Oyedokon v. Foster et al

MOTION to Dismiss for Failure to State a Claim

D. Md.February 8, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND LAKEN OYEDOKUN, * Plaintiff, * v. * Civil No. 1:16-CV-03705-JFM STATE PERSONNEL DIRECTOR, * MARYLAND MILITARY DEPARTMENT, ET. AL., * Defendants. * * * * * * * * * * * * * MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT MARYLAND MILITARY DEPARTMENT’S MOTION TO DISMISS Defendant, the Maryland Military Department 1 , by its attorneys, Brian E. Frosh, Attorney General of Maryland, and Lisa O. Arnquist, Assistant Attorney General, submits this memorandum of law in support of its motion to dismiss the Complaint. I. Introduction: This matter is a discrimination action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., by Laken Oyedokun, a former employee of the State of Maryland, Maryland Military Department (“MMD”). 1 Plaintiff's Notice of Service as to named defendant Department of Budget and Management (DBM) appears to have been mistakenly addressed to 301 W. Preston Street, Suite 809, Baltimore, Maryland 21201. A quick internet search as to that address, however, reveals that it is the address of the 'Charter Filings' division of the State Department of Assessments and Taxation, which is an entirely separate entity from DBM. As such, it does not appear that DBM was ever properly served by Plaintiff with notice of this lawsuit. Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 1 of 13 2 Plaintiff alleges that he was discriminated against by his employer on the basis of race, color, national origin, and disability. To the extent Plaintiff’s Complaint sets forth claims that were not contained in his charge of discrimination with the Equal Employment Opportunity Commission, this Court lacks jurisdiction over those claims and they should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1). In addition, Plaintiff’s Complaint in its entirety should be dismissed pursuant to Fed. R. Civ. P. 12(b)(6) because it fails to state a claim upon which relief can be granted. II. Summary of Allegations in Plaintiff’s Complaint: Plaintiff filed suit pro se using a form complaint titled “Complaint for Employment Discrimination.” Section II of the form identifies various types of claims. Plaintiff checked the box for a claim under “Title VII of the Civil Rights Act of 1964”. Section III of the form is titled “Statement of Claim.” Paragraph A of Section III requests the Plaintiff to identify conduct complained of, Plaintiff checked every option available: “Failure to hire; termination of employment; failure to promote; failure to accommodate disability; unequal terms and conditions of employment; retaliation; and other acts, harassment and intimidation.” Id. Paragraph D of Section III states: “Defendant(s) discriminated against me based on my (check all that apply and explain).” Id. at 5 (emphasis in original). The form includes boxes for various categories. Plaintiff checked the following boxes: “race, color, national origin, and disability or perceived disability.” Id. Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 2 of 13 3 In Paragraph E, prefaced with the statement “the facts of my case are as follows,” Plaintiff wrote: 1- failure to hire/promote: That Plaintiff [sic] disadvantaged me from gainful employment and promotion because of my race and national origin. 2- Constructively discharged by demoting me in the organization even as I outperform peers organization wide solely due to national origin/color of skin. (ECF 1-pg. 6.). Plaintiff attached to his Complaint a series of documents (26 pages) including his right to sue letter from the U.S. Department of Justice, Civil Rights Division, as well as documents supporting the charge of discrimination filed with the Equal Employment Opportunity Commission (“EEOC”) (EEOC Case No. 531-2013-02086.) He did not attach a copy of the EEOC charge itself. A copy of that charge has been attached hereto marked Exhibit A. 2 III. Legal Standard: A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction challenges a court's authority to hear the matter brought by a complaint. See Davis v. Thompson, 367 F.Supp.2d 2 In ruling on a motion to dismiss, the court may rely not only upon the allegations of the Complaint, but also on the contents of any documents to which the complaint refers that are integral to the allegations, Philips v. Pitt County Mem’l Hosp., 572 F. 3d 176, 180 (4 th Cir. 2009). Plaintiff references that he filed a charge in his Complaint and attaches the right to sue letter for EEOC Charge Case No. 531201302086. (ECF. 1, pg. 8.) Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 3 of 13 4 792, 799 (D.Md.2005). This challenge under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in the Complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “that the jurisdictional allegations of the Complaint [are] not true.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir.2009) (citation omitted). With respect to a facial challenge, a court will grant a motion to dismiss for lack of subject matter jurisdiction “where a claim fails to allege facts upon which the court may base jurisdiction.” Davis, 367 F.Supp.2d at 799. A motion made pursuant to Rule 12(b)(6) allows a Complaint to be dismissed for failure to state a claim upon which relief can be granted. Indeed, a Complaint must be dismissed if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). Under the plausibility standard, a Complaint must contain “more than labels and conclusions” or a “formulaic recitation of the elements of a cause of action” in order to survive a motion to dismiss. Twombly, 550 U.S. at 555, 127 S. Ct. at 1965. Rather, to survive a Rule 12(b)(6) motion the Complaint must be supported by factual allegations that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1965. Most recently, the Supreme Court has explained that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to plead a claim. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). IV. Argument: Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 4 of 13 5 a) The “State Personnel Director” of the Maryland Military Department is not an “Employer” Subject to Liability Under Title VII. Title VII makes it unlawful for an “employer” to discriminate against a person based on, among other characteristics, that person’s race or national origin. 42 U.S.C. § 2000e-2(a). Title VII defines “employer” as “a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person . . . .” 42 U.S.C. § 2000e(b). Mr. Oyedokun was an employee of the Maryland Military Department, a unit of the Executive Branch of State Government. Md. Code Ann., State Gov’t § 13-301 et seq. His “employer” was, at all times relevant, the State, not the individual defendant identified in the Complaint as “State Personnel Director” of the MMD. In the Fourth Circuit, it is well established that “employees are not liable in their individual capacities for Title VII violations.” Mikkelsen v. DeWitt, 141 F. App’x. 88, 91 (4th Cir. 2005) (citing Lissau v. S. Food Serv., Inc., 159 F.3d 177, 178 (4th Cir. 1998)). Consequently, the claims brought under Title VII against the “State Personnel Director” of the MMD must be dismissed. 3 3 To the extent Plaintiff has sued this individual in his or her official capacity, a suit brought in that manner is, in effect, a suit against the State of Maryland. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (noting that governmental entity is “real party in interest” in official capacity suit); Nivens v. Gilchrist, 444 F.3d 237, 249 (4th Cir. 2006) (claim for monetary damages against public official in his official capacity is, in effect, one against governmental entity employing the official). The arguments that follow are made should the court construe the case to be against the Maryland Military Department. Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 5 of 13 6 b) This Court lacks jurisdiction to entertain the claims set forth in the Complaint which were not included in the charge of discrimination Plaintiff filed with the EEOC. This Court lacks subject matter jurisdiction over several of the claims alleged in the Complaint because they were not included by Plaintiff in the charge of discrimination he filed with the EEOC. Specifically, Plaintiff’s charge of discrimination with the EEOC did not allege discrimination based on disability 4 or color. See Exhibit A, pg. 1. Furthermore, Plaintiff did not allege discriminatory discharge. See Exhibit A. This is fatal to those claims as the Court’s jurisdiction depends upon exhaustion of administrative remedies. Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005) Before a plaintiff may file suit under Title VII, he is required to file a charge of discrimination with the EEOC or other enforcement agency recognized by the EEOC within 300 days of the alleged discriminatory events. Jones v. Calvert Group, Ltd., 551 F. 3d 297, 300 (4 th Cir. 2009)(citing 42 U.S.C. § 2000e- 5(f)(1)). If “the claims raised under Title VII exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.” Dennis v. County of Fairfax, 55 F.3d 151, 4 The Americans with Disabilities Act (“ADA”) exhaustion requirements are identical to those under Title VII. A plaintiff exhausts his administrative remedies by filing an EEOC charge and obtaining a “right-to-sue” letter; failure to do so “deprives the federal courts of subject matter jurisdiction over the claim.” Jones v. Calvert Group Limited, 551 F.3d 297, 300-01 (4th Cir.2009); Davis v. N. Carolina Dep't of Correction, 48 F.3d 134, 140 (4th Cir.1995). Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 6 of 13 7 156 (4th Cir.1995) Consequently, “[t]he allegations contained in the administrative charge of discrimination generally operate to limit the scope of any subsequent judicial complaint.” Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir.1996). Title VII civil suits may not present entirely new factual bases or entirely new theories of liability not found in the initial EEOC complaint. Rather, the scope of the initial administrative charge limits the scope of the civil action to “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.” Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (quoting Evans, 80 F.3d at 963). In his Complaint, Plaintiff challenges his discharge from employment, a new theory of liability not found in his EEOC charge. In addition, Plaintiff challenges the actions of MMD officials claiming they are based upon an alleged disability or the color of his skin, when those boxes were not checked on his EEOC charge form, nor were the facts alleged to support those theories of liability. Those claims, to the extent raised in the Complaint, are not viable as this court lacks jurisdiction to entertain issues not raised in the EEOC and subject to the proper exhaustion of administrative remedies. 5 5 Although Plaintiff does not identify any dates in connection with the allegedly discriminatory acts, anything that occurred more than 300 days prior to August 5, 2013, the date on which Plaintiff filed his EEOC charge, would be time-barred. In Maryland, a plaintiff must file a charge of discrimination with the EEOC or other enforcement agency recognized by the EEOC within 300 days of the alleged discriminatory events. 42 U.S.C.A. §2000e-5(e)(1); Jones v. Calvert Group, Ltd., Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 7 of 13 8 b) The Complaint should be dismissed for failure to meet the minimum pleading requirements necessary to state a claim. This Court should dismiss the Complaint in its entirety for failure to satisfy the minimum pleading requirements articulated by the Supreme Court in Twombly, and Iqbal. As Twombly expounded, and Iqbal confirmed, the standard of sufficiency for federal pleadings “demands more than an unadorned, the- defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 555, 127 S. Ct. at 1965). A Complaint must pass a plausibility test that “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. Although Federal Rule of Civil Procedure 8 imposes no “hyper-technical” pleading requirements, it also “does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 129 S.Ct. at 1950. Instead, Rule 8 “contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented and does not authorize a pleader’s bare averment that he wants relief and is entitled to it.” Twombly, 550 U.S. at 555 n.3, 127 S.Ct. at 1965 (emphasis added) (quoting 5 Wright & Miller, Federal Practice and Procedure § 1202 at 94-95 (3d ed. 2004)). Plaintiff alleges no facts at all to support his bald allegations of discrimination on the basis of race and national origin. Notably absent from the factual allegations are any “circumstances, occurrences, or events,” Twombly, 550 551 F. 3d 297, 300 (4 th Cir. 2009) (citing Tinsley v. First Union National Bank, 155 F. 3d 435, 439 (4th Cir.1998). Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 8 of 13 9 U.S. at 555 n.3, that could raise an inference of discriminatory animus based upon Plaintiff’s national origin. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663, 129 S.Ct. 1937. Although “detailed factual allegations are not required, a Complaint must assert factual allegations which raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Unsupported legal allegations are not sufficient to defeat a motion to dismiss for failure to state a claim. Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873 (4 th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4 th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4 th Cir. 2009). “[W]hile a plaintiff [in an employment discrimination case] is not required to plead facts that constitute a prima facie case in order to survive a motion to dismiss, [f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002); Twombly, 550 U.S. at 555); see also McCleary-Evans v. Md. Dept. of Transp., State Highway Admin., 780 F.3d 582, 585 (4 th Cir. 2015). While pro se pleadings are liberally construed, Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976,) liberal construction means that the court will read the pleadings to state a valid claim to Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 9 of 13 10 the extent that it is possible to do so from the facts available. Barnett v. Hargett, 174 F.3d 1128, 1132 (10 th Cir. 1999). However, even when pro se litigants are involved, the court cannot ignore a clear failure to allege facts that support a viable claim. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4 th Cir. 1990). In McCleary-Evans, supra, 780 F.3d at 588, the Fourth Circuit affirmed a district court's granting of a motion to dismiss a Complaint with similarly thin allegations. The Court reasoned, id. at 585-86 (citations omitted) (emphasis and alterations in original): In her Complaint, McCleary-Evans purported to state a claim under Title VII.... While she did allege that the Highway Administration failed to hire her, she did not allege facts sufficient to claim that the reason it failed to hire her was because of her race or sex. To be sure, she repeatedly alleged that the Highway Administration did not select her because of the relevant decision makers' bias against African American women.... The allegation that the Highway Administration did not hire her because its decision makers were biased is simply too conclusory. Only speculation can fill the gaps in her Complaint-speculation as to why two “non-Black candidates” were selected to fill the positions instead of her. While the allegation that non-Black decision makers hired non-Black applicants instead of the plaintiff is consistent with discrimination, it does not alone support a reasonable inference that the decision makers were motivated by bias. Similarly, in the instant case, no facts are provided to support a reasonable inference that Plaintiff was not promoted or terminated because of his race or national origin. First, the Complaint does not state the positions for which Plaintiff applied and was rejected. Even taking as true the implied allegations that Plaintiff did apply for certain positions, and that MMD did reject him, the Complaint as written fails to provide sufficient fact to satisfy even Fed.R.Civ.P. 8's Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 10 of 13 11 basic notice requirement because it does not state which positions Plaintiff alleges were discriminatorily denied to him or allege any facts from to raise an inference of discriminatory animus in the promotional decision. Not only has Plaintiff failed to identify what positions he applied for, when he applied for those positions, he has not alleged that the positions were ultimately given to someone who was of a different race or national origin. In short, there is nothing alleged to raise his claim to the realm of plausibility. Twombly, 550 U.S. at 570. Similarly with the alleged discriminatory discharge, Plaintiff has alleged no facts which raise the inference that he was “constructively discharged by demot[ion]” because of his race or national origin. (ECF. 1, pg. 6.) Plaintiff simply alleges no supportive facts that would raise his claim of race or national origin discrimination to the level of actionable plausibility that Iqbal and Twombly require. For these reasons, Plaintiff’s Complaint should be dismissed for failure to state a claim. Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland _____________/s/_________________ LISA O. ARNQUIST ASSISTANT ATTORNEY GENERAL Federal Bar No. 25338 Department of Public Safety and Correctional Services 300 E. Joppa Road Suite 1000 Towson, Maryland 21286 Tel.: 410-339-7568 Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 11 of 13 12 e-mail: lisa.arnquist@maryland.gov Attorneys for Defendant, Maryland Military Department Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 12 of 13 13 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 8 th day of February, 2017, a copy of the foregoing motion was delivered by electronic means (the Court’s CM/ECF) to Plaintiff, Laken Oyedokun, 3707 Lochearn Drive, Baltimore, Maryland 21207. ________/s/_____________________ LISA ARNQUIST Case 1:16-cv-03705-JFM Document 8 Filed 02/08/17 Page 13 of 13 Case 1:16-cv-03705-JFM Document 8-1 Filed 02/08/17 Page 1 of 2 Case 1:16-cv-03705-JFM Document 8-1 Filed 02/08/17 Page 2 of 2