Dent v. University of Maryland

MOTION to Dismiss for Failure to State a Claim

D. Md.December 16, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * MELISSA DENT, * Plaintiff, * vs. Civil Action No. 8:16-cv-02446-DKC * UNIVERSITY OF MARYLAND, COLLEGE PARK, et al. * Defendants. * * * * * * * * * * DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT Defendants University of Maryland, College Park (“University”), and Maryland Small Business Development Center (“MSBDC”), (collectively, “Defendants”), by and through their undersigned counsel and pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), hereby move to dismiss Plaintiff Melissa Dent’s (“Plaintiff”) Amended Complaint (Dkt. Entry 10) in its entirety on the following grounds: (1) Plaintiff has failed to exhaust her administrative remedies for Count 3, thereby warranting dismissal of Count 3 under Rule 12(b)(1); (2) Plaintiff has failed to state a claim on which relief may be granted for Counts 1 through Count 4, thereby warranting dismissal of the Amended Complaint in its entirety under Rule 12(b)(6); (3) MSBDC should be dismissed, because MSBDC is not a separate and distinct entity, but instead is merely a unit of the University. Therefore, even if the entire Case 8:16-cv-02446-DKC Document 24 Filed 12/16/16 Page 1 of 3 2 Amended Complaint is not dismissed, MSBDC should be dismissed as a separate defendant under the law-of-the-case. The grounds for this Motion are more fully set forth in Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss the Amended Complaint, which is filed herewith and incorporated herein. WHEREFORE, Defendants respectfully request that this Motion to Dismiss be granted. Dated: December 16, 2016 Baltimore, MD Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland __________/s/_____________ CHRISTOPHER B. LORD Assistant Attorney General Federal Bar No. 26117 C. ALEXANDER HORTIS Assistant Attorney General Federal Bar No. 28522 Office of the Attorney General 200 St. Paul Place, 17th Floor Baltimore, MD 21202-2021 Telephone: (410) 576-6559 Fax: (410) 576-6437 clord@oag.state.md.us ahortis@oag.state.md.us Counsel for Defendants Case 8:16-cv-02446-DKC Document 24 Filed 12/16/16 Page 2 of 3 3 CERTIFICATE OF SERVICE This is to certify that, on the 16th day of December, 2016, a copy of Defendants’ Motion to Dismiss the Amended Complaint, Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss the Amended Complaint, and the Proposed Order, were all mailed by first class mail, postage prepaid, to: Ms. Melissa Dent 4920 Smithwick Lane Bowie, MD 20720 Plaintiff ___________/s/____________ CHRISTOPHER B. LORD Case 8:16-cv-02446-DKC Document 24 Filed 12/16/16 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * MELISSA DENT, * Plaintiff, * vs. Civil Action No. 8:16-cv-02446-DKC * UNIVERSITY OF MARYLAND, COLLEGE PARK, et al. * Defendants. * * * * * * * * * * MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE AMENDED COMPLAINT Defendants University of Maryland, College Park (“University”), and Maryland Small Business Development Center (“MSBDC”) (collectively, “Defendants”), through their undersigned counsel, submit this Memorandum of Law in Support of Defendants’ Motion to Dismiss the Amended Complaint. Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the Court should dismiss Plaintiff Melissa Dent’s (“Plaintiff”) Amended Complaint in its entirety. At most, Plaintiff has pleaded a contentious workplace dispute with her supervisors. Plaintiff has failed to plead facts sufficient for plausible claims of race or sex discrimination under Title VII; for retaliation under Title VII; or for retaliation under the federal Whistleblower Protection Enhancement Act of 2012 or the American Recovery and Reinvestment Act of 2009. In the alternative, MSBDC should be dismissed again as a defendant from the Amended Complaint under the law-of-the-case. Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 1 of 25 2 I. FACTUAL ALLEGATIONS The following factual allegations are from the Amended Complaint (“AC”), its attached exhibits,1 and matters subject to judicial notice.2 Defendants assume the truth of Plaintiff’s factual allegations only for the purpose of this Motion to Dismiss. A. Plaintiff’s Employment with the University Plaintiff alleges that she was employed with the MSBDC and was paid on checks drawn by the University. (AC ¶ 1, 19). The University, as a constituent institution of the University System of Maryland, is an instrumentality and unit of the State of Maryland. See Md. Code Ann., Educ. § 12-102(a)(1)–(3); see also id. § 12-101(b)(6) (listing constituent institutions, including University of Maryland, College Park). MSBDC is part of the Small Business Development Center Network established by the Small Business Act under 15 U.S.C. § 648(a). MSBDC operates as a unit within the University (AC ¶¶ 1, 20) and is funded in part by State appropriations. See Md. Code Ann., Educ. § 13-104(h)–(j). Plaintiff is an African-American female and former employee of the MSBDC and the University. (AC ¶ 1). Plaintiff’s office was at the MSBDC Corridor Region Headquarters in College Park, Maryland. (Id. ¶ 12). Plaintiff’s former supervisor was Bret Kyle Bayliss (“Mr. Bayliss”), MSBDC’s Regional Director for the Corridor Region. (Id.). Bayliss’ superiors are Renee Sprow (“Ms. Sprow”), Executive Director of the MSBDC, 1 See Fed. R. Civ. 10(c) (“A copy of written instrument that is an exhibit to a pleading is part of the pleading for all purposes.”); Cobb v. Towson Univ., 2015 WL 3654562, at *11 n.1 (D. Md. June 10, 2015) (considering on motion to dismiss EEOC charge attached to pleadings). 2 See Peete-Bey v. Educational Credit Mgmt. Corp., 131 F. Supp. 3d 422, 427 (D. Md. 2015) (holding court may take judicial notice of “public records, including statutes” on motion to dismiss). Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 2 of 25 3 and Lora Brown (“Ms. Brown”), Deputy Director of the MSBDC. (Id. ¶ 35). Mr. Bayliss is a white male. (Id. ¶ 91). Mr. Bayliss’ superiors, Ms. Sprow and Ms. Brown, are each African-American females. (Id.). Plaintiff was an employee of the University for the last four years. (Id. ¶ 31). Plaintiff worked as a Senior Business Consultant in the MSBDC. (Id.). In that role, Plaintiff alleges she worked with the MSBDC’s small business clients to provide counseling and advice, counseling them on revenue generation, exposure, and funding opportunities. (Id. ¶ 32). Plaintiff also alleges she developed strategic partnerships with economic development organizations, lenders and other strategic business partners. (Id.). The MSBDC, with Mr. Bayliss as her supervisor, previously gave Plaintiff the award of Business Counseling State Star. (Id. ¶¶ 12, 34). B. Plaintiff’s 2015 Performance Reviews and Criticism of Her Supervisors On March 30, 2015, Plaintiff submitted a Self-Assessment Questionnaire to her first-line supervisor, Mr. Bayliss, MSBDC’s Regional Director, Corridor Region. (Id. ¶ 33). Within the Questionnaire, in a section outlining alleged barriers to goals and achievements, Plaintiff criticized Mr. Bayliss’ management. (Id.). Plaintiff listed areas which allegedly “reflected poorly on Mr. Bayliss’ management of MSBDC’s Corridor Region, noting challenges in communication between her and Mr. Bayliss, a lack of resources and resource allocation, and issues regarding employee morale.” (Id.). On April 6, 2015, Plaintiff received a “below expectations” performance review from Mr. Bayliss. (Id. ¶ 34). Plaintiff alleges that during the performance evaluation, Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 3 of 25 4 Mr. Bayliss allegedly “exhibited unorthodox and distressing behavior: he raised his voice, flailed his arms, and knocked items over on his desk, making [Plaintiff] extremely uncomfortable.” (Id.). On April 7, 2015, Plaintiff emailed Mr. Bayliss’ superiors, Ms. Sprow and Ms. Brown, to challenge her performance appraisal. (Id. ¶ 35). Plaintiff alleges that she reported to Mr. Bayliss’s superiors, Ms. Sprow and Ms. Brown, her claims that reportable milestones and accomplishments on her scorecard appeared to be “altered” to make it appear that Plaintiff was not on track with her goals. (Id. ¶ 35). Plaintiff later emailed Ms. Sprow and Ms. Brown with what she alleges is evidence that Mr. Bayliss “unethically and fraudulently, manipulated” some of Plaintiff’s milestones. (Id. ¶ 37). The following week, Plaintiff met with Ms. Sprow and Mr. Jeff Snider, UMD’s Director of the Division of Research and HR representative. (Id. ¶ 38). Three weeks later, Plaintiff then filed a Step 1 union grievance. (Id.). In May 2015, pursuant to the union grievance, Plaintiff had two meetings with Mr. Bayliss, Ms. Sprow, Ms. Brown, Mr. Snider, and Mr. Patrick Laden in Human Resources, regarding what she alleges were the “unethical, fraudulent manipulation of the removed milestones.” (Id. ¶ 41). Plaintiff alleges that in this meeting Mr. Laden conveyed some story about a harsh boss that ended with “he was still his boss.” (Id. ¶ 42). Ms. Sprow partially denied and partially granted the Step 1 union grievance by adjusting the performance review. (Id. ¶¶ 41, 46). Unsatisfied by the results, on June 4, 2015, filed what she alleges was an “internal Whistleblower [sic] complaint” with Ms. Clark, and met with Ms. Clark shortly thereafter Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 4 of 25 5 to file what she describes as a “verbal Whistleblower [sic] complaint….” (Id. ¶¶ 47-48). Plaintiff again raised the alleged “fraud” of Mr. Bayliss’ alleged “manipulation” of her performance metrics, which she vaguely asserts were on “a database that was a deliverable on the SB, Federally funded contract overseen by the Division of Research.” (Id. ¶ 48). Plaintiff also conveyed to Ms. Clark “serious accusations” that a former unnamed employee, who was an African American female, allegedly complained to Ms. Sprow and Ms. Brown that her performance results “appeared to be manipulated,” and requested a “desk audit” of Mr. Bayliss for the “prior 3 years back to 2012” to ascertain “if this was in fact true….” (Id.). Plaintiff also made vague accusations of “suspected gross mismanagement and waste” in the MSBDC, and conveyed to Ms. Clark her concerns of the allegedly “erratic” actions of Mr. Bayliss. (Id. ¶ 48). Ms. Clark listened to Plaintiff but did not give assurances they would credit these accusations. (Id. ¶ 49). In a September 2015 meeting Ms. Sprow indicated to Plaintiff that Plaintiff had not been as productive as previously. (Id. ¶ 51). During Plaintiff’s performance review in mid-September 2015, Plaintiff again complained that some of her alleged loan milestones should have been reported in the review. (Id. ¶ 53). The milestone was then returned to reportable status on Plaintiff’s scorecard. (Id.). C. Plaintiff’s Workplace Disputes and Disciplinary Actions in 2016 Plaintiff alleges other workplace disputes she had with Mr. Bayliss in the summer and fall of 2015. Plaintiff asserts vaguely that Mr. Bayliss was a “bully” who engaged in “retaliation and humiliation” by establishing monthly performance reviews and Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 5 of 25 6 implementing qualitative measurements. (AC ¶¶ 53, 55, 59). Plaintiff states that she was accused of “calling Mr. Bayliss a liar in a recent staff meeting with Mr. Bayliss and her colleagues of the Corridor Region Staff.” (Id. ¶ 51). Mr. Bayliss allegedly also required that Plaintiff read a book and watch of a video that involved a divorcee who was being fired for not trusting her supervisor. (Id. ¶ 56). Plaintiff sent emails of the alleged “retaliation and harassment” to Ms. Sprow and Ms. Brown. (Id. ¶ 63). Ms. Sprow and Ms. Brown took no action on these accusations. (Id.). Plaintiff’s Step 2 union grievance was denied in November 2015 with Ms. Sprow in attendance. (Id. ¶¶ 63-65). Plaintiff also asserts that she was the “only business consultant that was an African American Female and retaliated against in this fashion by Mr. Bayliss.” (Id. ¶ 45). Plaintiff provides no factual details about these other consultants or their situations at work. Plaintiff also asserts that “other African American and Hispanic employees of the Maryland SBDC have been fired for reasons much less egregious, unethical and serious that those actions carried out by Mr. Bayliss (white male)….” (Id. ¶ 91). Plaintiff does not identify those other employees, describe their positions, or explain what their conduct was. Lastly, Plaintiff made vague accusations about her performance metrics somehow affecting an unspecified SBA contract “up for accreditation and review in the fall of 2016….” (Id. ¶ 93). Plaintiff does not plead the specific appropriations or date of this contract. On January 5, 2016, Plaintiff refused to attend a meeting at Ms. Clark’s office. (Id. ¶ 72). Plaintiff had been warned in advance that a failure to attend would be construed as in subordination and would subject her to disciplinary action. (Id. ¶ 73). Plaintiff Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 6 of 25 7 thereafter received a one-day disciplinary suspension for refusing to attend the meeting, and later a two-week suspension. (Id. ¶¶ 74, 104, 125). Plaintiff went on leave in February 2016 and did not return until May 3, 2016. (Id. ¶¶ 123, 126). In the interim, on March 8, 2016, Plaintiff had received a “Last Chance Agreement” with workplace charges against her. (Id. ¶ 126). Plaintiff was terminated on May 11, 2016. (Id. ¶ 130). Plaintiff was denied unemployment benefits on the grounds of gross misconduct. (Id. ¶ 97). D. Procedural History of the Case Plaintiff received her EEOC right-to-sue letter on March 31, 2016 (AC Exh. 1). On June 29, 2016, Plaintiff filed her original Complaint against the University and MSBDC, asserting three counts for race and gender discrimination, and for retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16. (Dkt. Entry 1). On November 14, 2006, Defendants moved to dismiss MSBDC as a party defendant and for untimely service. (Dkt. Entry 8). On December 2, 2016, the Court granted the motion to dismiss as to MSBDC on the ground it was not a separate entity from the University, but denied the motion to dismiss as to untimely service. (Dkt. Entry 18). Plaintiff has filed the pending Amended Complaint to add a Count 4 for retaliation and wrongful termination under the “Whistleblower Protection Enhancement Act of 2012 and Section 1553 of the American Recovery and Reinvestment Act of 2009…” (AC ¶ 131). II. STANDARD OF REVIEW Rule 12(b)(1) applies to this motion to dismiss because a “plaintiff’s failure to exhaust the administrative process deprives the courts of subject matter jurisdiction.” Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 7 of 25 8 Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1036 (4th Cir. 1994). Subject matter jurisdiction is a threshold issue. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). “The plaintiff always bears the burden of demonstrating that subject matter jurisdiction properly exists in federal court.” Sewell v. Strayer Univ., 956 F. Supp. 2d 658, 666 (D. Md. 2013) (Chasanow, J.). Once jurisdiction is challenged, Plaintiff has the burden of “proving the truth of such facts by a preponderance of the evidence.” U.S. ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009). If the Court determines that it lacks subject matter jurisdiction, “the court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). Rule 12(b)(6) requires dismissal when the complaint fails to “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 must “take the facts in the light most favorable to the plaintiff,” it “need not accept legal conclusions couched as facts or ‘unwarranted inferences, unreasonable conclusions, or arguments.” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012). “Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. III. ARGUMENT A. Plaintiff Has Not Pleaded Facts Showing a Plausible Claim for Race Discrimination in Count 1. ___________________________________ To state a claim for discrimination based on race under Title VII, Plaintiff must plead sufficient facts that plausibly show: “(1) membership in a protected class; Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 8 of 25 9 (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class.” Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (affirming dismissal of Title VII claim for discrimination based on race that “did not rise above speculation”) (cited in Davis v. BBR Mgmt., LLC, 2011 WL 337342, at *8 (D. Md. Jan. 31, 2011) (dismissing Title VII complaint with conclusory allegations of race and sex discrimination) (Chasanow, J.)). Here, while the Amended Complaint alleges a contentious workplace dispute with her supervisors and arguably rude treatment, the factual allegations do not plausibly show the fourth element of disparate treatment from similarly situated employees based on race. The Amended Complaint barely mentions anyone resembling a comparator, much less pleads facts showing they were treated differently while similarly situated. Plaintiff vaguely alleges that she was the “only business consultant that was an African American Female and retaliated against in this fashion by Mr. Bayliss” (AC ¶ 45), but pleads no facts to substantiate the similarity of other, unidentified consultants. Plaintiff also asserts that “other African American and Hispanic employees of the Maryland SBDC have been fired for reasons much less egregious, unethical and serious that those actions carried out by Mr. Bayliss (white male)” (id. ¶ 91), but does not describe those unnamed employees’ positions or conduct, or explain why they are being compared to her supervisor Mr. Bayliss. Complaints like this that “merely alleges a co-worker is similarly situated without providing facts to substantiate that similarity fails to state a claim for discrimination.” Booth v. Cnty Exec., --- F. Supp. 3d ----, 2016 WL 2757367, at *4 (D. Md. May 11, 2016) Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 9 of 25 10 (dismissing disparate treatment claim for race and sex where plaintiff failed to plead sufficient facts about comparators); Coleman v. Johnson, 2015 WL 1292951, at *6 (Mar. 20, D. Md. 2015) (rejecting disparate treatment claim where “Plaintiff has failed to identify sufficient comparators”) (Chasanow, J.); Coleman v. Md. Ct. of Appeals, 626 F.3d at 191 (affirming dismissal of Title VII claim where plaintiff named a comparator but failed to allege sufficient facts to show the comparator was similarly situated). Plaintiff’s Amended Complaint, ironically, relies heavily on allegations against Ms. Sprow and Ms. Brown, both of whom are African-American women like her. (AC ¶ 91). However, Ms. Sprow’s and Ms. Brown’s involvement and approval of the disciplinary actions of Plaintiff undermines any inference of race-based animus. See Perry v. Clinton, 831 F. Supp. 2d 1, 22 (D.D.C. 2011) (holding racial discrimination claim was undermined where “persons of the same race and gender” as plaintiff shared views opposing plaintiff’s promotion); Smith v. Voorhees College, 2007 WL 2822266, at *14 n.7. (D.S.C. June 14, 2007) (dismissing race discrimination claim where decisionmakers and comparators were also African-Americans). See also Thompson v. Admin. Office of Sup. Ct. of Appeals of W. Va., 2004 WL 3266044, at *14 n.1 (S.D. W.Va. Dec. 6, 2004) (noting “race discrimination claim is undermined by the fact that the person ultimately selected… was of the same race as Plaintiff”). Lastly, Plaintiff’s vague allegations that she conveyed “serious accusations” by a former African-American female employee about possible manipulation of system metrics (AC ¶ 48.b.) are classic “speculative level” allegations. Twombly, 550 U.S. at 555. Simply put, Plaintiff fails to plead a plausible claim for race Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 10 of 25 11 discrimination under Title VII. To the extent Plaintiff is asserting a hostile work environment based on race, such a claim is plainly not supported by the pleadings. To state a Title VII claim for a racially hostile workplace, Plaintiff must plead facts showing: “(1) [she] experienced unwelcome harassment; (2) the harassment was based on [her] race… (3) the harassment was sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive work environment; and (4) there is some basis for imposing liability on the employer.” Baqir v. Principi, 434 F.3d 733, 745-46 (4th Cir. 2006) (emphasis added). Plaintiff has failed to plead facts to satisfy the second and third elements. As the Fourth Circuit and this Court recognize, “Title VII does not establish a general civility code for the American workplace” and “rude treatment… callous behavior by [one’s] superiors, or a routine difference of opinion and personality conflict with [one’s] supervisor, are not actionable under Title VII.” Alexander v. U.S. Dep’t of Veterans Affairs, 2012 WL 78874, at *6 (D. Md. Jan. 10, 2012) (Chasanow, J.) (quoting EEOC v. Sunbelt Rentals, 521 F.3d 306, 315-16 (4th Cir. 2008)) (internal quotations and citations omitted) (emphasis added). Even if a supervisor “harbored some personal dislike … that made [Plaintiff’s] job more stressful, [a]n employer is not required to like his employees.” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 281 (4th Cir. 2000) (internal quotations omitted). Here, the Amended Complaint does not allege that her supervisors uttered a single racial slur or derogatory comment about African-Americans. This Court has rejected Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 11 of 25 12 hostile work environment claims with more racial mistreatment than anything alleged here. See Mock v. Lockheed Martin Corp., 2009 WL 3297243, at *4 (D. Md. Oct. 8, 2009) (granting Rule 12(b)(6) motion to dismiss hostile work environment claim where plaintiff “only states one fact related to her race” that was said by her supervisor) (Chasanow, J.); (D. Md. ) (Chasanow, J.); Onuaha v. Grafton School, Inc., 182 F. Supp. 2d 473, 482 (D. Md. 2002) (holding that plaintiff failed to show as a matter of law objectively hostile work environment based on two incidents where supervisor used racial slur) (Chasanow, J.). Although Plaintiff strains to allege “unorthodox and distressing behavior” by Mr. Bayliss (AC ¶ 34), she fails to plausibly show anything other than the kind of “rude treatment” that is “conduct falling short of that required to sustain a hostile work environment claim.” Baqir, 434 F.3d at 747; Ruffin v. Lockheed Martin Corp., 126 F. Supp. 3d 521, 530 (D. Md. 2015) (granting motion to dismiss race-based hostile work environment claim where plaintiff’s allegations she was “targeted, harassed and stalked” and her “work had been sabotage[d]” did not permit a plausible inference conduct was based on race). For all these reasons, the Court should dismiss Count 1 for race discrimination. B. Plaintiff Has Not Pleaded Facts Showing a Plausible Claim for Sex Discrimination in Count 2.___________________________ Plaintiff’s factual allegations for the Count 2 claim for sex discrimination are even more sparse. To plead a claim for gender discrimination under Title VII, Plaintiff must likewise plead facts plausibly showing: “(1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 12 of 25 13 from similarly situated employees outside the protected class.” Coleman, 626 F.3d at 190 (emphasis added). Plaintiff must show the “conditions of her employment were affected because of her status as a woman not simply as a result of personal incompatibility and petty grudges.” Campbell v. Masten, 955 F. Supp. 526, 528 (D. Md. 1997) (granting Rule 12(b)(6) motion to dismiss sex discrimination claim) (emphasis added). Here, the Amended Complaint demonstrates only a contentious working relationship with her supervisors, but nothing to plausibly infer gender-based animus. Two of her supervisors, Ms. Sprow and Ms. Brown, in fact were also women (AC ¶ 91), and Plaintiff does not allege any similarly-situated male comparator whatsoever. Plaintiff’s Count 2 is merely a “formulaic recitation of the elements of the cause of action” which is insufficient to plead a plausible claim for gender discrimination. See, e.g, McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015) (affirming dismissal of claim for gender discrimination under Title VII). Nothing in the Amended Complaint even suggests a claim for hostile work environment based on gender. Plaintiff has not alleged a single sexist comment, sexually- inappropriate banter, or sexual touching or harassment. The Amended Complaint nebulously asserts that “Mr. Bayliss required the reading of a book and the watching of a video that insinuated that the Plaintiff’s situation of being a divorcee being fired for not trusting those with whom she worked.” (AC ¶ 56). Requiring the reading of one book or video involving a divorcee does not come close to showing the kind of “severe or pervasive gender… based activity necessary to state a hostile work environment claim.” Bass v. E.I. Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 13 of 25 14 DuPont, 324 F.3d 761, 765 (4th Cir. 2003) (affirming dismissal of sex discrimination claim based on hostile work environment); Alexander v. U.S. Dep’t of Veterans Affairs, 2012 WL 78874, at *5 (D. Md. Jan. 10, 2012) (rejecting sexual harassment claim where plaintiff “presents no derogatory statement from her supervisors or any other employee with whom she worked regarding her race or sex”) (Chasanow, J); accord LaSalle v. City of New York, 2015 WL 1442376, at *7 (S.D.N.Y. Mar. 30, 2015) (dismissing hostile work environment claim where comments plaintiff was “getting a divorce” were not sufficiently severe). The Court should dismiss Count 2 for sex discrimination under Title VII. C. Plaintiff Has Failed to Exhaust Administrative Remedies for Count 3 and Does Not Plead a Plausible Claim for Retaliation under Title VII. Plaintiff has the burden of showing she exhausted her administrative remedies with the EEOC for each claim, including Count 3 for retaliation. See Chacko v. Patuxent Institution, 429 F.3d 505, 515 (4th Cir. 2005) (“We have generally dismissed any claims in which the plaintiff has not exhausted his administrative remedies before bringing suit.”); Sloop v. Memorial Mission Hosp., Inc., 198 F.3d 147, 148 (4th Cir. 1999) (holding “it is axiomatic that a claimant under Title VII must exhaust his administrative remedies by raising his claim before the EEOC” and dismissing Title VII retaliation claim on appeal). Here, Plaintiff’s Count 3 claim for retaliation and resulting damages are based in large part on Plaintiff being “terminated from her position.” AC ¶ 116 (emphasis added). Plaintiff indeed seeks “back pay to the date of termination” and “a front pay award equivalent to five-years of [Plaintiff’s] annual salary…” (Id. ¶ VI.h.). However, Plaintiff, Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 14 of 25 15 received the EEOC’s right-to-sue letter on March 31, 2016 (AC Exh. 1), six weeks before Plaintiff was terminated on May 11, 2016. (Id. ¶ 85). Plaintiff’s Charge of Discrimination obviously does not raise her termination (Id. Ex. 2), and Plaintiff does not allege filing a second EEOC complaint. The EEOC therefore had no opportunity to consider the termination allegations, and the Court lacks subject matter jurisdiction over the retaliation claim for termination. See Handon-Brown v. Wash. Suburban Sanitary Comm’n, 2015 WL 1137728, at *2 n.3 (D. Md. Mar. 11, 2015) (“The EEOC Charge of Discrimination does not allege retaliatory termination since that event happened after its filing, nor did [Plaintiff] file an additional EEOC charge, or amend the charge to allege retaliatory termination.”); accord Pace v. Alfa Mut. Ins. Co., 2016 WL 4419290, at *5 (M.D. Ala. Aug. 17, 2016) (dismissing claim where EEOC dismissed charge prior to resignation and plaintiff showed “no reason why he could not have filed a new EEOC constructive discharge complaint”); Becnel v. Dep’t of Social Servs., Office of Community Servs., 2011 WL 2416259, at *4 (M.D. La. May 20, 2011) (dismissing retaliation claims relating to plaintiff’s termination where plaintiff “received her right to sue letter from the EEOR prior to her… termination”). Additionally, Plaintiff has not pleaded facts showing a legally cognizable claim for the purported “retaliation.” To plead a claim for retaliation under Title VII, Plaintiff must plead facts showing: (1) that she engaged in a protected activity; (2) her employer acted adversely against her; and (3) the protected activity was causally related to the adverse action. See Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 15 of 25 16 Plaintiff’s factual allegations fail to plausibly show the third element of causation. In Univ. of Texas Sw. Med. Center v. Nassar, 133 S. Ct. 2517 (2013), the United States Supreme Court stated that Title VII retaliation claims require “but-for causation,” meaning that “the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Univ. of Texas Sw. Med. Center, 133 S. Ct. at 2533 (emphasis added). The Supreme Court and Fourth Circuit have explained that federal courts “will not infer a causal link based on temporal proximity alone unless the adverse action occurred ‘very close’ to… or ‘shortly after,’… the defendant became aware of the protected activity.” Hall v. Greystar Mgmt. Servs., 637 Fed. Appx. 93, 99 (4th Cir. 2016) (quoting Clark Cnty. School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)) (internal citation omitted) (emphasis added). Although there are no bright-line rules on timing, the Fourth Circuit has held that a “six month lag is sufficient to negate any inference of causation.” Hooven-Lewis v. Caldera, 249 F.3d 259, 278 (4th Cir. 2001). The Fourth Circuit has also concluded “that a three- or four-month lapse between the protected activities and discharge was too long” and even a “mere ten-week separation between the protected activity and termination is sufficiently long so as to weaken significantly the inference of causation between the two events.” Perry v. Kappos, 489 Fed. Appx. 637, 643 (4th Cir. 2012) (quoting Pascual v. Lowe’s Home Ctrs., Inc., 193 Fed. Appx. 229, 233 (4th Cir. 2006); King v. Rumsfeld, 328 F.3d 145, 151 n. 5 (4th Cir. 2003)) (internal citations and quotations omitted); Johnson v. United Parcel Serv.., 2016 WL 4240072, at *6 (D. Md. Aug. 11, 2016) (noting Fourth Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 16 of 25 17 Circuit has “rejected gaps of as little as two months”). Here, the temporal proximity between the “protected activity” and the only tangible adverse actions is simply too distant. Plaintiff cites to her two suspensions as “retaliation” for her filing of a University grievance. (AC ¶ 116). However, the Amended Complaint admits it was not until January 5, 2016, that Plaintiff received a one-day disciplinary suspension for refusing to attend a meeting with Ms. Clark (id. ¶ 74), and a March 2016 suspension. (Id. ¶ 125). This was more than six months after Plaintiff initiated her union grievance procedures and “internal Whistleblower complaint” in May and June 2015 for her performance reviews, and approximately two months after her Step 2 grievance hearing in November 2015. (Id. ¶¶ 41, 47, 64). Given this lack of temporal proximity and the general weakness of her allegations, this activity does not constitute a plausible claim for Title VII retaliation. See Horne v. Reznick Fedder & Silverman, 154 Fed. Appx. 361, 364 (4th Cir. 2005) (holding termination of employee two months after protected activity was insufficient to show retaliation in light of prior warnings of deficient performance); Sewell v. Strayer Univ., 2013 WL 6858867, at *7 (D. Md. Dec. 27, 2013) (granting Rule 12(b)(6) motion to dismiss retaliation claim where plaintiff based on five month time span and “Plaintiffs failure to allege plausible facts reasonably to infer that the adverse action was taken at the ‘first opportunity’”) (Chasanow, J.); Adkins v. Fairfax Cnty. School Bd., 2008 WL 2076654, at *6 (E.D. Va. May 15, 2008) (dismissing retaliation claim based on more than two month gap and lack of other factual allegations). Plaintiff’s other cited “protected activity” and “retaliation” is legally insufficient for Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 17 of 25 18 a Title VII retaliation claim. As detailed above, Plaintiff did not exhaust her administrative remedies with regard to the May 2016 termination. See supra.3 Although Plaintiff also attempts to use her January 14, 2016 “Federal Whistleblower complaint” to show retaliation (AC ¶¶ 78, 122), this was not protected activity under Title VII. The Fourth Circuit has held that Title VII is not a “general whistleblower statute” and only prohibits discrimination for “race, color, religion sex, or national origin.” Lightner v. City of Wilmington, NC, 545 F.3d 260, 264 (4th Cir. 2008) (citing 42 U.S.C. 2000e-2(a)(1) (2000)). Plaintiff’s “Federal Whistleblower complaint” for “fraud” is bereft of any allegations of race or sex discrimination (AC Ex. 2), and thus was not protected activity for purposes of Title VII. See Fontell v. MCGEO UCFW Local 1994, 2010 WL 3086498, at *13 (D. Md. Aug. 6, 2010) (granting Rule 12(b)(6) motion to dismiss Title VII retaliation claim because plaintiff’s complaints to Inspector General about “unethical acts” did “not relate to discrimination under Title VII”). In short, the Court should dismiss Count 3 for retaliation under Title VII. D. Plaintiff’s Count 4 Fails to State a Claim as a Matter of Law under Either the Federal Whistleblower Protection Act or the ARRA._______ Plaintiff’s Count 4 for “Retaliation and Wrongful Termination” cites to the “Whistleblower Protection Enhancement Act of 2012” and “Section 1553 of the Whistleblower Recovery Act of 2009.” (AC ¶¶ 6 & 119). Plaintiff fails to state a legally 3 Regardless, Plaintiff was not terminated until receiving multiple warnings, and more than six months after her union grievances and two months after her supervisors received her EEOC notice on April 4, 2016. (AC ¶¶ 28, 64, 129). Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 18 of 25 19 valid claim under either statute. Count 4 should be dismissed in its entirety as well. 1. The Court Should Dismiss any Claim under the Federal Whistleblower Protection Act as Plaintiff was Not a Federal Employee. The Whistleblower Protection Enhancement Act of 2012 (“WPEA”) is not a stand- alone law, but rather an amendment to the underlying Federal Whistleblower Protection Act (“WPA”). See 5 U.S.C. § 2302 amended by Pub. L. No. 112-199, 126 Stat. 1465 (2012). By the statute’s express terms, it applies only to a “covered position… in the competitive service” within a federal “Executive agency and the Government Publishing Office…” 5 U.S.C. §§ 2302 (a)(2)(B),(C); 5 U.S.C. § 2105 (defining federal “employee” as “appointed in the civil service” by federal officer). The statute therefore provides “whistleblowing protections available to federal employees.” Hicks v. Merit Sys. Protection Bd., 819 F.3d 1318, 1320 (Fed. Cir. 2016) (emphasis added); Ashe v. Giant of Md., LLC, 2007 WL 7020451, at *3 (D. Md. July 17, 2007) (holding WPA was enacted “for the purpose of protecting federal employees”). Conversely, as the Fourth Court and this Court have recognized, where as here Plaintiff was not a federal employee for a federal agency, “the federal statute has no application.” Jurgensen v. Fairfax Cnty., Va., 745 F.2d 868, 896 n.1 (4th Cir. 1984) (emphasis added); Hesman Tall v. MV Transp., 2015 WL 302827, at *6 (D. Md. Jan. 22, 2015) (holding WPEA is “wholly inapplicable here, as it protects federal employees and applicants from retaliation for whistleblowing”) (Chasanow, J.) (emphasis added). Here, Plaintiff has not and can not allege that she was a federal employee for any Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 19 of 25 20 federal executive branch agency. To the contrary, Plaintiff’s Amended Complaint acknowledges that she was a state employee “of the SBDC and the University of Maryland.” AC ¶¶ 30, 63, 87. At most, Plaintiff’s Amended Complaint alleges vaguely that the “University of Maryland is the recipient organization of the grants given by the Small Business Administration (SBA) to establish and operate the SBDC pursuant to 15 U.S.C. § 648(a)(1) and 13 C.F.R. § 130.200(a)(1) and § 130.430(c).” AC ¶ 22. However, given WPA’s statutory definition of a federal “Executive Agency,” 5 U.S.C. §§ 2302(a)(2)(B),(C), there is no authority to expand the WPA to a state employer, regardless of whether it is regulated by the federal government or has received some federal funds. See Krueger v. Lyng, 927 F.2d 1050, 1054 (8th Cir. 1991) (holding WPA did not apply to county executive director even though position created by federal regulations of United States Department of Agriculture); Shaw v. Nat’l R.R. Passenger Corp., 2014 WL 1302055, at *4 (E.D. Pa. April 1, 2014) (granting Rule 12(b) motion to dismiss WPA claim after holding Amtrak employee was not a federal employee despite fact Amtrak received federal funds); Williams v. Va., State Bd. of Elections, 2012 WL 2878579, at *5 (E.D. Va. July 13, 2012) (dismissing WPA retaliation claim where state defendant was not a federal employer even though “vast majority of the funds spent by [defendant] are derived from federal grants….”); see also Chu v. Tex. So. Univ., 2012 WL 256419, at *7 n. 7 (S.D. Tex. Jan. 27, 2012) (dismissing WPA claim brought by state university employee because he was “not a federal employee”). Since Plaintiff is not a federal employee, the Court should dismiss any claim under Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 20 of 25 21 the WPA. See High v. Genesis Healthcare LLC, 2014 WL 6997492, at *2 (M.D.N.C. Dec. 5, 2014) (granting partial motion to dismiss WPA retaliation claim where “Plaintiff was not a federal employee, those complaints were not protected by the Whistleblower Protection Act”); Siegler v. The Ohio State Univ., 2011 WL 1990548, at *5 n.2 (S.D. Ohio May 23, 2011) (rejecting WPA claim by state university employee as it “applies only to federal employees reporting misconduct by federal agencies”); Langdon v. Medical College of Ohio, 2001 WL 238312, at *4 (N.D. Ohio Mar. 5, 2001) (dismissing WPA claim since “plaintiff is a state employee, there is no subject matter jurisdiction under the Federal Whistleblower Act against all defendants”); Giant of Maryland, 2007 WL 7020451, at *3 (dismissing WPA claim where plaintiff was not a federal employee). 2. The Court Should Dismiss any Claim under ARRA as Plaintiff Has Not Pleaded Facts Showing Disclosures on Misuses of 2009 Stimulus Funds. Plaintiff’s Amended Complaint also cites to “Section 1553 of the American Recovery and Reinvestment Act of 2009….” AC ¶¶ 6 & 119. The American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, § 1553, 123 Stat. 115 (2009) (“ARRA”), commonly known as the stimulus package, contained a whistleblower provision for non- federal employees “who disclose certain types of misconduct in connection with funds distributed under the ARRA.” Hosack v. Utopian Wireless Corp., 2011 WL 1743297, at *6 (D. Md. May 6, 2011) (Chasanow, J) (emphasis added). Specifically, Section 1553 bars retaliation for an employee’s disclosures of: (1) gross mismanagement of an agency contract or grant relating to covered funds; Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 21 of 25 22 (2) a gross waste of covered funds; (3) a substantial and specific danger to public health or safety related to the implementation or use of covered funds; (4) an abuse of authority related to the implementation or use of covered funds; or (5) a violation of law, rule, or regulation to an agency contract (including the competition for or negotiation of a contract) or grant, awarded and issued relating to covered funds. ARRA, Pub. L. No. 111-5, § 1553(a) (2009) (emphasis added). The term “covered funds” is defined to mean “any contract, grant, or other payment received by a non-Federal employer if---…. at least some of the funds are appropriated or otherwise made available by this Act [ARRA].” Id. § 1553 (g)(2) (emphasis added). The ARRA’s retaliation provision thereby only applies to disclosures “about the use of stimulus funds.” Adams v. U.S. Dep’t of Justice, 2012 WL 4468468 (W.D. Ark. Aug. 8, 2012) (quoting Gerhard v. D Constr., Inc., 2012 WL 893673, at *2 (N.D. Ill. Mar. 14, 2012)) (emphasis added). Here, the Amended Complaint nowhere alleges disclosures related to “covered funds,” i.e., ARRA funds appropriated or made available by the 2009 stimulus package. If anything, its few allegations make it highly implausible that the disclosures related to 2009 ARRA funds. Plaintiff alleges vaguely that Defendants are recipients of “grants given by the Small Business Administration (SBA) to establish and operate the SBDC pursuant to 15 U.S.C. § 648(a)(1)” (AC ¶ 22), a distinct statute from ARRA, enacted in 1980. See Pub. L. 96-302, 94 Stat. 843 (1980). Plaintiff also asserts vaguely that the “SBA contract is up for accreditation and review in the fall of 2016” (Id. 93), more than seven years after the ARRA’s 2009 stimulus package. Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 22 of 25 23 Courts have dismissed analogous ARRA retaliation claims that have likewise failed to plead facts showing the disclosures involved “covered funds.” In Williams v. N.Y.C. Dep’t of Ed. ex rel. City School Dist., 2013 WL 5226564 (S.D.N.Y. Sept. 17, 2013), the district court granted a motion to dismiss a retaliation claim brought under the AARA. See Williams, 2013 WL 5226564, at *15. As the court explained, the “statute permits suit only where a recipient of grants under the ARRA—commonly known as ‘Stimulus Funds’— retaliates against an individual for disclosing to the authorities a violation ‘relating to covered funds’—that is, a violation relating to funds disbursed pursuant to the statute.” Id. at *15 (citing Pub. L. No. 111-5, § 1553(a)(5), 123 Stat. 115, 297 (2009)) (emphasis added). The court dismissed since there were no allegations that plaintiff made disclosures relating to ARRA funds. Id. Accord Fuqua v. SVOX USA, Inc., 754 F.3d 397, 400 (7th Cir. 2014) (affirming dismissal of ARRA retaliation claim that “fails to identify any money that would qualify under the definition provided in ARRA section 1553(g)(2)”). Plaintiff moreover fails to plead facts to support her vague accusations of “fraudulent” acts with the unnamed SBA contract. The ARRA’s whistleblower provision was “not meant to allow employees to litigate policy disputes with their employers….” Wang v. Wash. Metropolitan Area Transit Auth., --- F. Supp. 3d ----, 2016 WL 4007067, at *32 (D.D.C. July 25, 2016). Rather, Plaintiff must show a “‘reasonable belief’ of ‘gross’ misconduct concerning ARRA funds.” Hadley v. Duke Energy Progress, Inc., 2016 WL 1071098, at *4 (E.D.N.C. Mar. 17, 2016). Here, Plaintiff’s vague allegations show some kind of disagreement over performance metrics. (AC ¶¶ 35, 48.a). This falls far short of Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 23 of 25 24 pleading facts plausibly showing “gross” misconduct relating to ARRA funds. For all of these reasons, the Court should dismiss Count 4 in its entirety. E. The Court Should Dismiss MSBDC Under the Law-of-the-Case. In the alternative, the Court should dismiss MSBDC under the law-of-the-case. The Court previously dismissed MSBDC on the ground that it is a unit within the University, and not a separate entity. See Dent v. Md. Small Bus. Develop. Center, 2016 WL 7033974, at *2 (D. Md. Dec. 2, 2016) (Dkt. Entry 18). Plaintiff’s new Amended Complaint, however, still retains MSBDC as a named defendant. Under the law-of-the- case, Defendant respectfully requests that MSBDC be dismissed as a defendant from the Amended Complaint. See Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291, 304 (4th Cir. 2000) (“[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.”); Hall v. Greystar Mgmt. Servs., LP, --- F. Supp. 3d ----, 2016 WL 4613358, at *3 (D. Md. June 15, 2016) (rejecting restated claim in proposed amended complaint under law-of-the-case). IV. CONCLUSION WHEREFORE, for the reasons set forth above, Defendants respectfully request that their Motion to Dismiss be granted in its entirety and this case be closed. In the alternative, the Court should dismiss MSBDC under the law-of-the-case. Dated: December 16, 2016 Baltimore, MD Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 24 of 25 25 Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland __________/s/_____________ CHRISTOPHER B. LORD Assistant Attorney General Federal Bar No. 26117 C. ALEXANDER HORTIS Assistant Attorney General Federal Bar No. 28522 Office of the Attorney General 200 St. Paul Place, 17th Floor Baltimore, MD 21202-2021 Telephone: (410) 576-6559 Fax: (410) 576-6437 clord@oag.state.md.us ahortis@oag.state.md.us Counsel for Defendants CERTIFICATE OF SERVICE This is to certify that, on this 16th day of December, 2016, a copy of Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss the Amended Complaint was mailed by first-class mail, postage prepaid, to: Ms. Melissa Dent 4920 Smithwick Lane Bowie, MD 20720 Plaintiff __________/s/_____________ CHRISTOPHER B. LORD Case 8:16-cv-02446-DKC Document 24-1 Filed 12/16/16 Page 25 of 25 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * MELISSA DENT, * Plaintiff, * vs. Civil Action No. 8:16-cv-02446-DKC * UNIVERSITY OF MARYLAND, COLLEGE PARK, et al. * [PROPOSED] ORDER Defendants. * * * * * * * * * * ORDER Upon consideration of Defendants’ Motion to Dismiss the Amended Complaint, any opposition filed by Plaintiff, and any Reply thereto, it is hereby, this day of January, 2017, ORDERED: That Defendants’ Motion to Dismiss is GRANTED and the Complaint is DISMISSED. ____________________________________ The Honorable Deborah K. Chasanow United States District Judge Case 8:16-cv-02446-DKC Document 24-2 Filed 12/16/16 Page 1 of 1