Shaw v. University of Maryland, College Park

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

(SOUTHERN DIVISION)

DUANE SHAW, )

)

Plaintiff, )

)

v. ) Civil Case No.: GLS-21-1986

)

UNIVERSITY OF MARYLAND, )

COLLEGE PARK, et al., )

)

Defendants. )

__________________________________________)

MEMORANDUM OPINION

Plaintiff Duane Shaw (“Plaintiff”) brings this action against Defendants University of

Maryland, College Park (“Defendant UMD”), John Romano (“Defendant Romano”), and John

Farley (“Defendant Farley”) (collectively, the “Defendants”). (ECF No. 27) (“Amended

Complaint”). Plaintiff advances three claims: Count I: race discrimination (disparate treatment

and hostile work environment) by Defendant UMD, in violation of 42 U.S.C. § 2000(e) et seq.

(“Title VII”); Count II: race discrimination (disparate treatment and hostile work environment) by

Defendants Romano and Farley, in violation of 42 U.S.C. § 1981 (“Section 1981” or “§ 1981”);

and Count III: breach of contract committed by Defendant UMD, in violation of Maryland law.

(Id.).

Pending before this Court is “Defendants’ Motion to Dismiss” (ECF No. 38) (“Motion”),

which Plaintiff opposes.1 The issues have been fully briefed, see ECF Nos. 41, and 42, and this

Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2021). For the reasons set

forth more fully below, Defendants’ motion is GRANTED IN PART, DENIED IN PART.

1 This case is before the undersigned for all proceedings with the consent of the parties pursuant to 28 U.S.C. § 636(c).

(ECF No. 10).

I. FACTUAL BACKGROUND2

In October 2012, Plaintiff, an African-American male, began working for Defendant UMD

in the Division of Research, Center for Advanced Study of Language’s (“CASL”), Information

Technology (“IT”) section. (Amended Complaint, ¶ 6). Plaintiff took part in research initiatives,

co-developed an intellectual property folder that was used by his supervisor to demonstrate the

organization’s capabilities and served as a technical adviser for demonstrations to potential

customers. (Id., ¶ 8). Also, the Plaintiff worked on contracts with the federal government, serving

as the technical subject matter expert on classified matters. (Id., ¶ 6). Accordingly, Plaintiff’s work

duties required that he maintain a security clearance. (Id.). In this role, from 2012 to 2018 the

Plaintiff received performance reviews indicating that he met or exceeded performance objectives.

(Id., ¶ 8). Nonetheless, as time passed, Defendant Romano began to resent Plaintiff as sponsors

preferred to work with Plaintiff and opted to rely on Plaintiff more than Defendant Romano despite

Defendant Romano instructing sponsors that they needed to go through him. (Id.).

From 2014 to 2018, Defendant Romano subjected Plaintiff to bias and humiliation. (Id., ¶

9). Furthermore, Defendant Romano condoned intimidation by Plaintiff’s coworkers which was

directed toward Plaintiff. (Id.). As one of three African Americans in his department, colleagues

did not respect Plaintiff’s opinions, achievements, and considered the Plaintiff a “worker bee.”

(Id.). Other engineers in the IT department excluded Plaintiff from projects related to planning and

infrastructure, despite the requirements that engineers communicate about such projects. (Id.).

During this period, Plaintiff helped create an intellectual property application for a

contractor, over which he maintained an ownership stake of twenty-five percent. (Id.). However,

2 Unless otherwise noted, the facts are taken from the Amended Complaint, ECF No. 2, and are construed in the light

most favorable to the non-moving party, Plaintiff. This Court assumes the facts to be true. Aziz v. Alcolac, 658 F.3d

388, 390 (4th Cir. 2011); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).

when presenting the application to the contractor, Plaintiff was not presented as an equal partner

in the application. (Id.). Instead, he was “relegated to a low-level role.” (Id.).

In April 2018, Defendant Romano provided Plaintiff with a performance review in which

there were “a myriad of inaccuracies.” (Id., ¶ 10). After confronting Defendant Romano about the

performance review, Defendant Romano told Plaintiff that he “‘do[es] not even know what

[Plaintiff] do[es].’” (Id.). During that conversation, Defendant Romano told Plaintiff that the

performance review would not affect his chances at a promotion or access to work assignments.

(Id.). Thereafter, Plaintiff reached out to the CASL human resources (“HR”) representative to

discuss the performance review. (Id.). Plaintiff never received a reply from HR despite Defendant

Romano’s assurance that Plaintiff’s response to the performance review could be discussed further.

(Id.).

In July 2018, Defendant Romano non-competitively promoted a non-African American

engineer over Plaintiff, even though Defendant Romano previously told Plaintiff that the April

2018 performance review would not impact his promotion and Plaintiff performed job duties

equivalent to the individual promoted. (Id., ¶ 11). In October 2018, Plaintiff spoke with Defendant

Romano about Defendant Romano hosting meetings with the other engineers and the other

engineers excluding him from meetings and communications. (Id., ¶ 12). Defendant Romano told

Plaintiff that the other engineers were working on a project that didn’t include him. (Id.). However,

Plaintiff explained that the projects would affect him because all projects interact. (Id.).

Earlier in the year, Plaintiff, while testing the email accounts of his fellow engineers for

malicious software, discovered an email from a white engineer to the engineering team that

secretly documented the Plaintiff’s work and meetings with fellow African-American employee

named Zanake Renibe. The emails portrayed the Plaintiff in a negative light. (Id., ¶ 13). Prior to

the discovery of the emails, there was tension between Plaintiff and the white engineer. (Id.).

Plaintiff raised this dispute with Defendant Romano on two different occasions, but Defendant

Romano did not take any action. Instead, Defendant Romano told Plaintiff that he “‘need[ed] to

be like a duck and let this roll off his back.’” (Id.).

On November 15, 2018, Plaintiff, Zanake Renibe, and another African-American

employee, named Aye Vines, were terminated. (Id., ¶ 14). Defendant Farley, a white male and the

former Interim Operations Director for the Division of Research, required the three African-

American employees to leave the main building and go to a secure location in a separate building

on the UMD campus, which had been evacuated prior to their entry. (Id.). Once at this location,

Defendant Farley gave the group notice of their termination. (Id.). In the room adjacent there was

an armed, plain-clothed officer. (Id.). Defendant Farley claimed that the presence of the officer

was necessary because he did not know how Plaintiff and the other employees would react and

“feared” that they would have a weapon. (Id.). Thereafter, the three were prohibited from

reentering their offices to collect personal belongings and stripped of building access. (Id.).

Moreover, employees with security clearances normally undergo a formal debriefing. (Id., ¶ 15).

The Defendants did not perform this debriefing for the Plaintiff. (Id.). In addition, although not

required, Defendant Romano made the decision to deactivate the Plaintiff’s top-secret security

clearance. (Id.).

In contrast to Plaintiff’s firing, in April 2013, there were layoffs in CASL during which

multiple white employees were dismissed, including employees in Plaintiff’s department and

section. (Id., ¶ 7). Those employees were given notice of their dismissal months in advance and

were permitted to continue working until their termination. (Id.). The white employees received

notice of their dismissal in their normal work location, and were not isolated from other employees.

Nor were the white employees confronted with the presence of armed security. (Id.). Furthermore,

a fourth employee was terminated via layoff at the same time that Plaintiff was terminated (Id., ¶

15). The fourth employee did not have to report to a separate building, nor was the employee

notified of the termination in the presence of armed security. (Id., ¶ 15).

According to Plaintiff, his termination was pretextual, i.e., he was fired because he is

African-American. The Defendants claimed that Plaintiff was terminated due to budgetary

constraints. (Id., ¶ 16). This claim conflicts with the fact that Plaintiff was paid $8,000-$10,000

less than other engineers in his section. (Id.).

II. PROCEDURAL BACKGROUND

On November 15, 2018, Plaintiff was terminated from his employment. On April 9, 2019,

Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission

(“EEOC”). (ECF No. 38-2) (“Charge”). On August 5, 2021, Plaintiff filed this action against the

Defendant. (ECF No. 1). On November 23, 2021, Plaintiff filed a letter request to file an amended

complaint (ECF No. 23). On November 29, 2021, the Court granted the Plaintiff’s request to file

an amended complaint. (ECF No. 24). On December 21, 2021, the Plaintiff filed his Amended

Complaint. (ECF No. 27).

Defendants filed the instant Motion, which Plaintiff opposed, and the Defendants filed a

Reply. (ECF Nos. 38, 41, 42).

III. STANDARDS OF REVIEW

A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

Pursuant to Federal Rules of Civil Procedure (“Fed. R. Civ. P.”) 12(b)(1), a party may

move to dismiss a complaint for lack of subject matter jurisdiction. A Rule 12(b)(1) motion may

allege that sovereign immunity serves to be a jurisdictional bar against the claim. Cunningham v.

Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018). When a defendant challenges

subject matter jurisdiction, plaintiff bears the burden of establishing that subject matter jurisdiction

exists. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

A Rule 12(b)(1) challenge to subject matter jurisdiction may proceed “in one of two ways:”

(1) by mounting either a facial challenge, asserting that the allegations pleaded in the complaint

are insufficient to establish subject matter jurisdiction; or (2) a factual challenge, asserting “‘that

the jurisdictional allegations of the complaint [are] not true.’” Kerns v. United States, 585 F.3d

187, 192 (4th Cir. 2009) (citation omitted) (alteration in original). In a facial challenge, “the facts

alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges

sufficient facts to invoke subject matter jurisdiction.” Kerns, 585 F.3d at 192. In a factual

challenge, however, a “court is entitled to decide disputed issues of fact with respect to subject

matter jurisdiction.” Id. Under this scenario, at court may 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.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004).

If a court finds that subject matter jurisdiction is lacking, then the complaint must be dismissed.

Cunningham, 888 F.3d at 649.

B. Motion to Dismiss for Failure to State a Claim

When a defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), that

defendant is asserting that, even if you construe the facts advanced in the plaintiff’s complaint as

true, that complaint fails to state a claim upon which relief can be granted. To survive a motion to

dismiss, then, a complaint must contain sufficient facts, and must state a “plausible claim for

relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fed. R. Civ. P. 8(a); Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 556 (2007) (complaint must set forth enough facts as to suggest

a “cognizable cause of action”). A claim “has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. The purpose of Rule 12(b)(6) “‘is to test the

sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim,

or the applicability of defenses.’” Velencia v. Drezhlo, Civ. No. RDB-12-237, 2012 WL 6562764,

at *4 (D. Md. Dec. 13, 2012) (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th

Cir. 2006)).

In general, when a motion is filed pursuant to Fed. R. Civ. P. 12(b)(6), a court cannot

consider documents outside of the pleadings to resolve factual disputes. Bosiger v. U.S. Airways,

510 F.3d 442, 450 (4th Cir. 2007). However, a court may consider documents “attached or

incorporated into the complaint,” as well as documents attached to a motion to dismiss, “so long

as they are integral to the complaint,” Philips v. Pitt Cnty. Memorial Hosp., 572 F.3d 176, 180 (4th

Cir. 2009), “and if the plaintiffs do not challenge its authenticity.” Pasternak & Fidis P.C. v. Recall

Total Info. Mgmt., Inc., 95 F. Supp. 3d 886, 894 (D. Md. 2015).

IV. DISCUSSION

Defendants advance three arguments in support of their Motion. First, that the breach of

contract claim cannot stand as it is barred by the Eleventh Amendment and the State Sovereign

Immunity doctrine. Second, the Plaintiff’s Section 1981 claim against Defendants Romano and

Farley in their official capacities is barred by the Eleventh Amendment. Relatedly, Defendants

assert that because the Section 1981 claim seeks prospective injunctive relief, it must be dismissed

as the Amended Complaint does not also contain a claim under 42 U.S.C. § 1983. Third, Plaintiff’s

Title VII claim against Defendant UMD must be dismissed because the majority of the allegations

are: (1) time barred, as they took place more than 300 days before the filing of the Charge; or (2)

procedurally barred as they do not fall within the “scope” of the allegations contained in the

Charge. The remaining allegations, according to the Defendant, are insufficient to establish either

disparate treatment or a hostile work environment. (Motion, pp. 5-7).

The Plaintiff agrees that dismissal of Count III (breach of contract) and Count II (§ 1981)

is appropriate. (Opposition, pp. 1-2). With respect to Count III, the Court has reviewed Kimel v.

Florida Board of Regents, 528 U.S. 62, 73 (2000) and Regents of the University of California v.

Doe, 519 U.S. 425, 431 (1996), and finds that dismissal is appropriate as such claims are barred

by the Eleventh Amendment. Accordingly, Count III is dismissed without prejudice. See Southern

Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175,

185 (4th Cir. 2013). Likewise, regarding Count II, the Court has reviewed Jett v. Dallas

Independent School District, 491 U.S. 701, 736 (1989) and Middlebrooks v. University of

Maryland at College Park, 980 F. Supp. 824, 828 (D. Md. 1997) and finds that dismissal is

appropriate. Count II is dismissed with prejudice as Section 1983 not Section 1981 is the

appropriate vehicle for relief.

With respect to Count I, Plaintiff advances two arguments against dismissal of the Title

VII claim: (1) Plaintiff meets his burden of establishing disparate treatment, despite certain

allegations being either time or procedurally barred, as employment discrimination claims require

no more than a short statement containing an allegation of disparate treatment due to race; and (2)

Plaintiff adequately pleaded his hostile work environment claim because hostile work environment

claims constitute a “continuing violation,” which allows for consideration of facts that would

otherwise be time barred. Thus, the Plaintiff asserts that the facts alleged establish the “severe” or

“pervasive” misconduct required. (Opposition, pp. 12-16).

Title VII Claim-Defendant UMD

1. Disparate Treatment

Defendant UMD asserts that Plaintiff failed to establish a prima facie claim of disparate

treatment. (Motion, p. 8). Primarily, Defendant UMD argues that the Court may only consider

facts alleged within the Amended Complaint that took place no more than 300 days before Plaintiff

filed his Charge. The Defendant also asserts that the Court may only consider facts alleged within

the Amended Complaint that fall within the “scope” of the facts alleged within the Charge.

According to the Defendant, the facts which remain after these limitations are imposed fail to

establish a disparate treatment claim. (Id., pp. 8-9).

The Plaintiff acknowledges the time and scope restrictions and appears to agree with

Defendant UMD that the remaining allegations, after taking into account time and scope

limitations are: (1) in October 2018, Plaintiff was not included in meetings with other engineers,

and that there was a dearth of communication between him and the other engineers; and (2) the

manner in which Plaintiff’s termination was administered was hostile and discriminatory. Despite

these concessions, the Plaintiff asserts that the remaining allegations are more than enough to

satisfy the pleading requirement for a disparate treatment claim. (Opposition, p. 13).3

Title VII prohibits employers from “discharg[ing] any individual, or otherwise …

discriminat[ing] against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e–2(a)(1).

Before filing suit under Title VII, a litigant must file a Charge with the EEOC within 300

days of the alleged conduct and receive a Right to Sue letter. See 42 U.S.C. § 2000e-5(f)(1); see

3 The failure to promote claim was not included in the EEOC Charge, see ECF No. 38-2, and while alleged in the

Amended Complaint, the Plaintiff does not continue to assert that it remains live.

also Prelich v. Med. Res., Inc., 813 F. Supp. 2d 654, 661-62 (D. Md. 2011); Gilliam v. S.C. Dep’t

of Juv. Just., 474 F.3d 134, 139 (4th Cir. 2007) (“Any discrete acts of discrimination that occurred

prior to the applicable period are procedurally barred”). An EEOC charge “defines the scope of

the plaintiff’s right to institute a civil suit.” Bryant v. Bell Atlantic Md., Inc., 288 F.3d 124, 132

(4th Cir. 2002).

Generally, if there are claims contained within a complaint that do not appear in the Charge,

then those claims are procedurally barred. However, courts have held that this requirement should

not “become a tripwire for hapless plaintiffs.” Sydnor v. Fairfax Cnty, 681 F.3d 591, 594 (4th Cir.

2012). In addition, because lawyers typically do not complete charges, courts construe them

liberally. Chacko v. Patuxent Inst., 429 F.3d 505, 509 (4th Cir. 2005). Therefore, a court analyzes

whether the facts alleged in a complaint “reasonably relate” to the charge. Id. For example, if a

plaintiff raises multiple claims of employment retaliation in his or her complaint, but only one in

the charge, those additional retaliation claims are likely permissible as they reasonably relate to

the claim within the charge. See also Johnson v. SecTek, Inc., Civ. No. ELH–13–3798, 2015 WL

502963, at *5 (finding that claims are not procedurally barred where claims within complaint are

related to the same “forbidden basis” such as race).

In this case, Plaintiff filed a Charge, (Amended Complaint, ¶ 2), which Defendants attached

as an exhibit to their Motion. (ECF No. 38-2). In performing its analysis, the Court can look at the

Charge because courts frequently treat a charge as effectively part of a complaint. See, e.g., Rhodes

v. Montgomery Cnty. Dept. of Corr. & Rehab., Civ. No. AW–12–03172, 2013 WL 791208, at *6

(D. Md. Mar. 1, 2013); Betof v. Suburban Hosp., Inc., Civ. No. DKC–11–01452, 2012 WL

2564781, at *3 n. 6 (D. Md. June 29, 2012).

As a preliminary matter, at this procedural juncture, the Plaintiff need only assert a

plausible claim of discrimination under Title VII. Staggers v. Becerra, Civ. No. ELH-21-0231,

2021 WL 5989212, at *13 (D. Md. Dec. 17, 2021).4

The elements for a prima facie case of discrimination in violation of Title VII are: “(1)

membership in a protected class; (2) satisfactory job performance; (3) adverse employment action;

and (4) different treatment from similarly situated employees outside the protected class.” See

White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004); McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 801 (1973). A plaintiff must allege facts showing that the plaintiff’s status

as a member of a protected class is the reason for the adverse employment action. McCleary-Evans

v. Md. Dep't of Transp., 780 F.3d 582, 585 (4th Cir. 2015). A plaintiff need not make a prima facie

showing at the pleading stage; however, the plaintiff must submit a claim that allows a court to go

beyond speculation. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002).

In this case, there are only two allegations that are not time or procedurally barred: (1)

Plaintiff’s exclusion from projects and communication during October 2018; and (2) Plaintiff’s

termination of employment on November 15, 2018. (Opposition, p. 13). Therefore, the Court

considers these two allegations and analyzes the law related to disparate treatment.

First, Plaintiff asserts that he is a member of a protected class. (Amended Complaint, ¶ 4).

Second, the Court finds that Plaintiff has adequately pleaded satisfactory job performance by citing

positive performance reviews up through April 2018. (Amended Complaint, ¶ 8). Third, Plaintiff

claims that he was terminated, which is clearly an adverse employment action. (Amended

4 The so called “McDonnell Douglas” framework is a proof scheme that a plaintiff must satisfy at trial, not at the

pleading stage. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993). When evaluating whether a Rule 12(b)(6)

motion should be granted, courts usually examine the elements of a prima facie claim under McDonnell Douglas to

determine how adequately Plaintiff has advanced plausible factual allegations in a complaint. Staggers, 2021 WL

5989212, at *13.

Complaint, ¶ 14). However, the Court finds that Plaintiff’s alleged exclusion from communication

and meetings do not qualify as adverse employment actions for a disparate treatment claim.

Adverse employment actions are limited to actions against an employee that have a “tangible effect

on the terms and conditions of employment” such as a termination or demotion. See Boone v.

Goldin, 178 F.3d 253, 256 (4th Cir. 1999) (categorizing adverse employment actions as things like

hiring, firing, failing to promote, or reassigning to a different position with significantly different

responsibilities); Yampierre v. Balt. Police Dep’t, Civ. No. ELH-21-1209, 2022 WL 3577268, at

*26 (D. Md. Aug. 18, 2022) (same).

Next, the Court must determine whether, when construing the facts as true and in Plaintiff’s

favor, Plaintiff plausibly alleged that the adverse employment action was related to his

membership in a protected class. The Defendant argues that Plaintiff failed to establish a

connection between the adverse employment action and his membership in a protected class

because he did not allege facts showing that he was treated differently than similarly situated

comparators. (Motion, p. 13; Reply, pp. 3-4). On the other side of the ledger, Plaintiff argues that

he properly alleged comparator information by asserting that his white coworkers were treated

differently than him “before, during, and after termination.” (Opposition, p. 14).

As a preliminary matter, the Court finds that a plaintiff isn’t always required to rely on

comparator information to show that an adverse employment action is related to his membership

in a protected class. Ensor v. Jenkins, Civ. No. ELH-20-1266, 2021 WL 1139760, at *28 (D. Md.

Mar. 25, 2021) (“A plaintiff is ‘not required as a matter of law to point to a similarly situated

comparator to succeed on a discrimination claim’” (citing Haywood v. Locke, 387 F. App'x 355,

359 (4th Cir. 2010), cert. denied, 562 U.S. 1219 (2011))). However, when a plaintiff’s claim relies

on comparator information, the similarity to comparators must be clearly established. Swaso v.

Onslow Cnty. Bd. of Educ., 698 F. App’x 745, 748 (4th Cir. 2017).

In this case, Plaintiff relies on comparator information to show that his termination was

connected to his membership in a protected class. Plaintiff asserts that his termination on

November 15, 2018, differed radically from the termination of white employees. (Id., ¶ 14).

Plaintiff alleges that he had to go to a different building, staffed by an armed guard, and could not

gather his belongings after his termination. (Id.). Plaintiff also alleges that the Defendants did not

impose any of these conditions on white employees when they were fired. (Id.). Plaintiff specifies

that some of these white employees belonged to the same department and section as him. (Id.).

Here, by alleging a difference in termination procedures—which included the revocation of his

security clearance—between himself and white coworkers that worked in the same department and

section, the Court finds that Plaintiff sufficiently established a connection between the adverse

employment action and his membership in a protected class. See Cook v. CSX Transp. Corp., 988

F.2d 507, 511 (4th Cir. 1993) (“comparison[s] will never involve precisely the same set of work-

related offenses occurring over the same period of time and under the same sets of circumstances”);

see also Woods v. City of Greensboro, 855 F.3d 639, 650 (4th Cir. 2017) (finding that a court errs

when it engages in fact finding on comparator evidence rather than a plausibility analysis).

In sum, the Court finds that the Plaintiff has adequately pleaded disparate treatment and

the Motion is denied with respect to this claim.

2. Hostile Work Environment

A “hostile work environment” is one that is “permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [employment]

and create an abusive work environment.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264,

277 (4th Cir. 2015). A plaintiff advancing a “hostile work environment” claim based on race must

allege that: (1) he was subjected to unwelcome conduct, (2) which was based on his race; (3) the

conduct was sufficiently pervasive or severe to alter the conditions of employment and to create

an abusive atmosphere; and (4) is imputable to the employer. Strothers v. City of Laurel Md., 895

F.3d 317 (4th Cir. 2018) (citation omitted).

First, in contrast to a disparate treatment claim, the Court finds that in the context of a

hostile work environment claim, the Court may consider allegations that occur outside the statutory

time period. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (“It does not

matter, for purposes of the statute, that some of the component acts of the hostile work environment

fall outside the statutory time period”).

Here, the Defendants argue that the incidents alleged by the Plaintiff fail to state a plausible

claim as they are not “sufficiently pervasive or severe.” (Motion, pp. 10-11). Plaintiff contends

that he met his burden because his “supervisor constantly yelled and berated him.” (Opposition, p.

16). However, in its Reply, Defendants correctly contend that Plaintiff does not allege in the

Amended Complaint that his supervisors “constantly yelled and berated him.” (Reply, p. 5).

Allegations within the Amended Complaint include: (1) workplace intimidation from other

engineers such as excluding him from communications and certain projects, which Defendant

Romano condoned; (2) the non-competitive promotion of a white employee; (3) an inaccurate poor

performance review; (4) inaction by Defendant Romano when Plaintiff raised workplace disputes;

(5) not receiving co-equal credit for an intellectual property application; and (6) Plaintiff being

called a “worker bee.” Furthermore, Plaintiff alleges workplace humiliation at the hands of

Defendant Romano, but that claim is not accompanied by a specific factual allegation. (Amended

Complaint, ¶¶ 6-14).

Although these allegations are unacceptable, the Court finds that they do not meet the

standard required for a plausible hostile work environment claim. First, the Plaintiff cannot rely

on the assertion that his supervisor “constantly yelled and berated him” as it is not in his Amended

Complaint. Second, the allegations that do appear in the Amended Complaint either include

isolated incidents, e.g., being called a “worker bee,” or generalized assertions that lack any factual

detail, e.g., exclusion from meetings. Simply put, even when construing the facts in the light most

favorable to Plaintiff, Plaintiff’s allegations fall short of the “severe” and “pervasive” standard.

See Perkins v. Int’l Paper Co., 936 F.3d 196, 208 (4th Cir. 2019) (holding that the Supreme Court

set forth “steep requirements” for hostile work environment claims); Taylor v. Go-Getters, Inc.,

Civ. No. ELH-20-3624, 2021 WL 5840956, at *12 (D. Md. Dec. 9, 2021) (finding that “[c]ourts

in this [c]ircuit have consistently declined to find a hostile work environment based on facts far

worse” when ruling on a case in which the defendant “constantly” called plaintiff outside work

hours, reprimanded plaintiff, warned plaintiff that ‘[b]lack [m]ale[s] historically do not do well

and failed to provide him with effective assistance’); See also Buchhagen v. ICF Int'l, Inc., 545 F.

App'x 217, 219 (4th Cir. 2013) (per curiam) (stating that allegations of yelling at the plaintiff in a

meeting, consistently criticizing the plaintiff for mistakes, and “unfairly scrutinizing and

criticizing” plaintiff's failure to follow instructions, fall “far short of being severe or pervasive

enough to establish an abusive environment”) (emphasis added); Vincent v. MedStar S. Md. Hosp.

Ctr., Civ. No. TDC-16-1438, 2017 WL 3668756, at *10 (D. Md. Aug. 22, 2017); Faragher v. City

of Boca Raton, 524 U.S. 775, 788 (1998) (stating that “offhand comments and isolated incidents

(unless extremely serious)” are insufficient to establish a hostile work environment) (emphasis

added).

Accordingly, the Defendants’ Motion related to the hostile work environment claim is

granted.

V. Conclusion

For the foregoing reasons, the Motion is DENIED as to Count I, the Title VII wrongful

termination claim. With respect to Count II, the Motion is GRANTED and Count II is

DISMISSED WITH PREJUDICE. Finally, regarding Count III, the Motion is GRANTED and

Count III is DISMISSED WITHOUT PREJUDICE.

A separate Order follows.

Dated: February 3, 2023 /s/

The Honorable Gina L. Simms

United States Magistrate Judge