JAMES K. BREDAR, Chief District Judge.
Beth A. Evans ("Plaintiff") brought this action for employment discrimination against the Maryland State Highway Administration ("SHA") and Pamela Jenkins-Dobson, the Civil Rights Manager of the SHA. Now pending before the Court is Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment, filed pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56. (ECF No. 6.) The issues have been briefed (ECF Nos. 6-1, 11), and no hearing is required, see Local Rule 105.6 (D. Md. 2016). For the reasons explained below, the motion will be reviewed under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and will be granted in part and denied in part.
Plaintiff began working for Horizon Goodwill Industries ("Goodwill") in September 2012. (Compl., ECF No. 1 at 9; ECF No. 1-5.) She initially worked as a sorter in their warehouse and then, one year later, was offered a position as the custodian on Goodwill's contract for janitorial services at the Maryland State Highway Administration. (Compl. at 9.) Plaintiff accepted the offer and began working at the SHA on September 12, 2013, where she had supervisors from both the SHA and Goodwill. (Id. at 9-10; ECF No. 1-5 at 1.)
Plaintiff did not report any issues during the first two years of her time at the SHA. In August 2015, however, Plaintiff began reporting workplace issues to Cindy Weaver, the Goodwill employee responsible for overseeing Goodwill's contract at the SHA. (Id. at 9-10.) Specifically, in August and September of 2015, Plaintiff told Weaver that she was experiencing "harassment" and having "issues" at the SHA. (Id. at 9-10.) Later, on November 22, 2015, Plaintiff reported to Weaver that she was having issues with Shannon Cannon, her supervisor at the SHA, and was exposed to "constant sexual remarks." (Id. at 11-12.) In response to these complaints, Weaver told Plaintiff that there was nothing she could do. (Id. at 10-12.)
Plaintiff continued to experience workplace issues the following year. On February 5, 2016, Plaintiff fractured her ankle at work. (Id. at 12.) When Plaintiff returned to work after her recovery, she informed Weaver and Cannon that she needed to take additional breaks throughout the day to rest her ankle. (Id.) Although they approved this request, both Weaver and Cannon complained about Plaintiff's additional breaks. (Id.) In addition, not long after Plaintiff returned to work, two male employees had an inappropriate conversation in her presence. (ECF No. 1-5 at 7.)
In turn, Plaintiff's reports of workplace issues continued. (Id. at 13, 14.) In May of 2016, Plaintiff told Weaver that "things are getting bad," and that she cries and shakes before work and during her lunch breaks. (Id.) Plaintiff also complained to Sally Christensen, an employee in the Human Resources Department of Goodwill, about the way she was being treated by Weaver and about the fact that nothing had been done about the issues Plaintiff previously reported. (Id. at 13.) Though Christensen said that she would set up a time to talk with Plaintiff about her concerns, she never did. (Id.)
On June 29, 2016, Weaver and her supervisor, Lori Livingston, visited the Plaintiff's job site to conduct an evaluation. (Id. at 15.) Livingston informed Plaintiff that she had received several emails from Cannon and another SHA employee, Eric Minnich, about Plaintiff's poor job performance. (Id.) Then, during the evaluation, Plaintiff was deducted points for a variety of things, including using improper chemicals and sidestepping the chain of command. (Id.)
Plaintiff filed an intake questionnaire with the EEOC on July 5, 2016, in which she reported that she was being subjected to sexual harassment and disability discrimination. (ECF No. 1-5.) One month later, on August 11, 2016, Livingston and Weaver called Plaintiff in for a meeting and informed her that she was being discharged. (Compl. at 16.) They told her that SHA employees Cannon and Minnich asked that Plaintiff not return to SHA due to her lack of work ethics. (Id.) Plaintiff was particularly surprised by this news because, two days earlier, Plaintiff received a bonus for her exceptional work. (Id.) Plaintiff asked Weaver and Livingston if she could return to work in the warehouse at Goodwill, but they said she was not qualified and that no other positions were available. (Id.)
On November 21, 2016, Plaintiff filed a formal EEOC charge in which she alleged that she experienced continuing discrimination based on sex, disability, and retaliation at the SHA in violation of Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. §§ 2000e et seq. ("Title VII") and the Americans with Disabilities Act, codified, as amended, at 42 U.S.C. §§ 12111 et seq. ("ADA"). (ECF No. 1-3 at 1.) After conducting an investigation, the EEOC was unable to conclude that Plaintiff had been discriminated against in violation of either statute. (ECF No. 1-6.) The EEOC issued a Notice of Right to Sue letter on December 21, 2017,
Plaintiff filed the instant suit on April 4, 2018. (Compl. at 1.) Liberally construed, Plaintiff asserts claims against Defendants for failure to accommodate her disability (Count I)
Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes dismissal for lack of subject-matter jurisdiction. The Plaintiff bears the burden of proving subject-matter jurisdiction. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (noting challenge may be either facial, i.e., complaint fails to allege facts upon which subject-matter jurisdiction can be based, or factual, i.e., jurisdictional allegations of complaint are not true); Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) ("When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff.").
While Rule 12(b)(1) is directed toward threshold jurisdictional defects, Rule 12(b)(6) is implicated when the plaintiff fails to state a plausible claim for relief. In analyzing a Rule 12(b)(6) motion, the court must view all well-pleaded allegations in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "[A] wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable[.]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). Even so, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. at 555. "A pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders `naked assertion[s]' devoid of `further factual enhancement.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (alteration in original) (quoting Twombly, 550 U.S. at 555, 557).
Defendants move in the alternative for summary judgment, in support of which they proffer several documents. "A motion styled in this manner implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure," Sager v. Hous. Comm'n, 855 F.Supp.2d 524, 542 (D. Md. 2012), which provides that "[i]f, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56," Fed. R. Civ. P. 12(d) (emphasis added). "Nevertheless, a district judge has `complete discretion to determine whether or not to accept the submission of any material beyond the pleadings . . . or to reject it or simply not consider it.'" Sager, 855 F. Supp. 2d at 542 (quoting 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2004)). Where, as here, the Court has not yet entered a scheduling order and Plaintiff has had no opportunity whatsoever to undertake any discovery, the Court is loath to force Plaintiff into a summary-judgment posture. Cf. Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) ("Generally speaking, `summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.'" (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)); Minter v. Wells Fargo Bank, N.A., 593 F.Supp.2d 788, 792 (D. Md. 2009) ("As a general rule, summary judgment is not appropriate prior to the completion of discovery."). Accordingly, the Court will decline to exercise its discretion under Rule 12(d) and will instead evaluate Defendants' Motion pursuant to Rules 12(b)(1) and 12(b)(6), excising the supplemental exhibits from its consideration.
While federal courts must liberally construe a pro se litigant's claims, this requirement "does not transform the court into an advocate." United States v. Wilson, 699 F.3d 789, 797 (4th Cir. 2012). The Fourth Circuit has noted that "[w]hile pro se complaints may `represent the work of an untutored hand requiring special judicial solicitude,' a district court is not required to recognize `obscure or extravagant claims defying the most concerted efforts to unravel them.'" Weller v. Dep't of Soc. Servs., 901 F.2d 387, 391 (4th Cir. 1990) (quoting Beaudett v. City of Hampton, 775 F.2d 1274, 1277 (4th Cir. 1985)).
Plaintiff filed the instant suit against the SHA and Pamela Jenkins-Dobson, the Civil Rights Manager of the SHA. (Compl. at 2-3.) Defendants argue that Plaintiff's claims against Jenkins-Dobson must be dismissed because she is not an employer under Title VII or the ADA. (Mot. Dismiss Mem. Supp., ECF No. 6-1 at 7.) The Court agrees.
Plaintiff does not specify whether she brings these claims against Jenkins-Dobson in her individual or official capacity; indeed, she does not mention Jenkins-Dobson anywhere other than the caption of her Complaint. However, because Jenkins-Dobson is named in the Complaint as the Civil Rights Manager of the SHA, the Court infers that the claims are asserted against her in her official capacity. As such, the claims are really claims against the SHA, who is already a defendant to these counts.
Plaintiff asserts a claim for failure to accommodate her disability in violation of the ADA. Defendants argue that Plaintiff's ADA claim is barred by the Eleventh Amendment.
The Eleventh Amendment generally bars suits by citizens against their own state, including suits such as the one here: a suit by a citizen of the State of Maryland which "is in essence one for the recovery of money from the state." Edelman v. Jordan, 415 U.S. 651, 662-63 (1974) (quoting Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945)). The only relevant exceptions to this general immunity are when the state has consented to suit, or when Congress has abrogated the immunity. See College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Exp. Bd., 527 U.S. 666, 670 (1999). This protection extends to state agencies and state officials when the latter are acting in their official capacities. See Kentucky v. Graham, 473 U.S. 159, 165-67 & n.14 (1985) (holding the Eleventh Amendment bars suit for damages against state officer in official capacity); Alabama v. Pugh, 438 U.S. 781, 782 (1978) (per curiam) (holding the Eleventh Amendment bars suit against state agency); Cash v. Granville Cty. Bd. of Educ., 242 F.3d 219, 222 (4th Cir. 2001) (explaining that the Eleventh Amendment affords immunity to states, their respective agencies, and state officials).
Congress did not validly abrogate sovereign immunity with respect to employment discrimination claims for money damages under Title I of the ADA. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363-74 (2001). Further, Maryland has not waived its immunity from such claims in federal court. See McCray v. Md. Dep't of Transp., et al., 741 F.3d 480, 483 (4th Cir. 2014); Charles Mattison, Jr. v. Md. Transit. Admin., et al., Civ. No. RDB-15-1627, 2016 WL 2898020, at *5 (D. Md. May 18, 2016). Therefore, because the SHA is indisputably a "state entity" within the ambit of the Eleventh Amendment, Plaintiff's ADA claim against the SHA is dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Strong v. Swaim-Stanley, Civ. No. WMN-12-1924, 2012 WL 4058054, at *1 n.1 (D. Md. Sept. 13, 2012) (observing that the Maryland State Highway Administration is an arm of the state for purposes of Eleventh Amendment immunity).
Plaintiff also asserts claims for sexual harassment and retaliation in violation of Title VII. Defendants argue that Plaintiff's Title VII claims should be dismissed because the SHA was not her employer. (Mot. Dismiss Mem. Supp., ECF No. 6-1 at 11.) The Court will address this argument and then turn to Defendants' claim-specific arguments for dismissal.
"An entity can be held liable in a Title VII action only if it is an `employer' of the complainant." Butler v. Drive Automotive Indus. of America, Inc., 793 F.3d 404, 408 (4th Cir. 2015). Title VII defines an "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). Even if an entity is not a plaintiff's formal employer, it may be an "employer" under the joint employer doctrine if it exercises sufficient control of the terms and conditions of the plaintiff's employment. Butler, 793 F.3d at 408. The Fourth Circuit emphasized that this doctrine is intended to prevent "those who effectively employ a worker from evading liability by hiding behind another entity, such as a staffing agency." Id. at 410. In determining whether an entity is an employer under the joint employer doctrine, a court considers the following factors:
Id. at 414. Although none of these factors are dispositive, the first three are the most important. Id. As the Fourth Circuit explained:
Id. at 414-15.
Here, Plaintiff alleges that she worked as the custodian on Goodwill's contract at the SHA for almost three years—i.e., from September 2013 until August 2016. (Id. at 10, 16.) Further, Plaintiff alleges that she was directly supervised by an SHA employee and that she received directions from SHA employees. (Id. at 10, 15.) Plaintiff also alleges that she was required to submit her medical notes to her SHA supervisor when her recovering ankle required her to take additional breaks at work. (Id. at 12.) Finally, and significantly, Plaintiff alleges that, when she was discharged, Weaver and Livingston said that "Eric and Shannon," both SHA employees, "asked that [Plaintiff] not return to SHA." (Id. at 16.)
Bearing in mind that "Title VII should be liberally construed in light of its remedial purpose," and that this broad interpretation extends to the definition of "employer," Plaintiff plausibly alleges that SHA was her joint employer. See Lee v. Mattis, Civ. No. PX-17-2836, 2018 WL 3439261, at *9 (D. Md. July 17, 2018). Plaintiff's allegations speak to the three most important factors that courts consider when determining whether an entity is an employer under the joint employer doctrine—i.e., that SHA had at least some authority to fire Plaintiff, that Plaintiff was supervised by an SHA employee, and that SHA furnished Plaintiff's place of work for three years. To be sure, the Complaint lacks specificity regarding other factors, such as whether SHA assumed any responsibility for payroll or provided Plaintiff with any training. However, viewed in the light most favorable to Plaintiff, these allegations allow the plausible inference that SHA controlled key aspects of her employment.
Plaintiff alleges sexual harassment based on a hostile work environment in violation of Title VII. Defendants argue that Plaintiff fails to adequately plead conduct that was sufficiently severe or pervasive to state a claim for sexual harassment. (See Mot. Dismiss Mem. Supp., ECF No. 6-1 at 14-15.) The Court agrees.
Title VII makes it unlawful for an employer to discriminate against any employee on the basis of "race, color, religion sex, or national origin." 42 U.S.C. § 2000e-2(a). An employer violates Title VII when the workplace is permeated with gender based "intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklist Sys., Inc., 510 U.S. 17, 21 (1993). To establish a claim for hostile work environment based on sexual harassment under Title VII, an employee must prove that the harassment was: (1) unwelcome, (2) based on sex, (3) sufficiently severe or pervasive to alter the conditions of employment, and (4) imputable to her employer. See Pueschel v. Peters, 577 F.3d 558, 564-65 (4th Cir. 2009) (citation omitted). While "an employment discrimination plaintiff need not plead a prima facie case of discrimination" to survive a motion to dismiss, these elements inform a court's evaluation of the allegations. Swierkiewicz v. Sorema, 534 U.S. 506, 515 (2002).
Not all sexual harassment that is directed at an individual because of his or her sex is actionable. Indeed, Title VII does not attempt "to purge the workplace of vulgarity." Hopkins v. Balt. Gas and Elec. Co., 77 F.3d 745, 753 (4th Cir. 1996) (citing Baskerville v. Culligan Int'l Co., 50 F.3d 428, 430 (7th Cir. 1995)). Rather, actionable conduct must be "sufficiently severe or pervasive to alter the conditions of the victim's employment" and create an "objectively hostile or abusive working environment." Harris, 510 U.S. at 21 (internal citations omitted). Simple teasing, offhand comments, and isolated incidents (unless extremely serious), do not amount to discriminatory changes in the terms and conditions of employment. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (internal citations omitted). The determination of the sufficiency of an environment's hostility or abusiveness is made by considering all circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23.
In support of her claim for sexual harassment based on a hostile work environment, Plaintiff alleges that while she was at lunch on April 20, 2016, two men talked about a small house in the woods where they would engage in sexual acts. (ECF No. 1-5 at 7.) Plaintiff further alleges that certain male employees, including Marvin Peck and George Davis, made "comments about engaging in sexual acts, references to [her] body, and references to a building used by employees to engage in sexual acts." (ECF No. 1-3 at 1.) Finally, Plaintiff alleges that the "sexual harassment by SHA employees became unbearable at times," and that she complained to Weaver about the "harassment," "constant sexual remarks," and "issues" she experienced.
Even liberally construed, Plaintiff's allegations fail to assert conduct that was sufficiently severe or pervasive to state a claim for sexual harassment. Plaintiff only provides specific factual allegations about a single incident involving conduct that, though boorish and offensive, is comparable to the kind of rude behavior and offhand comments that courts have held are not sufficiently severe and pervasive to constitute actionable sexual harassment. See Hartsell v. Duplex Prod., Inc., 123 F.3d 766, 773 (4th Cir. 1997) (holding that comments about a woman's looks and comments demeaning to women were not sufficiently severe and pervasive where there was no inappropriate touching and defendant never propositioned plaintiff). See also Singleton v. Dep't of Corr. Educ., 115 F. App'x 119, 120-22 (4th Cir. 2004). Aside from this incident, Plaintiff's references to "harassment" and "constant sexual remarks" are wholly unsupported by any factual allegations. As such, Plaintiff fails to plausibly allege conduct that rises to the level recognized as hostile and abusive within the meaning of the law. See Engler v. Harris Corp., Civ. No. GLR-11-3597, 2012 WL 3745710, at *5-6 (D. Md. Aug. 28, 2012) (dismissing sexual harassment claim where the complaint was replete with conclusory allegations that plaintiff's coworkers were rude, demeaning, and disrespectful but did not provide specific instances of harassment that lead to a reasonable inference that conduct of male supervisors was severe and pervasive); Morash v. Anne Arundel Cty., Civ. No. JFM-04-2260, 2004 WL 2415068, at *3 (D. Md. Oct. 28, 2004) (dismissing sexual harassment claim where plaintiff only alleged specific facts about a single incident that involved minimal physical contact and plaintiff's other allegations were unsupported by specific factual allegations).
Because Plaintiff fails to plausibly allege severe and pervasive conduct, her sexual harassment claim is dismissed.
Plaintiff also asserts a retaliation claim against SHA for terminating her one month after she filed an EEOC charge. (Compl. at 4, 16.)
Title VII makes it unlawful to discriminate against any employee on account of the employee having "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation in violation of Title VII, a plaintiff must show that (1) she engaged in protected conduct, (2) she suffered an adverse action, and (3) that a causal link exists between the protected conduct and the adverse action. Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011).
Defendants argue that Plaintiff's retaliation claim should be dismissed because the SHA did not have sufficient notice of the alleged harassment. (Mot. Dismiss Mem. Supp., ECF No. 6-1 at 15.) This argument is misplaced, however, because Plaintiff's retaliation claim does not require that the SHA have had notice of the underlying alleged harassment. Rather, Plaintiff's retaliation claim requires only that the SHA have had knowledge of Plaintiff's protected activity. See Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) ("Since, by definition, an employer cannot take action because of a factor of which it is unaware, the employer's knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case.").
Further, the Court finds that Plaintiff sufficiently alleges retaliation in violation of Title VII. Plaintiff alleges that she filed an intake questionnaire with the EEOC regarding the alleged discriminatory conduct on July 5, 2016. See Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (stating that filing a complaint with the EEOC is a protected activity). In addition, Plaintiff alleges that she was involuntarily discharged on August 11, 2016. (Compl. at 6, 16.) See Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 775 (4th Cir. 1997) (recognizing that discharge is an adverse employment action). Finally, as to the third element, viewing the facts in the light most favorable to Plaintiff, the Court finds that the temporal proximity between Plaintiff's July EEOC filing and the August termination are close enough in time to establish a causal connection at this stage. See Cox v. U.S. Postal Serv. Fed. Credit Union, Civ. No. GJH-14-3702, 2015 WL 3795926, at *4 (D. Md. June 17, 2015) (finding a causal connection sufficient to state a claim for retaliation where the adverse action occurred two months after plaintiff engaged in the protected activity); Clarke v. DynCorp Intern. LLC, 962 F.Supp.2d 781, 790 (D. Md. 2013) (finding that a two month period between employee's EEOC charge and his termination was sufficient to create a weak inference that the charge led to the termination). Therefore, the Court denies Defendants' Motion to Dismiss with respect to Plaintiff's retaliation claim.
For the foregoing reasons, all claims are dismissed as to Defendant Pamela Jenkins-Dobson and Plaintiff's claims for failure to accommodate (Count I) and sexual harassment (Count II) are dismissed as to Defendant SHA pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). However, the Court finds that Plaintiff has stated a plausible claim for retaliation (Count III) under Title VII against Defendant SHA and thus denies Defendants' Motion to Dismiss with respect to that count.
