Kenion v. Skanska USA Bldg., Inc.

THOMESENA KENION, Plaintiff, v. SKANSKA USA BUILDING, INC, et al. Defendants.

Civil Action No. RDB-18-3344

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

September 13, 2019

MEMORANDUM OPINION

Plaintiff Thomesena Kenion ("Plaintiff" or "Kenion") alleges that her former employer, Defendant Skanska USA Building, Inc. and Skanska USA, Inc. (collectively, "Skanska") and her former supervisors, Defendant William Lemley ("Lemley") and Defendant Brian Leier ("Leier") (collectively, the "Defendants") discriminated against her on the basis of her race and sex between November 2016 and May 2018. Kenion's eight-Count Complaint brings claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e, et seq. and the District of Columbia Human Rights Act ("DCHRA"), D.C. Code § 2-1401.01, et seq. Now pending before this Court are two Motions: Defendants' Motion to Partially Dismiss Plaintiff's Complaint (ECF No. 3) and Plaintiff's Motion for Leave to File Sur-Reply (ECF No. 8). The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons stated below, Defendants' Motion to Partially Dismiss Plaintiff's Complaint (ECF No. 3) is GRANTED and Plaintiff's Motion for Leave to File Sur-Reply (ECF No. 8) is GRANTED. Specifically, Counts I, II, IV, and VIII are DISMISSED in their entirety, and the remaining Counts III, V, VI, VII are limited as noted. The following claims remain pending: Discriminatory Non-Selection for Promotion on the basis of sex in Violation of Title VII (Count III) and on the basis of both race and sex in violation of the DCHRA (Count VII); Discriminatory Hostile Work Environment on the basis of race in Violation of the DCHRA (Count V); and Retaliation under DCHRA (Count VI). Plaintiff is granted leave to file an Amended Complaint to clarify the nature and scope of her Hostile Work Environment Claim under the DCHRA as charged in Count V.

BACKGROUND

When reviewing a motion to dismiss, this Court accepts as true the facts alleged in the plaintiff's complaint. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Kenion is an African American¹ female pursuing a career in the construction industry. (Compl. ¶ 2, ECF No. 1.) In April 2013, Skanska Civil Southeast, Inc. hired Kenion as a Carpenter Apprentice. (Id. at ¶ 21.) Subsequently, she received several promotions and was granted additional responsibilities in recognition of her successful work performance. In August 2014, she became a Carpenter and Punch List Foreman (Id. at ¶ 22.) By August 2015, Kenion was supervising a crew of 15 workers on the 1st Street Tunnel project in Washington, D.C. and was featured in Skanska's promotional advertisements throughout the District of Columbia. (Id.) In May 2016, Kenion accepted a transfer, pay raise, and career development plan position as a Craft Foreman in Skanska USA Building, Inc. at its "American University Project." (Id. at¶ 23.) A Project Assignment Letter pertaining to this business unit transfer dated May 10, 2016 indicates that Kenion was an "Assistant Superintendent." (Id.)

Kenion alleges that she began experiencing discrimination in November 2016, after she was reassigned to Skanska's "DC Water Headquarters Project" and began working for Lemley and Leier, both of whom are identified in the Complaint as Caucasian males. (Id. at ¶¶ 3, 6, 25.) Lemley and Leier were allegedly "hostile, rude, or dismissive" toward Kenion and Skanska's African American subcontractors but did not treat White and Hispanic supervisors and workers in the same negative fashion. (Id. at ¶ 26.) For example, in December 2016 Leier rejected Kenion's request for stone to compact a potentially unsafe worksite, citing budgetary concerns. (Id. at ¶ 27.) Only one week later, however, Lemley requested and received two loads of stone for comparable work nearby. (Id.)

Between January and March 2017, both Lemley and Leier allegedly made several disparaging remarks about African American laborers. Lemley is alleged to have stated that "they're not that smart" and that African Americans were "lazy." (Id. at ¶ 29.) Lemley also admonished a Black laborer as follows: "All I asked you to do was sweep and you can't even get that right. You don't need a college education to do that. Hispanic guys know how to work without someone holding their hand." (Id.) Kenion reports overhearing Lemley disparaging his daughter's African American boyfriend, referring to him as a "Baltimore thug." (Id. at ¶ 30.) Kenion claims to have been present during a conversation between Lemley and an African American laborer who had dreadlocks, during which Lemley asked "Do you wash your hair?" and said that "You couldn't pay me to have those things." (Id. at ¶ 31.) In response to a city Compliance Officer's request for the contact information of African Americantrainees, Leier allegedly told Kenion not to provide the information because the workers in question "don't speak well" and he did "not want them embarrassing us." (Id. at ¶ 32.) Leier instructed Kenion to deal with African American laborers "with a heavy hand," but did not make similar statements about Skanska's White or Hispanic workers.

Lemley and Leier allegedly stymied Kenion's professional development and caused her to fear for her job security. For example, Lemley denied Kenion permission to attend a Skanska Women's Network professional development event even though he regularly allowed the White female Engineer on the DC Headquarter Water Project team to attend such events. (Id. at ¶ 35.) In March 2017, an Assistant Project Manager told Kenion that "Bill [Lemleyj's not really interested in developing you for [the Assistant Superintendent] role." (Id. at ¶ 36.) In the summer of 2017, Leier refused to grant Kenion permission to participate in a Leadership in Energy and Environmental Design (LEED) training because "it was not a priority for her." (Id. at ¶ 37.) On November 27, 2017, when Kenion informed Lemley that she needed one day of sick leave to care for her twin sons who were will, Lemley allegedly responded, "You need a job to do that." (Id. at ¶ 38.) Fearing for her job, Kenion promptly applied for Family Medical Leave Act ("FMLA") protections. (Id.) That same month, Leier informed Kenion that, because she was a Craft employee, she would not receive a 3% pay increase that every other Skanska Building employee would be receiving.² (Id. at ¶ 39.) Also in November 2017, Leier allegedly denied Kenion the opportunity to complete a self-evaluation for her annual performance rating necessary for her advancement at Skanska. (Id. at ¶ 40.) Leier explainedthat Kenion was not entitled to this evaluation because she was a Craft employee earning an hourly wage. (Id.) Kenion challenges the veracity of this assertion, alleging she had completed a self-evaluation in 2017 while assigned as a Craft Foreman to Skanska Building's American University Project under different managers. (Id.)

Kenion complains that Lemley and Leier failed to promote her to the position of Assistant Superintendent for discriminatory reasons. In the summer of 2017, Lemley and Leier advised Kenion that James Moffitt, a college intern hired by Skanska and a Caucasian male in his early twenties, would be shadowing her on the DC Water Headquarters Project construction site and would be supervising the laborers there. (Id. at ¶ 41.) In contrast, another college intern hired that summer, Danielle Hendricks, a Black female in her early twenties, was tasked with performing office administrative work, but was not assigned to supervise staff. (Id. at ¶ 42.) For several months, Kenion trained Moffitt while carrying out supervisory job duties which were "functionally equivalent" to the duties of an Assistant Superintendent. (Id. at ¶ 43.) Skanska even identified Kenion as the Assistant Superintendent for the D.C. Water Headquarters Project on its organizational chart, although she did not formally hold this position. (Id.) On December 11, 2017, Kenion learned that Moffitt would be hired for the position instead of her, even though Moffitt did not meet the job's requirement of "5+ years of industry experience." (Id. at ¶¶ 44, 46, 47.) The position was never advertised, and Kenion was not afforded the opportunity to apply or compete for it, even though she had far more industry experience than Moffitt. (Id. at ¶ 45.) Whereas Kenion had by that time worked for several years at Skanska, Moffit had allegedly only worked two summers as a college intern at two different construction companies. (Id. at ¶¶ 45, 47.) On December 11, 2017, SkanskaBuilding's Vice President of Operations, Darick Edmond, told Kenion that she was not selected for the position because the decisionmakers "would not feel comfortable putting her in a position that she didn't know 100%." (Id. at ¶ 48.) Kenion alleges that this explanation was pretextual; Moffitt himself allegedly did not have a full grasp of the position and frequently turned to Kenion for guidance concerning his job duties. (Id. at ¶ 49.)

In late 2017, Kenion complained about the unfair treatment she was experiencing. In November 2017, Kenion discussed Lemley's actions with Leier and stated that she felt discriminated against "either because she was a woman or Black." (Id. at ¶ 50.) Leier took no corrective action and instead merely responded "that's just the way Bill is." (Id.) On December 11, 2017, Kenion met with Skanska USA, Inc.'s Human Resources Director and Leier to address the discrimination she perceived on the job. (Id. at ¶ 51.) Specifically, she complained about Lemley's treatment of her and discrimination against minorities; being denied a 3% pay raise; having no opportunity to complete a self-assessment for her annual performance evaluation; the lack of support from Lemley and Leier concerning her job advancement; and her non-selection for promotion to Assistant Superintendent. (Id.) This was not the first...