____________________________________ The Honorable Roger W. Titus United States District Judge Case 8:16-cv-01362-RWT Document 6-3 Filed 10/14/16 Page 1 of 1