Mason v. Capitol Office Solutions

MICHAEL A. MASON Plaintiff v. CAPITOL OFFICE SOLUTIONS Defendant

Civil No. PJM 13-2290

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

September 22, 2014

MEMORANDUM OPINION

Pro se Plaintiff Michael A. Mason has sued Capitol Office Solutions ("COS") for (1) racial discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e, et seq., and the Civil Rights Act of 1866, 42 U.S.C. § 1981, (2) retaliation for engaging in a protected activity under Title VII and 42 U.S.C. § 1981, (3) discrimination on the basis of disability under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, (4) intentional infliction of emotional distress, and (5) wrongful discharge in violation of public policy. COS has filed a Corrected Motion to Dismiss (Dkt. 11). which Mason opposes (Dkt. 16).

For the reasons that follow, the Court GRANTS-IN-PART and DENIES-IN-PART COS's Corrected Motion to Dismiss.

I.Factual Background

According to the Complaint, Mason, an African-American male, worked at COS beginning in November 2002 until his termination in August 2009. While there, he eventually became a Black and White Copier Technician. In January 2004 Mason began to make verbal and written complaints to his managers that his work environment was "racially discriminatory.He cites as examples the fact that a Caucasian employee, Gary Rasmussen, referred to Mason and several other African-Americans with "the 'n' word," (a term which Rasmussen said other African Americans used), and that he also used slurs against Hispanics and Asians, as well as listened to racial rants on the Rush Limbaugh radio show.

Mason says he also heard a Caucasian manager named Jeff Simon use racial slurs against African-Americans (though not apparently directed at Mason). He also complains of vulgar sexist remarks purportedly made by Simon, again not against Mason, but against three other African-American employees. From all that appears, Mason's complaints were continuous.

Mason alleges that he performed well at COS and was considered one of the top Black and White Copier Technicians. He won the DC Service Technician of the Year in 2005, 2006, and 2007 and had ratings in the top 20% of service technicians. He says, however, that in 2009, he began to receive lower efficiency ratings, because his manager, Gary Jennifer, would "take calls away" from him. Mason claims that this is evidenced by the fact that when Jennifer was on vacation, Mason's ratings returned to the top 20% of service technicians. Mason does not allege that Jennifer used any racial epithets against him.

On July 27, 2009 Mason filed a Charge of Discrimination ("Charge") with the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination on the basis of race and color and retaliation for having engaged in protected activity. He submitted a copy of the Charge to his managers on July 31, 2009. In an encounter i,n a bathroom on August 5th or 6th, he says Gary Jennifer (Field Service Manager) told him that he should meet with company management to discuss his complaints. But before he could do so, however, on August 7, 2009 Mason was terminated. Mason contends that his termination was in retaliation for his "good faith" complaints of discrimination to management and to the EEOC.

Mason avers that in March 2012, he had a mental breakdown and was involuntarily placed in a state-run mental facility for ten days, where he was diagnosed as suffering a manic episode of a bipolar disorder. He claims that his deteriorating mental state resulted from COS's racial discrimination and his unlawful termination. In his Response to COS' Motion to Dismiss, Mason asserts that, following his diagnosis, he called his EEOC investigator to add a claim of discrimination on the basis of disability under the Americans with Disabilities Act to his Charge. The ADA claim, however, was never added.

Mason was issued a right to sue letter dated July 12, 2012 after the EEOC determined, after investigation, that there was insufficient evidence of racial discrimination on the part of COS. Mason claims that he did not receive the letter until a copy was sent to him on April 15, 2013, almost one year later. He filed his Complaint in this Court on August 7, 2013, four years following his termination from COS, and 114 days after he says he received his right to sue letter.

Although Mason does not set out his claims in specific counts, the Court has been able to extract some six counts against COS therein: two counts under 42 U.S.C. § 1981 of wrongful discharge and retaliation; two counts under Title VII of wrongful discharge and retaliation; one count of discrimination on the basis of disability under the ADA; and one count of intentional infliction of emotional distress. In his Opposition, Mason has attempted to add a seventh count: wrongful discharge in violation of public policy.

COS moves to dismiss Mason's claims as follows:

All Claims: Lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) and Failure to state a claim under Fed. R. Civ. P. 12(b)(6).

42 U.S.C. § 1981 Wrongful Discharge Claim: Failure to plead sufficient elements under Fed. R. Civ. P. 12(b)(6).

42 U.S.C. § 1981 Retaliation Claim: No argument.

All Title VII Claims: Filed more than 90 days from receipt of right to sue letter.

Intentional Infliction of Emotional Distress Claim: Barred by Statute of Limitations.

Wrongful Discharge Claim: Barred by Statute of Limitations.

Americans with Disabilities Act Claim: Not included within Charge to EEOC.

Without, at this juncture, specifying the response or responses that Mason makes in his opposition to these arguments, suffice it to say that he disputes each and every one of the grounds. His arguments will be spelled out in greater detail as the Court addresses each of the grounds COS puts forth.

II.Legal Standards

Motions to dismiss for lack of subject matter jurisdiction are properly brought pursuant to Fed. R. Civ. P. 12(b)(1). See Khoury v. Meserve, 268 F. Supp. 2d 600, 606 (D. Md. 2003). When considering a 12(b)(1) motion, the court "may consider evidence outside the pleadings without converting the proceeding to one for summary judgment" to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. U.S., 945 F.2d 765, 768 (4th Cir. 1991). A court should grant a 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id. Failure to exhaust administrative remedies is properly challenged under Fed. R. Civ. P. 12(b)(1). Khoury, 268 F. Supp. 2d at 606.

A motion to dismiss under Rule 12(b)(6) is for failure to state a claim; it tests the sufficiency of a complaint, but does not resolve factual contests, the merits of a claim, or the applicability of defenses. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). Failure to raise a claim within the statute of limitations is properly challenged via this rule. Dean v. Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005). In considering such a motion, the district court accepts the well-pleaded allegations in the complaint, and draws any reasonable factual inferences in favor of the plaintiff. See Burbach Broad. Co. v. Elkins Radio Corp., 278 F.3d 401, 406 (4th Cir. 2002). The court should only grant a motion to dismiss if the plaintiff cannot provide enough factual support to establish a facially plausible claim or create a reasonable inference of defendant's culpability. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A plaintiff proceeding pro se is held to a "less stringent standard" than a lawyer, and the court must construe his claims liberally, no matter how "inartfully pleaded." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nonetheless, the district court must dismiss the complaint if it lacks jurisdiction, and no plaintiff is exempt from the requirement that a complaint contain more than mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

In Title VII and ADA claims, "a failure to exhaust administrative remedies deprives a federal court of jurisdiction over the claim." Sills v. BFI Waste Servs., LLC, 2013 WL 812011 at *4 (D. Md. Mar. 1, 2013) (citing Jones v. Calvert Grp., 551 F.3d 297, 300 (4th Cir. 2009)); see also 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12117(a). A federal court may only consider those claims alleged in the EEOC Charge. Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401. 407 (4th Cir. 2013) (citing Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir.1996). This applies to claims under both Title VII and the ADA. Lipscomb v. Clearmont Constr. and Dev. Co., 930 F. Supp. 1105, 1106 (D. Md. 1995) ("Under Title VII and the ADA, a plaintiff must first timely file a charge with the EEOC before commencing a suit.").

If the EEOC decides not to pursue the claims in the Charge, it will issue a right to sue letter giving the claimant 90 days to sue following receipt of the letter. 42 U.S.C. § 2000e-16(c). A right to sue letter is presumed received three days after it is issued and mailed. Weathersbee v. Baltimore City Fire Dept., 970 F. Supp. 2d 418, 427 (D. Md. 2013). If suit is not filed within 90 days of receipt, the claim is deemed untimely. Harvey v. City of New Bern Police Dept., 813 F.2d 652, 654 (4th Cir. 1987). The court may cure an untimely claim through equitable tolling, but tolling will not be allowed when the plaintiff has missed the filing deadline simply due to a lack of diligence. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990).

A three years statute of limitations applies to claims of wrongful discharge and intentional infliction of emotional distress. Knickman v. Prince George's Cnty., 187 F. Supp. 2d 559, 563-64 (D....