Munu v. Anne Arundel Medical Center

MOTION to Dismiss for Failure to State a Claim

D. Md.March 6, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MARY MUNU Plaintiff, v. * Case No. 17-cv-00018-JFM ANNE ARUNDEL MEDICAL CENTER Defendant. DEFENDANT'S MOTION TO DISMISS Defendant Anne Arundel Medical Center, by and through undersigned counsel, pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6), respectfully moves this Court for the entry of an Order dismissing Plaintiff Mary Munu's complaint with prejudice. As grounds for this motion, Defendant states as follows: 1. Plaintiff's four-count complaint alleges national origin discrimination (count I), hostile work environment (count II), and retaliation (count III) under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et sec,. In count IV, Plaintiff alleges retaliation under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et secs. 2. Plaintiff's retaliation claims in counts III and IV should be dismissed because Plaintiff did not exhaust her administrative remedies for those claims. Case 1:17-cv-00018-JFM Document 6 Filed 03/06/17 Page 1 of 3 3. Plaintiff's national origin discrimination claim in count I should be dismissed because she has failed to allege sufficient facts that would establish discrimination on the basis of her national origin. 4. Plaintiff's hostile work environment claim in count II should be dismissed because she has failed to allege sufficient facts that would establish a hostile work environment on the basis of her national origin. 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 and proposed Order, 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 Anne Arundel Medical Center 2 #149G9849 Case 1:17-cv-00018-JFM Document 6 Filed 03/06/17 Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 6th day of March, 2017, copies of the foregoing Defendant's Motion to Dismiss, the Memorandum of Points and Authorities in support thereof, and the proposed Order were sent via this Court's CM/ECF Delivery to the following: Corlie McCormick, Jr. McCormick Law Firm 1125 West Street, Suite 200 Annapolis, MD 21401 (410) 216-3424 (phone) Corlie@McCormickFirm4Justice . com Todd J. Horn Case 1:17-cv-00018-JFM Document 6 Filed 03/06/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MARY MUNU v. Plaintiff, * Case No. 17-cv-00018-JFM ANNE ARUNDEL MEDICAL CENTER Defendant. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS I. INTRODUCTION In this employment case, Plaintiff Mary Munu alleges that she was subjected to discrimination, ahostile work environment, and retaliation by her former employer, Defendant Anne Arundel Medical Center, in violation of Title VII and the Americans with Disabilities Act ("ADA"). In count I, Plaintiff alleges that Defendant discriminated against her because of her national origin (she is from Sierra Leone). In count II, Plaintiff claims that she was subjected to a hostile work environment because of her national origin. In counts III and IV, Plaintiff alleges that Defendant retaliated against Plaintiff for making internal complaints in violation of Title VII and the ADA, respectively. The "adverse employment actions" that underlie each count are the same: Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 1 of 15 (1) Plaintiff alleges that beginning in May 2013, her new supervisor "made fun of Plaintiff's accent and ridiculed her in front of other employees by standing next to her chair and shouting, ̀Hurry up!' while she worked," and threatened to suspend her when she objected. See Compl. at ¶ 14. (2) In August 2013, Defendant refused to allow Plaintiff to work light duty. Id. at ¶ 15. (3) In December 2013, Defendant altered Plaintiff's work schedule without notifying her. Id. at ¶ 18. (4) In December 2013, Defendant suspended Plaintiff for missing two days of work. Id. at ¶ 20. (5) In July 2014, Defendant terminated Plaintiff. Id. at ¶ 33. Id. at ¶ 40 (count I); ¶ 44 (count II); ¶ 48 (count III); ¶ 52 (count Imo. Plaintiff's claims suffer from numerous defects which warrant their dismissal. Initially, Plaintiff's retaliation claims in counts III (Title VII) and IV (ADA) should be dismissed because the charge Plaintiff filed with the Equal Employment Opportunity Commission ("EEOC") did not contain claims of retaliation and, accordingly, Plaintiff failed to exhaust her administrative remedies with respect to those claims. In addition, many of Plaintiff's allegations of unfair treatment (items 1, 2, 3, and 4 above) are time-barred because they occurred more than 300 days before Plaintiff filed her charge with the EEOC (January 13, 2015). 2 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 2 of 15 Moreover, Plaintiff has failed to allege sufficient facts showing that any alleged discrimination was based on Plaintiff's national origin or that her working environment was sufficiently hostile to alter the terms and conditions of her employment. For these and other reasons, discussed in detail below, the Court should dismiss Plaintiff's complaint in its entirety. II. FACTUAL BACKGROUNDi~ A. Plaintiff's Employment History with Defendant. Defendant is anon-profit regional healthcare system headquartered in Annapolis, Maryland. Compl. at ¶ 6. Plaintiff began working for Defendant as a Sterile Processing Technician in 2007. Id. at ¶ 8. In March 2013, Plaintiff suffered a neck injury resulting in her being placed on light duty status through September 2013. Id. at ¶¶ 10, 12. Plaintiff was evaluated by a physician in September 2013 and was returned to light duty status until January 2014. Td. at ¶ 16. Plaintiff was supervised by Deborah Bunn from the time of Plaintiff's hire until March 2013, when Ms. Bunn was replaced by Jessie Gill. Id. at ¶ 13. In May 2013, Kevin Witcher was hired as the Manager of Central Sterile Processing l~ 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. 3 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 3 of 15 and became Plaintiff's second-line supervisor. Id. Plaintiff vaguely alleges that after Mr. Witcher became Plaintiff's second-line supervisor in 2013, he "made fun of Plaintiff's accent" and told her to "Hurry up!" while she worked. Id. at ¶ 14. On December 21, 2013, Mr. Witcher scheduled Plaintiff to work on the following two days, December 21 and 22, 2013, without notifying Plaintiff. Id. at ¶ 18. Plaintiff did not report to work on those days and, consequently, Mr. Witcher suspended Plaintiff as a result of her unexcused absences on December 23 and 24, 2013. Id, at ¶ 20. On or around February 10, 2014, Plaintiff contacted Defendant's employee affairs liaison for the Sterile Processing department, Susan B1ade,2~ to report alleged discrimination and harassment by Mr. Witcher, including her two- day suspension in December 2013. Id. at ¶ 24. Plaintiff returned to work without any restrictions on February 11, 2014. Id. at ¶ 26. In May 2014, Plaintiff was absent from work due to illness. Upon Plaintiff's return to work, her morning supervisor, Lahomia Ames, took a picture of Plaintiff and said that she would "show people what a person faking sickness looks like." Id. at ¶ 28. B. Plaintiff s Allegations Regarding her Dismissal. On July 2, 2014, Plaintiff was called into the office of Ms. Ames's supervisor, Derrick Walden, to discuss a complaint regarding Plaintiff's work 2~ Defendant assumes that Plaintiff is incorrectly referring to Suzanne Blades, an employee in Defendant's Human Resources department. 0 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 4 of 15 performance. Id. at ¶ 29. On July 9, 2014, Plaintiff was approached by a coworker, Pamela Haxton, who allegedly accused Plaintiff of "talking about her." Id. at ¶ 30. Defendant suspended Plaintiff without pay on July 10, 2014, pending an investigation into the confrontation between Plaintiff and Ms. Haxton on the previous day. Id. at ¶ 31. Plaintiff met with Mr. Witcher and Ms. Ames on July 15, 2014, Id. at ¶ 33. During this meeting, Plaintiff was informed that her employment was being terminated because of her failure to "meet working requirements." Id. Plaintiff filed a charge alleging national origin discrimination with the EEOC on January 13, 2015. See Ex. 1. The EEOC issued aright-to-sue notice to Plaintiff and her counsel on September 29, 2016. Compl. at ¶ 7; Ex. 2. Plaintiff allegedly received her right-to-sue notice on October 6, 2016. Id. III. ARGUMENT A. Motion To Dismiss Standards. 1. Standard of Review for a Motion to Dismiss Pursuant to Rule 12(b)(1), Fed. R. Civ. P. Motions to dismiss for lack of subject matter jurisdiction are governed by Fed. R. Civ. P. 12(b)(1). The plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). The Court should grant the 12(b)(1) motion if "the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. (citation omitted). Moreover, "[m]otions to dismiss for failure to exhaust administrative remedies are governed by Fed. R. 5 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 5 of 15 Civ. P. 12(b)(1) for lack of subject matter jurisdiction." Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003), aff d, 85 Fed. Appx. 960 (4th Cir. 2004). "In a Rule 12(b)(1) motion, the court may look beyond the pleadings and the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Id. (citation and internal quotation marks omitted). 2. Standard of Review for a Motion to Dismiss Pursuant to Rule 12 ~(6), Fed. R. Civ. P. 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 "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. Igbal, 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 6 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 6 of 15 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. Plaintiff's Retaliation Claims in Counts III and IV Should be Dismissed for Failure to Exhaust Administrative Remedies. In counts III and IV, Plaintiff alleges that she was subjected to retaliation in violation of Title VII and the ADA for her engagement in "protected activity." Compl. at ¶¶ 50, 54. Both Title VII and the ADA require that 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); S_ydnor v. Fairfax Cntv., Va., 681 F.3d 591, 593 (4th Cir. 2012) (recognizing that the ADA incorporates the charge filing procedures of Title VII). The failure of a plaintiff to exhaust her administrative remedies concerning a Title VII or an ADA claim deprives the Court of subject matter jurisdiction over the claim. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009). Thus, to satisfy the exhaustion requirement, a plaintiff must have raised all claims in the EEOC charge that she later claims in litigation: "Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent Title VII lawsuit." Thus, a claim in formal litigation will generally be barred if the EEOC 7 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 7 of 15 charge alleges discrimination on one basis, such as race, and the formal litigation claim alleges discrimination on a separate basis, such as sex. Id. (citations omitted). Although Plaintiff's lawsuit contains claims of retaliation under Title VII and the ADA, Plaintiff's EEOC charge only alleges discrimination on the basis of national origin. See Ex. 1. Specifically, Plaintiff did not check the boxes marked "disability" or "retaliation" on the charge form, and her administrative claims are based only on alleged national origin discrimination under Title VII. Id. In addition, although Plaintiff repeatedly asserts in her EEOC charge that she was discharged because of her national origin, her charge asserts no claims concerning a disability or retaliation based on protected activity. Id. at ¶ 5 ("The facts demonstrate that [Plaintiff's] termination was the result of discrimination against [Plaintiffs based on her national origin."); ¶ 36 ("Mr. Witcher terminated [Plaintiff) based on her national origin (Sierra Leone, West Africa) and replaced her with Ms. Regina Rambissoon immediately thereafter. Ms. Rambissoon is white, born in the United States, and had worked at RAMC for less than six months as a temporary employee at the time Mr. Witcher terminated [Plaintiff .") Consequently, Plaintiff has failed to exhaust her retaliation claims under either Title VII or the ADA, and counts III and IV of her complaint should be dismissed. See Cohens v. Md. Dep't of Human Res., 933 F. Supp. 2d 735, 744 (D. Md. 2013) (dismissing retaliation claim where the plaintiff neither checked the 8 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 8 of 15 retaliation box on her EEOC charge nor alleged retaliation in the charge's factual summary); Miles v. Dell Inc , 429 F.3d 480, 491-92 (4th Cir. 2005) (finding retaliation claim was not reasonably related to EEOC charge where retaliation box was not checked and the charge narrative only referenced sex and pregnancy discrimination).3~ C. Plaintiff's Allegations of Discrimination that Occurred More Than 300 Days Before she Filed her Charge are Time Barred. Plaintiff alleges various incidents of unfair treatment beginning in 2013. For instance, Plaintiff alleges that after Mr. Witcher became Plaintiff's supervisor in 2013, he "made fun of Plaintiff's accent and ridiculed her in front of other employees." Compl. at ¶ 14. Plaintiff also alleges that she suffered discrimination because Mr. Witcher scheduled Plaintiff to work on December 21 and 22, 2013 and, when Plaintiff failed to report to work on those days, suspended Plaintiff for two days on December 23 and 24, 2013. Id. at ¶¶ 18, 20. Plaintiff further asserts that Mr. Witcher refused to accommodate Plaintiff's request to continue performing light duty work on around December 24, 2013. Id. at ¶¶ 22-23. 3~ Notably, Plaintiff was represented by counsel throughout the administrative process. See Exs. 1 & 2. Thus, to the extent that she claims that she inadvertently failed to check the retaliation box on her charge or allege that she suffered retaliation, such an assertion should be rejected. See Black v. Mission Hosp., Inc., Civ. A. No. 1:11cv146, 2012 WL 112234, at *3 n.l (W.D.N.C. Jan. 12, 2012) (rejecting plaintiff's assertion that his failure to exhaust his administrative remedies should be excused where he was represented by counsel throughout the administrative process). 9 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 9 of 15 Under both Title VII and the ADA, a plaintiff cannot litigate claims relating to incidents which occurred more than 300 days before she filed her charge with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a).4~ As a result, any alleged incidents of discrimination which occurred before March 19, 2014 (over 300 days before Plaintiff filed her charge) are time-barred. Accordingly, the Court should dismiss Plaintiff's claims of discrimination based on alleged acts occurring prior to March 19, 2014. 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). 4~ Additionally, Title VII and ADA both require that a plaintiff file suit within 90 days of her receipt of the right-to-sue notice issued by the EEOC in order for her claims to be timely. See 42 U.S.C. § 2000e-f(1). Generally, aright-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 Dept, 970 F. Supp. 2d 418, 427 (D. Md. 2013). Here, Plaintiff alleges that she received the right-to-sue notice on October 6, 2016 -seven days after the EEOC issued the right-to-sue letter to Plaintiff and her counsel on September 29, 2016 and exactly 90 days before Plaintiff filed her lawsuit. Although Defendant accepts Plaintiff's allegations concerning the date of receipt of her right-to- sue letter at the motion to dismiss stage, Defendant reserves the right to challenge the timeliness of Plaintiff's lawsuit. See, sme ., Harvey v. City of New Bern Police Dept, 813 F.2d 652, 654 (4th Cir. 1987) (upholding dismissal of complaint filed 91 days after receipt by plaintiff's agent of the right-to-sue letter). #1493974G Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 10 of 15 D. The Timely Allegations of Plaintiff's Complaint Fail to State a Claim upon Which Relief can be Granted. As set forth above, there are only two claims that are within the scope of Plaintiff's EEOC charge and were timely filed: (1) that Defendant subjected her to a hostile work environment because of her national origin; and (2) that Defendant terminated her because of her national origin. Compl. at ¶¶ 40, 44, However, the underlying allegations fail to state a claim. Initially, Plaintiff's discrimination claim fails because there are no factual allegations that Defendant discriminated against Plaintiff because she is from Sierra Leone. In this regard, a discrimination claim under Title VII cannot withstand dismissal in the absence of any factual allegations that an adverse employment action was the result of discriminatory animus. As this Court recently explained, "[a] plaintiff must allege a situation that is more than consistent with discrimination; it must ̀alone support a reasonable inference that the decisionmakers were motivated by [impermissible] bias."' Reed v. Innovative Mgmt. Strategists, Inc., Civ. A. No. DKC 16-2442, 2017 WL 193528, at *3 (D. Md. Jan. 18, 2017) (quoting McCleary-Evans v. Md. Dep't of Transp., State Hwv. Admin., 780 F.3d 582, 585 (4th Cir. 2015)). Moreover, mere "speculation [about] the cause for the defendant's decision" is not sufficient to avoid dismissal where there is an "obvious alternative explanation" for the adverse employment action. McCleary- Evans, 780 F.3d at 588 (citation omitted). 11 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 11 of 15 Although Plaintiff alleges in a conclusory fashion that Defendant "terminated Plaintiff because of her national origin" see Compl. at ¶ 34), she offers no factual allegations which would show that her termination in July 2014 was the result of national origin discrimination. On the contrary, Plaintiff alleges that on July 2, 2014, Plaintiff was counseled about a complaint about her work performance by her supervisors. Compl. at ¶ 29. Several days later, on July 9, 2014, Plaintiff was involved in an incident with a coworker, Ms. Haxton, in which Ms. Haxton accused Plaintiff of "talking about her." Id. at ¶ 30. Following this incident, Plaintiff was suspended without pay pending an investigation and subsequently terminated for failing to "meet working requirements." Id. at ¶¶ 31, 33. In other words, Plaintiff does not allege any timely factual allegations which would support a reasonable inference that Plaintiff was discharged because of her national origin. Moreover, Plaintiff's naked assertions that unidentified American-born employees were treated more favorably than Plaintiff under similar circumstances (see id. at ¶¶ 37, 40) do not nudge Plaintiff's discrimination claim across the line from conceivable to plausible. 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, Plaintiff's "complaint fails to plausibly allege that any difference [in treatment] was the result of prohibited discrimination" as opposed to personal conflicts, poor performance or other non- 12 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 12 of 15 prohibited reasons. Reed, 2017 WL 193528 at *3 (citing McCleary-Evans, 780 F.3d at 586). For these reasons, Plaintiff's discrimination claim in count I should be dismissed. In addition, Plaintiff's hostile work environment "harassment" claim in count II of her complaint should be dismissed because she has not shown, as she must, that she was subjected to unwelcome conduct based on her national origin that was sufficiently severe or pervasive to alter the plaintiff's conditions of employment and create an abusive work environment. See Okoli v. City of Balt., 648 F.3d 216, 220 (4th Cir. 2011) (stating the elements of a hostile work environment claim). For instance, Plaintiff alleges that in May 2014, her supervisor, Lahomia Ames, took a picture of Plaintiff and said she would "show people what person faking sickness looks like" after Plaintiff was absent from work due to illness. Compl. at ¶ 28. Plaintiff also vaguely alleges -with no supporting detail -that Mr. Witcher "made fun of Plaintiff's accent and ridiculed her in front of other employees by standing next to her chair and shouting, ̀Hurry up!' while she worked," and threatened to suspend her when she objected. Id. at ¶ 14. First, Plaintiff's allegations cannot support a hostile work environment claim because there is no indication that the conduct of Ms. Ames was based on her national origin. Additionally, the conduct alleged by Plaintiff is not sufficiently pervasive or severe to implicate Title VII, As this Court has explained: In order to establish a hostile work environment claim, the conduct at issue must be more severe than that of "a merely 13 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 13 of 15 unpleasant working environment," and must be sufficiently "pervasive [so] as to become diffuse throughout every part of the .. work environment in which plaintiff functioned." Mwabira-Simera v. Thompson Hospitality Servs., LLP, Civ. A. No. WMN-11-2989, 2012 WL 959383, at *7 (D. Md. Mar. 20, 2012) (citations omitted). Consequently, courts have allowed hostile work environment claims to proceed only where "the discriminatory abuse is near constant, oftentimes of a violent or threatening nature, or has impacted the employee's work performance." Id. (citation omitted). Plaintiff's complaint alleges no incidents of specific conduct which would rise to the level of a hostile work environment. On the contrary, other than a few isolated incidents, Plaintiff vaguely claims that she was "ridiculed," "harassed," and "threatened." See Compl. at ¶¶ 26-27, 32, 44. Such bald assertions are not sufficient to state a plausible hostile work environment claim. See Finne ~an v• Dept of Pub. Safety &Correctional Servs., 184 F. Supp. 2d 457, 462-63 (D. Md. 2002) (finding that although plaintiff alleged she was verbally abused for several months, dismissal of her complaint was warranted because she provided few specific examples and none of the alleged conduct was physically threatening or interfered with her work performance); Mwabira-Simera, 2012 WL 959383, at *8 (vague allegations of comments about plaintiff's African physical characteristics and long name were not sufficient to sustain a national origin-based hostile work 14 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 14 of 15 environment claim).5~ As a result of these pleading deficiencies, the Court should dismiss Plaintiff's hostile work environment claim. IV. CONCLUSION For the foregoing reasons, the Court should dismiss Plaintiff's complaint. Respectfully submitted, 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 Anne Arundel Medical Center 5i Tellingly, in this regard, Plaintiff does not contend that her work performance was impacted by any alleged harassment. On the contrary, she claims that her work performance was consistently satisfactory and that "she performed 124% above the requirements" for her assigned tasks. Compl, at ¶ 29. 15 #14939746 Case 1:17-cv-00018-JFM Document 6-1 Filed 03/06/17 Page 15 of 15 .~ • Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 1 of 11 ~. CHARGE OF DPSCREI~I9N,A►TION Aa~NCY ChfARGE NUMBER Thb form is affected by the Pdwoy Nck at 197~~ See Prrreoy Act Smhrner~ 6e{ore oomPlelinp this EPA ~ EEOC s~aao~4-ozo~ atul EEOC stale orlcsaf A It an NAME(1ndlcate Mr., Ms„ Mra,) HOME TELEPHONE (Induda Area Code) N1s. Ma B. Munu 301 773-4056 STREET ADDRESS CfTY, STATE ANa ZIP CODE D ATE QF 81RTN 9419 Stoney Ridge Road, fJppar Maribaro, Maryland 20774 NAMED 18 THE EMPLOYER, t~,BOR ORGAtVIZATIQN, EMPLOYMENT AGENCY, APPRENTICESHIP GOMMi'TTEE, STATE OR LpCAL GpVERNMENT AGENGY WHO DI3CRIMIPIATEp AGAINST ME ff r1Tbl21~t&A OA8 f1St b~1AW, hIAME NUM66R OF EMPLOYEES, MEMHERB 7ELEPHQ NE (lnduda Area Cade} Anne Arundel Mediaa~ Center 15+ 443-4Q1~~000 STREET ADdRF3S CITY, STATE AND ZIP CODE COUNTY 2001 Medical Parkway, Annapolis, Maryland 21A41 Anne Arundel NAME TELEPHpN~ NUMBER {Jndude Are a Code) STREET ADORE3S CITY, 3TA7E AND Z1P CODE COUNTY CAUSE OF 013GRIMINATIdN BASED ON (Ohecic epproprlete box(esJj DATE DISCRIMINATI ON 70CsK PLACH EARLIEST (RDEYVE'PA) LATEST (ALL,i a RACE ~ COLOR a 5IX ~ REUGiON ~ AGE a RETAI,lAT10N ~ NAT~atJAL a OISABILfT'Y ~ oTH~R fSPx'HY) AUgtt9tZ~'~3 JUIy 15, 2D14 ORiGiN ~ C~N7INUINGAC71p1V THE PARTIQULAFiSARE (1(eddRlonalpaperlsneeae4 a[fach ~Mrashestfs)r SEE ATTACHED CHAF~G~ w -., Ci7 ~w :~' L, -~--I ;~ ~_ r.~ r , ~~ ~̂ '.-~ v t i ~. l ~~ "̀T «..) C7 ~ f +~ NOTARY• (When neoeesary fw Stsba anri l.ocai Requiremerrts} want ifi~a ch~fga filed with bosh the EEOC and the Stata or local Agency, (f any. I w111 advise the agencies K I change myaddress or telephone nur~ and wlll cooperate fulty wkh them fn the processing of my charge in aax~rdanoe 1 swear w affirm that I have rea d tha above charge and that it is true to the with thalr rocedures, best of m krw~Med irrfa rnahion and beliat deda~e under pemalty of perJury tha! the torepoUg Is true and correct, 91GNAT~UR̂~~E ~~pi-~~~V~~~L~-_._J L~,~ .. SUBSCRI6ED AND SWOi~N TQ BEFORE ME THIS DATE (Day, manih, and µgar) Date Chnrpinp Patty (57pnetwe) EEOG FORM 5 (Rev 12193} Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 2 of 11 ' '~; ' U.S. ]EQUAL EMPLOYMIENT OPPOIZTUI~ITY COM[1~1.ISSION IQ%Zary Menu v. Arcane Aruaidel Medical Center Charge of Discraanina~~io~ 1. Mary Munu ("Ms. Munu") resides at 9419 Stoney Ridge Road, Upper Mar lboro, Maryland 20774, and is a citizen of Prince George's County, Maryland, 2. Anne Aztmdel Medical Center ("AAMC"), a corporation operating a busi ness in the State of Maryland, is and at all times mentioned herein was an employer w ithin the meaning of Title VII of the Civil Rights Act of 1964 ("Title VII") and Tztle 20 o f Maryland's State Government Article ("Title 2Q"). 3, Ms, Munu began. woxking for AAMC on December 3, 2007, as a Sterile Processing Tech. 4. Despite her years of service, Kevin Witchar ("Mr. Witcher"), Manag er of Central Sterile Processing for A.AMC, tez~inated Ms. Munu on July 15, 2014. 5, The facts demonstrate that Ms. Munu's termination was the resuXt of discrimination against Ms. Menu based one her national origin. Ms , Menu is black and from Sierra Leone, West Africa, Mr. Witcher, who is African-.America n and born in the United States, replaced her with Ms. Regina Rambisson, who is white and als o from the United States. 6, Ms, Munu was working, without incident, on light duty status u ntil shortly after Kevin Witcher was hired (in late May, early June 2013) as Manager of Central Sterile Processing, and became Ms. Munu's second-line supervisor (3ess ie Gill vvas, at the time, Ms. Munu's immediate supervisor).1 ~ Ms. Menu injured her shoulder in an accident that took place on March 22, 2013, in the Decontamination Unit at AAMC ("DECOM"), After the accident, AAMC's Employee Heal th Office ("EHO") placed Ms, Munu an limited ~ Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 3 of 11 '` 7, After NIr. Witcher became her second-line supervisor, Ms. Mums began noticing a pattern of discrimination and differential treatment directed toward her. Mr. Witcher made fun of Ms, Munu's accent and ridiculed her in front of other employees by standing next to her chair and shouting, "Hurry up!" while she worked. When Ms. Munu objected to the treatment, Mx. ~~itcher threatened, repeatedly, to stzsp~nd her. This behavior occurred repeatedly throughout Ms. Munu's employment with RAMC. 8. In August 2013, and although Ms. Munu was approved for light-duty status at the time, Mr. Witcher sent Ms. Munu home stating only that he was doing so because she was on light-duty status. See n. 1, supra, 9. Mr. Witcher did not send other similarly situated native-born employees home, Far example, Rodney Black, vvho is fram the United States (African-American), was also on Light-duty but allowed to continue working. Mr. Witcher did not send Mr. Black home, even though he (like Ms. Menu) had been on light-duty status since before Mr. Witcher was kured. Mr. Witcher gave no explanation why Mr, Black was allowed to continue working on light-duty status, while Ms. Menu was not. 10. After Mr. Witcher sent her home, EHO called Ms. Munu and scheduled her for her second evaluation, even though she had already bean placed on light-duty status. See n. 1, supra, On September 2, 2013, Dr. Connelly referred Ms. Menu to a specialist (Dr. Lashgari) who, after examining her on September 20, 2013, recommended Ms, Munu return to work the following Monday (September 23, 2013) on Light-duty status (as before), with orders that she Lift light-duty status, with orders that she lift no more than 10-20 pounds, After hex scheduled re-evaluation on April 8, 2013, Ms, Munu was referred by the EHO to Dr, Connelly for examination and treatment and placed on continued light-duty with orders that she lift no more than 10-20 pounds, until her next scheduled re-evaluation in Sapteznber 2013, Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 4 of 11 no more than 14-2p pounds to until January 2014 (as before), at which time Ms. Munu would be re-evaluated. Dr. Lashgari also ordered that she not work extended overtime, especially on the weekends, so that she could properI~ heal. 11. Ms. Munu was allowed to return to work September 23, 2013, on light-duty status per her.dactor's recommendations (the same approved status Ms. Mums had been working under prior to Mr. Witcher's decision to send her home). AAMC's decision to send Ms. Munn home, without reason, while allowing other similarly situated employees of different national origin to continue working an Tight-duty status, is further evidence of discriminatozy animus due to Ms. Munu's national origin. 12. In December 2013, at Mr, Witcher's request,. EHO informed Ms. Munu she would be re-evaluated on December 24, 2013 (not January, as previously ordered by Dr. Lashgari). At that time NIr. Rodney Black was still being accommodated with Light duty status, 13, Oza or about Deca~mber 20, 2013, Mr. Witcher scheduled Ms, Menu to work the next day, which was a weekend (December 21 and 22, 2013).2 Although he knew she was on light duty and tinder doctor's orders not to work on weekends, Mr. Witcher scheduled Ms. Menu (at the last minute) without notifying Ms. Menu of the change. At that time Mr, Rodney Black was still being accommodated with Tight duty status. 14. On December 23, 2013, Ms, Munu heard about the scheduling for the first time when Mr. Witcher admonished her foz being a "no-call-no-show" the previous two days. Ms, Munu reminded him she was both unaware of the schedule change, and not supposed to work on weekends due to her Tight-duty status, with hez re-evaluation (now scheduled) for the next day. Howevex, Mr, Witcher suspended her fox two days (December 23 and 24) anyway. 3 Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 5 of 11 15. Although Mr. Witcher informed Ms. Munn that she was suspended for 2 days (December ~3-24, 2013), he did not provide t1~is information to Human Resources for inclusion in Ms. Munu's file until after she was terminated, on July 15, 2014. 16, On December 24, 2013, Ms. Munu was re-valuated by Dr. Lashgari, who once again placed her on light-duty status (as before), with her next re-evaluation scheduled for February 10, 20 ~ 4, 17, On December 24, 2013, after her evaluation, Ms, Menu brought a copy of Dr. Lashgari's evaluation to the EHO expecting to return to work the next day on light-duly status. . 18, However, when the EHO called Mr. Witcher to inform Ms. Menu of her return to work the next day, he stated (for the second time) that he could no longer accommodate her need for light duty and that she should just stay home. Mr, Witcher refused to allow Ms. Munu to return to vaork on light-duty status despite the fact that Mr. Rodney Black was still being accommodated with light duTy status, 19. Dr. Lashgari returzied Ms. Munn to work on February ].l, 2014, without restrictions. Although Mr. Witcher's continued harassment, threats, and intimidation , of Ms. Munu abated for a period of time after her return to work, Mr. Witcher's behavior xesumed a short time later. 2D, Shortly before returning to work on February 11, 2014, Ms. Munn contacted the employee affairs liaison for Sterile Processing, Susan Blade (who works with AAMC's Human Resources department) and provided Ms. Blade with a statement detailing the discrimination, harassment, and retaliation by Mx, Witcher discussed above, including her suspension on 2 As of Pciday, December 20, 2013, Ms. Munu's work schedule did not indicate she was scheduled to work that weekend. Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 6 of 11 December 23-24,.2013, Ms. Blade checked Ms. Munu's file and informed her that there was no letter of suspension from Mr. Witcher (ar anyone else) in Ms. Munu's personnel file. 21, Ms. Blade infanmed Ms. Munn that she would note her concerns and discuss it with Mr, Witcher, but no investigation into NIr. Witcher's behavior took place. Although the discrimination and harassment did abate for a period hf time after Ms. Munu retlxrned to work, Mr, Witcher soon resumed his former discruninatory conduct and harassment, 22, On July 1, 2014, Ms, Munu was scheduled to work at DECOM by Ms. Lahomia Ames (Ms. Munu's morning supervisor). Ms. Ames, who had previously threatened .to suspend Ms, Munu, is African-American and was born in the Uzuted States,3 23. On July 2, 2014, Ms, Munu arrived at work and saw another employee (Pamela Haxtan), who is white and was born in the United Sfiates, meeting with Ms, Ames, Shortly th,ereafkex, Ms, Munu was strininoned to the Director's Office (Derrick Walden) to meat with Mr. Walden and Ms. Ames. 24. Mr. Walden asked Ms. Mums about a complaint.he had just received from Ms, Ames regarding Ms, Munu's performance on 3uly 1, 201 . Mr. Malden commented, "This is the first time I have gotten a complaint about you. , ." and went on to inform Ms. Menu that "someone" told Ms. Ames she was not perfornung yesterday (July 1). 25, Ms, Munu responded that she was surprised to learn there had been a complaint, as she had performed as usual yesterday, Ms. Munu also informed Mr. Walden that although 3 Ms, Ames supervised Ms. Munu for approximately 4 hours during her daily shift, and repeatedly threatened to suspend Ms. Munu, but never did, On one occasion (in May 2014), after Ms. Munu returned to work after being absent for one day due to sickness, Ms, Ames took a picture of Ms. Munu and indicated she would, "Show people what a person faking sickness looks like." When the issue of Ms, Ames' repeated threats was raised with Ms, Ames' boss (Derrick Walden), she mainta~ed that her threats were just "jokes." 5 Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 7 of 11 6 Ms. Ames had previously threatened (repeatedly) to suspend her, she had not indicated that there was any specific problem with her performance on 3uly 1 (or any other day). 26, Mr. Walden reviewed Ms, Mum's record fox July 1, 2014, and found that she had performed 124% above the requirement for her assigned task. Ms. Ames stated at that time that her previous Yhreats of suspension were "just jokes" and the meeting ended without any further discussion. 27. During Ms, Munu's and Ms, Haxton's shift on July 9, 2014, Ms. Haxton repeatedly approached Ms, Munu in her workspace and accused Ms. Munu of "talking about her," At the end of the shift, Ms. Munu requested a transfer to the evening shift due to the repeated harassment and Ms. Haxton's attempts to intimidate Ms. Munu. 28. On July 10, 2014, Mr. Witcher again suspended Ms. Menu (without pay), pending an investigation, allegedly due to the incident that occurred at DECOM the day before The incident was witnessed by Ms. Munu's supervisor (Jessie Gill), as well as another co-worker, Eric Sellis, However, neither witness was interviewed, nor did any investigation take place, 29. On that sane day (July 10, 2014} Ms. Munu informed "Ms, Koin" (Ms. Blade's replacement as the employee affairs liaison for Sterile Pxocassing) about the incident, as well as about Mr. Witcher's continued harassment and discrimination and previous order of suspension (which was never placed in her £ile, despite Mx. Wztcher's tihreats), Ms. Koin said she wanld "look into it" but that Ms. Munu should go home,4 " Ms. Koin stated that if it turned out Ms. Munu was correct, AAMC would pay for her missed tune at work. ,''.~ Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 8 of 11 ~, ;~- 30. On Friday, July 11, 2014, Mr. Witcher called Ms. Munn atxd requested that she come to his office on July 15, 2014, to complete the investigations 31. On July 15, 2014, Ivls, Menu arrived to "complete the investigation" but was instead summarily termittated by Mr. Witcher and Ms. Ames,6 The incident with Ms. Haxton was not addressed, and the only reason given far terminating Ms. Munu was her failure to "meet working requirements." 32. At na time prior to, or during, the meeting did Mr. Witcher (or anyone else at AAMC) communicate any negative perfartnance evaluations to Ms.~Munu,~ 33. Ms. Munu applied for, and received, unemployment benefits after RAMC failed to submit any information to the Department of Labor, Licensing and Regulation ("DEER") in support of AAMC's contention that Ms,1Vlunu failed to "meet working requirements." 34. Mr. Witcher's proffered reason for terminating Ms, Munu due to har alleged failure to "meet working requirements" is clearly a pretext for discrimination, as evidenced by his initial decision to suspend her "pending an investigation" concerning the incident with Ms. Haxton, wkuah Investigation never occurred. $ 35. Throughout Ms. Munu's tentue at AAMC, Ms. Menu performed at or above the level of AAMC's legitimate and reasonable expectations. Ms. Mums worked for A.AMC _. 5 Mr. Witcher initially asked Ms. Munn to come to the office on July 14, but agreed to meet with her on 3uly 1S because of Ms, Munu's previously scheduled doctor's appointment. 6 Ms, Haxton was not present. 7 On July 24, 2014, Ms, Koin called Ms. Munu and told her that Mr. Witcher had added many negative comments to her personnel file, However, the investigation regarding Ms. Haxton was not mentioned and the "many negative comments" were not provided to Ms. Menu. e Additionally, as explained above, Mr, Witcher scheduled Ms, Munu to work on a weekend (December 21 and 22, 2013) although he knew she was on Iight duty and under doctor's orders not to work on weekends at the time, due to Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 9 of 11 1 - approximately G years and a~ever received a negative evaluation, Zn fart, Ives. Yvi~nu was highly regarded at .A.AMG, including being named "Employee of the zv3.onth." She rer~eived positive annual evaluations, twuusas, and raises daring her career. AA~IviC dad ~a legitimate, noa- discriminatary reasr~n for terminating Ms. Munn, nor did anyone at AATviC ever use a concern with IvYs, Munu's performance unEil Mr. Witcher became her supar~isa~. ._ 36. Mr, Witcher terminated Ms. Mums based an.her national origin (Sierra Leone, West Africa) said replaced her with It s. Regina Ram.bissoon immediately thereafter. Ms, Rambissoon is white, born in the United States, and had worked at RAMC for less than six monde as a temporary employee at the time Mr. Witcher terminated Ms. Munu.9 37, As a result of .A~~MC's cliscriminatflry actions, Ms. Munn has ~nctured lost wage$ and b~neftts, Ms. Munu has also axgerienced emotional distress, and his imcw~red attorneys' fees and costs, for all of wlvch sbe should ba compensated, 38. AAMC continually, intentior►at1~; willfully, and wantonly discrirn~x~~ted against Ms. Muuu, a~a viols~tion of the Ti~1e '4rlI, and Title 2Q, Respectfully submitted, Mary B. Munn I /7 /1 Joyce Smithey, Esq. 1 Rifkin, ezner, Livingston, Levitan 22S D of Gloucester Sh'eest Annapolis, I~iD 214f11 (410) 269-SA66 f Si2vez, LLC s work-related injury. Moreover, Mr. Witcher did oat notify Ms. Munn she had been schedriled, causing her to miss her shift and ba suspended fartwv days without pay, 9 Shortly aver Mr, Witcher terminated i~Ls. M.unu, RAMC terminated Mr, Witcher's emplcryrnent However, Ms, Menu was oat reinstated and Ms, Rambisspn remained employed in Ms, Mum's job, '3 Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 10 of 11 , . (410) 269-1235 (fax) j smithev~,rwlls.com Date: January 12, 2014 Case 1:17-cv-00018-JFM Document 6-2 Filed 03/06/17 Page 11 of 11 t 1 Case 1:17-cv-00018-JFM Document 6-3 Filed 03/06/17 Page 1 of 2 EEOC Form 181 (11/09] U.S. EQUAL EMPLOYMENT OPPORTUNITY' COMMISSION DISMISSAL A~~D NOTICE OF RIGHTS to: Mary B. Munu 9419 Stoney Ridge Road Upper Marlboro, MD 20774 From: Baltimore Field Office 10 Sauth Howard St 3rd Floor Baltimore; MD 21201 On behalf of persons) aggrieved whose (denUty is CONFIDENTIAL (29 CFR §9801,7(a)) EEOC Charge No, EEOC Representative Telephone No. George Collins, ' 570-2014-02053 Investigator ~ (410) 209-2234 THE EEOC IS CLOSING 1T3 FILE ON THIS CHARGE FOR THE FOLLOWING REASON: The facts alleged In the charge fail to state a claim under any of the statutes enforced by the EEOC, Your allegations did not involve a disability as defined by the Americans Wlth Disabllitlas Act. The Respondent employs less than the required number of employees or Is nat otherwise covered by the statutes, Q Your charge was not timely filed with EEOC; In other words, you waited too long after the dates) of the allegeddiscrim(nation'to file your charge The EEOC issues the following determination; Based upon Its investigation, the E~OC is unable to conclude that theinformation obtained es#abifshes violations of the statutes. This does not certify that the respondent Is in compliance withthe statutes, No finding Is made as to any other issues that m(ght be construed as having been. raised by this chargo. Q the E~OC has adopted the findings of the state or local fair employment practices agency that invest(gated this charge. Other (briefly state) NOTICE OF SUIT RIGHTS (See the additional information attached to this form.) Title Vlt, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, or the Age Discrimination in Employment Act: This will be the only notice of dismissal and of your right to sue that we will send you.You may file a lawsuit against the raspondent(s) 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 this charge will belost, (The time Ilmit for filing suit based on a alalm under state law may be different.) Equal Pay Act (EPA): EPA suits must be filed in federal ~or state court within 2 years (3 years for w(Ilful violations) of thealleged EPA underpayment. This means that backpay due for any violations that occurred mare than 2 veers (3 veers)before you file suit may not be collectible. On behalf of.~he ommiss .~-~~,<..~.,...P ~- -~---.~.... . SAP 2 9 2016 Enclosures( Rosemarie Rhodes, (Date Mailed) Direc#or cc: Todd Horn Russell Gray, Esq. VENABLE LLP RIFKIN WEINER LIVINGSTON LEVITAN &SILVER 750 E. Pratt Street LLC Suite 900 225 Duke of Gloucester Street Baltimore, MD 21202 Annapolis, MD 21401 Case 1:17-cv-00018-JFM Document 6-3 Filed 03/06/17 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND MARY MUNU Plaintiff, v. * Case No. 17-cv-00018-JFM ANNE ARUNDEL MEDICAL CENTER 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. J. Frederick Motz United States District Judge Case 1:17-cv-00018-JFM Document 6-4 Filed 03/06/17 Page 1 of 1