Opinion
C/A 4:20-cv-3655-JD-KDW
03-30-2021
Alphonso Hammett, Plaintiff, v. Alejandro Mayorkas, Secretary, U.S. Department of Homeland Security, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West United States Magistrate Judge
This employment-related matter is before the court for issuance of a Report and Recommendation (“Report”) pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). Plaintiff Alphonso Hammett (“Hammett” or “Plaintiff”) began this litigation by filing a Complaint on October 16, 2020. ECF No. 1. With consent of Defendant, the Secretary of Homeland Security (“Defendant”),Plaintiff filed the operative Amended Complaint on January 21, 2021. Am. Compl., ECF No. 14. Plaintiff's Amended Complaint includes claims for gender-and race-based discrimination in violation of Title VII of the Civil Rights Act and for age-based discrimination in violation of the Age Discrimination in Employment Act (“ADEA”). Defendant was served and filed a Motion to Dismiss, or in the Alternative, for Summary Judgment, ECF No. 16, which is now before the court. Plaintiff opposes the Motion, ECF No. 17; Defendant filed a Reply, ECF No. 21. Having considered the parties' filings and applicable law, the undersigned recommends Defendant's Motion, ECF No. 16, be granted in part and denied in part, as discussed within.
Alejandro Mayorkas became Secretary of the Department of Homeland Security on February 2, 2021. Pursuant to Federal Rule of Civil Procedure 25(d) he is automatically substituted as Defendant in this matter.
I. Factual background
Taken in the light most favorable to Plaintiff, the non-moving party, the Amended Complaint sets out the following allegations:
Defendant has also submitted three “limited documents,” Def. Mem. 2 n.1, setting out additional facts: the declarations of Racquel Mahone and Mathew Williams, and the Dec. 28, 2020 EEOC Charge. As discussed within, the undersigned finds the declarations are not appropriately considered at this juncture.
Plaintiff, an African-American male who was 69 years old at the time of filing this case, has worked at the Federal Emergency Management Agency (“FEMA”) as a reservist Community Relations Specialist (“CRS”) since 2004. FEMA is an agency within the Department of Homeland Security. Am. Compl. ¶¶ 4-5. Plaintiff's base of operations is from his home in Williamsburg County, South Carolina, and he deploys to various areas affected by natural disasters. Id. ¶¶ 1, 6. Plaintiff alleges that in 2008 Defendant began assigning him to management duties that had the effect of promoting his job responsibilities and duties without promoting his pay grade and job title. Plaintiff submits he worked in a managerial capacity during “nearly half of his total deployments.” Id. ¶¶ 7-8. As detailed in his Amended Complaint Plaintiff indicates he “functioned in the roles of [CRS], CR Manager, CR Team Lead, Disaster Survivor Assistance (“DSA”) Specialist, and DSA Crew Lead” during various deployments from December 2008 through November 2017. Id. ¶ 9. Plaintiff alleges that, during this time, FEMA promoted “less qualified female non-African American employees, and younger employees, to managerial positions, while denying the opportunity to Plaintiff.” Id. ¶ 10.
In 2012, FEMA Deputy Administrator Richard Serino released a memorandum for all FEMA employees entitled “Change and Opportunity in Our Disaster Workforce.” According to the memo, FEMA would “begin offering DAEsthe opportunity to seek new appointments in the Reservist Program by applying for specific incident management positions within the FEMA Qualification System (FQS).” Am. Compl. ¶ 11. At that time, Plaintiff, a reservist, was required to re-apply for his job. Id. He applied “for the Crew Lead position because he had worked as a CR Manager and Crew Lead in several prior instances, was qualified, and also held the titles of ‘Coach' and ‘Evaluator.'” Id.
The Amended Complaint does not define “DAE.”
Plaintiff avers upon information and belief that in 2012 Defendant “began requiring the completion of a Task Book for candidates seeking promotion to Crew Lead positions. The decision to issue a Task Book was left to the discretion of supervisors.” Am. Compl. ¶ 12. Plaintiff alleges that many reservists, “including female, non-African American, and younger reservists, many of whom were less experienced, were ‘grandfathered in' to Crew Lead positions without having to complete Task Books.” Id. ¶ 13. Plaintiff was not grandfathered in even though he allegedly “was qualified and possessed more experience” than other applicants. Id. ¶ 14. Rather, FEMA management advised Plaintiff that the “only way he would be guaranteed employment was if he reapplied to FEMA as a Reservist. He accepted the position to ensure he would remain employed.” Id.
Beginning in 2012, Plaintiff avers he “repeatedly requested to his supervisors that he be formally moved into the ‘Crew Lead' position and that his compensation be commensurate with that title.” Am. Compl. ¶ 15. On October 26, 2016, Plaintiff emailed Racquel Mahone, Reservist Program Manager, about opening a Task Book for a Crew Lead position. Mahone responded by email that same day, indicating “she was the correct person for the inquiry, that there will be opportunities ‘in the near future,' and that Plaintiff was ‘listed for future progression.'” Id. ¶ 16.
The email itself is not part of the Amended Complaint and is not considered herein.
Plaintiff alleges that, over the next year, he witnessed “similarly situated colleagues who [were] given the opportunity to open Task Books and who were then promoted, including individuals with less than three years of experience at FEMA. These individuals were primarily younger than Plaintiff, primarily white, and primarily female.” Id. ¶ 17. As discussed below, Plaintiff's Amended Complaint includes details about several others he claims were similarly situated but treated differently. See id. ¶¶ 18-23. Plaintiff avers that, prior to 2018, Defendant “did not post open Crew Lead positions or advertise them in any way that would put employees on notice of the opportunity to apply. As a result, managers were able to hand-select their favorites for promotion, introducing opportunities for bias based on age, race, and sex.” Am. Compl. ¶ 33.
On October 8, 2017, Plaintiff sent a follow-up email to Mahone in which he asked her to again consider opening a Task Book for him. Id. ¶ 24. Plaintiff received no response to his email to Mahone, leaving him with no other option than to initiate the Defendant's Equal Employment Opportunity (“EEO”) process, which he did by contacting Defendant's EEO Counselor on November 16, 2017. Id. ¶¶ 25, 27. Plaintiff filed a complaint of employment discrimination on December 28, 2017, pursuing resolution through the EEO process. Id. ¶ 28. Plaintiff requested a hearing before an EEO Administrative Judge (“AJ”) on June 11, 2019; the AJ dismissed Plaintiff's complaint of employment discrimination in a June 11, 2020 decision. Id. ¶¶ 29, 30. On July 21, 2020, Defendant issued a final order dismissing Plaintiff's complaint of employment discrimination. Id. ¶ 31.
Plaintiff initiated his action in this court on October 16, 2020. ECF No. 1.
II. Legal standard and what will be considered at this juncture
Defendant styles his motion as a “Motion to Dismiss the First Amended Complaint, or in the Alternative, Motion for Summary Judgment.” ECF No. 16. Such a motion implicates the court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure, 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). In any event, the court 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.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Proc. § 1366 (3d ed. 2004).
Here, the court notes no answer has been filed and no scheduling order has yet issued. Accordingly, discovery has yet to begin. Based on the posture of this case, the undersigned finds it an appropriate exercise of discretion to consider the instant motion as one brought under Rule 12(b)(6) only. It would premature and inappropriate to convert the motion to one for summary judgment at this time. Accordingly, the court will not consider the proffered declaration of Racquel Mahone, which purports to provide additional information regarding factual allegations pleaded by Plaintiff, or the declaration of Defendant's Human Resource Specialist Matthew Williams, which provides select information in response to other allegations made by Plaintiff. ECF Nos. 162, 16-4. To the extent the EEOC Charge provides relevant information, it appropriately may be considered at the Rule 12(b)(6) stage without converting the motion to one for summary judgment. Bowie v. Univ. of Md. Med. Sys., No. CIV.A. ELH-14-03216, 2015 WL 1499465, at *6 (D. Md. Mar. 31, 2015) (granting Rule 12(b)(6) dismissal of plaintiff's employment claim as time-barred and considering the EEOC Charge and Right to Sue Letter as being “integral” to the decision). Should this matter proceed beyond Defendant's pleadings-based challenge at the motion-to-dismiss stage, the court and the parties will benefit from a developed factual record.
“A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). The court measures the legal sufficiency by determining whether the complaint meets the Rule 8 standards for a pleading. Id. The Supreme Court considered the issue of well-pleaded allegations, explaining the interplay between Rule 8(a) and Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly:
Federal Rule of Civil Procedure 8(a)(2) requires only “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.” While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . .550 U.S. 544, 555 (2007) (internal citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citing Twombly, 550 U.S. at 556)). When considering a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court is also to “‘draw all reasonable inferences in favor of the plaintiff.'” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (quoting Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). Although a court must accept all facts alleged in the complaint as true, this is inapplicable to legal conclusions, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). While legal conclusions can provide the framework of a complaint, factual allegations must support the complaint for it to survive a motion to dismiss. Id. at 679. Therefore, a pleading that provides only “labels and conclusions” or “naked assertion[s]” lacking “some further factual enhancement” will not satisfy the requisite pleading standard. Twombly, 550 U.S. at 555, 557. Further, the court “need not accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs., Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). At bottom, the court is mindful that a complaint “need only give the defendant fair notice of what the claim is and the grounds upon which it rests.” Coleman v. Md. Ct. of Apps., 626 F.3d 187, 190 (4th Cir. 2010) (internal quotation marks omitted).
“In deciding whether a complaint will survive a motion to dismiss, a court evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d at 448. However, if the court goes beyond these documents in considering a Rule 12(b)(6) motion, the court is considered to have converted the motion into one for summary judgment. Fed.R.Civ.P. 12(b), 12(d), 56. “Such conversion is not appropriate where the parties have not had an opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d at 448-49 (internal quotation and citation omitted).
Typically, “a defense based on the statute of limitations must be raised by the defendant through an affirmative defense, see Fed.R.Civ.P. 8(c), and the burden of establishing the affirmative defense rests on the defendant.” Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc). Courts generally do not “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses” through a Rule 12(b)(6) motion. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). However, “in the relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6). This principle only applies, however, if all facts necessary to the affirmative defense ‘clearly appear [] on the face of the complaint.'” Goodman, 494 F.3d at 464 (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993) (emphasis added in Goodman); accord Pressley v. Tupperware Long Term Disability Plan, 533 F.3d 334, 336 (4th Cir. 2009). “A defendant's statute of limitations affirmative defense can be raised in a 12(b)(6) motion to [dismiss]; however, it is seldom appropriate to do so.” El Hadidi v. Intracoastal Land Sales, Inc., No. 4:12-CV-00535-RBH, 2013 WL 625575, at *2 (D.S.C. Feb. 20, 2013).
III. Analysis
A. Pattern or practice theory
Defendant first seeks dismissal on the ground that Plaintiff's Amended Complaint is impermissibly based on a “pattern or practice” theory-one available only in the class-action context. Def. Mem. 10 (citing cases for the proposition that individual plaintiffs are not permitted to bring “pattern or practice” suits outside the class-action setting). In response, Plaintiff does not dispute the principle of law set out by Defendant. Rather, he argues that his “claim of discrimination is not limited to a ‘pattern or practice' theory[,]” and indicates he is bringing a claim of “direct, or intentional, discrimination” for his own benefit, not on behalf of a class. Pl. Mem. 89. On Reply, Defendant notes that the issue is not whether Plaintiff needs to bring a class action- he does not. Rather, the issue is whether Plaintiff can prove his individual discrimination case based on “pattern or practice” evidence, that is, a claim seeking to “address systemic discrimination against a protected group.” Reply 2 (citing Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 55960 (4th Cir. 1998) vacated on other grounds, 527 U.S. 1031 (1999)).
Defendant is correct that a private plaintiff cannot maintain a Title VII “pattern or practice” claim outside of a class action setting. See Lowery, 158 F.3d at 761; Cole v. Marlboro Cnty. Sheriff's Off., No. CV 4:19-1287-SAL-KDW, 2020 WL 8611026, at *8 (D.S.C. Oct. 22, 2020), report and recommendation adopted, No. 4:19-1287-JD, 2021 WL 638913 (D.S.C. Feb. 18, 2021); Quinn v. S.C. Dep't of Transp., No. 818CV01876HMHJDA, 2019 WL 7040608, at *9 (D.S.C. Nov. 21, 2019), report and recommendation adopted, No. CV 8:18-1876-HMH-JDA, 2019 WL 7037456 (D.S.C. Dec. 20, 2019). Accordingly, to the extent Plaintiff purports to bring a “pattern or practice” claim alleging systemic discrimination against protected groups, the motion should be granted. By this recommendation, the undersigned is not suggesting wholesale dismissal of Plaintiff's individual claims of employment discrimination-those brought for himself and based on evidence of his own treatment. As the Fourth Circuit noted in Lowery, a Plaintiff may still “use evidence of a pattern or practice of discrimination to help prove claims of individual discrimination within the McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)]framework.” 158 F.3d at 760-61.
Plaintiffs in employment cases may establish discrimination using direct evidence or the familiar burden-shifting scheme established in McDonnell Douglas, 411 U.S. 792. Once a plaintiff establishes a prima facie case the burden shifts to the defendant to rebut the presumption of discrimination by articulating a nondiscriminatory reason for its actions. The ultimate burden is then on plaintiff to prove the proffered reason is pretext for unlawful discrimination. See generally id.
B. Timeliness
Next, Defendant seeks dismissal of all claims that arose before October 2, 2017, asserting they are time-barred based on applicable administrative-exhaustion statutes and regulations. Def. Mem. 10-15. October 2, 2017 is 45 days before Plaintiff's initial contact with an EEO Counselor (on November 16, 2017). Am. Compl. ¶ 27. Pointing to actions he took well prior to his November 2017 contact with the EEO Counselor, Plaintiff argues that the “continuing violation doctrine” applies to make timely his claims that predate October 2, 2017. Pl. Mem. 9-12.
1. Exhaustion requirements
Before filing suit under Title VII, a plaintiff must first exhaust his administrative remedies by filing a timely charge of discrimination with the EEOC. 42 U.S.C. § 2000e-5(e)(1). The exhaustion requirement is not jurisdictional, but it is a “mandatory claim-processing rule” that is required prior to bringing suit in federal court. Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1851 (2019). A court must enforce the rule if a party properly raises it.” Id. at 1846. These time limits are “subject to waiver, estoppel and equitable tolling.” 29 C.F.R. 1614.604(c). For purposes of a Title VII claim, a federal employee such as Plaintiff “must initiate contact with [an EEO] Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the date of the action.” 29 C.F.R. § 1614.105(a)(1); see 42 U.S.C. § 2000e-16(c); Eneje v. Gonzales, No. CV-9:04-1695-SB, 2007 WL 1068176, at *5 (D.S.C. Mar. 30, 2007) (noting that, in Title VII context, an employee “first must contact an EEO Counselor within 45 days of the alleged discriminatory event.”) (citing 29 C.F.R. §§ 1614.105(a)(1)), aff'dsub nom. Eneje v. Keisler, 251 Fed.Appx. 154 (4th Cir. 2007)). Although not noted by either party, the ADEA permits a party to follow the same process as that for Title VII claims or the employee “‘can decide to present the merits of his claim to a federal court in the first instance' without going through the administrative process.” Corrigan v. Hood, 836 Fed.Appx. 184, 185 (4th Cir. 2021) (quoting Stevens v. Dep't of Treasury, 500 U.S. 1, 5-6, (1991) (internal citations omitted)).” “[T]o sue directly in federal court, [the employee] must notify the EEOC of his intent to sue within 180 days following the alleged discriminatory action and then observe a 30-day waiting period before filing suit. Corrigan, 836 Fed.Appx. at 185 (citing 29 U.S.C. § 633a(d)).
Here, Plaintiff's pleading does not distinguish between his Title VII and ADEA claims, indicating he “pursued resolution through the EEO process,” noting his November 16, 2017 contact with an EEO Counselor, his December 28, 2017 Complaint of Employment Discrimination, his June 11, 2019 request for a hearing before an EEOC Administrative Judge, and Defendant's July 21, 2020 Final Order dismissing his Complaint of Employment Discrimination. Am. Compl. ¶¶ 27-31. While Plaintiff argues his claims should be considered timely, his memorandum addresses the timeliness issue in the context of the within-45-days-of-contact-with-an-EEO-counselor requirement. Pl. Mem. 9. As Plaintiff never suggests he was pursuing his ADEA claim directly in federal court, the requirement of contacting an EEO Counselor “within 45 days of the date of the matter alleged to be discriminatory” is considered applicable herein.
2. Timeliness of Plaintiff's claims
Defendant seeks dismissal of any claims by Plaintiff that arose before October 2, 2017- 45 days before Plaintiff's November 16, 2017 contact with an EEO Counselor. Other claims, Defendant argues, are untimely and subject to dismissal.
a. The continuing violation doctrine
In National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114-15 (2002), the Supreme Court considered the continuing violations doctrine in determining when Title VII claims would be considered to be timely filed, and distinguished between “discrete” discriminatory or retaliatory acts such as “termination, failure to promote, denial of transfer, or refusal to hire[,]” and hostile work environment claims, whose “very nature involves repeated conduct.” The discrete acts of discrimination-including failure to promote-are considered to have “occurred” the day they “happened.” Id. at 110, 114. “Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice” and “starts a new clock for filing charges alleging that act.” Id. at 113-14 (internal quotation omitted). A discrete discriminatory act is not actionable if time-barred, even if it relates to acts that are timely. Id. at 113.
Defendant anticipates Plaintiff's reliance on the continuing violation doctrine, arguing it does nothing to rescue Plaintiff's claims from as far back as 2008 to October 2, 2017. Def. Mem. 13-15. In response, Plaintiff argues the discriminatory behavior at issue in this case began in 2008 and continued to within 45 days of his EEO contact. Pl. Mem. 9. Plaintiff claims that, prior to 2018, Defendant “did not post open Crew Lead positions or advertise them in any way that would put employees on notice of the opportunity to apply.” Pl. Mem. 9; Am. Compl. ¶ 33. Plaintiff notes the 2012 change in policy that began requiring those seeking management appointments within FEMA to apply for promotions to Crew Lead positions through completing “Tasks Books.” Am. Compl. ¶¶ 11-12. Plaintiff alleges this discriminated against him. Id. ¶¶ 12-14. Plaintiff generally claims that “[f]rom 2012 to the present” he “repeatedly requested to his supervisors that he be formally moved to the ‘Crew Lead' position.” Id. ¶ 15. Plaintiff notes his October 26, 2016 email to Reservist Program Manager Mahone, in which he inquired about opening a Task Book for a Crew Lead position.” Id. ¶ 16; see Pl. Mem. 9. Plaintiff claims he was “reliant on [Mahone] to allow him to open a Task Book.” Pl. Mem. 9. Plaintiff notes Mahone's same-day response to his email in which she advised Plaintiff that she [Mahone] was the proper person to whom to address the inquiry, that there would be opportunities “in the near future,” and that Plaintiff was “listed for future progression.” Id.; Am. Compl. ¶ 16. Plaintiff claims that, over the following year, he witnessed similarly situated FEMA employees with less experience be promoted. Id. ¶ 17. Then, on October 8, 2017 Plaintiff sent Mahone a follow-up email again asking that she consider Plaintiff to open a Task Book for him. He received no response, prompting him to initiate the EEO process. Id. ¶¶ 24-25.
More specifically regarding the continuing violation argument, Plaintiff submits that the “systematic and repeated denial of the opportunity to open a Task Book is the sort of continuing violation to which this doctrine is intended to provide redress.” Pl. Mem. 12. However, the Fourth Circuit addressed a quite similar argument in Williams v. Giant Food Inc., 370 F.3d 423 (4th Cir. 2004), and found it unavailing. In Williams, the court found Plaintiff's “background allegations of systemic discrimination,” while permissible only for the purpose “helping prove claims of individual discrimination” would not operate to “change the nature of the discrete claims she asserts such that the [continuing violation rule in] Morgan should not apply.” 370 F.3d at 430 n.3 (“The question here is whether Williams's background allegations of systemic discrimination change the nature of the discrete claims she asserts such that the Morgan rule should not apply. We answer that question in the negative.”). Plaintiff's allegation that, beginning in 2012, he “repeatedly requested” to be moved into a Crew Lead position, Am. Compl. ¶ 15, does not suffice to make discrete failure-to-promote allegations into “continuing violations” that reach back to 2012 based on Plaintiff's unspecific claim of generally requesting to be promoted. The Motion to Dismiss should be granted as to claims that predate Plaintiff's October 26, 2016 email exchange with Mahone.
b. Equitable estoppel as to claims between October 26, 2016 and October 2, 2017 The undersigned separately considers the time-period between the October 26, 2016 email exchange and October 2, 2017 based on Plaintiff's argument that he entitled to equitable estoppel based on Mahone's October 2016 assertion that he was “already ‘listed for future progression.'” Pl. Mem. 10. Citing briefly to Lorenzo v. Rumsfeld, 456 F.Supp.2d 731, 738 (E.D. Va. 2006), aff'd sub nom. Lorenzo v. Gates, 225 Fed.Appx. 165 (4th Cir. 2007), Plaintiff seems to argue that equitable principles should excuse his failure to initiate the EEO process around the time of Mahone's October 26, 2016 email response in which she advised him that he had been “listed for further progression.” Pl. Mem. 10. Without clearly focusing on a specific equitable doctrine, Plaintiff submits Mahone's response to him was a “misrepresent[ion]” that she would allow him to open a Task Book and that it was reasonable for him to rely on her response, making it “sufficient to excuse a delay in his contacting the EEO counselor.” Pl. Mem. 11. On Reply, Defendant objects to Plaintiff's use of his brief to “inject new, belated accusations to excuse his failure to timely initiate the EEOC process.” Reply 5.
As an initial matter, Defendant is correct that Plaintiff may not amend his pleading based on statements in his legal memorandum. See El Hadidi, 2013 WL 625575, at *8 (noting that the plaintiff raised a new allegation in response to a motion to dismiss, but that the court may only look to the allegations of the complaint in ruling on a 12(b)(6) motion to dismiss). Nonetheless, although the Amended Complaint does not use the word “misrepresent” particularly, for purposes of considering this argument, the court finds that a reasonable reading of the Amended Complaint indicates Plaintiff believed he was appropriately awaiting action by Mahone as of October 26, 2016. E.g. Am. Compl. ¶ 26 (indicating Plaintiff “realized Mahone was ignoring his efforts to open a Task Book and seek a promotion”). This is not to say necessarily, though, that Plaintiff has presented sufficient averments to equitably toll his delayed EEO.
Equitable tolling as discussed in Lorenzo would not seem to apply herein. As the court explained,
[E]quitable tolling of the filing deadline has been allowed “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.” Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990); see Chao v. Va. Dept. of Transp., 291 F.3d 276, 283 (4th Cir. 2002). As the Fourth Circuit has recognized, the equitable tolling exceptions are truly narrow, thus, “the government cannot be estopped from asserting the . . . time limit as a defense ‘if plaintiff has made no showing of affirmative misconduct on the part of the government, which is the least the court would require, even if that would suffice, to rely upon estoppel.'” Nealon v. Stone, 958 F.2d 584, 589 (4th Cir. 1992). Mindful of their limited applicability, it is pellucidly clear that neither of the equitable tolling exceptions apply here because
Lorenzo did not file any defective pleading during the statutory period, nor has he adduced that any misconduct by the defendant caused his dilatoriness. As Lorenzo has not provided any evidence that equitable tolling applies, and as the equitable tolling exceptions are truly narrow, Lorenzo's complaint must be dismissed.Lorenzo, 456 F.Supp.2d at 738.
Other Fourth Circuit precedent explains, however, that an EEO filing period may be equitably tolled based upon “actions that the employer should unmistakably have understood would cause the employee to delay filing his charge,” and “employer conduct likely to mislead the employee into sleeping on his rights.” Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965 (4th Cir. 1982). Construing all facts in the light most favorable to Plaintiff, Mahone's response to the October 2016 email arguably might have “misled” Plaintiff into “sleeping on his rights.” On this record, however, Plaintiff has not concretely established entitlement to equitable tolling of the period between October 26, 2016 and October 2, 2017. Rather, it is recommended that Defendant's Motion to Dismiss be denied as to this period and the matter proceed to discovery. It is far from clear whether discovery will bear out facts to support equitable tolling for this time-frame. Nonetheless, this is an issue that will benefit from an appropriate discovery period. Stated another way, “the court does not preclude further consideration of the applicability of the law of equitable tolling to the evidence in this case, upon a more complete record at a later juncture.” Adinolfi v. N. C. Dep't of Just., No. 5:18-CV-539-FL, 2020 WL 1490700, at *4 (E.D. N.C. Mar. 24, 2020) (denying motion to dismiss certain claims so that parties could pursue issue of whether employer's actions might have caused employee to “sleep on his rights” in filing EEOC charge).
In summary, the undersigned recommends a finding that Defendant's motion to dismiss certain of Plaintiff's claims as untimely should be granted as to all claims that predate October 26, 2016-the date of the email to Mahone. As to claims on or after October 26, 2016 through October 2, 2017, the motion to dismiss as untimely should be denied so that the parties may pursue discovery related to whether equity should permit those claims to proceed.
As discussed within, it is recommended that Defendant's Motion be dismissed and discovery go forward as to claims from October 2, 2017 forward. Judicial economy indicates that full discovery should take place back through the October 2016 time period. Stated another way, should the district judge adopt this recommendation discovery should proceed in full as to October 2016-forward. Discovery from the October 2016 to October 2017 timeframe ought not be limited to issues related to equitable relief from the limitations period.
C. Failure to state a claim
Next, Defendant seeks dismissal of Plaintiff's claims pursuant to Rule 12(b)(6), arguing Plaintiff's allegations are merely conclusory and do not permit a plausible conclusion that he was the subject of discriminatory animus. More specifically, Defendant argues Plaintiff has proffered no direct evidence of discrimination and that his comparator evidence is insufficient to survive a motion-to-dismiss challenge. Def. Mem. 16-21.
Defendant also argues summary judgment is appropriate as to any denial-of-promotion claim of October 8, 2017. Def. Mem. 18-21. As noted above, however, the court declines Defendant's invitation to consider the declarations submitted to provide the additional evidence on which Defendant relies. Summary judgment as to any issue is premature and should be denied.
To survive a motion to dismiss, a plaintiff must plead enough factual allegations “to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The purpose of a Rule 12(b)(6) motion is to “test the sufficiency of a complaint,” not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)). Thus, when considering a motion to dismiss, a court must consider the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. King, 825 F.3d at 212. When considering a Title VII or an ADEA case, “an employment discrimination plaintiff need not plead a prima facie case of discrimination” to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002). Instead, plaintiff is “required to allege facts to satisfy the elements of a cause of action created by that statute.” McCleary-Evans v. Md. Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir. 2015). Title VII prohibits an employer from discriminating against “any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race . . . [or] sex . . . .” 42 U.S.C. § 2000e-2(a)(1). Similarly, the ADEA protects against discrimination based on one's age. 29 U.S.C. § 623(a)(1). Accordingly, at this Rule 12(b)(6) stage, the court's inquiry is whether Plaintiff alleges facts that plausibly state a violation of Title VII or the ADEA “above a speculative level.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (quoting Twombly, 550 U.S. at 555); see also McCleary-Evans, 780 F.3d at 585-86.
Although proof of a prima facie case is not required at this juncture, the prima facie elements are instructive. The elements of a prima facie case of discrimination under Title VII are: (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class. Coleman, 626 F.3d at 190 (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)). The ADEA prima facie requirements are similar. See Baquir v. Principi, 434 F.3d 733 (4th Cir. 2006).
Plaintiff has pleaded his satisfactory job performance, noting his numerous deployments at which he was “entrusted [] with supervisory and management responsibilities far beyond his paygrade.” See Pl. Mem. 5 (citing Am. Compl. ¶ 9). Defendant's challenges to the pleading focus on the alleged lack of valid comparators (similarly situated employees) and the lack of application for specific open positions.
1. Comparators
Defendant argues Plaintiff's allegations regarding purported comparators are insufficient to survive a motion-to-dismiss challenge. See Def. Mem. 15-18. In response, Plaintiff points to the following portions of his Amended Complaint as providing detail for his allegations that “FEMA promoted less-qualified female employees, non-African American employees, and younger employees to managerial positions such as Crew Lead while denying the same opportunity to Plaintiff[,]” Pl. Mem. 5 (citing Am. Compl. ¶¶ 10, 13, 17)):
18. Charles Thomas is a white male in his 20's holding the position of Disaster Survivor Assistant (a position below Plaintiff's position of CRS) whom Plaintiff trained. In 2017, Defendant opened a task book for him and made him a crew lead, despite the fact that he had only been an employee of Defendant for three or four years.
19. Dean Diggs is a younger (about 50) black male holding the position of CRS. In 2017, Defendant opened a task book for him and made him a crew lead, even though he had less experience than Plaintiff.
20. Vera Newsome is a black female holding the position of CRS who was permitted to open a task book in 2016 and was made a Crew Lead in 2017.
21. Ouida Romious is a black female holding the position of CRS who was permitted to open a task book in 2016 and was made a Crew Lead in 2017.
22. George Odum is a black male holding the position of CRS who was about 40 and who was permitted to open a task book in 2016 and made a Crew Lead in 2017. Plaintiff trained Odum.
23. There were numerous white females who were given the opportunity to open task books and then apply for promotion to Crew Leads throughout all relevant times, including the period from 2016 and 2017. Because of the nature of FEMA's temporary assignments responding to natural disasters, Plaintiff's contact with these individuals was short-term, and he does not recall their names. However, discovery would show that they were given opportunities for advancement to Crew Lead that Plaintiff was denied.Am. Compl. ¶¶ 18-23.
On Reply Defendant argues dismissal is appropriate because Plaintiff did not allege that his supervisor [whom Defendant identifies as Ms. Mahone] was the same supervisor as any of the specific comparators Plaintiff has identified. Reply 7-9.
Certainly, a showing of substantial similarity typically requires a showing that the would-be comparators dealt with the same decisionmakers. See, e.g., Hurst v. D.C., 681 Fed.Appx. 186, 193 (4th Cir. 2017) (affirming grant of summary judgment because, inter alia, plaintiff has not demonstrated comparators dealt with the same supervisor). Although it is true that Plaintiff's pleading does not specifically identify the names of the supervisors for Thomas, Diggs, Newsome, Romious, or Odom, the undersigned is of the opinion that such specific detail is not fatal to the sufficiency of his pleading. Plaintiff has pointed out his need for additional discovery. See Am. Compl. ¶ 23. Further, construing all facts in the light most favorable to Plaintiff, he has pleaded that one way he was treated disparately was by not being permitted to even open a task book. His allegations concerning specific comparators indicate they did open task books. He further indicates that, in her reply email sent in October 2016, Mahone advised Plaintiff she was the proper person to whom he should address inquiries regarding the opening of tasks books and potential promotions.
While it is far from certain that discovery will bear out facts regarding other FEMA employees that will make them be considered similarly situated comparators for purposes of Plaintiff's Title VII or ADEA claims,the undersigned is of the opinion that he has set forth enough to satisfy Rule 8's requirement of having made a plausible claim. Defendant's quest for dismissal based on the failure to provide appropriate comparators (or otherwise plausibly plead discrimination beyond a speculative level) should be denied. Again, such argument may again be raised after discovery is concluded.
The undersigned acknowledges Defendant's argument on Reply that Plaintiff's defense of his comparators indicates Plaintiff is pursuing an “intersectionality theory” of discrimination-that is that Plaintiff is attempting to create a “super-protected category of ‘race + gender + age' to bypass” what Defendant construes as deficiencies in Plaintiff's proposed comparators. Reply 10-11. Because no response to the Reply was appropriate, Plaintiff has not advised the court whether he, in fact, is pursuing such a “super-protected category.” The undersigned does not find it to be clear from Plaintiff's pleading that he is pursuing such a “super-protected category.” In any event, based on the undersigned's recommendation that Plaintiff's pleading passes muster at the Rule 12(b)(6) stage, the court need not consider this issue further at this time. In future filings, however, Plaintiff may advise the court regarding whether he is pursuing such a theory.
2. Specific promotion opportunities
Defendant also seeks dismissal because Plaintiff has not adequately pleaded specific promotions for which he applied and was refused. Defendant correctly notes that, in order to establish a failure-to-promote claim an employee typically must establish that there was an available position and he unsuccessfully applied for it. Def. Mem. 20 (citing cases). As the Fourth Circuit noted in Williams, “[i]f an employer has a formal system of posting vacancies and allowing employees to apply for such vacancies, an employee who fails to apply for a particular position cannot establish a prima facie case of discriminatory failure to promote.” Williams, 370 F.3d at 430 (citations omitted). In such cases, “the employee's general requests for advancement are insufficient to support a claim for failure to promote.” Id. However, “[o]n the other hand, if the employer fails to make its employees aware of vacancies, the application requirement may be relaxed and the employee treated as if she had actually applied for a specific position.” Id. at 431 (citing Mauro v. S. New England Telecomms., Inc., 208 F.3d 384, 387 (2d Cir. 2000), inter alia). In Mauro, the Second Circuit noted that the application requirement did not apply where “the plaintiff indicated to the employer an interest in being promoted to a particular class of positions, but was unaware of specific available positions because the employer never posted them.” 208 F.3d at 387. Further, “requiring the plaintiff to show that he or she applied for the specific jobs at issue would be unrealistic” where the employer did not post the vacancy, “as an employee by definition cannot apply for a job that he or she does not know exists.” Mauro, 208 F.3d at 387.
Here, Plaintiff asserts his Amended Complaint contains sufficient allegations to set out plausible statutory violations based on his having been “denied a task book, a prerequisite for promotion to Crew Lead, and denied the opportunity for promotion to Crew Lead itself.” Pl. Mem. 5 (citing Am. Compl. ¶ 16). Plaintiff effectively concedes Defendant's argument that he failed to apply for specific, open Crew Lead positions. Pl. Mem. 7. Rather, he submits that his claim is about an over-arching sort of issue-his being denied the opportunity to open a Task Book, which is necessary for promotion. Id. Plaintiff specifically alleges that, prior to 2018 [which includes the time frame under consideration] “Defendant did not post open Crew Lead positions or advertise them in any way that would put employees on notice of the opportunity to apply.” Am. Compl. 33. This, Plaintiff submits, permits a plausible conclusion that FEMA employees were hand-selected for promotion, providing evidence of discriminatory intent. Pl. Mem. 7.
The undersigned is of the opinion that Plaintiff has provided sufficiently specific evidence to survive Defendant's Motion to Dismiss. As Plaintiff explains, he is unable to provide specifics based on the manner in which FEMA handled task books and promotions. As the Williams court noted, “[o]nly an employee who knew about an upcoming promotion selection could avail [him]self' of the promotion process. 370 F.3d at 431. The court found that, “even if Giant Food's promotion selection policy was open and apparent to its employees, Williams might still establish a prima facie case if she can show that she was unaware of promotion opportunities because the company did not follow its own policy in her stores.” Id.
Similarly, here, the undersigned is of the opinion Plaintiff's Amended Complaint presents a plausible claim without including detailed specifics regarding positions that were actually available during the time at issue. As the court in Williams noted, an employee could not apply for a position of which he was unaware. 370 F.3d at 431. At this juncture, the court offers no opinion as to whether Plaintiff will be able to present viable discrimination claims concerning his claimed attempts to seek promotions by way of seeking to begin the task-book process. The court does, however, find it appropriate that Plaintiff should be permitted to pursue discovery as to the claims he raises (for the time subsequent to his October 26, 2016 email).
IV. Conclusion and recommendation
For the reasons set forth above, it is recommended that Defendant's Motion to Dismiss, ECF No. 16, be granted as to Plaintiff's claims preceding October 26, 2016, as those claims are untimely. Further, Defendant's Motion should be granted to the extent Plaintiff seeks to allege a “pattern and practice” claim regarding alleged systemic discrimination against protected groups. Defendant's Motion should be denied in all other respects as detailed above.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”