Opinion
Civ. No. JFM99CV508.
November 5, 1999.
MEMORANDUM
Plaintiff Karl Byrd has instituted this employment discrimination suit against his employer, the Baltimore Sun, and his union, the Baltimore Graphic Communications Union No. 31. Plaintiff alleges employment discrimination and hostile work environment in violation of both Title VII and § 1981 and § 1981(a), and retaliation in violation of Title VII. Plaintiff has also asserted common law tort claims of intentional infliction of emotional distress, defamation, and negligent supervision and retention. Both defendants have filed motions to dismiss each of plaintiff's claims under Fed.R.Civ.P. 12(b)(6). For the reasons that follow, defendants' motions to dismiss both the federal and state law claims will be granted.
Plaintiff has filed a second amended complaint without obtaining either leave of court or the consent of the Sun or the Union. Fed.R.Civ.P. 15(a) prohibits him from doing so, and his second amended complaint is stricken. Plaintiff has also just filed a motion for leave to file a third amended complaint. That motion clearly is untimely given the fact that briefing on defendants' motions to dismiss was completed many months ago. To the extent that plaintiff seeks to assert any new claims in the proposed third amended complaint not addressed by this opinion, he may file a new action.
I.
Plaintiff is an African-American male employed by the defendant Baltimore Sun. He is a member of the defendant Union. He has worked for the Sun and has been a member of the Union since 1979. On October 30, 1997, plaintiff requested the annual copy of his work record, and found what he alleges to be a false report of insubordination from his supervisor. Plaintiff communicated his displeasure and scheduled a meeting with the Sun's Director of Human Resources and the other involved parties. At the January 21, 1998 meeting, plaintiff was informed by the Director of Human Resources that she had found that plaintiff was not the victim of false accusations. On March 26, 1998, the Union informed plaintiff that it would not be acting on plaintiff's behalf with regard to the false report complaint.On August 20, 1998 plaintiff filed a complaint with the EEOC. On November 20, 1998, the EEOC issued a Dismissal and Notice of Rights Letter stating that it had not found a violation of plaintiff's statutory rights. On February 22, 1999, plaintiff filed the instant complaint with this court. On March 10, 1999 plaintiff was told that he was being demoted because of a "continuing failure to support and follow simple management directives." Pl.'s Compl. at paragraph 89. On March 18, 1999 plaintiff filed a grievance with the Union and on May 1, 1999 plaintiff filed another administrative charge with the EEOC alleging retaliation with the EEOC.
II.
In ruling upon a motion to dismiss, a court must view the complaint in the light most favorable to plaintiffs and consider all factual allegations as true. See 5A Charles Allen Wright Arthur R. Miller, Federal Practice and Procedure § 1357 (2d ed. 1990). In order to state a claim, a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) The complaint is intended to provide the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957). However, even under this liberal pleading standard, a plaintiff cannot withstand a Fed.R.Civ.P. 12(b)(6) motion if he fails to "set forth enough details so as to provide defendant and the court with a fair idea of the basis of the complaint and the legal grounds claimed for recovery." Karpel v. Inova Health System Services, 134 F.3d 1222, 1227 (4th Cir. 1998). In the Title VII arena, "conclusory allegations of discrimination and harassment do not state a claim upon which relief can be granted." Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (dismissing an employment discrimination claim under Title VII, §§ 1981 and 1983 for failure to state a claim).
III.
It is well established that a plaintiff in a Title VII suit must file charges with the EEOC within 300 days of an alleged act of racial discrimination. See e.g., Causey v. Balog, 929 F. Supp. 900, 907 (D. Md. 1996), aff'd, 162 F.3d 795 (4th Cir. 1998). Alleged discriminatory incidents that occur outside this statutory period can only be redressed by a court if the incidents are found to be part of a "continuing violation." See Delaware State College v. Ricks, 449 U.S. 250 (1980). In order to allege a continuing violation, a plaintiff must claim either that he has been the victim of an ongoing discriminatory system or that he was been the victim of a related series of discriminatory incidents.See e.g. Jenkins v. Home Insurance Co., 635 F.2d 310 (4th Cir. 1980) (holding that company's alleged sexually discriminatory wage scale could form basis for claim of continuing violation over employee's tenure); Soble v. University of Maryland, 572 F. Supp. 1509 (D. Md. 1983), aff'd, 778 F.2d 164 (4th Cir. 1985) (finding that a series of promotion denials was not a continuing violation).
In his amended complaint, plaintiff refers to a "continuous pattern" of discrimination. Pl.'s Am. Compl. at paragraph 93. However, the incidents set forth in plaintiff's complaint, taken as true, do not constitute a continuing violation. At most, plaintiff has claimed that he has been subjected to several, discrete instances of hostility over the past fourteen years. Therefore, none of the incidents that occurred outside the statutory period can be the subject of the instant claim. The only allegations that are not time-barred are the alleged retaliatory demotion of March 10, 1999 and the alleged incident of October 30, 1997 on which plaintiff's initial EEOC charge was based.
IV.
In Count I, plaintiff alleges that he has been the victim of employment discrimination and an abusive and hostile work environment in violation of Title VII. In order to withstand a motion to dismiss, a plaintiff alleging Title VII employment discrimination must make factual allegations sufficient to show that, based upon impermissible racial considerations, the conditions of his employment were adversely affected. See Gairola v. Commonwealth of Virginia, Department of General Services, 753 F.2d 1281, 1286 (4th Cir. 1985).
Though the allegations concerning the false report are timely, they fall woefully short of setting forth a viable employment discrimination claim under Title VII. Pl.'s Am. Compl. at paragraphs 68-81. Plaintiff has failed to allege that his race played any role whatsoever in the filing of the alleged false report or in the Union's response to plaintiff's grievance. Even if plaintiff's supervisor did place a bogus complaint in plaintiff's work record, as plaintiff alleges, plaintiff has not alleged any facts demonstrating that the supervisor was motivated by racial animosity. The allegation of Title VII employment discrimination is of the wholly conclusory nature that cannot withstand a 12(b)(6) motion to dismiss. See Simpson 900 F.2d at 35.
Plaintiff has also failed to state a claim for hostile work environment under Title VII. He has failed to allege facts that even begin to suggest that he was harassed because he is African-American and that the alleged race-driven harassment was "sufficiently severe or pervasive to 'alter the conditions of the victim's environment and create an abusive working environment.'"Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 67 (1986).
V. A.
The Sun contends that this court lacks subject matter jurisdiction over the retaliation claim because plaintiff has filed a new charge of retaliatory discrimination with the EEOC. The Sun argues that, because the EEOC has not yet completed its investigation, plaintiff has yet to exhaust his administrative remedies and his retaliation charge is not properly before this court. Typically, a Title VII plaintiff may not advance new claims against a defendant before he allows the EEOC to conduct an investigation and communicate with the defendant. However, the Fourth Circuit has held that a plaintiff who alleges retaliation need not file a second EEOC charge and "may raise the retaliation claim for the first time in federal court." Nealon v. Stone, 958 F.2d 584, 589 (4th Cir. 1992). Therefore, this court is not without jurisdiction over plaintiff's retaliation claim.
B.
In order to set forth a prima facie case of retaliation under Title VII, plaintiff must allege that he engaged in a protected activity, that the Sun took an adverse employment action against him, and that the protected activity was causally connected to the adverse employment action. See Beall v. Abbott Labs., 130 F.3d 614, 618 (4th Cir. 1997). Here, plaintiff has failed to allege in sufficient detail a causal connection between his protected activity (the EEOC complaint and instant lawsuit) and any adverse employment action taken by the Sun. See Pl.'s Am. Compl. at paragraphs 87-91, 93-94, 99.
Plaintiff simply alleges that, sixteen days after he filed the instant complaint with this court, he was demoted for reasons of which he had no prior notice. In Count I of his complaint, plaintiff never states that the demotion of March 10 was retaliatory. At most, he alleges the demotion was surprising and short on explanation. While plaintiff concludes that he has been subjected to retaliatory discrimination based upon race and his filing of complaints with the EEOC and in federal court, he never alleges with any particularity that his demotion was in retaliation for his protected activity. Conclusory averments are not sufficient to withstand a motion to dismiss. See Simpson, 900 F.2d at 35. Accordingly, plaintiff's retaliation claim must be dismissed.
VI.
In order to set forth a viable § 1981 claim, plaintiff must allege facts that tend to show intentional or purposeful discrimination. See General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982). Here, plaintiff's claim asserted in Count II fails on the same grounds as his claims of employment discrimination. Again, the conclusory nature of plaintiff's § 1981 claim fails to satisfy the standard of pleading established by the Fourth Circuit precedent. See Karpel, 134 F.3d at 1227.
VII.
Since I am dismissing all of plaintiff's federal claims, I will decline to exercise supplementary jurisdiction over his state law claims. See 28 U.S.C. § 1367(c)(3).
A separate order effecting the rulings made in this Memorandum is being entered herewith.