Ferdinand–davenport v. the Children's Guild.

Citation742 F.Supp.2d 772
Decision Date06 October 2010
Docket NumberCivil No. CCB–10–850.
PartiesNa'Imah FERDINAND–DAVENPORTv.The CHILDREN'S GUILD.
CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)

OPINION TEXT STARTS HERE

Jerry L. Williams, III, Patel and Williams PLLC, Arlington, VA, for Plaintiff.Thomas H. Strong, Venable LLP, Baltimore, MD, for Defendant.

MEMORANDUM

CATHERINE C. BLAKE, District Judge.

Na'imah Ferdinand–Davenport (“Davenport”) brought this employment discrimination action against her former employer, The Children's Guild (“TCG”). Davenport alleges pregnancy discrimination in violation of the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), codified as part of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et. seq. ; Title 20 of the Maryland State Government Article; 1 and Article 4 of the Baltimore City Code. Now pending before the court is TCG's motion to dismiss. The issues have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, the defendant's motion will be granted in part and denied in part.

BACKGROUND

The plaintiff, a licensed social worker, began employment with TCG in the position of Clinician/Social Worker on November 6, 2007. After her hiring, Davenport consistently received positive reviews regarding her performance from her supervisor, Monte Ephraim, and she was promoted to the position of Admissions Coordinator on August 14, 2008. Two days after she received this promotion, Davenport informed TCG that she was pregnant. She reports no immediate adverse effects of this announcement. (Compl. ¶¶ 10–13.)

On October 20, 2008, when Davenport was approximately five months pregnant, her supervisor, LaMar Williams, notified her that her position might be eliminated as a result of low student enrollment. Although the defendant's Human Resources Director, John Moore, received an email confirming the elimination of the plaintiff's position on November 10, 2008, he did not convey this information to Davenport until November 17, 2008. At that time, Mr. Moore and Mr. Williams informed Davenport that she could apply to two available social worker positions with TCG: (1) a position at a school in Annapolis (“the Annapolis position”) and (2) a position at a group home in Baltimore City (“the Baltimore position”). ( Id. at ¶¶ 14–18.)

Davenport was not the only employee affected by TCG's layoffs. She acknowledges that seven or eight other employees lost their jobs at the same time she was discharged. ( Id., Ex. A.) One, Linda Turner, was also a social worker, but Ms. Turner was not pregnant at the time these events occurred. She had been hired by TCG as a Clinician on October 6, 2008. Ms. Turner was not told that her position was in jeopardy until October 31, 2008, almost two weeks after Davenport received the same information. Davenport alleges TCG “then” offered Ms. Turner the Baltimore and Annapolis positions and provided her an opportunity to tour both facilities.2 ( Id. at ¶¶ 20–23.) Ms. Turner was “transferred” to the Annapolis position on November 17, 2008. ( Id. at ¶ 25.)

During the evening of November 17, 2008, the day Davenport was informed of the Baltimore and Annapolis positions, she left a message with Human Resources Director John Moore advising him she was interested in the Annapolis position. ( Id., Ex. A.) When Davenport spoke with Kelly Grant, a TCG Human Resources Recruiter, on November 18, 2008, Ms. Grant informed Davenport she would have to interview for the position because there was another candidate. Mr. Moore told Davenport that two TCG executives, Terry Manny and Ellery Joyeau, controlled the process for filling the Annapolis position. At approximately 6:00 p.m. on November 18, Ms. Grant informed Davenport that Ms. Turner had secured the Annapolis position. ( Id. at ¶¶ 27–29.) Davenport was never provided with an opportunity to interview for the position.

The following day, Ms. Grant inquired about Davenport's interest in the Baltimore position. Davenport did not assert her interest in the position at that time, but rather told Ms. Grant that she would make a decision by the next morning. Ms. Grant was not available when Davenport called at 8:00 a.m. on November 20, 2008, and Davenport left a message requesting more information about salary and benefits for the Baltimore position. When they next spoke at approximately 10:00 a.m. on November 20, 2008, Ms. Grant informed Davenport by telephone that an outside candidate had filled the Baltimore City position. ( Id. at ¶¶ 30–32.)

Davenport filed a charge with the Equal Employment Opportunity Commission (“EEOC”) and the Baltimore City Community Relations Commission on November 24, 2008, alleging discrimination on the basis of sex and pregnancy in TCG's failure to hire her for one of the available social worker positions. ( Id., Ex. A.) The EEOC issued a Notice of Right to Sue on January 13, 2010. ( Id., Ex. B.) The complaint alleges that TCG discriminated against Davenport in violation of Title VII (Count I), Article 20 of the Maryland State Government Article (Count II), and Article 4 of the Baltimore City Code (Count III) by unlawful discharge, denying fair access of the employment process, and denying equal terms and conditions of employment on the basis of pregnancy.

ANALYSIS
I. Rule 12(b)(1)

The defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). TCG argues, however, that the plaintiff failed to exhaust her administrative remedies. Motions to dismiss for failure to exhaust administrative remedies are governed by Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction.” Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D.Md.2003). Accordingly, the defendant's motion will be treated as a motion to dismiss for lack of subject matter jurisdiction for the purpose of this argument. See Fed.R.Civ.P. 12(b)(1); Jones v. Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir.2009) (explaining that “a failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim”).

A motion pursuant to Federal Rule of Civil Procedure 12(b)(1) should be granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (internal quotation marks and citation omitted). The plaintiff bears the burden of proving that subject matter jurisdiction exists. Piney Run Preservation Ass'n v. County Commissioners of Carroll County, Maryland, 523 F.3d 453, 459 (4th Cir.2008). When considering a Rule 12(b)(1) motion, the court should “regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Evans, 166 F.3d at 647 (internal quotation marks and citation omitted).

A. Count I: Discriminatory Discharge in Violation of Title VII

The plaintiff's right to bring suit under Title VII is limited by the charge of discrimination she filed with the Equal Employment Opportunity Commission. Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir.2002). She may bring only those claims that “can reasonably be expected to follow” from the administrative investigation of this charge. Id. (quoting Chisholm v. United States Postal Service, 665 F.2d 482, 491 (4th Cir.1981)). TCG contends that Davenport's claim for discriminatory discharge should be dismissed because she failed to challenge her discharge in her charge of discrimination. (Def.'s Mot. Dismiss at 5.) By her failure to respond to this argument, the plaintiff abandons any discriminatory discharge claim. See Mentch v. Eastern Savings Bank, FSB, 949 F.Supp. 1236, 1247 (D.Md.1997) ([Plaintiff] abandoned her harassment claim by failing to address that claim in her opposition to [defendant's] motion for summary judgment, or to offer clarification in response to [defendant's] reply brief.”). Even if Davenport had not abandoned this claim, dismissal would be appropriate because an administrative investigation would not reasonably be expected to unearth evidence of discriminatory discharge. Davenport failed to claim discriminatory discharge in her charge, alleging only discriminatory failure to hire. She also “acknowledge[d] that The Children's Guild has laid off at least seven or eight other employees....” (Compl., Ex. A.) Accordingly, Davenport's Title VII claim will be considered only under a theory of discriminatory failure to hire.

B. Count II: Title 20 of the Maryland State Government Code

TCG argues that Davenport's claims under Title 20 of the Maryland State Government Article must be dismissed because she failed to file a complaint with the Maryland Commission on Human Relations (“MCHR”). Maryland law permits a complainant to bring a civil claim under Title 20 only if “the complainant initially filed a timely administrative charge or a complaint under federal, State, or local law alleging an unlawful employment practice by the respondent and “at least 180 days have elapsed since the filing of the administrative charge or complaint.” Md.Code Ann., State Gov't § 20–1013(a).

TCG acknowledges Davenport filed a charge with the EEOC and Baltimore City Community Relations Commission, but contends this is insufficient to satisfy the requirements set forth by Maryland law. In support of this argument, TCG notes that only a complainant may bring a claim under Title 20, and section 20–101 defines a complainant as “a person that files a complaint alleging a discriminatory act under this title.” Md.Code Ann., State Gov't § 20–101(c). According to TCG, this requires filing a complaint with the “Commission,” meaning the MCHR. See Md.Code Ann., State Gov't § 20–101(b) (defining “Commission” as “the Commission on Human Relations).

Maryland law permits [a]ny person claiming to be aggrieved by an alleged discriminatory act” to “file a complaint with the...

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