Kiah v. American Sugar Refining, Inc., No. 1:2010cv02663 - Document 15 (D. Md. 2011)
Court Description: MEMORANDUM OPINION. Signed by Judge William D Quarles, Jr on 6/15/11. (bmh, Deputy Clerk)
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FILED U.S. DISTRICT COUffiilJ THE UNITED STATES DISTRICT COURT FOR DISTRICT OF tiAft~tfusTRICT OF MARYLAND, NORTHERN DIVISION 2011JUN I b A 11: 2 2 I * DANA LATAE KIAH, CLERK'S OFFICE * AT h~~lOiRff, * r.C":)llTY By-------.-",'-. -, v. CIVIL NO.: WDQ-10-2663 * AMERICAN SUGAR REFINING, INC., * Defendant. * * * * * * * * * MEMORANDUM Dana Latae Kiah sued American Sugar") for sex discrimination Act of 1964 ("Title VII").l Sugar's motion I. to dismiss * * * * Inc. ("American * OPINION Sugar Refining, under Title VII of the Civil Rights For the following reasons, American will be denied. Background2 American Baltimore Sugar manufactures refinery. Compl. sugar products ~ 3. working there as a temporary In January packaging clerk. and maintains a 2007, Kiah began Id. ~ 5.3 In Septem- ber 2007, at the end of American Sugar's fiscal year, her job ended. Id. Sugar re-offered 1 In January 42 U.S.C. 2008, American 55 2000e her the position, et seq. For American Sugar's motion to dismiss, the well-pled allegations in the complaint are accepted as true. See Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). 2 3 Kiah is 31 and completed ECF No.5, Ex. A. two years of college. See Compl. ~ 2; ,------------------------ ---- -----_._- which she accepted. id. 10. c:n In American management April Id. She worked Sugar's packaging positions. Id. 2008, Kiah applied position, which c:n 9. overtime every week. See only males hold department, Sometime between for an open permanent is a management job. See id. January packaging clerk 6, 9. In April c:nc:n 2008, a male was hired for that job. employee, was required to train him, and his performance deficient. See id. hired because criminal Id. In September temporary 2. 7. Kiah, a temporary was that she had not been accused her of having a 8. c:n Id. 10. c:n She was not rehired. 2008, Kiah called Equal Employment c:n had falsely c:n 2008, at the end of the fiscal year, Kiah's job ended. In October Decl. 2 Kiah later learned a supervisor record. Id. and Opportunity the Baltimore office Commission relief. of the (the "EEOC"). about available She inquired Id. at 4. Kiah Id. She was told that she could complete an online or paper intake questionnaire which an EEOC official Id. c:nc:n 3-4. Kiah was also told that if it appeared been discriminated against, office and sign papers Id. 3-5. c:nc:n charge would review and interview her by telephone. she would "have to come to the EEOC which would be prepared Kiah was "not informed of discrimination" within that by the EEOC." [she] had to sign a a certain 2 that she had time. Id. c:n 6. That --_.- month, she submitted an EEOC questionnaire the EEOC would use the information charge" for her to sign. messages. Id. On January online, to prepare 4 believing a "statement that of Kiah Decl. 1 ~ 2. The EEOC did not respond She called many numbers --------------------, to Kiah's questionnaire. listed on the EEOC website No one returned her call. 6, 2009, Kiah "picked ~ 3. Id. and left Id. out a name" from the EEOC website and e-mailed Denise Bean, an EEOC Senior Federal Mediator. Id.; ECF No.8, claim online Ex. 2. replied "First in contacting EEOC officials, help" on how to proceed. with Kiah's charge Charge Number") . sidered the matter ination." Chandler, Chandler that she had "filed a some time ago[, but] never heard any response," been unsuccessful need[ed] Kiah explained Id. twice, official. received and "really The next day, Bean which ends with an "N" The "N" means to be an inquiry, Kiel Decl. ~ 3. another number, Id. had (the that the EEOC "con- [not] a charge of discrim- Bean also told Kiah to call Nicole ECF No.8, no answer, Ex. 2. Kiah called and left a message. Id.; Kiah Decl. 1 ~ 5. In January identical letter. 4 2009, Kiah received a paper to the October 2008 online version, Id. ~ 6; ECF No.8 Kiah has no copy. at 2-3. Kiah Decl. questionnaire and an accompanying She "promptly" 1 ~ 2. 3 intake completed it and mailed Kiah Decl. 1 ~ 6.5 it to the EEOC. Kiah was assigned (the "Second another charge Charge Number"), Sometime number, because after submitting It appears that also ending with an "N" of this questionnaire.6 the second questionnaire, Kiah called the EEOC several times for a status update, "heard nothing," and moved. Kiah Decl. 1 ~ 7; see In November because 2009, Kiah began working she cannot work overtime, than she did at American In March or April Kiah Decl. 2 ~ 7. represents to obtain Sugar. In April where, she earns significantly Compl. less ~ 10. for an attorney. 2010, she hired the attorney See id.; ECF No.8, a status update and needed who Ex. 3. a right to sue letter. her to Monica 27, 2010, Kiah sent Jackson requested for a company 25, 2010, Kiah told Bean that she had been unable The next day, Bean referred April Ex. 5. 2010, Kiah began searching her in this case. On April ECF No.8, a right to sue letter. Jackson. her First Charge ECF No.8, Ex. 4. Id. Number Id. On and They later Kiah has no copy. Kiah Decl. 1 ~ 6. Kiah asserts that the EEOC "may have mailed a. . notice of minimally sufficient charge [in connection with the First Charge Number]" to American Sugar at this time, and requests discovery on this issue. ECF No. 8 at 5. American Sugar asserts that the "EEOC did not notify [it of Kiah's allegations until after] June 14, 2010." ECFNo. 10 at 6. As will be discussed in Part II.B and n.16, this dispute need not be resolved. 5 ECF No.8, Ex. 6 (Kiah's June 2, 2010 e-mail to an EEOC representative that she had been given the Second Charge Number at some point). 6 4 ----------------------------------, spoke by phone, and Kiah was asked to "search for a copy of the completed At the end of April another official questionnaires. questionnaire." or beginning need[ed [the] process." ECF No.8, Jackson, Ex. 5. stating move. Id. ECF No.8, on with replied and Kiah packed after her that she could find only the January 2009 paper questionnaire. On June 2, 2010, Bean suggested Kiel, the Baltimore paperwork, that remained The next day, Kiah replied the letter accompanying EEOC office's that Kiah contact director Kiel about her unsuccessful status of her case. ECF No.8, had lost her paperwork, attempts Ex. 6. Id.7 Gerald and custodian Ex. 6; Kiel Decl. ~ 2. mailed of That day, Kiah eto determine the She noted that the EEOC and her attorney needed her right to sue Id. On June 14, 2010, Kiah filed a discrimination the Maryland 7 that she That day, Jackson for Kiah's search her own belongings that day. or Ex. 6. her right to sue letter to] continue should letter. 1 ~ 7. of May 2010, Jackson Kiah Decl. 1 ~ 10; see ECF No.8, that she was "still checking" records. Kiah Decl. told Kiah that the EEOC had lost her completed On May 10, 2010, Kiah e-mailed "really [her] own records Commission ECF No.5, on Human Relations, Ex. A. Kiah has lost this letter. The charge which the EEOC received is assigned ECF No. 8 at 3. 5 charge with the Second Charge Number without the "N." Id. issued Kiah a right to sue letter. On September to dismiss On October or for summary 30, 2010, Kiah opposed 2010, American Sugar under Title 20, 2010, American Sugar ECF NO.5. ECF NO.8. Sugar filed its reply. On November On December ECF No. 10. 15, On June 2, ECF No. 14. Analysis A. Standard Under of Review Fed. R. Civ. P. 12(b) (6), an action may be dismissed for failure to state a claim upon which relief Rule 12(b) (6) tests the legal sufficiency does not "resolve a claim, contests and plain is entitled statement 248 F.3d 321, 325-26 onerous," element Presley v. City of Int'l, (4th Cir. 2001). must allege of the claim advanced. Co., 324 F.3d 761, 764-65 only a that the pleader v. Rowe Price-Fleming Rule 8's notice-pleading the plaintiff of (4th Cir. 2006). of the claim showing Migdal but the facts, the merits in mind that Rule 8 (a) (2) requires to relief." Although can be granted. of a complaint, of defenses." 464 F.3d 480, 483 The Court bears "short surrounding or the applicability Charlottesville, Inc., ~ 1. judgment. that motion. 2011, Kiah filed a surreply. II. Compl. 25, 2010, Kiah sued American VII for sex discrimination. moved On June 30, 2010, the EEOC requirements are "not facts that support Bass v. E.I. Dupont (4th Cir. 2003). 6 These each de Nemours facts must be & sufficient face." to "state a claim to relief that is plausible Bell Atlantic Corp. v. Twombly, on its 550 U.S. 544, 570 (2007) . To present a facially do more than "plead[] defendant's plausible facts that are liability"; for the misconduct Ct. 1937, 1949 complaint entitled 8 (a) (2) (2009) inference alleged." (quoting Twombly, Id. at 1950 v. Iqbal, is 129 S. 550 U.S. at 557). The the plaintiff is (quoting Fed. R. Civ. P. ) . "[W]he[n] the well-pleaded facts do not permit infer more than the mere possibility plaint a the that the defendant Ashcroft must with' "allow[] must not only allege but also "show" to relief. a plaintiff 'merely consistent the facts as pled must court to draw the reasonable liable complaint, has alleged--but entitled to relief." of misconduct, it has not show[n]--that Id. (citation and internal the court to the com- the pleader quotation is marks omitted) . The Court "should view the complaint able to the plaintiff," allegations," (4th Cir. Mylan mere[] Labs., couched 478 U.S. 265, 286 7 F.3d 1130, 1134 is "not bound to accept as a factual allegation," (1986), or "allegations conclus[ions] , unwarranted deductions 7 favor- as true all well-pleaded Inc. v. Matkari, 1993), but the Court legal conclusion Allain, and "accept in a light most as true a Papasan that are of fact, or v. unreasonable Cir. 2002) inferences," Veney v. Wyche, 293 F.3d 726, 730 (citation and internal B. American Sugar's Kiah asserts remedies. Compl. Motion quotation to Dismiss that she timely marks omitted). or for Summary exhausted (4th Judgment her administrative ~ 1. 1. Title VII Filing Requirements A Maryland Title VII claimant must file a discrimination charge with the EEOC within 300 days of the alleged discrimination. See 42 U.S.C. 5 2000e-5(e) (1); Skipper F. Supp. 2d 490, 492 the claim failure (D. Md. 2002). is time-barred, 393 charge means may be dismissed The filing of a timely pre-requisite that, like a statute of limitations, tolling." An untimely and the complaint to state a claim.s not a jurisdictional v. Giant Food, Inc., 187 for EEOC charge is to suit, but "a requirement is subject to . Zipes v. Trans World Airlines, . equitable Inc., 455 U.S. 385, (1982). 2. The Parties' In moving Arguments to dismiss, filed her discrimination parties charge agree that because male as permanent American packaging Sugar asserts too late. the alleged that Kiah ECF NO.5 at 1. The discrimination--hiring clerk instead of Kiah--occurred a in S McCullough v. Branch Banking & Trust Co., 35 F.3d 127, 131 (4th Cir. 1994); Pantry Pride Enters., Inc. v. Glenlo Corp., 729 F.2d 963, 965 (4th Cir. 1984); Aquino-Diggs v. Potter, No. CC8-051325, 2006 WL 5402740, at *1 (D. Md. Mar. 9, 2006). 8 April 2008, she had until between 2009 to file a charge. ECF No.5, to follow-up 3. Equitable Equitable where--due Tolling tolling tolled is available the party and gross injustice Hutchinson, 209 F.3d 325, 330 Period rare instances to the party's to enforce she relied at 4.9 in "those external that unsuccessfully ECF NO.8 of the Filing to circumstances because 24, She Kiah asserts and consistently, on her case. -it would be unconscionable against Ex. A. should be equitably on the EEOC's misinformation attempted 26 and February See id. at 3; ECF No. 14 at 2. filed on June 14, 2010. the filing period January own conduct- the limitation would period result." (4th Cir. 2000). Harris v. In determining whether the filing period should be tolled, courts "should conduct a thorough examination Bern Police Dep't, of the facts." v. City of New 813 F.2d 652, 654 (4th Cir. 1987). "might be warranted in cases involving governmental charged complaints." Harvey agency Poteat v. Mack bad advice with enforcing Tolling from the discrimination Trucks Inc., No. 96-1437, 1997 WL 33117, at *4 (4th Cir. Jan. 28, 1997). When an EEOC representative her charge, equitable misleads a plaintiff tolling may be granted concerning if the plaintiff: Kiah does not argue that either of the lost questionnaires is a charge. An EEOC intake questionnaire is a charge "if the document reasonably can be construed to request agency action and appropriate relief on the employee's behalf." Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 404 (2008) 9 9 (1) (2) diligently pursued her claim; was misinformed or misled by the administrative agency responsible for processing her charge; relied on the misinformation or misrepresentations of that agency, causing her to fail to exhaust her administrative remedies; and was acting pro se. (3) (4) Walton 2006) v. Guidant Sales Corp., (citation and internal a. Diligent 417 F. Supp. 2d 719, 721 quotation In October omitted). Pursuit It appears that Kiah diligently claim. marks 2008, within pursued her sex discrimination the requisite filing period, called the EEOC and completed the online questionnaire ed. Kiah Decl. 2 ~~ 2-3. several phone calls, a representative ~ 3; ECF No.8, referred Decl. 1 ~ 5. left unreturned messages, need[ed] Ex. 2 (Jan. 6, 2009 e-mail official the requisite called the EEOC several Id. ~ 7. filing period. Id. as instruct- and explained help." ~ 6.10 1 She was her calls. Kiah questionnaire Al though times about her case status, Thus, it does not appear to Kiah Decl. to Bean) . who did not answer she to it, she made In January 2009, she completed another within responded. When no one responded that she "really to another (D. Md. Kiah no one that Kiah sat idle 10 Although American Sugar asserts that the EEOC "has no records of having received that document," ECF NO.8 at 1-2, the Court infers that she submitted it because the Second Charge Number apparently assigned to that questionnaire matches the charge number assigned to Kiah's June 14, 2010 EEOC charge, ECF No.5, Ex. A. Further, it is reasonable to infer that Kiah lost a copy of this questionnaire during her move. 10 during the limitations Kiah continued period.11 to inquire Even after the filing period, about the progress of her case until at least June 2, 2010,12 when she was finally referred and submitted on June 14. a discrimination ECF No.8, charge to Kiel, less than two weeks Ex. 6; ECF No.5, later Ex. A. b. Misinformation It also seems that the EEOC continuously about its administrative October office. responses charging documents charge within Further, her for an interview, and/or that she would have to sign at the Kiah avers that that she had to file a discrimination 300 days. Id. the EEOC's responses ~ 6. for a right to sue letter she was unaware in would review her Kiah Decl. 1 ~ 2; Kiah Decl. 2 ~~ 4-5. she was not informed requests and contact Kiah When Kiah called the agency 2008, she was told that an official questionnaire prepare process. misinformed to Kiah's April support and May 2010 her assertion that she had to file an official charge. that See 11 See, e.g., Nadesan v. Tex. Oncology PA, No. 2:10-CV-239-J, 2011 WL 14757 0, at * 6 (N.D. Tex. Jan. 18, 2011 ) ( plaint iff failed to show diligent pursuit because, inter alia, she did not assert that "she attempted to contact the EEOC after submitting her questionnaire to check on the status of her case") . 12 Kiah Decl. 1 ~ 7 (averring that she "attempted to contact [the] EEOC by telephone a number of times [to] find out about progress in processing [her] claim, but heard nothing"); ECF No. 8, Ex. 3 (Apr. 25, 2010 e-mail to Bean); ECF No.8, Exs. 4-5 (Apr. 27 and May 10, 2010 e-mails to Jackson); ECF No.8, Ex. 6 (June 2, 2010 e-mail to Kiel) . 11 ECF No.8, Exs. 3-5. Kiah was told that the EEOC was "still checking" for her questionnaires, records. ECF No.8, Ex. 5 (May 10, 2010 e-mail Thus, Kiah may have reasonably believed questionnaires tion, and signature. to follow" would be: and she should also search (1) sufficient the EEOC's administrative from Jackson). that once found, her administrative (2) used by the EEOC to prepare There is no indication her a charge exhaust- for her that Kiah "purposely declined procedures.13 c. Reliance It also appears formation that Kiah's reliance on the EEOC's misin- caused her to miss the filing deadline. that she "was not informed that She has averred [she] had to sign a charge discrimination within 300 days of the discriminatory Decl. 2 ~ 6.14 She has also averred that she "relied act." of Kiah upon the EEOC to do what [she] had been informed the EEOC would do, namely prepare the document for [her] signature that would appropriately further [her] claim of discrimination." Id. This is consistent Atkinson-Bush v. Bait. Wash. Med. Ctr., Inc., No. L-10-2350, 2011 WL 2119042, at *2-*3 (D. Md. May 25, 2011) (dismissing employment discrimination claims for failure to exhaust administrative remedies; "the [Maryland Commission on Human Rights had informed the plaintiff], explicitly and on multiple occasions, of what she must do to file a charger, and] that her decision not to do so meant that it would not pursue her case") . 13 See Walton, 417 F. Supp. 2d at 721 (because plaintiff "attest[ed] throughout that he knew [the date of the EEOC's filing] deadline," he "did not act in reliance on any alleged misrepresentation in missing" it (emphasis omitted)). 14 12 with her averments and January that she promptly 2009 questionnaires, the EEOC would complete responses. completed presumably its administrative the October anticipating process 2008 that based on her Kiah Decl. 1 ~ 2, 6; Kiah Decl. 2 ~ 2. d. Pro Se Status Kiah was pro se during Only in March or April representation, Accordingly, motion in light of Kiah's and previous of the filing period consider Kiah's period. searching for lawyer diligence, in April reliance pro se status, is warranted, 2010. on the equitable and the Court will June 14, 2010 charge timely.16 to dismiss ~ 7. Id. Ex. 3.15 misinformation, tolling 2010 did she begin and she hired her current Id.; see ECF No.8, EEOC's the limitations American Sugar's will be denied. 15 See, e.g., Marsteller v. Alex. Brown & Sons, Inc., No. Civ. 3:95CV147, 1995 WL 795679, at *2 (E.D. Va. May 11, 1995) (that plaintiff was represented during the filing period "underscore [d the court's] determination that [he had] failed to establish a sufficient reason for not filing charges with the EEOC in a timely fashion") . 16 Thus, the parties' dispute about whether the EEOC mailed American Sugar a minimally sufficient discrimination charge in 2009 need not be resolved. 13 III. Conclusion For the reasons dismiss stated above, American Sugar's motion to will be denied. ~ ~ S/II DaU iam D. Quarles, Jr. ted States District Judge 14
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