Arsham v. Mayor & City Council of Balt.

• Decision Date: 11 February 2015
• Docket Number: Civil No. JKB–14–2158.
• Citation: 85 F.Supp.3d 841
• Parties: Elie ARSHAM, Plaintiff v. MAYOR & CITY COUNCIL OF BALTIMORE, Defendant.
• Court: U.S. District Court — District of Maryland

85 F.Supp.3d 841

Elie ARSHAM, Plaintiff

v.MAYOR & CITY COUNCIL OF BALTIMORE, Defendant.

Civil No. JKB–14–2158.

United States District Court, D. Maryland.

Signed Feb. 11, 2015.

W. Scott Hannon, The Hannon Law Firm, LLC, Baltimore, MD, for Plaintiff.

Amy Beth Leasure, Baltimore City Law Department, Baltimore, MD, for Defendant.

MEMORANDUM

JAMES K. BREDAR, District Judge.

Pending before the Court is a motion to dismiss filed by the Defendant, the Mayor and City Council of Baltimore (the “City”). (ECF No. 14.) The City seeks dismissal in part of Plaintiff Elie Arsham's first amended complaint. (ECF No. 7.) The motion has been fully briefed (ECF Nos. 17, 20), and no hearing is required, Local Rule 105.6 (D.Md.2014). The motion will be granted in part and denied in part.

I. Background

Arsham's complaint alleges she was discriminated against in her employment in the City's Department of Public Works (“DPW”) “due to national origin or perceived national origin, gender, a hostile work environment, [and] disparate treatment.” (1st Am. Compl. ¶ 2.) Arsham also alleges she was subjected to unlawful retaliation and intentional or negligent infliction of emotional distress. (Id. ) She pleads three counts: Discrimination in violation of 42 U.S.C. § 2000e and “MD Code § 20–1013” (Count I), retaliation in violation of the same statutes (Count II), and intentional and/or negligent infliction of emotional distress (Count III). In its motion, the City advanced five grounds to support dismissal:

1. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. does not recognize a cause of action for discrimination based on “perceived national origin.”

2. Plaintiff's failure to comply with the Maryland Local Government Tort Claims Act bars her state law claims against the City.

3. Maryland law does not recognize a cause of action for negligent infliction of emotional distress.

4. Plaintiff failed to set forth a cognizable claim for intentional infliction of emotional distress under Maryland law.

5. No statutory provision exists with the citation “MD Code § 20–1013.”

(Def.'s Mot. Dismiss 1–2, ECF No. 14.)

In her response, Arsham acknowledged that her claim of negligent infliction of emotional distress is not a viable claim under Maryland law and stipulated to its dismissal, while reserving argument on her claim of intentional infliction of emotional distress (“IIED”). (Pl.'s Opp'n 4, ECF No. 17.) As to the City's fifth enumerated ground for dismissal, Arsham clarifies she is citing the section found in the State Government Article of the Maryland Code (Pl.'s Opp'n 8–9), and the City acknowledges that clarification but argues her “perceived national origin” claim also fails under the Maryland statute for the same reason the City argues it fails under Title VII (Def.'s Reply 6, ECF No. 20). Finally, in the City's reply, it withdraws its second point pertaining to exhaustion under the Maryland Local Government Tort Claims Act because the City concedes Arsham acted to provide it with the requisite notice of her claims. (Def's Reply 1.) As a result of these acknowledgements and concessions, the only points to be addressed by the Court in this opinion are the first and fourth enumerated grounds.

II. Standard of Dismissal for Failure to State a Claim

A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679, 129 S.Ct. 1937. As the Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555, 127 S.Ct. 1955. “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.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955 ). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

III. Allegations of the Complaint

Arsham alleges she began her employment with DPW on August 8, 1988, and rose to the level of Engineer II before her employment was terminated on January 17, 2014. (1st Am. Compl. ¶ 7.) Arsham's last assignment was in the DPW's Surface Water Management Division of the Environmental Engineering Section of the Bureau of Water and Wastewater. (Id. ) During the course of her employment, she worked with Prakash Mistry, initially as colleagues; in March 2010, Mistry became her supervisor. (Id. ¶ 8.) Arsham alleges that Mistry's “discriminatory actions have been reinforced by the approval and oversight of his supervisor, Division Chief Ralph Cullison.” (Id. )

Before Mistry became Arsham's supervisor, he related in a conversation with her his speculation “that she was a member of the ‘Parsee’ ethnic group, and he expressed his disdain for the Parsee ethnic group at that time.” (Id. ¶ 9.) Arsham alleges she “researched the Parsee ethnicity and found it to originate in India, and through her belief it is one of the lower castes of Indian ethnic groups. Mr. Mistry is believed to be of Indian descent.” (Id. ¶ 10.) Arsham's “ethnic heritage is Persian (modern-day Iran).” (Id. )

Arsham alleges the relationship between Mistry and her had never been good, but it “deteriorated precipitously” after March 2010 when Mistry became Arsham's supervisor. (Id. ¶ 11.) She alleges she was treated differently from the manner in which similarly situated colleagues were treated. Males, employees of European descent, and African Americans were given benefits and treatment not given to Arsham. (Id. ¶ 12.) For example, Arsham was designated as an Engineer II, as was an African American male eight years junior to her at the job. (Id. ¶ 13.) When Arsham requested time off, her absence was treated as Leave Without Pay, and she “was written up” each time she requested time off. (Id. ) In contrast, when the African American male requested time off, his requests were granted without any punitive actions being taken. (Id. ) Further, Arsham was required to get this junior colleague's approval on her leave slips in Mistry's absence, as well as to report to him on all of her projects, causing her embarrassment and humiliation. (Id. ) Jackie McCullough, a Human Resources Representative, was specially assigned to keep track of Arsham's time, separate from any other employee in her division. (Id. )

Arsham states she suffered financially due to “[t]he accumulation of unpaid suspended days and forfeited vacation days in a policy that was not carried out against other, similarly situated co-workers.” (Id. ¶ 14.) Additionally, on several occasions, Mistry did not invite her “to project meetings where information would be shared and for which she was responsible, sabotaging any potential of success in her work.” (Id. ¶ 15.) She alleges she had to use “investigative efforts to simply find out about meetings taking place so that she would have the information necessary to do the job for which she was responsible.” (Id. ) Further, she was denied permission several times to visit job sites on projects for which she was responsible. (Id. ¶ 16.) “This sabotage of her efforts at success was not committed against other, similarly situated colleagues who were not female and believed to be Parsees.” (Id. ) Arsham also alleges she was, on more than one occasion, “questioned about her whereabouts when she stepped away from her desk,” unlike other similarly situated colleagues, and she attributes this disparate treatment to her gender and national origin and Mistry's expressed views about Parsee people. (Id. ¶ 17.) Mistry yelled at Arsham during meetings, causing her embarrassment and humiliation, and DPW management arranged for “the presence of security personnel for events where she was present, when in fact she had never shown any signs of violent behavior.” (Id. ¶ 18.)

Arsham filed an Equal Employment Opportunity Commission (“EEOC”) charge of discrimination on November 2, 2010. (Id. ¶ 19.) She also says that her claims of discrimination and disparate treatment were made known by her psychiatrist, Dr. O. Joseph Bienvenu, to DPW leadership via emails and telephone calls in which “he expressed his dire concern for the way Ms. Arsham was being treated by DPW. The situation did not improve, and to the contrary, deteriorated to the point where Ms. Arsham suffered a severe psychological episode/suicidal incident in July 2013, as a direct result of the harassment and discrimination she experienced at her rapidly deteriorating work environment.” (Id. )

Arsham also alleges that when her counsel requested a “right to sue” letter from the EEOC on October 3, 2013,

DPW agents undertook a campaign to terminate Ms. Arsham's employment by stockpiling “occasions” of unauthorized leave, culminating with that termination on January 17, 2014, ostensibly for violating the department's leave policy, but, in reality, a pretext for pushing her discrimination claims forward in the process. DPW's termination for cause has deprived her of retirement benefits she had rightfully earned for her many years of dedicated service to the City of Baltimore, had she not suffered this discrimination.

(Id. ¶ 20.)

IV. Analysis

A. Discrimination Based on Perceived National Origin

The City presents a...