DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this employment case is the motion to dismiss filed by Defendant, the Mayor and City Council of Baltimore ("Defendant"). (ECF No. 4). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be denied in part and granted in part.
Unless otherwise noted, the facts outlined here are set forth in the complaint and construed in the light most favorable to Plaintiff. Kohl Fallin ("Plaintiff") worked at the Baltimore City Department of Transportation ("BCDOT") as the Northwest Transportation Liaison Officer from November 2011 to January 2017.
In August 2016, Plaintiff's personal workspace was vandalized. Plaintiff returned from lunch to find (1) a drawing of a penis and scrotum and the words "suck, suck, oh yeah" on Plaintiff's dry erase board; (2) the words "Suck Dis Dik Bitch!!!" on Plaintiff's work notebook; and (3) a drawing of a penis and scrotum and the words "Put it in your butt" on a note affixed to Plaintiff's computer monitor. (ECF No. 16, ¶ 12; see also ECF No. 22-1). Plaintiff "called the office assistant and [her] co-worker" to see the images and messages, photographed them, and e-mailed them to Jessica Roberson, with copies to Kathy Litz, an individual in the Human Resources department ("HR"), and Veronica McBeth, Chief of the Transit Division and Plaintiff's direct supervisor. (ECF No. 16, ¶¶ 13-14; ECF No. 22-1, at 1). Plaintiff informed HR and Ms. McBeth "that she felt unsafe, attacked on the basis of her sex, and was experiencing a high level of stress and anxiety[.]" (ECF No. 16, ¶ 15). HR and Ms. McBeth "never addressed the incident or engaged in any follow-up activities[.]" (Id., ¶ 18). Plaintiff followed up with HR and Ms. McBeth about the incident and still did not receive a response. (Id., ¶ 19).
In September 2016, the office assistant "verbally threatened" Plaintiff and "said she was going to have her daughter come to the office and `beat the fuck out of' [Plaintiff]." (ECF No. 16, ¶ 21). Plaintiff does not identify the office assistant, but she may be the same person that Plaintiff called to review the images and messages in August 2016. The office assistant admitted to the police that she made the threat. Plaintiff obtained a peace order against the office assistant and informed Ms. McBeth that she had a peace order. The office assistant did not face disciplinary action.
In September or October of 2016, Ms. McBeth moved Plaintiff's workplace to a building three blocks away, separating Plaintiff from her team. Plaintiff believed Ms. McBeth moved her workplace "because she had complained about the sexually explicit images and verbal violence at work." (ECF No. 16, ¶ 30). Around the same time, Ms. McBeth also "wrote [Plaintiff] up for insubordination." (Id., ¶ 31). Plaintiff, working with the union, successfully challenged the insubordination allegation. Ms. McBeth also sent harassing emails to Plaintiff, requested that Plaintiff perform menial tasks, micromanaged Plaintiff, and required Plaintiff to keep daily timesheets. Plaintiff "complained to the union . . . and requested mediation." (Id., ¶ 40). The union representative did not offer mediation and "only stated that they had followed up with management on the complaint." (Id., ¶ 41).
During her employment at BCDOT, Plaintiff had only one performance review. She received "the highest mark for attendance" and "high marks for job productivity." (ECF No. 16, ¶ 52). Plaintiff "also received numerous instances of verbal positive performance feedback." (Id., ¶ 53). Prior to August 2016, "Plaintiff had never been given a negative performance review and had not been written up." (Id., ¶ 54).
BCDOT "has a progressive discipline policy." (ECF No. 16, ¶ 58). Under the progressive discipline policy, "an employee who is tardy should first be given verbal counseling." (Id., ¶ 60). An employee who is tardy "should only be recommended for termination after additional warnings have already been provided." (Id., ¶ 61) (emphasis in original).
On January 6, 2017, Plaintiff met with Ms. McBeth regarding a disciplinary action. Ms. McBeth informed Plaintiff that she had 13 unexcused tardies from December 2016 to January 2017 and imposed an immediate three-day suspension without pay. This was the first time Plaintiff learned of her alleged tardiness. Plaintiff explained that she was not tardy and that her work as a community liaison required her to be in the field (and therefore did not require her to arrive to work at the same time every day). During the meeting, Plaintiff realized she could not access her work calendar or e-mail "to prove that she was working in the field during the times in question." (ECF No. 16, ¶ 55). Ms. McBeth refused to provide Plaintiff access to offer such proof. On January 12, 2017, Plaintiff was terminated for alleged tardiness. (Id., ¶ 66).
On July 7, 2017, Plaintiff filed her charge of discrimination with the Maryland Commission on Civil Rights ("MCCR") and the United States Equal Employment Opportunity Commission ("EEOC").
On October 26, 2018, Plaintiff filed a complaint in the Circuit Court for Baltimore City, Maryland against the BCDOT and asserted two claims: (1) sex discrimination under the Maryland Fair Employment Practices Act ("MFEPA") and (2) hostile work environment under MFEPA. (ECF No. 1-4). On February 27, 2019, the BCDOT filed a motion to dismiss and request for a hearing, arguing that "it is not a legal entity subject to suit." (ECF No. 1-5). On March 22, 2019, Plaintiff filed a first amended complaint. (ECF No. 1-2). The first amended complaint named Defendant, removed BCDOT, and asserted three claims: (1) sex discrimination under the MFEPA; (2) retaliation under the MFEPA; and (3) hostile work environment under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq.
On May 21, 2019, Defendant filed a notice of removal and removed the case to the United States District Court for the District of Maryland. (ECF No. 1). On May 28, 2019, Defendant filed the presently pending motion to dismiss. (ECF No. 4). Plaintiff responded, (ECF No. 22), and Defendant replied, (ECF No. 25).
A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4
Plaintiff brings her first two claims, for sex discrimination (Count I) and for retaliation (Count II), under MFEPA and brings her third claim, for hostile workplace (Count III), under Title VII. "The MFEPA is the state law analogue of Title VII." McCleary-Evans v. Md. Dep't of Transp., No. 12-1550-ELH, 2015 WL 1285325, at *22 (D.Md. Mar. 30, 2015) (quotation marks omitted), aff'd, No. 15-1409, 2016 WL 362287 (4
The statute of limitations for Plaintiff's MFEPA claims is two years.
Plaintiff concedes that the August 2016 incident (involving the graphic images and messages) and the September 2016 incident (involving the office assistant's verbal threat) "may indeed be untimely[.]" (ECF No. 22, at 7). However, Plaintiff emphasizes that she filed her complaint on October 26, 2018, and maintains that any claims relating to conduct occurring between October 26, 2016 and October 26, 2018 are timely. (Id.). Plaintiff also argues that her claims against Defendant "relate back" to her timely filing in October 2018. (Id.).
Fed.R.Civ.P. 15(c)(1)(C) states that "[a]n amendment to a pleading relates back to the date of the original pleading when:"
Defendant challenges "Plaintiff's effort to cast blame" for mistakenly suing the BCDOT in the initial complaint and suggests that its relationship to Plaintiff was easily ascertainable. (ECF No. 25, at 6-7). However, Fed.R.Civ.P. 15(c)(1)(C)(ii) "asks what the prospective defendant knew or should have known during the [Fed.R.Civ.P. 4(m)] period, not what the plaintiff knew or should have known at the time of filing her original complaint." Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548 (2010) (emphasis in original). Plaintiff's amended complaint against Defendant relates back to her initial complaint and Plaintiff may assert claims under MFEPA for conduct occurring between October 26, 2016 and October 26, 2018.
As Plaintiff seemingly recognizes, her MFEPA claims relating to the August and September 2016 incidents are untimely. Plaintiff contends, however, that "her discrimination count is predicated on the `generalized environment' of sex based discrimination at the workplace, including but not limited to: micromanaging her work from October 2016 [to] January 2017, suddenly requiring [Plaintiff] to keep daily timesheets from September 2016 [to] January 2017; and unequal discipline during her termination on January 12, 2017." (ECF No. 22, at 7). She concludes: "Male employees were not subject to this scrutiny." (Id.).
Defendant characterizes this language as an effort by Plaintiff "to expand her lawsuit from sexual harassment and retaliation[] to include generalized sex discrimination claims," and argues the effort "must fail because [Plaintiff] failed to assert [sex discrimination] in her EEOC charge." (ECF No. 25, at 1, at 3-4). Relatedly, Defendant also argues that Plaintiff failed to exhaust her generalized discrimination claim.
A plaintiff may establish a claim for sex discrimination using two methods. She may either demonstrate "through direct or circumstantial evidence" that her sex "motivated the employer's adverse employment decision," Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4
Plaintiff alleges no direct or circumstantial evidence of discrimination. Thus, she must proceed under the pretext framework and allege that (1) she is a member of a protected class; (2) she was performing at a level that met her employer's legitimate expectations; (3) she suffered an adverse employment action; and (4) her employer treated similarly situated employees outside the protected class more favorably. Dones v. Donahoe, 987 F.Supp.2d 659, 667 (D.Md. 2013). Plaintiff's conclusory allegations of disparate treatment are insufficient to state a claim. Count I will be dismissed as time barred for the August and September 2016 allegations and for failure to state a claim for allegations from October 26, 2018 to Plaintiff's termination.
Plaintiff also asserts a retaliation claim under MFEPA. Courts assess MFEPA retaliation claims under the same standards as Title VII retaliation claims. Hawkins v. Leggett, 955 F.Supp.2d 474, 497 (D.Md. 2013). Plaintiff must produce either direct evidence of retaliation or proceed under the McDonnell Douglas approach. Plaintiff does not allege any direct evidence of retaliation. Under the McDonnell Douglas approach, Plaintiff must allege three elements to establish a prima facie case of retaliation: (1) she engaged in a protected activity; (2) her employer acted adversely against her; and (3) the protected activity was causally connected to the adverse action. Sewell v. Strayer Univ., 956 F.Supp.2d 658, 671-72 (D.Md. 2013) (citing Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4
Defendant contends that Plaintiff did not engage in protected activity because she "only complained about a single, isolated instance of alleged harassment that was not severe and pervasive." (ECF No. 4-1, at 18-19). "[A]n employee is protected from retaliation for opposing an isolated incident of harassment when she reasonably believes that a hostile work environment is in progress, with no requirement for additional evidence that a plan is in motion to create such an environment or that such an environment is likely to occur." Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 284 (4
Here, Plaintiff e-mailed HR and Ms. McBeth, her supervisor, photographs of the images and words. (ECF No. 22-1). She also stated:
(Id.). Plaintiff's allegations support the conclusion that she reasonably believed a hostile work environment was in progress. She alleges an isolated incident that was humiliating. Accordingly, Plaintiff sufficiently alleges that she engaged in protected activity.
Defendant also contends that Plaintiff fails to allege facts to create a causal link between her protected activity and the adverse employment action. (ECF No. 4-1, at 19-20). Defendant emphasizes the five months between Plaintiff's e-mail reporting the incident and her termination. (Id.). Defendant cites two cases, Clarke v. Dyncorp Int'l LLC, 962 F.Supp.2d 781 (D.Md. 2013) and King v. Rumsfeld, 328 F.3d 145 (4
Id. at 151 n.5. Thus, King allows for an inference of causation when an adverse employment action follows protected activity but caveats that the length of time between two events weakens the inference. Clarke allows for the same. 962 F.Supp.2d at 790. Critically, both King and Clarke conclude the causal connection element was satisfied for the prima facie case.
The timing of Plaintiff's complaint and Plaintiff's termination allows for an inference of causation. Although almost five months elapsed between the two events, other allegedly adverse actions occurred in the interim that strengthen the inference of causation. Ms. McBeth relocated Plaintiff's workplace and separated Plaintiff from her team. (ECF No. 16, ¶¶ 27-28). Plaintiff's alleged tardies occurred after the relocation — in December 2016 and January 2017. (Id., ¶ 46). Moreover, Plaintiff alleges that Ms. McBeth began treating her differently by sending harassing e-mails, requiring Plaintiff to hand deliver documents that she could previously email, requiring Plaintiff to keep timesheets, and otherwise micromanaging Plaintiff. (Id., ¶¶ 34-39). Finally, Plaintiff also reported Ms. McBeth to the union on two occasions. First, to challenge successfully Ms. McBeth's decision to write Plaintiff up for insubordination. (Id., ¶¶ 31-33). Second, to complain about Ms. McBeth's treatment and to request mediation. (Id., ¶ 40). Plaintiff alleges that Ms. McBeth was aware of both these reports prior to Plaintiff's termination. (Id., ¶¶ 33, 41-42). Plaintiff sufficiently alleges a causal link between her protected activity and the adverse employment action.
Plaintiff asserts claims of discrimination based on unlawful harassment in violation of Title VII. Title VII prohibits discrimination based on an employee's characteristics such as "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 348 (2013). Plaintiff alleges that she was subjected to a hostile work environment on the basis of her sex.
"To establish a prima facie case of hostile work environment, the plaintiff must prove: (1) that she was harassed because of her sex; (2) that the harassment was unwelcome; (3) that the harassment was sufficiently severe or pervasive to create an abusive working environment; and (4) that some basis exists for imputing liability to the employer." Moret v. Green, 494 F.Supp.2d 329, 341 (D.Md. 2007) (citing Smith v. First Union Nat'l Bank, 202 F.3d 234, 241 (4
Defendant contends that the August 2016 incident (involving the graphic images and messages) is not sufficiently severe or pervasive to satisfy the hostile work environment standard. (ECF No. 4-1, at 2-3, 13-15). Defendant also argues that there is no basis for imputing liability to it. (Id., 15-16). Finally, Defendant contends that the September 2016 incident (involving the office assistant's verbal threat) did not occur because of Plaintiff's sex. (Id., at 11-13).
Plaintiff responds that "[t]he essence of [her] hostile work environment claim is the sexually explicit images on her desk[,]" seemingly conceding that the September 2016 incident did not occur because of her sex. (ECF No. 22, at 11). Plaintiff discusses Pryor v. United Airlines, Inc., 791 F.3d 488 (4
Although Title VII "surely prohibits an employment atmosphere that is permeated with discriminatory intimidation, ridicule, and insult, it is equally clear that Title VII does not establish a general civility code for the American workplace." E.E.O.C. v. Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4
Here, Plaintiff alleges an isolated, single incident — the vandalization of her workplace. Plaintiff highlights the word choice "bitch" and characterizes the messages "suk dis dik bitch!!!" and "put it in your butt" as sexually violent. (ECF No. 22, at 12-14). She attempts to analogize to Pryor, a case in which an African American employee "discovered in her company mailbox a paper note claiming to be a `Nigger Tag — Federal Nigger Hunting License,' declaring that the holder was `licensed to hunt & kill NIGGERS during the open search hereof in the U.S.'" 791 F.3d at 490. The note depicted "a person hanging from a pole or a tree . . . along with the words `this is for you.'" Id. at 491. The note followed at least three other incidents of racism, two of which involved the same racial epithet. Id. at 492. Moreover, months later, the plaintiff received a second, "nearly identical racist death threat[.]" Id. at 494. Four other African American employees received the same racist death threat. Id. The Fourth Circuit concluded that the two racist death threats were sufficiently severe to alter the conditions of the plaintiff's employment and identified four considerations supporting that conclusion:
Pryor, 791 F.3d at 496-97 (internal alterations, citations, and quotation marks omitted).
Pryor is distinguishable on several grounds. First, Pryor involved multiple incidents occurring over several months. Here, Plaintiff alleges a single incident. Second, Pryor involved an explicit death threat. Here, while the parties dispute the nature of the note — Plaintiff characterizes it as "sexually violent," (ECF No. 22, at 12), and Defendant characterizes it as "telling Plaintiff that she should (voluntarily) engage in sexual activity with hand-drawn cartoons of a penis," (ECF No. 25, at 10) — they seem to agree it is not a death threat. Finally, Plaintiff cites no authority to support her assertion that the word "bitch" is "pure anathema to all females" in the same way that the racial epithet in Pryor is "pure anathema to African-Americans[.]" (ECF No. 22, at 13-14). Indeed, courts considering identical or similar language leveled against female employees have concluded that the conduct is not sufficiently severe to support a hostile workplace claim. See e.g. Whittaker v. David's Beautiful People, Inc., No. 14-2483-DKC, 2016 WL 429963, at *1, *4 (D.Md. Feb. 4, 2016) (concluding that calling the plaintiff, "among other things, a `Russian whore,' a `golddigger,' and a `bitch[,]'" was "nothing more than a co-worker's rude, callous behavior[]"); McLaurin v. Verizon Md., Inc., No. 14-4053-JKB, 2015 WL 5081622, at *4 (holding that the plaintiff did not allege an actionable hostile work environment claim despite allegations that one co-worker called the plaintiff a "bitch," another co-worker "urinated in front of her," and a supervisor "cursed" at her).
Moreover, "[i]n measuring the severity of harassing conduct, the status of the harasser may be a significant factor[.]" Boyer-Liberto, 786 F.3d at 278. "Simply put, `a supervisor's power and authority invest[] his or her harassing conduct with a particular threatening character.'" Id. (alteration added) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998)). Plaintiff does not allege that her supervisor vandalized her workplace, and the circumstances suggest that she thought it was a co-worker.
Because Plaintiff fails to allege conduct that is sufficiently severe or pervasive, the court need not address Defendant's argument that there is no basis for imputing liability to it. Count III will be dismissed.
For the foregoing reasons, the motion to dismiss filed by Defendant, the Mayor and City Council of Baltimore, (ECF No. 4), will be denied in part and granted in part. A separate order will follow.
