Thornton v. Department of Public Safety And Correctional Services (Dpscs) et al

MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim

D. Md.April 21, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SHERON THORNTON * Plaintiff, * v. * Case No.: 1:16-CV-03028 ELH * STATE OF MARYLAND, * Defendant. * * * * * * * * * * * * * * MOTION TO DISMISS SECOND AMENDED COMPLAINT Defendant, the State of Maryland, Maryland Department of Public Safety and Correctional Services, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), hereby moves this Court to dismiss the Second Amended Complaint for lack of subject matter jurisdiction, and for failure to state a claim upon which relief can be granted. This matter is a discrimination action brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §621 et seq. Count I (race discrimination under Title VII), Count II (gender discrimination under Title VII), and Count III (age discrimination under the ADEA), should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) because the Court has no jurisdiction over those claims as they are based on allegations that were not exhausted. Count IV (retaliation under Title VII and the ADEA) should be dismissed because it fails to state a claim upon which relief may be granted. In addition/alternative, all counts should be dismissed to the extent that they Case 1:16-cv-03028-ELH Document 20 Filed 04/21/17 Page 1 of 3 rely upon untimely allegations. A memorandum of law is attached in support of this motion. Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland __________/s/__________________ LISA O. ARNQUIST, Bar No. 25338 Assistant Attorney General Department of Public Safety & Correctional Services 300 E. Joppa Road, Suite 1000 Towson, Maryland 21286 (410) 339-7568 (410) 764-5366 (facsimile) Lisa.arnquist@maryland.gov Case 1:16-cv-03028-ELH Document 20 Filed 04/21/17 Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 21st day of April, 2017, a copy of the foregoing motion and memorandum in support thereof was delivered by electronic means (the Court’s CM/ECF) to Thomas B. Corbin, Thomas B. Corbin & Associates, LLC, 201 North Charles Street, Suite 1106, Baltimore, Maryland 21201. _________/s/____________________ LISA O. ARNQUIST Case 1:16-cv-03028-ELH Document 20 Filed 04/21/17 Page 3 of 3 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND SHERON THORNTON * Plaintiff, * v. * Case No.: 1:16-CV-03028 ELH * STATE OF MARYLAND, * Defendant. * * * * * * * * * * * * * * MEMORANDUM IN SUPPORT OF MOTION TO DISMISS SECOND AMENDED COMPLAINT Defendant, the State of Maryland (“State”), Maryland Department of Public Safety and Correctional Services (“Department”), pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), has moved this Court to dismiss the Second Amended Complaint for lack of subject matter jurisdiction, and for failure to state a claim upon which relief can be granted, and submits this memorandum of law in support thereof. 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., and the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq., by Ms. Sheron Thornton against the State of Maryland, acting through the Maryland Department of Public Safety and Correctional Services. In Count I of her Complaint, Ms. Thornton alleges race discrimination in violation of Title VII of Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 1 of 23 the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (¶¶ 100-111.) 1 In Count II, Ms. Thornton alleges gender discrimination in violation of Title VII. (¶¶ 112- 117.) Count III alleges age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §621 et seq. (¶¶ 118-127). Count IV alleges retaliation under both Title VII and the ADEA. (¶¶ 128-150.) As detailed below, Count I (race discrimination under Title VII), Count II (gender discrimination under Title VII), and Count III (age discrimination under the ADEA), should be dismissed pursuant to Fed. R. Civ. P. 12(b)(1) because the Court has no jurisdiction over those claims as they are based on allegations that were not exhausted. Count IV (retaliation under Title VII and the ADEA) should be dismissed because it fails to state a claim upon which relief may be granted. Even if they were not subject to dismissal for the foregoing reasons, all four counts should be dismissed to the extent they rely upon allegations that are time-barred. II. Summary of Allegations in Plaintiff’s Second Amended Complaint: The allegations in the Second Amended Complaint are numerous, and span a period of over six years from July 2009 to December 2016. 2009 to 2013 – Employed with the Department’s Division of Parole and Probation Ms. Thornton was employed by the Department in a variety of positions commencing in October of 1997. (¶ 13.) In July 2009 Ms. Thornton was promoted to the position of Acting Field Supervisor I with the Department’s Division of Parole and 1 References are to the enumerated paragraphs contained in the Second Amended Complaint (ECF 11.). 2 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 2 of 23 Probation (“DPP”). (¶ 19.) Ms. Thornton alleges that in February 2010 she was assaulted by a female Field Supervisor, after which she filed a charge of assault and sexual harassment with “Regional Administrator Brown” (Caucasian male). (¶¶ 20-21.) After Administrator Brown took no action, Ms. Thornton filed criminal charges and a charge with the Equal Employment Opportunity Commission (“EEOC”), (Charge No. 531-2010-00892C) alleging sexual harassment and assault. (¶22-23.) 2 In May 2010, Ms. Thornton complains that she was denied training opportunities and denied a request to work secondary employment. (¶ 26.) In June 2010, Ms. Thornton was given a counseling memorandum by the Assistant Regional Administrator Joseph Clocker (Caucasian male) for “opposing discriminatory behavior.” (¶ 27.) During this time period, Ms. Thornton also complains that she found documents in her personnel file that contained medical information, Employee Assistance Program documents, and documents that referred to her EEOC complaints. (¶ 30-31.) Between July 2011 and November 2012, Ms. Thornton interviewed for ten different positions within the Agency. The positions Ms. Thornton applied for were awarded to employees outside of her protected classes of race and gender. (¶ 32.) Ms. Thornton then filed another charge of discrimination with the EEOC (Charge No. 531-2012-0365) citing retaliation, harassment and age discrimination. (¶ 33.) Ms. Thornton and Department Reach Settlement on EEOC Complaints and Ms. Thornton Accepts Promotion to Position of Facility Administrator with the Department’s Division of Pretrial Detention and Services 2 In addition to the charges she filed with the EEOC, Ms. Thornton filed numerous internal complaints with the Department’s Office of Equal Employment Opportunity. (¶¶ 23, 28, 60, 63, 66, 89.) 3 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 3 of 23 In January 2013, Ms. Thornton and the Department reached a settlement on the two pending EEOC charges, Charge No. 531-2012-0365 and EEOC Charge No. 531- 2010-0892C. Pursuant to the settlement, the EEOC dismissed the two charges and Ms. Thornton was assigned to the position of Facility Administrator with the Department’s Division of Pretrial Detention and Services. In addition, the Department agreed to remove the counseling memorandum from Ms. Thornton’s file. (¶ 34-36.) Ms. Thornton remained employed in the position of Facility Administrator with DPDS until October 14, 2013 when she resigned. (¶¶ 37, 47.) Ms. Thornton claims that from June to August 2013 she “received disparity in treatment, constant belittlement, and profanity laced insults from the other administrators because of her protected actions. (¶ 43.) In August 2013, Ms. Thornton was issued a reprimand. (¶ 42.). Ms. Thornton complains about her treatment while at DPDS, including the physical condition of her office, a change in supervision, and her exclusion from executive meetings and email after she requested a transfer back to DPP. (¶¶ 40-46.) Ms. Thornton claims she was compelled to resign in October 2014, after she would not agree to imposition of “a thirty day suspension without pay.” (¶ 47.) Ms. Thornton filed a third EEOC charge (Charge No. 531-2015-00262) citing retaliation, hostile work environment and constructive discharge. In December 2014, Ms. Thornton received a right to sue letter in EEOC Charge No. 531-2015-00262. (¶¶ 47-49.) 2014 Reinstated to DPP Pursuant To Settlement Agreement 4 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 4 of 23 In December 2014, Ms. Thornton entered into a settlement agreement with the Department “under duress, fraud and coercion” pursuant to which she was reinstated to DPP at a demoted position (¶ 50.) Ms. Thornton complains that she was told she would not be reinstated because she contacted representatives for help, and that she was forced to remove her name from the reinstatement list for Field Supervisor I. (¶¶¶ 51, 53.) Ms. Thornton complains that she was “subjected to credit and criminal record check, physical urinalysis, and background checks for reentry into state service.” (¶ 52.) Ms. Thornton was transferred to the Westminster Office. She complains about various comments that were made to and about her by supervisors at the Westminster Office. (¶¶ 55, 56, 62, 69.) In June 2015, Ms. Thornton was issued a counseling memorandum for being “profane and insolent to an offender and disrespectful to the cleaning man,” allegations she denies (¶ 59). In July 2015, Ms. Thornton was issued a level 1 reprimand. (¶ 61.) Ms. Thornton was not interviewed for the Field Supervisor I position in August 2015. (¶ 64.) She was denied a drug court position in September 2015. (¶ 65.) In October 2015, Ms. Thornton observed her supervisor listening to her conversation with an offender, and was told by a security guard that the supervisor watched her and another African- American employee on the surveillance cameras. (¶ 68.) In March and April 2016, respectively, Ms. Thornton applied for the positions of Regional Administrator and Correctional Hearing Officer and was denied on the grounds that she lacked the experience and credentials. (¶¶ 78, 79.) Ms. Thornton requested a transfer to Baltimore City, however, the request was denied (¶ 75.) On June 2, 2016, 5 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 5 of 23 Ms. Thornton filed a charge of discrimination with the EEOC (Charge No. 431-2016- 01551). (¶ 82.) On an unidentified date in June 2016 Ms. Thornton filed another charge with the EEOC alleging retaliation (Charge No. 531-2016-01742.) (¶ 86.) Ms. Thornton complains about various documents that were in her personnel file, including the delay in removing the counseling memorandum from her file. (¶¶ 30, 38, 77, 84.) On August 5, 2016, Ms. Thornton’s supervisor gave her a counseling letter, and in October 2016 attempted to present her with a “mock performance evaluation.” (¶¶ 88, 90.) Ms. Thornton Investigated For Fraternization and Terminated In December 2016, Ms. Thornton was advised that she was being investigated for fraternization with an offender. (¶ 95.) Ms. Thornton acknowledged that she was contacted by an inmate at the Baltimore City Detention Center in August 2016, a phone call that was recorded on the Department’s phone system. (¶ 96.) When asked by her supervisor if she had had any contact with offenders, Ms. Thornton responded “no”. (¶ 94.) On December 15, 2016, Ms. Thornton attended a mitigation conference, and was terminated on December 22, 2016. (¶¶ 98-99.) Exhaustion of Administrative Remedies – EEOC Charge filed June 2, 2016 Ms. Thornton claims that she properly exhausted administrative remedies citing the charge of discrimination filed with the Equal Employment Opportunity Commission (“EEOC”) on June 2, 2016. (¶¶ 7-9.) Ms. Thornton alleges that the EEOC issued a 6 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 6 of 23 Notice of Suit Rights on that charge and that she timely filed the instant action within 90 days of receipt of that Notice. Id. 3 Relief Requested Ms. Thornton demands $950,000.00 in compensatory damages and $950,000.00 in punitive damages, plus interest, costs, and fees. In addition, Ms. Thornton requests a declaratory judgment against the Defendant for discrimination on the basis of age, race, gender and retaliation, and an order enjoining the Defendant from engaging in said discriminatory acts. II. STANDARD OF REVIEW Rule 12(b)(1) Under Rule 12(b) (1), the plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two ways”: either a facial challenge, asserting that the allegations pleaded 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) (alteration in original). In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges 3 Plaintiff did not attach the EEOC Charge of Discrimination or the Right to Sue Letter to her Second Amended Complaint. Defendant reserves the right to file a motion to dismiss for timeliness upon receipt of a copy of the Right to Sue Letter from the EEOC. 7 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 7 of 23 sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192. In a factual challenge to subject matter jurisdiction, “the plaintiff bears the burden of proving” that subject matter jurisdiction is satisfied, “by a preponderance of the evidence.” United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir.), cert. denied, 558 U.S. 875 (2009). In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004). The court may take judicial notice of the existence and contents of EEOC proceedings if necessary to decide issues like exhaustion of administrative remedies. See, e.g., Bonds v. Leavitt, 629 F.3d 369, 378–80 (4th Cir.2011) (discussing contents of plaintiff's EEOC charges). Rule 12(b)(6) A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint. A complaint needs to contain “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted). When evaluating a 12(b)(6) motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or “a formulaic recitation of the elements of a cause of action will not [suffice].” Id. “‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” Epps v. JP Morgan Chase 8 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 8 of 23 Bank, N.A., 675 F.3d 315, 320 (4th Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Indeed, a complaint must allege sufficient facts “to cross ‘the line between possibility and plausibility of entitlement to relief.’ ” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S. at 557). Inquiry into whether a complaint states a plausible claim is “‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Thus, if “the well-pleaded facts [contained within a complaint] do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” Id. (quoting Iqbal, 556 U.S. at 679 (alteration in original)). III. ARGUMENT A. The Court Lacks Jurisdiction Over Ms. Thornton’s Claims of Discrimination Based On Race (Count I), Gender (Count II), and Age (Count III) Because They Are Based Upon Unexhausted Allegations that were not Contained in the Plaintiff’s EEOC Charge of Discrimination. Title VII makes it unlawful for an “employer” to discriminate against a person based on that person’s race or sex. 42 U.S.C. § 2000e-2(a). An employee seeking redress for discrimination cannot file suit until she has exhausted the administrative process. See 42 U.S.C. § 2000e-5(b). The filing of an administrative charge “is not simply a formality to be rushed through so that an individual can quickly file [her] subsequent lawsuit.” Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005). Rather, the charge itself serves a vital function in the process of remedying an unlawful employment practice. This administrative procedure “reflects a congressional intent to 9 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 9 of 23 use administrative conciliation as the primary means of handling claims, thereby encouraging quicker, less formal, and less expensive resolution of disputes.” Chris v. Tenet, 221 F.3d 648, 653 (4th Cir. 2000). If the EEOC cannot reach a voluntary settlement with the employer, the agency may file a lawsuit or issue a Notice-of-Right-to- Sue to the employee. 29 C.F.R. § 1601.27-28. “In any subsequent lawsuit alleging unlawful employment practices under Title VII, a federal court may only consider those allegations included in the EEOC charge.” Balas v. Huntington Ingalls Indus., 711 F.3d 401, 406 (4th Cir. 2013) (citing Evans v. Techs. Applications & Servs. Co., 80 F. 3d 954, 962-63 (4th Cir. 1996)). In determining what claims a plaintiff properly alleged before the EEOC, the court must look only to the charge filed with that agency and is “not at liberty to read into administrative charges allegations they do not contain.” Balas, 711 F.3d at 406. 4 To establish exhaustion, Ms. Thornton relies on her EEOC Charge of Discrimination filed on 4 The ADEA makes it “unlawful for an employer ... to discharge any individual ... because of such individual's age.” 29 U.S.C.A. § 623(a)(1) (West 1999). Before a plaintiff may file suit under the ADEA, he is required to file a charge of discrimination with the EEOC. See § 626(d) Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) The same limitation periods applicable to Title VII claims apply regarding ADEA claims. See 29 U.S.C.A. § 626(d). A failure by the plaintiff to exhaust administrative remedies concerning an ADEA claim deprives the federal courts of subject matter jurisdiction over the claim. See 29 U.S.C.A. § 626(d); Vance v. Whirlpool Corp., 707 F.2d 483, 486-89 (4th Cir.1983) (holding that plaintiff's failure to wait 60 days after filing federal administrative charge before bringing suit in federal district court deprived district court of subject matter jurisdiction). Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300–01 (4th Cir. 2009) 10 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 10 of 23 June 2, 2016, (¶ 7.) (See attached Exhibit A, Charge of Discrimination (Charge No. 531- 2016-01551) dated December 20, 2010.) 5 A plaintiff's claim generally will be barred if her charge alleges discrimination on one basis-such as race-and he introduces another basis in formal litigation-such as sex. See Bryant v. Bell Atlantic Maryland, Inc, 288 F.3d 124, 132-33 (4th Cir. 2002); Sloop v. Mem'l Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir.1999) (Title VII retaliation claim barred when administrative charges alleged only age discrimination). A claim will also typically be barred if the administrative charge alleges one type of discrimination-such as discriminatory failure to promote-and the claim encompasses another type-such as discrimination in pay and benefits. See Evans, 80 F.3d at 963- 64; Lawson v. Burlington Indus., Inc., 683 F.2d 862, 863-64 (4th Cir.1982) (claim of discriminatory failure to rehire barred because charge only alleged illegal layoff). Ms. Thornton did not check the box designated for race, gender or age discrimination on her EEOC Charge of Discrimination. See Exhibit A. Instead, she checked only the box indicating retaliation. Id. Nor did Ms. Thornton allege discrimination based on age, sex or race in the body of her EEOC charge. The particulars of Ms. Thornton's EEOC charge are as follows: I. I began my employment with the above listed Respondent in October 1997. My current position is Field Supervisor I. I am under the direct supervision of Kimble Hubble. During the course of my employment, I 5 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 (4th Cir. 2009). Plaintiff refers to her Charge of Discrimination in Paragraph 7 of her Second Amended Complaint. 11 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 11 of 23 have filed EEOC Charge(s): 531-2010-00892, 531-2012-00365, and 531- 2015-00262. As a result, I believe I have been subjected to harassment, unequal terms and conditions of employment and disciplinary action in retaliation for filing. Most recently, on or about November 17, 2015, I was disciplined through issuance of a memorandum. In addition, in March 2016, I filed an appeal to challenge my work location assignment. I believe I continue to be subjected to harassment in retaliation for my actions and complaints. II. Respondent failed to provide me with a valid reason for the disciplinary action of November 2015. I have not been given a response to my appeal challenging my assigned work location. III. I believe I am being discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, regarding harassment, unequal terms and conditions of employment and discipline based on retaliation. Exhibit A. The particulars alleged in Ms. Thornton’s EEOC charge do not reflect the belief that she was being discriminated against due to her race, gender or age. The words “race”, “gender” and “age” do not even appear in the narrative. There are simply no factual allegations supporting the claim of discrimination based on race, gender or age. The time period designated as “Dates Discrimination Took Place” is a discretely identified five month period from November 17, 2015 to March 1, 2016. Id. This time period does not coincide with the time period describe in the Second Amended Complaint, which is much more expansive six year period commencing in February 2010 (¶ 20,) and continuing to December 22, 2016 (¶ 99.) Ms. Thornton did not check the box to denote a “continuing action.” This coupled with Ms. Thornton’s failure to check the boxes designating discrimination based on race, age or gender, and her failure to include such allegations in the particulars of her charge, 12 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 12 of 23 necessitates the conclusion that she failed to exhaust the claims she is attempting to present before this Court. This issue was squarely decided by the Fourth Circuit in Jones v. Calvert Grp., Ltd., 551 F.3d 297 (4th Cir. 2009). In that case, the district court properly dismissed claims for age, race and sex discrimination because the “second charge alleged that Jones was being retaliated against because she had filed the first charge; it did not allege that she was discriminated against based on her age, sex, or race.” Id. at 301. The Court further observed that Jones, like Ms. Thornton, “checked only the ‘retaliation’ box on her EEOC charge and left unchecked the boxes for ‘age,’ ‘sex,” or ‘race.’” The Fourth Circuit held that the district court properly determined that Jones failed to exhaust her administrative remedies with regard to those claims, the exact fact pattern presented in this case. Id. See also Mercer v. PHH Corp., 641 F. App'x 233, 238 (4th Cir. 2016)(employee failed to exhaust his claim of race discrimination because that claim does not appear anywhere on the form employee submitted to the Maryland Commission on Human Relations and the Equal Employment Opportunity Commission. First, the check-box section of the form lists only “retaliation” as the basis for the charge.); Sewell v. Strayer Univ., 956 F.Supp.2d 658, 668–69 (D.Md.2013) (checked only “retaliation” box); Cohens v. Md. Dept. of Human Res., 933 F.Supp.2d 735, 743 (D.Md.2013) (failure to check “retaliation” box). Having failed to properly exhaust the administrative process, Ms. Thornton is precluded from filing suit on her claims of race, gender and age discrimination. Accordingly, Counts I, II and II should be dismissed because the Court lacks subject 13 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 13 of 23 matter jurisdiction to consider the claims asserted therein. See Jones v. Calvert Grp., Ltd., 551 F.3d 297 (4th Cir. 2009). B. Even If The Court Did Have Jurisdiction, All Four Counts Should Be Dismissed To The Extent They Rely Upon Time-barred Allegations. To the extent that Ms. Thornton did file a charge of discrimination with the EEOC, many of the factual allegations contained in that charge are time-barred and should not be considered by this Court. 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., 551 F. 3d 297, 300 (4th Cir. 2009) (citing Tinsley v. First Union National Bank, 155 F. 3d 435, 439 (4th Cir. 1998)). In this case, the 300-day limitations period extends from the EEOC charge filing date of June 2, 2016 back to August 7, 2015, and thus allegations that occurred before August 7, 2015 are time barred. Paragraphs 1 through 88 of the Second Amended Complaint all pertain to events that took place before the August 7, 2015 limitations date. Because the vast majority of the factual allegations contained in the EEOC charge occurred more than 300 days prior to the filing, this Court should decline to entertain them. Dismissal of untimely allegations is consistent with the EEOC filing deadline’s purpose of “‘protect[ing] employers from the burden of defending claims from employment decisions that are long past.” Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 630 (2007). The enactment of a short filing deadline “reflects Congress’s strong preference for the prompt resolution of employment discrimination 14 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 14 of 23 allegations through voluntary conciliation and cooperation.” Id. (citing Occidental Life Ins. Co. of Cal. v. EEOC, 432 U.S. 355, 367 (1977)). Ultimately, “experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of law.” Ledbetter, 550 U.S. at 632 (citing Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980)). Accordingly, all of the conduct alleged in the Complaint that falls outside of the 300-day administrative limitations period is time-barred, and not actionable. C. Count IV Must Be Dismissed Because It Fails to State a Claim of Retaliation. Ms. Thornton’s retaliation claim brought under Title VII and the ADEA must be dismissed because it fails to allege facts sufficient to state a claim upon which relief can be granted. Title VII prohibits discrimination against an employee in retaliation for the employee’s opposing or complaining about illegal discrimination: It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this title, or because he had made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title. 42 U.S.C. § 2000e-3(a)(2000). To maintain a Title VII retaliation claim, Ms. Thornton must establish that (1) she engaged in activity protected under the statute; (2) she suffered a “materially adverse” act at the hands of the employer; and (3) the employer’s act was causally related to the protected activity. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 61 (2006); see also Lettieri v. Equant Inc., 478 F. 3d 640, 650 n. 2 (4th Cir. 2007); Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 754 (4th Cir.); Balazs v. 15 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 15 of 23 Liebenthal, 32 F.3d 151, 158-59 (4th Cir. 1994).6 Ms. Thornton’s complaint fails to assert facts sufficient to establish the second or third elements of a retaliation claim.7 No Adverse Employment Action. Ms. Thornton has identified no adverse employment action she suffered as a result of her complaints of discrimination. The Supreme Court has defined adverse employment actions as “employer actions that would have been materially adverse to a reasonable employee or job applicant.” Burlington, 548 U.S. at 57. For an action to be materially adverse, “the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. The standard is an objective one. Id. at 68-69. Moreover, Title VII's “anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Burlington, 548 U.S. at 67. Indeed, “[t]he anti-retaliation provision of Title VII does not protect against ‘petty slights, minor annoyances, and simple lack of good manners.’” Geist v. Gill/Kardash Partnership, 671 F. Supp. 2d 729, 738 (2009)(quoting Burlington, 548 U.S. at 68). In the 6 The same standard to make a prima facie case for retaliation applies under Title VII and the ADEA; a plaintiff must produce evidence from which a reasonable jury could find that: (1) he engaged in a protected activity; (2) his employer took an adverse action against him; and (3) that a causal connection existed between the protected activity and the asserted adverse action. Age Discrimination in Employment Act of 1967, § 4(d), 29 U.S.C.A. § 623(d); Civil Rights Act of 1964, § 704(a), 42 U.S.C.A. § 2000e–3(a); See E.E.O.C. v. Nucletron Corp., 563 F. Supp. 2d 592 (D. Md. 2008). 7 Defendants concede that Ms. Thornton engaged in activity opposing what she believed to be discrimination numerous times throughout her employment with the Department. She chronicles in her Second Amended Complaint, complaints of discrimination, including internal complaints and formal EEOC complaints in the following paragraphs, 7, 21, 23, 28, 33, 48, 60, 63, 66, 82, 86 and 89. 16 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 16 of 23 context of a Title VII retaliation claim, “none of the following constitutes an adverse employment action in a retaliation claim: failing to issue a performance appraisal; moving an employee to an inferior office or eliminating the employee's work station; considering the employee ‘AWOL’; or issuing a personal improvement plan, ‘an ‘Attendance Warning,’ ‘a verbal reprimand, ‘a formal letter of reprimand,’ or ‘a proposed termination.’ '' Williams v. Baltimore Cty., Maryland, No. CV ELH-13-03445, 2016 WL 3745980, at *26 (D. Md. Mar. 11, 2016) quoting Wonasue v. University of Maryland Alumni Ass'n, 984 F. Supp. 2d 480, 492 (D. Md. 2013) (quoting Rock v. McHugh, 819 F.Supp.2d 456, 470–71 (D. Md. 2011)). Ms. Thornton’s claim of retaliation rest on several allegations, none of which is elaborated on in a meaningful way. (¶¶ 128-150.) Ms. Thornton complains that in September 2015 she was denied a drug court position, which was given to someone with less experience. (¶ 129). She observed a supervisor “hiding around the corner and listening to her conversation with an offender” and was told by a security guard that the supervisor “watched her and another Black colleague on the surveillance cameras.” (¶ 132). She complains that in November 2015 she received a “concerns memorandum” after telling a supervisor of some inaccuracies in her completion of an audit. (¶ 138). She complains a supervisor warned other probation agents not to speak to her. (¶ 133.) She complains about certain documents that were left in her personnel file. (¶¶ 135, 141.) In February 2016, Ms. Thornton complains she was denied a transfer to Baltimore City. (¶ 139). In April and May 2016, she claims to have applied for the positions of Regional 17 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 17 of 23 Administrator and Correctional Hearing Officer, and was told she did not have the requisite experience. (¶¶ 142-43.) 8 The vast majority of these actions do not rise to the level of materially adverse employment action necessary to state a claim of retaliation. Receipt of a “concern memorandum” is not a materially adverse employment action. Pursuant to Maryland personnel law, counseling memoranda are deemed “instructional” and are not discipline. Md. Code Ann., State Pers. & Pens. 11-107(a). Providing instruction to an employee is not and adverse employment action. 9 Declining to reassignment or transfer an employee 8 Although Ms. Thornton references her termination for fraternization briefly in the body of the Second Amended Complaint (¶¶ 96-99,) she does not rely on that allegation in support of her retaliation claim (¶¶128-150.) Nor does Ms. Thornton allege a separate discriminatory discharge or retaliatory discharge claim. Even if she had included the termination in her retaliation claim, she would not be able to establish causal connection by temporal proximity because the termination occurred months after her last complaint of discrimination, and years after she had filed numerous such complaints. (¶¶ 89, 99.) Horne v. Reznick Fedder & Silverman, 154 Fed.Appx. 361, 364 (4th Cir.2005) (holding that “[t]he district court correctly concluded that Horne failed to produce sufficient evidence of such a causal connection” where “Horne's only evidence of causation is that she was fired two months after she accused Anderson of discrimination,” because “a lapse of two months between the protected activity and the adverse action is ‘sufficiently long so as to weaken significantly the inference of causation’”(quoting King v. Rumsfeld, 328 F.3d 145, 151 n. 5 (4th Cir.2003)). Moreover, Ms. Thornton would not be able to satisfy the “but for” causation standard applicable to retaliation claims as she acknowledges that prior to her termination she had accepted a call from an offender, and was terminated for contravention of the Department’s fraternization policy. (¶¶ 95-96.) Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). 9 Courts have consistently declined to view instructional communication to an employee, including performance evaluations, as materially adverse actions. See e.g., Parsons v. Wynne, 221 F. App'x 197, 198 (4th Cir.2007) (concluding that “even under the Burlington standard, [plaintiff] is unable to establish a prima facie case of retaliation with respect to ... her May 2002 performance evaluation” as she did not show that it “would have dissuaded a reasonable worker from making or supporting a charge of 18 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 18 of 23 is not a materially adverse employment action. See Amirmokri v. Abraham, 437 F.Supp.2d 414, 423 (D. Md. 2006)(holding that reassignment of an employee and issuing a letter of reprimand are not adverse employment actions) Nor do the comments that Ms. Thornton attributes to supervisors constitute a materially adverse employment action as they produced no actual “injury or harm.” Burlington, 548 U.S. at 67, and the “[t]he anti- retaliation provision of Title VII does not protect against ‘petty slights, minor annoyances, and simple lack of good manners.’” Geist, 671 F. Supp. 2d at 738 (quoting Burlington, 548 U.S. at 68). While Ms. Thornton has chronicled a long list of actions she claims were retaliatory, those actions simply do not rise to the level being objectively “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Burlington, 548 U.S. at 68-69. No Causal Connection Even if any of the actions complained of did rise to the level of a materially adverse employment action, Ms. Thornton has failed to allege facts sufficient to establish the third element of a retaliation claim. This requires that she demonstrate causation, which she is unable to do under the strict but-for causation standard articulated for retaliation claims by the Supreme Court. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). Under this standard, “Title VII retaliation claims must be discrimination”) (internal quotations omitted); Toulan v. DAP Products, Inc., No. 05– 2254, 2007 WL 172522, at *9 (D.Md. Jan.17, 2007) aff'd sub nom. Toulan v. DAP, Inc., 271 F. App'x 312 (4th Cir.2008) (“Even under the relaxed Burlington Northern standard, [plaintiff's] 2005 [poor performance review] does not constitute a materially adverse employment action.”); Simmington v. Gates, No. 08–3169, 2010 WL 1346462, at * 13 (D.Md. Mar.30, 2010) (“Defendant's actions of giving Plaintiff a letter of expectation and an “Unacceptable” rating were not materially adverse actions.”). 19 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 19 of 23 proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e-2(m) . . . which requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Id. Generally, plaintiffs may demonstrate that the alleged opposition caused the at- issue adverse action through two evidentiary routes. First, plaintiffs may show that the adverse act bears sufficient temporal proximity to the protected activity. See, e.g., Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). Second, as this Court has consistently held, “plaintiffs may state a prima facie case of causation by relying on evidence other than, or in addition to, temporal proximity where such evidence is probative of causation.” Jenkins v. Gaylord Entm't Co., 840 F. Supp. 2d 873, 881 (D. Md. 2012) (citing cases); see also, e.g., Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (holding that “other relevant evidence may be used to establish causation” where temporal proximity is missing). Ms. Thornton has failed to link any of the alleged retaliatory actions to any specific complaint of discrimination. Indeed, the fact that she has filed numerous complaints, internally and externally, in the years prior to the actions she identifies as retaliatory negates any inference of causation by temporal proximity between her complaints and those actions. Plaintiff alleges that she received satisfactory performance evaluations in the years 2010 through 2016, despite having filed some twelve (12) complaints, both internal and external, of discrimination during that period. (¶¶ 17, 7, 21, 23, 28, 33, 48, 60, 63, 66, 80, 82, 86, 89.) In early 2013, after having filed formal and 20 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 20 of 23 informal complaints of discrimination, Ms. Thornton was promoted to a management position of Facility Administrator. (¶ 37.) Ms. Thornton was consistently filing complaints of discrimination throughout her tenure with the Department, so the temporal proximity of those complaints to any specific action she identifies as retaliation is simply too amorphous and attenuated to create the presumption that the action was motivated by her complaints. Furthermore, all of the incidents listed in the Count IV retaliation claim (¶¶ 128- 150) pre-date the filing of the EEOC complaint referenced in paragraph 7 of the Second Amended Complaint. No action that occurred after the alleged retaliatory conduct can be cited as the opposition activity in support of establishing a causal connect between the two, as “[t]o establish a causal connection between a protected activity and an adverse action, a plaintiff must prove that the protected activity preceded the adverse action and that the employer knew the employee engaged in a protected activity.” Gibson v. Marjack Co., 718 F. Supp. 2d 649, 655 (D. Md. 2010) (citing Causey v. Balog, 162 F.3d 795, 803– 04 (4th Cir. 1998); Dowe v. Total Action against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). With regard to the claims that she applied for other positions that she was not selected for, Ms. Thornton has not even alleged that the decision makers for those positions were aware of her complaints of discrimination. A causal connection “exists where the employer takes [an] adverse employment action against an employee shortly after learning of the protected activity.” Price v. Thompson, 380 F.3d 209, 213 (4th Cir.2004). Moreover, there is no temporal proximity between the last action taken 21 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 21 of 23 opposing discrimination which occurred in September 2015 (¶ 66,) and April and May 2016, when she claims to have applied for the positions of Regional Administrator and Correctional Hearing Officer, and was told she did not have the requisite experience. (¶¶ 142-43.) See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001) (“The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.’ ”) (citation omitted). Accordingly, Ms. Thornton has failed to state a facially plausible retaliation claim. Thus, this Court should dismiss Count IV of the Complaint for failure to state a claim. IV. CONCLUSION This Court should dismiss the Second Amended Complaint with prejudice. Respectfully submitted, BRIAN E. FROSH Attorney General of Maryland __________/s/__________________ LISA O. ARNQUIST, Bar No. 25338 Assistant Attorney General Department of Public Safety & Correctional Services 300 E. Joppa Road, Suite 1000 Towson, Maryland 21286 (410) 339-7568 (410) 764-5366 (facsimile) Lisa.arnquist@maryland.gov 22 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 22 of 23 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 21st day of April, 2017, a copy of the foregoing motion and memorandum in support thereof was delivered by electronic means (the Court’s CM/ECF) to Thomas B. Corbin, Thomas B. Corbin & Associates, LLC, 201 North Charles Street, Suite 1106, Baltimore, Maryland 21201. _________/s/____________________ LISA O. ARNQUIST 23 Case 1:16-cv-03028-ELH Document 20-1 Filed 04/21/17 Page 23 of 23 Case 1:16-cv-03028-ELH Document 20-2 Filed 04/21/17 Page 1 of 1