Johnson v. Edward Jones & Co., L.P.

MOTION to Dismiss for Failure to State a Claim

D. Md.February 24, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CHARLENE D. JOHNSON * Plaintiff, * v. * Case No. 17-cv-00124-CCB EDWARD D. JONES & CO., L.P. * Defendant. * * * * * * * * * * * * * * DEFENDANT’S MOTION TO DISMISS Defendant Edward D. Jones & Company, L.P., by and through undersigned counsel, pursuant to Federal Rule of Civil Procedure 12(b)(6), respectfully moves this Court for the entry of an Order dismissing Plaintiff Charlene D. Johnson’s complaint with prejudice. As grounds for this motion, Defendant states as follows: 1. In her three-count complaint, Plaintiff alleges claims of race- based wage discrimination, discriminatory discharge, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. 2. Plaintiff’s complaint should be dismissed as time-barred because she did not file her complaint within 90 days of her receipt of the notice of the right- to-sue issued by the Equal Employment Opportunity Commission. 3. Plaintiff’s claims of wage discrimination and discriminatory discharge in counts I and II of the complaint should be dismissed because Plaintiff Case 1:17-cv-00124-CCB Document 4 Filed 02/24/17 Page 1 of 3 2 #14911184 has not alleged that any similarly situated employee outside her protected class was paid more than Plaintiff or received less severe punishment than Plaintiff. 4. Plaintiff’s claim of discriminatory discharge in count II of the complaint should be dismissed because the complaint contains no factual allegations which would support a finding that the reason for Plaintiff’s discharge was a pretext for discrimination. WHEREFORE, Defendant respectfully requests that the Court dismiss Plaintiff’s complaint in its entirety. As further grounds for this motion, the Court’s attention is respectfully invited to the Memorandum of Points and Authorities, proposed Orders, and Request for Hearing, filed simultaneously herewith. Respectfully submitted, /s/ Todd J. Horn, Bar No. 06849 Lillian L. Reynolds, Bar No. 30225 Venable LLP 750 E. Pratt St., Suite 900 Baltimore, MD 21202 (410) 244-7400 (phone) (410) 244-7742 (facsimile) thorn@venable.com llreynolds@venable.com Counsel for Defendant Edward D. Jones & Co., L.P. Case 1:17-cv-00124-CCB Document 4 Filed 02/24/17 Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of February, 2017, a copy of the foregoing Defendant’s Motion to Dismiss, Memorandum of Points and Authorities in support thereof, proposed Orders and Request for Hearing were sent via this Court’s CM/ECF Delivery to the following: Pamela L. Ashby Jackson & Associates Law Firm, LLC 1300 Caraway Court, Suite 100 Upper Marlboro, MD 20774 (301) 883-0800 (phone) (202) 883-0801 (facsimile) pashby@jacksonassociateslawfirm.com /s/ Todd J. Horn, Bar No. 06849 Case 1:17-cv-00124-CCB Document 4 Filed 02/24/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CHARLENE D. JOHNSON * Plaintiff, * v. * Case No. 17-cv-00124-CCB EDWARD D. JONES & CO., L.P. * Defendant. * * * * * * * * * * * * * * MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS I. INTRODUCTION In this employment dispute, Plaintiff Charlene D. Johnson alleges that she was subjected to discrimination and retaliation under Title VII by her former employer, Defendant Edward D. Jones & Co., L.P. In counts I and II, Plaintiff alleges that she suffered wage discrimination and was discharged because of her race (African-American). In count III, Plaintiff asserts that Defendant terminated her in retaliation for making internal complaints. As will become clear in the pages that follow, the Court should dismiss Plaintiff’s complaint. Initially, Plaintiff’s complaint should be dismissed she failed to file her lawsuit within 90 days of her receipt of a notice of right-to-sue from the Equal Employment Opportunity Commission (“EEOC”), as required by Title VII. Not surprisingly, Plaintiff’s complaint ignores this dispositive statute of limitations. In Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 1 of 15 2 #14752462 fact, on September 28, 2016, the EEOC issued to Plaintiff and her counsel a no cause dismissal and notice of right-to-sue. See Ex. 1 (EEOC notice informing Plaintiff and her counsel that “[y]our lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost.”) (emphasis in original). Plaintiff filed this lawsuit on January 13, 2017 - 107 days later. Even if Plaintiff’s complaint could survive dismissal on limitations grounds, her discrimination claims in counts I and II should be dismissed because she has not alleged sufficient facts to establish viable claims for wage discrimination or discriminatory discharge under Title VII. In particular, Plaintiff fails to allege any factual allegations that she was paid less or disciplined differently than any similarly situated employees outside of her protected class. Moreover, Plaintiff has alleged no factual allegations which would suggest that Defendant was motivated by discriminatory animus with respect to Plaintiff. For these and other reasons, discussed in more detail below, the Court should dismiss Plaintiff’s complaint. Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 2 of 15 3 #14752462 II. FACTUAL BACKGROUND1/ A. Overview of Plaintiff’s Employment with Defendant. Defendant is a full-service, Missouri-based brokerage firm with branch locations throughout the United States. Compl. at ¶ 4. Plaintiff began her employment with Defendant in 2005 as a Branch Office Assistant (“BOA”) at Defendant’s Prince Frederick, Maryland office. Id. at ¶ 5. Plaintiff was promoted to Senior BOA in 2011. Id. at ¶ 7. According to Plaintiff, she consistently received positive performance reviews as well as “various awards and recognition” during her employment with Defendant. Id. at ¶ 8. B. Plaintiff’s Allegations Regarding her Dismissal. In 2013, Defendant hired Mary Ellen Mavilia,2/ a Caucasian female, as a BOA at its Prince Frederick office. Id. at ¶ 10. During 2015, Plaintiff asserts that she struggled with interpersonal conflicts with Ms. Mavilia. For instance, in January 2015, Plaintiff alleges that she found scratches on her vehicle which appeared to have been covered with red paint. Id. at ¶ 15. Plaintiff suspected that 1/ For the purposes of this motion to dismiss, Defendant will assume the truth of all factual (as opposed to legal or conclusory) allegations contained in the complaint, in accordance with Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Defendant makes no admissions regarding the allegations of Plaintiff’s Complaint and any use of the allegations contained herein should not be regarded as an acceptance of such allegations. 2/ Plaintiff incorrectly refers to Ms. Mavilia as “Ms. Mavilla” in her complaint. Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 3 of 15 4 #14752462 Ms. Mavilia had vandalized her vehicle because she had observed a bottle of red nail polish on Ms. Mavilia’s desk. Id. Plaintiff further alleges that, following the death of Freddie Gray in April 2015 and the related criminal investigation, Ms. Mavilia made comments that Plaintiff perceived to be racially insensitive. Id. at ¶ 14. Plaintiff allegedly reported Ms. Mavilia’s comments to her supervisor, Jeffrey Quesenberry, the Branch’s Office Financial Advisor who, according to Plaintiff, took no action in response to her report. Id. In November 2015, Plaintiff avers that she noticed several scratches on her vehicle for which Plaintiff suspected Ms. Mavilia was responsible. Id. at ¶¶ 17- 18. Plaintiff reported her suspicions to Defendant and, in response to Plaintiff’s report, Defendant assigned Colleen Welch, Associate Relations Specialist, to investigate Plaintiff’s concerns. Id. Plaintiff explained to Ms. Welch that although she suspected Ms. Mavilia was responsible for the scratches on her car, she had no proof to substantiate her suspicion. Id. On January 21, 2016, Plaintiff met with Ms. Welch, Mr. Quesenberry, Ms. Mavilia and an employee from Defendant’s Human Resources department to discuss the alleged vandalism by Ms. Mavilia. Id. at ¶ 19. During this meeting, Ms. Welch allegedly demanded that Plaintiff accuse Ms. Mavilia of vandalizing her car. Id. Plaintiff refused to so, citing a lack of proof of any vandalism by Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 4 of 15 5 #14752462 Ms. Mavilia. Id. Plaintiff and Ms. Mavilia ended the meeting by agreeing to work with a life coach to resolve any conflicts between them. Id. On January 29, 2016, Ms. Welch contacted Plaintiff to confirm that Plaintiff had reported that she suspected Ms. Mavilia had scratched her car, but that she had no evidence to substantiate her beliefs. Id. at ¶ 21. Ms. Welch informed Plaintiff that her “responses were inconsistent.” Id. Following her communication with Ms. Welch, on January 29, 2016, Plaintiff allegedly faxed a letter to Human Resources to report that she felt that she was being treated differently based on her race. Id. at ¶ 22. Plaintiff also allegedly provided a copy of the letter to Mr. Quesenberry. Id. at ¶ 23. On February 5, 2016, Mr. Quesenberry and Ms. Welch met with Plaintiff and advised her that Defendant was terminating her employment because she had been “untruthful in an investigation.” Id. at ¶ 25. There was no discussion during the meeting about the report that Plaintiff faxed to Human Resources on January 29, 2016. Id. C. Plaintiff’s Wage Discrimination Allegations Are, On Their Face, Baseless. Although Plaintiff asserts in count I of her complaint that she suffered wage discrimination on the basis of her race, the factual allegations of her complaint demonstrate that, throughout Plaintiff’s employment with Defendant, Plaintiff was never compensated at a rate of pay that was lower than a similarly situated employee outside of her protected class. Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 5 of 15 6 #14752462 For example, Plaintiff alleges that after she successfully completed the training program for her position in 2006, her hourly rate of pay was raised to $13.81 per hour, which was 27 cents more than the minimum rate for the position. Id. at ¶ 6. Upon her promotion to Senior BOA in 2011, Plaintiff received a pay increase to $17.57 per hour. Id. at ¶ 7. Defendant subsequently raised Plaintiff’s hourly rate of pay to $17.68 per hour. Id. Upon Defendant’s hiring of Ms. Mavilia in 2013, Plaintiff earned an hourly rate which was “similar” to Ms. Mavilia. Id. at ¶¶ 11, 31. Additionally, although Plaintiff vaguely claims that Ms. Mavilia was allowed to participate in a bonus pool in which Plaintiff was not permitted to participate during her first year of employment, Plaintiff acknowledges that prior to her termination she received a bonus payment that was “30% greater than the bonus Defendant paid to Ms. Mavilla [sic].” Id. at ¶¶ 12-13, 33. Plaintiff never alleges that Ms. Mavilia or any other similarly situated employee outside her protected class was ever paid more than Plaintiff. III. ARGUMENT A. Motion To Dismiss Standards. Dismissal under Rule 12(b)(6) is appropriate where the court determines that the plaintiff has not pled “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court must “accept the well-pled allegations of the complaint as true,” and Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 6 of 15 7 #14752462 “construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). But, the court is not obligated to accept “[t]he mere recital of elements of a cause of action, supported only by conclusory statements . . . .” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In order to survive a motion to dismiss, the complaint must contain sufficient factual allegations to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, “the complaint’s factual allegations must produce an inference of liability strong enough to nudge the plaintiff’s claims ‘across the line from conceivable to plausible.’” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 256 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 570). B. The Court Should Dismiss Plaintiff’s Complaint Because It Is Barred By The Applicable Limitations Periods. 1. Plaintiff’s Complaint Is Time-Barred Because It Was Not Filed Within 90 Days Of Her Receipt Of The Right To Sue Letter. Under Title VII, a “person aggrieved” by an alleged unlawful discriminatory employment practice must file a charge of discrimination with the EEOC (or a state or local agency) within a maximum of 300 days after the act of discrimination occurred and “cannot bring suit until [s]he has exhausted the administrative process.” Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005); see also 42 U.S.C. § 2000e-5(e)(1). Where, as here, the EEOC declines to pursue a charge of discrimination, it will issue a right-to-sue letter giving the Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 7 of 15 8 #14752462 charging party 90 days to file suit following her receipt of the letter. See 42 U.S.C. § 2000e-f(1); 29 C.F.R. § 1601.28; Ex. 1.3/ A right-to-sue letter is presumed received three days after it is issued and mailed, pursuant to Fed. R. Civ. P. 6(d). Weathersbee v. Balt. City Fire Dep’t, 970 F. Supp. 2d 418, 427 (D. Md. 2013); see also Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984). Moreover, “the ninety-day limit is strictly enforced.” Weathersbee, 970 F. Supp. 2d at 427. Consequently, if the claimant fails to file suit within 90 days of her receipt of the right-to-sue letter, the claim is deemed untimely and should be dismissed. See Harvey v. City of New Bern Police Dep’t, 813 F.2d 652, 654 (4th Cir. 1987) (upholding dismissal of complaint filed one day after the expiration of the 90-day limitations period); see also Gatewood v. Johnson, Civ. No. JKB-16-0854, 2016 WL 6569060, at *3-4 (D. Md. Nov. 4, 2016) (dismissing complaint where notice of right to sue was received by plaintiff’s counsel over 90 days before the filing of the complaint). 3/ Defendant’s attachment of Plaintiff’s EEOC charge and the right-to-sue letter issued to Plaintiff and her counsel does not convert this motion to dismiss to one for summary judgment because these are public records of which the Court may take judicial notice. See Ndondji v. InterPark Inc., 768 F. Supp. 2d 263, 272 (D.D.C. 2011) (“A court may consider an EEOC complaint and Notice of Charge without converting a motion to dismiss into a motion for summary judgment because such documents are public documents of which a court may take judicial notice.”) (citations, internal quotation marks and textual alterations omitted); Reed v. Md., Dep’t of Human Res., Civ. A. No. ELH-12-0472, 2013 WL 489985, at *5 (D. Md. Feb. 7, 2013) (“[T]he EEOC Charge is subject to judicial notice and thus may be considered without converting the Motion to Dismiss to a summary judgment motion.”) (citation omitted). Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 8 of 15 9 #14752462 Plaintiff’s complaint is silent with respect to her receipt of the notice of right-to-sue letter. This omission is not surprising since Plaintiff did not file her complaint within the 90-day period following her receipt of the notice of the right-to- sue. The EEOC issued Plaintiff’s right-to-sue letter to Plaintiff and her counsel on September 28, 2016, 107 days before Plaintiff filed her lawsuit on January 13, 2017. See Ex. 1. The right to sue notice issued by the EEOC conspicuously instructed Plaintiff “[y]our lawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on this charge will be lost.” Ex. 1 (emphasis in original). Thus, in accordance with the presumption under Fed. R. Civ. P. Rule 6(d) that Plaintiff (and her counsel) received the right to sue notice three days after it was issued by the EEOC, on October 1, 2016, Plaintiff would have had to file her lawsuit on or before December 30, 2016 in order for it to be timely. Plaintiff waited to file suit until two weeks later, on January 13, 2017. As a result, because Plaintiff failed to timely file her Title VII claims, the Court should dismiss her complaint. 2. Some Of Plaintiff’s Claims Are Time-Barred Because They Occurred More than 300 Days Before Plaintiff Filed Her Charge. Plaintiff alleges that, during Ms. Mavilia’s first year of employment (October 2013 to October 2014), Ms. Mavilia was offered the opportunity to participate in at least two bonus incentive pools. Compl. at ¶¶ 10, 13. Plaintiff claims that she was denied the right to participate in bonus programs as a newly- hired employee in 2005. Id. at ¶¶ 5, 12. A Title VII plaintiff cannot litigate claims Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 9 of 15 10 #14752462 relating to incidents which occurred more than 300 days before she filed her EEOC charge. See 42 U.S.C. § 2000e-5(e)(1). Plaintiff filed her EEOC charge on March 2, 2016. See Ex. 2. As a result, any alleged incidents of discrimination which occurred before May 7, 2015 (over 300 days before she filed her charge) are time-barred.4/ Accordingly, the Court should dismiss Plaintiff’s claims concerning the bonuses paid to Ms. Mavilia in the first year of her employment. See Davenport v. Maryland, 38 F. Supp. 3d 679, 686 (D. Md. 2014) (“[A]lleged discriminatory acts which occurred more than 300 days prior to the filing of the EEOC charge may not be subsequently challenged in a Title VII suit.”) (citation omitted). C. Plaintiff’s Discrimination Claims In Counts I And II Should Be Dismissed For Failure to State a Claim. Even if Plaintiff had filed her complaint within the 90-day limitations period, dismissal of counts I and II of her complaint is warranted for her failure to allege sufficient factual allegations to state a claim of discrimination under Title VII. First, in count I of her complaint, Plaintiff asserts a claim of wage discrimination under Title VII. However, in order to prevail on a wage discrimination claim under Title VII, Plaintiff must show that she was paid less 4/ Plaintiff also vaguely alleges that after the death of Freddie Gray (which occurred on April 19, 2015), Ms. Mavilia made comments that Plaintiff considered racially insensitive and that Plaintiff reported Ms. Mavilia’s comments to Mr. Quesenberry. Compl. at ¶ 14. To the extent that these events occurred prior to May 7, 2015, they are also time-barred by the 300 day limitations period. Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 10 of 15 11 #14752462 than an employee outside of her protected class. See Kess v. Municipal Employees Credit Union of Balt., Inc., 319 F. Supp. 2d 637, 644 (D. Md. 2004) (stating the elements of an unequal pay claim under Title VII). Plaintiff’s wage discrimination claim fails on its face because Plaintiff alleges that Defendant compensated Plaintiff at a higher rate of pay than it paid to her Caucasian coworker. Specifically, Plaintiff alleges that her final bonus payment from Defendant was 30% more than the bonus paid to Ms. Mavilia. Compl. at ¶ 33. In short, Plaintiff does not allege that was paid less than Ms. Mavilia or any other similarly-situated employee outside of her protected class. Accordingly, the Court should dismiss count I of the complaint. See Wilson v. Susquehanna Bancshares, Inc., Civ. A. No. GLR-14-79, 2014 WL 2094039, at *5-6 (D. Md. May 19, 2014) (entering judgment against plaintiff’s unequal pay claim under Title VII where it was undisputed that the plaintiff earned more than a similarly situated coworker). Similarly, Plaintiff’s claim in count II that Defendant discriminated against her on the basis of her race because it subjected her to harsher discipline (termination) than her coworkers should be dismissed because Plaintiff cannot identify a similarly situated employee who received less severe punishment than Plaintiff for similar misconduct. As this Court has explained, in order to be a proper comparator, “the compared employees must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct . . . .” Bryan v. Prince George’s Cnty., Md., Civ. A. No. DKC 10-2452, 2011 Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 11 of 15 12 #14752462 WL 2650759, at * 5 (D. Md. July 5, 2011) (quoting Odom v. Int’l Paper Co., 652 F. Supp. 2d 671, 688 (E.D.Va. 2009)) (textual alterations omitted). Plaintiff contends that Ms. Mavilia, as well as other, unidentified similarly situated employees, should have been subject to the same level of discipline imposed upon Plaintiff. Compl. ¶ 44. However, Plaintiff does not allege that Ms. Mavilia engaged in similar misconduct as that for which Plaintiff was terminated (lying during an investigation). Indeed, there are no allegations that Ms. Mavilia engaged in any misconduct of any kind. Rather, there are only allegations of Plaintiff’s unsubstantiated belief that Ms. Mavilia had vandalized her car. See Compl. at ¶¶ 18-19, 21. Plaintiff’s unsubstantiated speculation is not a sufficient basis from which to infer that Ms. Mavilia was similarly situated to Plaintiff. See Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 191 (4th Cir. 2010) (affirming dismissal of complaint that failed to establish any plausible basis for inferring that plaintiff and an alleged comparator were actually similarly situated). Moreover, Plaintiff’s bald assertion that Defendant “imposed lesser or no discipline upon” other unidentified “similarly situated employees” lacks the factual detail required under Twombly and Iqbal to survive a motion to dismiss. See Parker v. Ciena Corp., Civ. No.: WDQ-14-4036, 2016 WL 153035, at *5-6 (D. Md. Jan. 12, 2016) (plaintiff’s conclusory allegations that he was treated differently were not sufficient to withstand a motion to dismiss). As a result of the absence of any factual allegations that an identifiable, similarly situated employee engaged in Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 12 of 15 13 #14752462 similar misconduct as Plaintiff and received less severe punishment, Plaintiff’s discrimination claim in count II of her complaint should be dismissed. Even if Plaintiff could identify a proper comparator under Title VII (which she cannot), there are no allegations that the reason provided by Defendant for Plaintiff’s termination - i.e., lying during an investigation - was a pretext for discrimination. In the Fourth Circuit, “when an employer gives a legitimate, non- discriminatory reason for discharging the plaintiff, ‘it is not [the court’s] province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff’s termination.’” Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (citation omitted). In this regard, “the Court’s sole concern should be ‘whether the reason for which the defendant discharged the plaintiff was discriminatory.’” Tibbs v. Balt. City Police Dep’t, Civ. A. No. RDB-11- 1335, 2012 WL 3655564, at *5 (D. Md. Aug. 23, 2012) (quoting Hawkins, 203 F.3d at 279). Although Plaintiff makes the conclusory assertion that her race was a “motivating factor” in terminating her employment, her complaint contains no factual allegations which would suggest that Defendant’s decision to terminate her employment was motivated by discriminatory animus. For instance, although Plaintiff alleges that Ms. Mavilia (a coworker) made comments which Plaintiff perceived to be racially insensitive in 2015 (see Compl. at ¶ 14), there are no allegations whatsoever that Plaintiff’s supervisor, Mr. Quesenberry, or any other Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 13 of 15 14 #14752462 member of management behaved in a way that would support inference of discrimination. On the contrary, Plaintiff alleges that she was consistently treated favorably by Defendant. For instance, Plaintiff alleges that she received a promotion to Senior BOA in 2011, positive performance reviews for the majority of her tenure with Defendant, “various awards and recognition,” and a bonus that was 30% greater than her Caucasian co-worker. Compl. at ¶¶ 7-8, 33. In the absence of any allegations which would support a plausible claim of pretext, Plaintiff’s discrimination claim in count II should be dismissed. See Tibbs, 2012 WL 3655564 at *5 (dismissing Title VII claims where plaintiff failed “to allege any plausible claim of pretext on the part of the Defendants.”); see also McCleary-Evans v. Md. Dep’t of Transp., State Hwy. Admin., 780 F.3d 582, 585-86 (4th Cir. 2015) (affirming dismissal of complaint where plaintiff alleged no facts from which the court could reasonably infer that defendant was motivated by racial animus in its decision to reject plaintiff’s application). Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 14 of 15 15 #14752462 IV. CONCLUSION For the foregoing reasons, the Court should dismiss Plaintiff’s complaint. Respectfully submitted, /s/ Todd J. Horn, Bar No. 06849 Lillian L. Reynolds, Bar No. 30225 Venable LLP 750 E. Pratt St., Suite 900 Baltimore, MD 21202 (410) 244-7400 (phone) (410) 244-7742 (facsimile) thorn@venable.com llreynolds@venable.com Counsel for Defendant Edward D. Jones & Co., L.P. Case 1:17-cv-00124-CCB Document 4-1 Filed 02/24/17 Page 15 of 15 EXHIBIT 1 Case 1:17-cv-00124-CCB Document 4-2 Filed 02/24/17 Page 1 of 3 q s may. Eeoc Roan ~s~ {i ~ros~ U.S. EQUAi, EMPL.OYM~NT OPPOR7UNEiY COMMISSION DISMISSAL. AND NOTICE ~F RIGHTS '~o~ Charlene D. Johnson From: Baltimore Fi~Id Office324 Osprey Cane 10 South Howard St Lusby, MD 20657 3rd Floor Baltimore, MD 21209 On behalf o/persort(s) aggrieved whose Jde»tlty is CONFIDENTlAC (29 CFR ~1601,7(a)) ~EOC Charge Nn. E~OC Representative Telephone No, Janel S. GrifFln, 531-2096.00999 Investfgato~ (410} 209-2228 THE EEOC IS Ci.OSING ITS Fl1.E ON THlS CWARG~ FOR THE FOIL~WING REASON: 1'ha facts alleged in the charge fail to state a claim under any of the statutes enforced by the ~~~C. Q Your allegations did not involve a disability as defined by the Americans With Disabflfties Act. The Respondent employs less than the required number of ensployees or is not othervuise covered by the statutes. Your charge was not timely filed with ~EdC; in other words, you waited too tang aver the dates) of the allegeddiscrimfnetion to file your charge ~X The E~OC Issues the fallowing determination: Based upon its InvesUgaHon, the EE C Is unable to conclude that theInformation obtained estabiishea vlolaUons of the statutes. This does not certify that the respondent is in compilance withthe statutes. No finding is made as to any other issues that might be construed as having been raised by this charge. The L~t?C has adopted the findings of tf~e state or local fair employment practices agency that Investigated this charge. Other {briefly state) NOTICE O~ SUIT RIGHTS (See the additional lnfnrmatlon attached to fhls /am.) Title VII, the Ame~fcans with bisabilities Act, the Genetta Information f~ondlscrimination Act, or the AgeDiscrimination in employment Aat: This will be the only notice of dismissal and of your right to sue that we wIU send you.You may file a lawsuit against the respondents) under federal law based on this charge in federal or state court. Yourlawsuit must be filed WITHIN 90 DAYS of your receipt of this notice; or your right to sue based on th(s charge will belost, (7'he time Ilmit far fipng suit based on a claim under state law may be different.) equal Pay Act (SPA): EPA suits must be filed in federal or state court within 2 years {3 years for willful violations) of thealleged SPA underpayment. This means that backpay due for any vlolatlons that oeaurred more than 2 veers (3 vears~before you file suit may riot be collectible. On eha sfon Enclosures{s) Rosemarie Rhodes, Director cc: Molly 6atsch, Esq. Lauren Daming~ ~sq. Greensfeider, Hemker &Gate, P.C. 10 South Broadway Suite 2000 Saint Louts, M4 63102 (Date MBitedJ Pamela !. Ashby, Esq. JACKSON &~ ASSOCIATES I.AW FIRM, LLC 1300 Caraway Court, Su1te 900 Upper Marlboro, MD 20774 Case 1:17-cv-00124-CCB Document 4-2 Filed 02/24/17 Page 2 of 3 Enclosure with ~~OC Farm 181 (11!09) INFORMATION R~LA7~b TD ~IUNG SU17 UNDER THE LAWS ENFORCED BY TWE EEOC {This lnformatlon relates to fling suFt In Federal or State court under Federal taw, If you also plan Ja sue cialming vlofefions of State law, please be aware that !!me lfmlts and other provlslons of State taw maybe shorter or more llmlted than those described below.) PRIVATE SuiT RiGHTs .. ~tfe VII of the Civil Rights Act. the Americans with Disabilities Act {ADA), the Genetic Information Nondiscrimination Act ~GINA), or tha Age Discriminafian in Employment Act (ADEA): in order to pursue this matter further, you must file a lawsuit against the respondents} named in the charge within 90 dove of the date you receive this Notice. Therefore, you should keep a record of this date. Once this 90- day period is over, your right to sue based on the charge referred to En this Notice will be lost. If you Intend to oonsult an attorney, you should do so promptly. Give your attorney a copy of this Notfae, and its envelope, and tell him or her the date you received it, Furthermore, in order to avoid any question that you did not act in a Hmely manner, it fs prudent that your su(t be filed within 90 days of the date this Notice was malted to you (as Indicated where the Notice is sighed) or the date of the postmark, if later. Yout I~wsuit may be filed in U.S. District Court or a State court of competent jurisdiction. (Usually, the appropriate 3ta#e court is the general civil trial court.} Whether you file in Federal ar State court is a matter for you to decide after talking to your attorney, Filing this Notice fs not enough. You must file a "complaint" that can#airs a short statement of the facts of your case which shows that you are entitled to relief. Your suit may include any matter alleged in the charge art to the extent permitted by court decisions, matters Itke or related to the matters alleged in the charge. Generally, suits are brought in the State where the alleged unlawful practice occurred, but in some cases can be brought where relevant employment records are kept, where the employment would have been, or where the respondent has Its main office. If you have simple questEons, you usually can get answers from the office of the clerk of the court where you are bringing suit, but do not expect that office to write your complaint or make legal strategy decisions for you, PRIVATE SUIT RIGHTS -» Equal Pay Act (EPAj: EPA suits must be filed in court within 2 years (3 years for willful violations) of the alleged EPA unde~p~yment: back pay due for violations that occurred mare than 2 years (3 years) before you file suit may not be collectible. For example, If you were underpaid under the EPA for work performed from 7!1/08 to 1211108, you should file suit before 717/10 -» not 12/1110 -- in order to recover unpaid wages due for July 2008. This time limit for ding an Ei'A suit is separate from the 90-day filing period under Title VII, the ADA, G1NA or the AD~A referred to above. Therefore, if you also plan t4 sue under Title VII, the ADA, GINA or the AREA, in addition to suing an the SPA claim, suit must be filed within 90 days of this Notice and within the 2- or 3-year EPA back pay recovery period. ATTORNEY REPRESENTATION -- Tit18 VI1, the ADA or GlNA: tf you cannot afford or have been unable to obtain a lawyer to represent you, the U.S. District Court having jurlsd(ctian in your case may, in limited circumstances, assist you in obtaining a lawyer. Requesis for such assistance must be made to the U.S. District Court in the form and manner it requires (you should be prepared to explain in detail your efforts to retain an attorney). Requests should be made well before the end of the 90-day period mentioned above, because such requests do ir ot relieve you of the requE~ement #o bring suit within 90 days. ATTORNEY REFERRAL AND EEC?C ASSiS7ANCE ~- All Statutes: You may contact the EEOC representative shown on your Nat(ce if you need help in finding a lawyer or if you have any questions about your legal rights, including advice on which U.S. District Court can hear your case, If you need to inspect or obtain a copy of Information (n EEOC's file on the charge, please request it promptly €n writing and pravlde your charge number (as shown on your Notice). While EEOC destroys charge tiles after a certain time, all charge files are kept for at least 6 months after our last action on the case. Thereftire, if you fits suit and want to review the charge file, please make your review request within 6 months of this Notice. (before filing suit, any request should be made within the next 90 days.} IF YOU flLE SUlT, PLEASE SEND A COPY OF YOUR COURT COMPL4lNT TO THIS O~FlCE. Case 1:17-cv-00124-CCB Document 4-2 Filed 02/24/17 Page 3 of 3 1 t Case 1:17-cv-00124-CCB Document 4-3 Filed 02/24/17 Page 1 of 2 EEOC Form 5 i 11+09; CHARGE OF DISCRIMINATION Charge Presented To: Agenay(ies) Charge No(s): This form is affected by the Privacy Act of 1974 See enclosed Prrvacy Act ~ FEPA Statement and other informaltan before completing khis fam'r. QX EEoc X31.2416-00818 Maryland Commission on Civil Rights and E~oC Stale or IOCa! Agency, i! any Name (7ndicale Mr, M5 , Mr.~ J Home Phone rincL Area Cade) bate of ~Irth Charlene D. Johnson Street Address City, State and ZtP Code 324 Osprey Lane, ~.usby~ MD 2657 Named is the Employer, 4abor Organization, Employment Agency, AppreniiceshEp Committee, ar Stale or Loca! Government Agency That i Believe DisCfiminated Against Me or Others. (!(mole than lwo~ list under PARTtCULRRS below.) Name No. ~mpicyeas, Members Phone No, {ficlude Area Code) EDWARD~D JONES &COMPANY 50d or More ~410y 257'-0384 Street Address" r.~ City. Slate and Z1P Code 1020 Pr[trce Frederick Blvd, Suite 2U1, Prince Frederick, MD 20678 --;~:` ,; Name ;~ ~~ == r;~ No. Emptoyeee, Members Phone Na. {include Area Code) .- ~ ;~ ~` Street Address '-~ Ciry, Slate and ZIP Code DISCRIMINATION BASED ON (Check dpproprrate bpx{es}.,y GATE{S) DISCiitMINA7tON TOOK PLACE Earliest latest RACE ~ COLOR ~ SEX ~ REUCiION ~ NATIONAL ORIGIN ~t~-~~ »2015 ~Z-fl5.2816 RETAUAT:ON ~ AGE ~ p15ASiLtTY ~ GENETIC INFORMATION ❑ OTHER ~5peCllyr ~ CONTINUING ACTION THE PARTICUTARS ARE ~~'f addrt~anaJ paper rs heeded, attach extra sheBl{s)): 1, On December 19, 2005, t was hired as a Branch Once Administrator My most recent position was Senior Branch Once Administrator. In October 2014 Mary Ellen Mavilia (White female) was hired as a Branch Office Administrator. To my belief she was hired at a higher rate of pay than I was making after working for 10 years. In April or May 2015 complained to my supervisor (.ieffrey Quesenberry) that Ms. Mavilia was making comments oP a racial nature that were offensive to me. In November 2095 my vehicle had been vandalized several times while parked in the parking lot while was working. I reported it to khe Security office. From November 2015 through January 2016 l was questioned several times about the vandalism, HR informed me that i should report it to the police; however, Mr. Quesenberry told me not to report it to the police, On January 29, 2016, I submitted a fax to HR expressing concern over the way I was being treated. I mentioned that I did not understand all of the attention given to my report of vandalism but when complained about racially insensitive comments made to me, I raceived no response. On February 5, 2016, I was discharged, II. I was told that I was discharged because I was riot being trukhPul regarding the reporting of damage to my vehicle and the trust had been broken and cannot be repaired, III. I believe I was subjected to harassment, unequal wages, and discharge because of my race (Black) and in retaliation for en a in in ro#acted activik in violation of Titre VI1 of the Civil Ri hts Act oP 7964, as amended, want this charge fired with 4oth the ~EOC and the Stale ar ioaat Agency, if arn/. I NOTARY -When necessary for Stele and LacalAgency Requirements will advise the agencies if f cfiange my address or phone number and I will cooperate fatly with them in the processing o(my charge Fn accordance with then 1 swear or aH'irm that I have reed the above charge and that it is True to the best of my knowledge, infom'tiation and ballet. procedures. declare under penalty of pery'ury that fhe above is true and correct. 51GNATURE OF COMPLAINANT SUBSCR{BED ANO SWORN TO BEFORE ME THIS DATE Mar 02, 2O'I 6 ~~~ ~--~-w^~""`" (month, dayo yea~j Dale Chargi P y Signature Case 1:17-cv-00124-CCB Document 4-3 Filed 02/24/17 Page 2 of 2 #14911544 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CHARLENE D. JOHNSON * Plaintiff, * v. * Case No. 17-cv-00124-CCB EDWARD D. JONES & CO., L.P. * Defendant. * * * * * * * * * * * * * * [PROPOSED] ORDER HAVING CONSIDERED Defendant’s Motion to Dismiss, and any opposition thereto, it is by this Court this ___ day of ________________, 2017: ORDERED, that Defendant’s Motion to Dismiss shall be, and the same hereby is, GRANTED. It is further ORDERED, that Plaintiff’s complaint shall be, and the same hereby is, DISMISSED WITH PREJUDICE. Catherine C. Blake Chief United States District Judge Case 1:17-cv-00124-CCB Document 4-4 Filed 02/24/17 Page 1 of 1 #14921293 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CHARLENE D. JOHNSON * Plaintiff, * v. * Case No. 17-cv-00124-CCB EDWARD D. JONES & CO., L.P. * Defendant. * * * * * * * * * * * * * * [PROPOSED] ORDER HAVING CONSIDERED Defendant’s Motion to Dismiss, and any opposition thereto, it is by this Court this ___ day of ________________, 2017: ORDERED, that Defendant’s Motion to Dismiss shall be, and the same hereby is, GRANTED. It is further ORDERED, that count I of Plaintiff’s complaint alleging wage discrimination shall be, and the same hereby is, DISMISSED WITH PREJUDICE. It is further ORDERED, that count II of Plaintiff’s complaint alleging discriminatory discharge shall be, and the same hereby is, DISMISSED WITH PREJUDICE. Catherine C. Blake Chief United States District Judge Case 1:17-cv-00124-CCB Document 4-5 Filed 02/24/17 Page 1 of 1 #14911623 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND CHARLENE D. JOHNSON * Plaintiff, * v. * Case No. 17-cv-00124-CCB EDWARD D. JONES & CO., L.P. * Defendant. * * * * * * * * * * * * * * REQUEST FOR HEARING Pursuant to Local Rule 105.6, Defendant respectfully requests that the Court schedule a hearing on its Motion to Dismiss. Respectfully submitted, /s/ Todd J. Horn, Bar No. 06849 Lillian L. Reynolds, Bar No. 30225 Venable LLP 750 E. Pratt St., Suite 900 Baltimore, MD 21202 (410) 244-7400 (phone) (410) 244-7742 (facsimile) thorn@venable.com llreynolds@venable.com Counsel for Defendant Edward D. Jones & Co., L.P. Case 1:17-cv-00124-CCB Document 4-6 Filed 02/24/17 Page 1 of 1