Murphy v. Adams et al, No. 8:2012cv01975 - Document 77 (D. Md. 2014)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/4/14. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : ANTOINETTE MURPHY : v. : Civil Action No. DKC 12-1975 : SHIRLEY ADAMS, PRESIDENT OF THE AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES LOCAL 2250, ET AL. : : MEMORANDUM OPINION Presently employment pending and discrimination ready case is for resolution the motion for in this summary judgment filed by Defendants Shirley Adams, President of the American Federation of State, County, and Municipal Employees Local 2250, and the Executive Board of the American Federation of State, County, and Municipal Employees Local 2250 ( AFSCME 2250 ). (ECF No. 59). Also pending are the third motion to compel filed by Plaintiff Antoinette Murphy (ECF No. 60), the amended motion for extension of time filed by Plaintiff (ECF No. 63), and the motion to strike filed by Defendants (ECF No. 69). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to compel will be denied. The motion for an extension of time will be granted, but the motion to strike will be denied. The motion for summary judgment will be granted in part and denied in part. I. Background1 Plaintiff was a bus driver for Prince George s County public schools. She was a member of Defendant AFSCME 2250, of which Adams Defendant Plaintiff s file collective grievances on is the President. bargaining her behalf. agent AFSCME and Plaintiff is designated is 2250 to alleges that Mr. Bernard Palmer, an employee of the school system and Plaintiff s supervisor, subjected harassment. Specifically, Mr. Palmer forced Plaintiff to meet with him on supervision a to Plaintiff to quid pro quo daily basis throughout the course control and intimidate her and sexual of his threatened Plaintiff with termination if she did not give in to his sexual advances. He reprimanded her and pulled her off assignments. Mr. Palmer would tell other men on the job that he wanted to have sex with Plaintiff. President of AFSCME 2250, Plaintiff informed Mr. Faith Jones, about Mr. Palmer s behavior.2 On September 24, 2009, Mr. Jones told Plaintiff that if she gave 1 Unless otherwise noted, construed in the light most nonmoving party. 2 the facts outlined here favorable to Plaintiff, are the Plaintiff designates both Mr. Jones and Ms. Adams as the President of AFSCME. It is not clear whether one succeeded the other or whether Plaintiff is correct as to the status of Mr. Jones or Ms. Adams. 2 him what he wanted, then Mr. Palmer would be putty in her hands. Mr. Jones laughed and told Plaintiff to just give him some. (ECF No. 2 ¶ 14; ECF No. 59-3, letter from Plaintiff to Mr. Richard Putney, AFSCME 2250 s Executive Director). That same day, Plaintiff had a meeting with Mr. Putney and Ms. Adams to discuss a variety of complaints, including her foremen not giving her proper work, her coworkers constantly lying to her, and the harassment she was experiencing. (ECF No. 59-2, at 19- 20, Trans. 114:19 115:8, Plaintiff Dep.). Plaintiff stated that she did not characterize Mr. Palmer s behavior as sexual, only that he constantly wanted to be with her in an abnormal manner that made her feel very uncomfortable and constituted harassment in her mind. (Id. at 21, Trans. 116:1-9). Mr. Putney stated that Plaintiff needed to file harassment charges and Ms. Angela Thomas (an employee of AFSCME 2250) needed to get the paperwork ready. Plaintiff was unsure exactly what the union was planning to do, however. She told Mr. Putney to file a harassment ; she did not ask him to file a sexual harassment grievance, and Mr. Putney did not indicate he was going to file such a grievance. Plaintiff states that AFSCME 2250 would not take or file a grievance on Plaintiff s behalf. The school system intentional and discrimination against AFSCME were resulted Plaintiff, in in including concert many adverse suspension 3 and the employment without pay, actions verbal reprimand, consisted consistently of sitting poor in Mr. evaluations, Palmer s and training division all that day and reading a manual. On January 12, 2010, Plaintiff, attempting to get help from her union, explained to Mr. Jones that she had been sent home unfairly by Mr. Palmer before she started her run. Mr. Jones laughed and told her that she needed to calm down. Plaintiff responded that she was tired of the constant harassment from her supervisors and that the union needed to step in and properly represent her. Palmer likes Plaintiff Mr. Jones then told Plaintiff that I told you you, responded just that give she it to was responded that he was not kidding. him not and it kidding. will Mr. stop. Jones Later that day, Mr. Jones kept suggesting that I [Plaintiff] give into Mr. Palmer and just fix him up. This will all go away. (ECF No. 59-3, at 2). Plaintiff states that she would call AFSCME 2250 whenever Mr. Palmer wanted to meet with her alone. She states that Ms. Thomas and Mr. James Spears would tell her just to go ahead and meet with him alone, and whatever he gives you or whatever he tells you, then bring that back to the union and they will deal with it. (ECF No. 66-2, at 13-14, Trans. 252:13 253:18). At some point AFSCME 2250 informed Plaintiff that it would not file a grievance on behalf of Plaintiff in regard to Mr. Jones s comments. Ms. Wanda Newman and Ms. Shirley Breeze, members of 4 the union s executive board, were given responsibility for the matter, but told Plaintiff approach this matter. On July 3, that they did not know how to (Id. at 16-17, Trans. 281:1 282:4) 2012, Plaintiff filed a complaint against Defendants Adams, AFSCME 2250, and the Board of Education of Prince George s County. The complaint contains a claim of Sexual Harassment Hostile Work Environment Retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2. take action second count Vicarious alleges Plaintiff alleges that Defendants refused to following of her Liability that Mr. Plaintiff s complaint in numerous alleges violation Palmer would not of complaints. Sexual Title have Harassment VII. taken The Plaintiff the tangible employment actions against her had Defendants interceded on her behalf. Defendants Adams and AFSCME 2250 filed a motion to dismiss, which this court denied by Memorandum Opinion and Order on January 31, 2013. (ECF Nos. 14 and 15). Defendant Board of Education of Prince George s County filed a motion to dismiss for improper service, which was granted on March 1, 2013. Nos. 25 and 26). On January 17, 2014, after a (ECF period of discovery, Defendants Adams and AFSCME 2250 filed a motion for summary judgment. 3, 2014. (ECF No. 59). A response was due by February On February 2, 2014, Plaintiff filed a motion for extension of time. That motion was denied without prejudice 5 subject to renewal for failure to comply with Local Rule 105.9. On February 20, 2014, Plaintiff renewed her motion for extension of time to file her response to March 1, 2014. No. 63). (ECF Defendants opposed this motion on March 10, 2014. (ECF No. 67). summary an Plaintiff filed her opposition to Defendant s judgment motion on March 1, 2014. (ECF No. 65). Defendants filed a motion to strike Plaintiff s opposition on March 14, 2014. (ECF No. 69). Plaintiff responded on April 1, 2014 (ECF No. 72), and Defendants replied on April 18, 2014 (ECF No. 76). February Plaintiff filed a motion to compel depositions on 2, 2014. February 21, 2014. II. (ECF No. 60). Defendants responded on (ECF No. 64). Analysis A. Motion to Compel Plaintiff filed a motion to compel Defendants to produce witnesses for depositions and to impose sanctions on Defendants. Discovery in this case was originally scheduled to close on July 15, 2013. Plaintiff requested an extension which was granted, setting the new deadline at September 5, 2013. Plaintiff filed a motion to compel Defendants to produce an investigative report prepared by Defendants counsel concerning Plaintiff s allegations and filed a second motion to extend discovery to allow her to depose certain individuals that she learned about from documents Defendants produced. 6 Following a telephone conference, the court ordered the parties to consult on the documents Plaintiff desires and, if the documents concern matters at issue in this case, then the depositions of James Spears and Angela Thomas will be conducted, limited to inquiry about those documents. resolve whether Furthermore, a hearing was scheduled to Plaintiff report. (ECF No. 53). produce the was Defendants to the investigative The Defendants subsequently agreed to investigative unnecessary. entitled report, represent rendering that they the hearing conferred with Plaintiff about the need for depositions of Ms. Thomas or Mr. Spears, but could not come to an agreement. noted these depositions. Only after Plaintiff has never Defendants filed their motion for summary judgment did Plaintiff file this motion to compel. Plaintiff argues that now that the report has been produced, she needs to depose some union members mentioned in the report in order to obtain discoverable evidence concerning Plaintiff s request for aid from ASCFME 2250. Plaintiff s motion will be denied. who she needs to depose or why she She fails to identify only learned of their identities now, given that she had previously seen a copy of the investigation. If Plaintiff seeks to depose Ms. Thomas or Mr. Spears, she certainly knew of their identities, as evidenced by her September 2013 deposition. 252:11-19). (See ECF No. 66-2, at 13, Trans. Plaintiff also does not explain the months-long 7 delay in filing a motion to compel once the report was produced or why she failed to notice any depositions. Her motion to compel and to impose sanctions will be denied. B. Motion for Extension of Time Plaintiff opposition first to request opposition, renewal. requested an Defendants was but filed it Seventeen was extension motion within denied days later, for the of time summary deadline without to her judgment. Her for filing her subject to prejudice Plaintiff file filed her renewed motion, stating that her counsel had a trial that was originally scheduled for September 30, 2013 pushed back to January 10, 2014. This case, combined with Plaintiff s counsel s additional case load and the holiday season, posed a real time management hardship. the day Defendants represent that Plaintiff contacted them on the court denied Plaintiff s extension of time to determine whether Defendants would consent to such an extension. That day, Defendants responded that they would not so consent. Plaintiff s counsel explains that a personal family emergency in the last two weeks caused the delay in renewing her motion. Rule 6 of the Federal Rules of Civil Procedure provides different standards for a court when considering a request for extension of time, depending on whether the request is filed before or after the original time expires. When made before the original time expires, the court need only find good cause to 8 extend the deadline. Fed.R.Civ.P. 6(b)(1)(A). By contrast, when the request is made after the original deadline, the court may grant the motion only when the requesting party demonstrates good cause that it failed to act because of excusable neglect. Id. 6(b)(1)(B). demonstrate Defendants argue that Plaintiff is required to excusable neglect under 6(b)(1)(B) because she filed her request for extension of time on February 20, 2014, after the original February 2, 2014 deadline. Defendants argument will be rejected. They point to no authority that states that a motion for extension of time filed before the deadline, denied without prejudice subject to renewal, and then refiled after the deadline is now subject to Rule 6(b)(1)(B) s requirement. more demanding excusable neglect Plaintiff s original explanation for her need for an extension is sufficient under Rule 6(b)(1)(A) and her motion will be granted. C. Motion to Strike Defendants move to strike documents included in Plaintiff s opposition. principal In their motion for summary judgment, Defendants argument is that Plaintiff failed to exhaust her administrative remedies because she failed to file her charge with the EEOC within 300 days of the allegedly discriminatory act. 42 U.S.C. § 2000e-5(e)(1). Plaintiff s EEOC charge form lists the latest date of discrimination as April 15, 2010, but 9 the form was filed on July 28, 2011, well outside the 300 day window. (ECF No. 59-4). In her opposition to Defendants motion, however, Plaintiff provides a letter dated November 8, 2010 from Plaintiff s counsel to the EEOC s Baltimore office outlining the alleged discrimination committed by the Board of Education and AFSCME 2250. Also provided is a completed EEOC Intake Questionnaire dated November 20, 2010. Plaintiff argues that these documents demonstrate that a charge was filed within 300 days of the alleged discriminatory acts. that this despite is the the fact first that time the they have document Defendants respond seen these request documents propounded upon Plaintiff during discovery specifically requested a copy of any and all documents or communications concerning the EEOC charge referenced in . . . your Amended Complaint. 5). (ECF No. 69-2, at Furthermore, Defendants also requested a copy of any and all documents or communications you [Plaintiff] intend to rely on in support of the claims you make against the Union in your Amended Complaint. interrogatories, (Id.). Defendants In asked their Plaintiff first to set [p]rovide of an explanation of what steps you took to timely file a charge of discrimination against defendant with the Equal Employment Opportunity Commission (EEOC) as alleged in Paragraph 4 of your Amended Complaint. (ECF No. 69-3, at 7). According to Defendants, despite these multiple requests, Plaintiff failed to 10 identify or produce opposition to the documents Defendants she motion now for relies on summary in her judgment. Defendants contend that Plaintiff should not be permitted to rely upon this evidence pursuant to Rule 37(c)(1). Rule 37(c)(1) provides that [i]f a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion . . . unless the failure was substantially justified or is harmless. show that It is the burden of the party facing sanctions to the failure to 2006). was either substantially Carr v. Deeds, 453 F.3d 593, 602 (4th justified or harmless. Cir. comply District courts have broad discretion in determining whether a nondisclosure is substantially justified or harmless. See id. In Southern States Rack and Fixture, Inc. v. Sherwin Williams Co., 318 F.3d 592, 597 (4th Cir. 2003), the United States Court of Appeals for the Fourth Circuit set forth several factors determination. party against to guide district courts in making this A court may consider (1) the surprise to the whom the evidence would be offered; (2) the ability of that party to cure the surprise; (3) the extent to which allowing the evidence would disrupt the trial; (4) the importance of the evidence; and (5) the nondisclosing party s explanation for its failure to disclose the evidence. District courts need not expressly consider each Southern States 11 factor when evaluating discovery violations. See Hoyle v. Freightliner, LLC, 650 F.3d 321, 330 (4th Cir. 2011). Plaintiff acknowledges that these documents were not produced in response to Defendants discovery requests because at the time Plaintiff believed they were privileged. provides her requests where, documents or answers in to Defendant s response communications to the first set of demand for Plaintiff any concerning her EEOC document and all charge, she responded Objection, parts of the communication is privileged. The non-privilege is produced. (ECF No. 72-1, at 2). Plaintiff submits that the original charge and a letter from the EEOC reopening the charge were produced as part of discovery. Plaintiff contends that the discovery period is now closed and Defendants documents never and, moved in to compel addition, Plaintiff there have to produce these been several phone conferences with the Court concerning discovery dispute and the issue of the Charge not being produced was never raised by the Defendant. Defendants because (ECF No. 72, at 2). have EEOC employer. not sends been a Finally, Plaintiff argues that prejudiced notice and copy or of negatively the impacted charge to the See 42 U.S.C. § 2000e-5(b) ( Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, the [EEOC] shall serve a notice of the charge . . . on such employer [or] labor organization within 12 ten days. ); 29 C.F.R. § 1601.14(a) ( Within ten days after the filing of a charge in the appropriate [EEOC] office, the [EEOC] shall serve respondent a copy of the charge. ). any contention that Defendants reply by pointing out that they slept on their rights concerning discovery is ridiculous given that they were completely ignorant of these documents until they appeared in Plaintiff s opposition to summary judgment, despite having asked for them. Even if they were privileged, Plaintiff never produced a privilege log as required. Finally, to Plaintiff s argument that her failure to produce was harmless because the EEOC would have sent it to Defendants, Defendants argue that the federal discovery rules do not contain a you should have already had this exception. Plaintiff will be permitted to rely upon the documents submitted as part of her opposition. Plaintiff s behavior is by no point means justified: believed the protected by intake an as Defendants questionnaire evidentiary out, submitted privilege, she to was if the she truly EEOC obligated was at least to create a privilege log, in order to alert Defendants to the existence of such a document to allow them to challenge the asserted privilege. But as Plaintiff points out, albeit inconsistently, federal law requires the EEOC to serve a charge upon the employer or union within ten days of filing and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged 13 their official duties. United States v. Chemical Found., Inc., 272 U.S. 1, 14-15 (1926). It is hard to fathom how a document slated for release by EEOC the can be privileged. Nevertheless, under the circumstances, Plaintiff s failure to produce the EEOC intake questionnaire is not sufficiently prejudicial. See Russell v. Bronson Heating & Cooling, 345 F.Supp.2d 761, 777-78 (E.D.Mich. 2004) (finding failure to disclose intake questionnaire harmless); Tolerico v. Home Depot, 205 F.R.D. 169, 177 (M.D.Pa. 2002) (same). D. Motion for Summary Judgment A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 (1986). The moving party bears the burden of showing that there is no genuine dispute as to any material fact. U.S. 242, 250 However, no genuine dispute of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of his or her case as to which he or she would have the burden of proof. Celotex, 477 U.S. at 322 23. Therefore, on those issues on which the nonmoving party has the burden of proof, it is his or her responsibility to confront the summary judgment motion 14 with an affidavit or other similar evidence showing that there is a genuine issue for trial. Summary judgment is appropriate under Federal Rule of Civil Procedure Rule 56(a) when there is no genuine dispute as to any material fact, and the moving party is plainly judgment in its favor as a matter of law. Liberty Lobby, Inc., the Supreme Court In entitled to Anderson v. explained that, in considering a motion for summary judgment, the judge s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. 477 U.S. at 249 (1986). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Thus, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on the evidence presented. Id. at 252. In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). The mere existence of a scintilla of 15 evidence in support of the non-moving party's case is not sufficient to preclude an order granting summary judgment. See Anderson, 477 U.S. at 252. A party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences. Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted). Indeed, this court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. See Drewitt v. Pratt, 999 F.2d 774, 778 79 (4th Cir. 1993) (quoting Felty v. Graves Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)). Defendants first argue that Plaintiff s claims are barred because she has failed to exhaust her administrative remedies. [F]ederal courts lack subject matter jurisdiction over Title VII claims for which administrative remedies. a plaintiff has failed to exhaust Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013). The burden of proving subject-matter jurisdiction rests with the plaintiff. See Evans v. B.F. Perkins Co., A Div. of Standex Int l Corp., 166 F.3d 642, 647 (4th Cir. 1999). The Fourth Circuit has explained that [i]n any subsequent lawsuit alleging unlawful employment practices under Title VII, a federal court may only consider those allegations included in the EEOC charge. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) ( The allegations contained in the 16 administrative charge of discrimination generally operate to limit the scope of any subsequent judicial complaint. ). If the plaintiff s Title VII claims exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred. Chacko [v. Patuxent Inst.], 429 F.3d [505,] 506 [(4th Cir. 2005)] (quoting Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir. 1995). Balas, 711 F.3d at 407-08; see also Evans, 80 F.3d at 963 ( Only those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed by reasonable investigation of the original complaint may be maintained in a subsequent lawsuit). Consistent with these principles, a claim in formal litigation will generally be barred if the EEOC charge alleges discrimination litigation claim such as sex. (4th on one basis, alleges such as race, discrimination and the formal on separate basis, a Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 Cir. 2009). complaint allege Likewise, the same where type the of EEOC claim charge (e.g., and the race-based discrimination), the formal litigation claim may still be barred if the central factual allegations supporting it were not raised in the EEOC charge. F.3d 505, 506 discrimination reference See, e.g., Chacko v. Patuxent Inst., 429 (4th claim different Cir. 2005) barred where time frames, 17 (national origin-based administrative actors, and charges discriminatory conduct than the central factual allegations in [her] formal suit ); Jones v. Republic Servs., No. AW 10 cv-1999, 2011 WL 6000761, at *2 3 (D.Md. Nov. 29, 2011) (where EEOC charge alleged race-based disparate treatment based on the plaintiff s suspension and termination, claim for race-based disparate treatment based on employer s refusal to grant an alternative work schedule was barred). At the same time, however, if the factual allegations in the administrative charge are reasonably related to the factual allegations in the formal litigation, the connection between the charge and the claim is sufficient. Chacko, 429 F.3d at 509; see also Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 595 (4th Cir. 2012) (although the administrative charge and the judicial complaint alleged different facts in support of a disability discrimination claim, they involved the same place of work, the same actor, the same type of fails to discrimination, and the same disability). Defendants submit that Plaintiff s EEOC charge reference in any way the allegations that provide the basis for Plaintiff s complaint in this case. Plaintiff s EEOC charge makes no reference to Mr. Palmer or a claim that he was sexually harassing her, yet the allegations with respect to Mr. Palmer s purported conduct form counts in this court. the entire basis of Plaintiff s two Defendants also point to Plaintiff s deposition testimony where she states that her EEOC charge had 18 nothing to do with Mr. Palmer, but was instead directed against AFSCME 2250 and Mr. Jones and, in addition, that her letter to Mr. Putney did not concern Mr. Palmer s actions, but was only based on union matters. Plaintiff s EEOC charge is against only one entity: AFSCME 2250. The Board of Education is not listed. Plaintiff states that the discrimination is based on sex and retaliation in the form of a hostile work environment. She spells out three particulars: (1) Despite numerous attempts representation, regarding several concern[s] against my employer, Respondent has failed to represent my interests and has intervene on my behalf. to obtain employment the above adequately failed to (2) I have not been provided with a reason for the Respondent s lack of action on my behalf or a valid explanation as to why I have not been adequately represented. (3) The President of the Union (local 2250) told me that sex with my supervisor to stop him harassing me and threatening me with suspension and termination. I believe I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, regarding failure to provide union representation based on my sex, female. (ECF No. 59-4). Defendants arguments will be rejected. It is understandable that the bulk of Plaintiff s complaint in this court refers to Mr. Palmer s actions because at one point the Board of Education was a Defendant. 19 The complaint does allege that she spoke with Mr. Jones about Mr. Palmer s behavior and was advised to have sex with Mr. Palmer and that AFSCME 2250 would not take or file a grievance on Plaintiff s behalf or take other actions to remedy the problem. 27). (ECF No. 2 ¶¶ 14-15, 23, These allegations track those made to the EEOC. Mr. Palmer s alleged actions, while not explicitly spelled out in the EEOC charge, could be expected to come out of a reasonable investigation of Plaintiff s claims given that they form the underlying basis for Plaintiff s complaint that her union did not intervene when requested to stop alleged harassment by her supervisor. Finally, what Plaintiff said or did not say in her letter to Mr. Putney is immaterial to this issue, which is only concerned with whether Plaintiff through her EEOC charge exhausted administratively her claims. She has done so. Defendants next contend that the claims against AFSCME 2250 are untimely. Title VII requires a plaintiff to file an EEOC charge within a prescribed limitations period. 2000e 5(e)(1). In deferral states such as 42 U.S.C. § Maryland, that limitations period is 300 days from the date of the allegedly discriminatory act. Id.3 limits allow and rarely Courts strictly adhere to these time equitable 3 tolling of limitations A deferral state is one that has its own state or local agency with authority to grant or seek relief from employment discrimination or to institute criminal proceedings on behalf of the alleged victim. 42 U.S.C. § 2000e-5(e)(1). 20 periods. Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D.Md. 2003), aff d, 85 F.App x 960 (4th Cir. 2004). The first charge. question Defendants concerns provided a what counts charge made as to the the EEOC Prince George s County Human Relations Commission, cross-filed with the EEOC. The charge was filed on July 28, 2011, but lists the latest date that discrimination occurred as April 15, 2010, well outside the 300-day window. summary judgment motion, In her opposition to Defendants however, as noted above, Plaintiff produced a letter dated November 8, 2010, written to the EEOC s Baltimore office requesting that the letter constitute the filing of a formal charge of discrimination against the Board of Education and AFSCME 2250. Plaintiff represents that a charge questionnaire was mailed to Plaintiff. Plaintiff completed this questionnaire on November 20, 2010, where she alleges that she complained to the union but nothing was done about it. document is attached to Plaintiff s opposition. This The EEOC then prepared a final charge form which was sent to Plaintiff, signed by her, and returned to the EEOC. It is this final charge form that Defendants rely upon. Title VII requires that a charge contain such information and be in such form as the [EEOC] requires. 5(b). 42 U.S.C. § 2000e Pertinent EEOC regulations state that a charge shall contain the following information: (1) the full name, address, 21 and telephone number of the person making the charge; (2) the full name and address of the person against whom the charge is made; (3) a clear and concise statement of the facts, including relevant dates, regarding the alleged unlawful practices; (4) if known, the approximate number of employees of the respondent; and (5) a statement disclosing whether any proceedings regarding the alleged unlawful practices state or local agency. have been commenced 29 C.F.R. § 1601.12(a). before a Notwithstanding these specific requirements, however, the EEOC regulations also contain a catchall clause, which provides that a charge is sufficient when the [EEOC] receives from the person making the charge a written statement sufficiently precise to identify the parties, and to complained of. the EEOC describe generally Id. § 1601.12(b). regulations, a filing the action or practices In addition to satisfying must also be reasonably construed as a request for the agency to take remedial action to protect the employee s rights or otherwise settle a dispute between the employer and the employee before it can be deemed a charge. Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008).4 4 Holowecki addressed the question of whether an intake questionnaire constitutes a charge for purposes of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621. Numerous courts in this district and elsewhere have applied Holowecki s objective test in cases arising under Title VII. 22 Plaintiff s counsel s November 8th letter to the EEOC states that it is being filed on behalf of Plaintiff and is a formal charge of discrimination against AFSCME 2250 and the Board of Education. The name and address of Plaintiff are provided. letter states that there are over 5,000 employees employed. The It goes on to state that Plaintiff has been sexually harassed by my supervisor and told by another management official that in order to stop the sexual harassment all I had to do was give the supervisor some sex. (ECF No. 66-4, at 3). Plaintiff was told this on two separate occasions: September 24, 2009 and January 12, 2009. to a hostile physically Plaintiff states that she has been subjected work ill. environment The that supervisor has led to constantly her becoming followed her around, used his authority to force her to meet with him on a daily basis and subjected her to disciplinary action that other employees were not subjected to. retaliated against because supervisor s sexual advances. were discriminated against. she She states that she has been has not given into the She writes: Why you believe you I am being sexually harassed, retaliated against and subjected to a hostile work environment. (Id.). Plaintiff s information. When intake asked questionnaire which gives organizations her contact discriminated See, e.g., Grice v. Balt. Cnty., No. JFM 07-1701, 2008 4849322, at *4 n.3 (D.Md. Nov. 5, 2008) (collecting cases). 23 WL against her, she checks boxes for Employer and Union, but only provides contact information for the Board of Education. Under the bases for her claim of discrimination, she checks boxes for Sex, Age, Religion, and Retaliation. Under other basis for discrimination she writes in Hostile Work Environment. Under the question What happened to you that you believe discriminatory? , was she writes See Attached Statement, while also writing Faith Jones and Mr. Palmer as the persons responsible and Mr. Palmer responsible for sexual harassment. were For the question Why do you believe these actions discriminatory? statement. alleged she refers again to the attached When asked whether there are any witnesses to the discriminatory incidents, Plaintiff lists Defendant Adams and states that she will tell the EEOC [h]ow the union and employer responded to the allegations. Plaintiff stated that she filed a charge previously with the EEOC or another agency, explaining that I file[d] a complaint with employer and union nothing was done except an investigation took place and a report was prepared. Finally, the questionnaire provides a choice as to what the preparer wants the EEOC to do with this information: Box 1 states that the preparer wants to talk with an EEOC employee before deciding whether to file a charge. 2 states that discrimination the and preparer wants authorizes the 24 to EEOC file to Box a charge of look into the discrimination described above. Plaintiff checked Box 2. While Plaintiff s intake questionnaire and attached statement are far from a model of clarity, they do list AFSCME 2250, check the box for sex discrimination, discuss the statements of September 24, 2009, and January 12, 2010, and hint at the fact that the union did not fulfill its duties to investigate her allegations of discrimination. WDQ-12-0569, (concluding See, e.g., Dixon v. Shasta Beverages, Inc., No. 2012 that WL 4774808, intake at *4 questionnaire (D.Md. was a Oct. charge 5, 2012) where it named the parties involved, checked the racial discrimination box, described the relevant incident and ongoing harassment, and defendant was informed of the general nature of the actions or practices); Enoch v. Becton, Dickinson & Co., No. ELH-11-3551, 2012 WL 2371049, at *6 (D.Md. June 22, 2012) (intake questionnaire was sufficient to constitute a charge where it identified complainant with contact information, employer with contact information, discrimination). EEOC charge dated and the basic outline of the alleged These were later transformed into a formal July 28, 2011. Consequently, Plaintiff s November 2010 communications with the EEOC are sufficient to constitute a charge for purposes of timeliness. Defendants also argue that even if some of the alleged discrimination occurred within 300 days of filing a charge with the EEOC, Plaintiff has not demonstrated 25 that the alleged discrimination at issue here Defendants failure to act on Plaintiff s request for intervention fell within the 300 day window. Failure to intervene is a discrete act for which the continuing violation theory does not apply. See Szedlock v. Tenet, 61 F.App x 88, 93 (4th Cir. 2003) ( The Supreme Court s ruling in Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), [] makes clear that unless the plaintiff alleges a hostile work environment . . . , each instance of discrimination is a discrete act. ). Consequently, Plaintiff may only proceed and recover on deliberate discrimination that occurred within the limitations period, Lewis v. City of Chicago, Ill., 560 U.S. 205, 214-215 (2010), although she is not barred from using prior acts as background evidence in support of a timely claim, Nat l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002); see also id. at 114 (rejecting the concept of serial violations, i.e., so long as one act falls within the charge filing period, discriminatory and retaliatory acts that are plausibly or sufficiently related to that act may also be considered for the purposes of liability. ). In her deposition, Plaintiff states that Mr. Palmer forced Plaintiff to meet allegedly sexually with him harassing on a her. daily basis Before while these he was meetings, Plaintiff would call AFSCME 2250 and ask for assistance, but the union would tell her to go into the room, listen to what Mr. 26 Palmer had to say, and bring it back to them. 11, Trans. 64:7-18; id. at 13-14, Trans. (ECF No. 66-2, at 252:5 252:22). Plaintiff s EEOC charge states that the latest discriminatory action occurred on April 15, 2010. Plaintiff can proceed, but only on those alleged discriminatory acts that occurred within 300 days of her November 8, 2010 letter to the EEOC (January 12, 2010), although she is free to use acts that fall beyond that timeframe as background evidence. The next timeliness argument submitted concerns Plaintiff s right-to-sue letter. by Defendants Title VII requires a plaintiff to bring a discrimination claim within 90 days from the date of receipt of the right-to-sue letter. 2000e-5(f). 42 U.S.C. § When the actual date of receipt is confirmed by evidence, that date governs. See Dixon v. Digital Equip. Corp., 976 F.2d 725, 1992 WL 245867, at *1 (4th Cir. Sept. 30, 1992) (table). If the date of the receipt is unknown or in dispute, the court applies the presumption in Rule 6(e) that service is received within three days. See, e.g., Nguyen v. Inova Alexandria Hosp., 187 F.3d 630, 1999 WL 556446, at *3 (4th Cir. July 30, 1999) (table). Plaintiff s amended complaint did not provide the date on which the stating right-to-sue that receiving a the letter complaint notice of the was was filed right 27 received, to within sue instead 90 from days the merely after EEOC. Defendants argue that Plaintiff failed to provide any evidence through discovery that she filed her lawsuit within the 90-day window and dismissal is warranted. Plaintiff has since come forth with her right-to-sue letter from the EEOC. dated March 30, 2012. April 3, 2012. The letter is The envelope it arrived in is postmarked An affidavit provided by Plaintiff s counsel does not state when Plaintiff received the letter. Using Rule 6(e) s presumption, the letter was received on April 6, 2012. 90 days from April 6, 2012 is July 5, 2012. complaint in this court on July 3, Plaintiff filed her 2012. Therefore, her Plaintiff has complaint will be considered timely. Defendants cleared all finally the argue procedural that, hurdles even to if filing a claim of discrimination in federal court, she can point to no evidence to support a finding of liability as to either Defendant for either of the two counts in her complaint. judgment should supervisor violations. and, if proper be cannot entered be held for They first argue that Defendant individually Adams liable because for Title anything, seems defendant, to writing acknowledge at one that point Adams that is not [t]he is cannot established that individuals be liable a only (ECF No. 65, at 10). Title VII. VII Plaintiff does not respond to Defendants argument Defendant at issue here is the Union. well a It under See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 28 (4th Cir. 1998). Thus, Plaintiff s Title VII claims against Defendant Adams cannot continue. Title VII prohibits labor unions such as AFSCME 2250 from engaging in certain types of discriminatory conduct. Relevant here, Section 2000e 2(c) provides: It shall be an unlawful employment practice for a labor organization (1) to exclude or to expel from its membership, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin; . . . (3) to cause or attempt to cause an employer to discriminate against an individual in violation of this section. 42 U.S.C. § 2000e 2(c)(1), (3). labor union can be liable Under Subsection 2(c)(1), a where it directly engages in discrimination by, for example, deliberately refusing to pursue a sexual harassment grievance on behalf of a plaintiff. See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 667 (1987) (the phrase otherwise to discriminate encompasses a union s deliberate choice not to process grievances initiated by black employees alleging racial discrimination), superseded on other grounds by statute, 28 U.S.C. § 1658, as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004); Agosto v. Correctional Officers Benevolent Ass n, 107 F.Supp.2d 294, 303 29 (S.D.N.Y. 2000) (explaining that a labor union otherwise discriminate[s] in violation of Title VII when it fails to represent one of its members in the grievance process because of that member s race, color, religion, sex, or national origin); EEOC v. Regency Architectural Metals Corp., 896 F.Supp. 260, 269 (D.Conn. 1995) (holding that Goodman applies equally to sex discrimination ). Pursuant to Subsection 2(c)(3), a labor union can also be held liable for discrimination perpetrated by the plaintiff s employer support[s] World the Kitchen, if the employer s LLC, 717 union instigat[es] discriminatory F.Supp.2d 494, acts. 501 or actively Hubbell (W.D.Pa. v. 2010) (quoting Anjelino v. N.Y. Times Co., 200 F.3d 73, 95 (3d Cir. 1999)); see also McCollum v. Int l Brotherhood of Boilermakers, No. 03CV00355, 2004 WL 595184, at *3 (M.D.N.C. Mar. 10, 2004) (a claim under Subsection 2(c)(3) requires active participation by the union; passive acquiescence is not enough) (internal quotation marks omitted). Plaintiff, in her opposition, presents her claims thusly: Defendant also seems confused about the allegations in the complaint and who the parties are. only Defendant at issue here is the Union. The Plaintiff argues that the Union discriminated against her in violation of Title VII when it rejected her request to file a sexual harassment grievance against the Board. A union s deliberate refusal to file grievable discrimination claims violates Title VII. 30 (ECF No. 65, at 10). Consequently, Plaintiff brings a claim under subsection (c)(1), because her argument is not that AFMSCE 2250 instigated or actively supported discriminatory acts perpetrated by others, but instead itself discriminated against Plaintiff, a member of the union. The Fourth Circuit has not opined on the elements of a Title VII claim against a union for failure to file grievable discrimination claims. Where the plaintiff is not alleging a policy of failure to file discrimination grievances, but instead asserts a discrete refusal, courts outside this district have required a meritorious requested plaintiff to claim discrimination; that of her demonstrate union intervene that: (2) to (1) she she had a affirmatively remedy the alleged discrimination; and (3) her union deliberately refused or failed to act on that request for discriminatory reasons. Young-Smith v. Bayer Health Care, LLC, 788 F.Supp.2d 792, 806 (N.D.Ind. 2011); Hubbell, 717 F.Supp.2d at 502-03; Hout v. City of Mansfield, 550 F.Supp.2d 701, 728-29 (N.D.Ohio 2008); Rainey v. Town of Warren, 80 F.Supp.2d 5, 18-19 (D.R.I. 2000); Regency Architectural, 896 F.Supp. at 268-70; Catley v. Graphic Commc ns Intern. Union, Local 277-M, 982 F.Supp. 1332, 1340-43 (E.D.Wis. 1997); cf. York v. AT&T, 95 F.3d 948, 957 (10th Cir. 1996) (granting summary judgment for union where plaintiff offered no evidence establishing that the 31 union knew of intentional discrimination by employer). Where the union knows of actual discrimination and deliberately ignores a member s request, the inference that the union acted with a discriminatory motive can be drawn without F.Supp.2d at 807 comparator n.10 evidence. (citing Rainey, Hubbell, 717 F.Supp.2d at 504 n.5 (same). a grievance is not based on an Young-Smith, 80 F.Supp.2d at 788 18); By contrast, [w]here underlying claim of discrimination, an inference of discriminatory motive cannot be drawn in the absence of evidence that individuals outside of plaintiff s class were more favorably treated. F.Supp.2d at 506 n.7. Hubbell, 717 Where a plaintiff establishes a prima facie case, the familiar McDonnell Douglas framework applies, with the burden articulate actions. a of production legitimate, shifting to nondiscriminatory the employer reason for to its If that reason is credible, the ultimate burden lies with the plaintiff to demonstrate that that reason is actually pretext for discrimination. Neither side shows much enthusiasm for arguing the merits of Plaintiff s claim, but taking the limited evidence produced in the light most favorable to the Plaintiff, she has demonstrated a genuine dispute of material fact concerning the circumstances of AFSCME 2250 s refusal to grieve discrimination claims against the Board of Education. her In her deposition, Plaintiff testifies that Mr. Palmer was constantly 32 bothering Plaintiff. He would occasionally touch her, follow her to her bus, and get close up and talk to her. Any time they had a meeting, he would want to sit real close to her. She made it known to Mr. Palmer that she did not like him, but still he worked to be close to her. members about her concerns and She informed multiple union requested that they file a grievance and provide someone to accompany her on any meetings with Mr. Palmer, but the union did neither. Taking the evidence in the light most favorable to Plaintiff, she had a colorable claim of sexual harassment, approached the union and requested assistance, which the union ignored or refused to assist. Defendant does not mount any sort of defense or provide any explanation for these allegations, except for the conclusory statement buried in a footnote that there is no record evidence to support a finding of liability against the Defendants for either of the two counts in Plaintiff s amended complaint. (ECF No. 59-1, at 8 n.5). Consequently, Defendants motion for summary judgment will be denied as to AFSCME 2250. III. Conclusion For the foregoing reasons, the motion for summary judgment filed by Defendants will be granted in part and denied in part. The motion for an extension of time will be granted. 33 The motion to compel and the motion to strike will be denied. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 34
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