Harman v. Unisys Corporation , 356 F. App'x 638 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1298
KATHRYN LEA HARMAN,
Plaintiff – Appellant,
v.
UNISYS CORPORATION,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:08-cv-00542-GBL-TRJ)
Submitted: October 27, 2009 Decided: December 4, 2009
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Kathryn Lea Harman, Appellant Pro Se. Frank Charles Morris,
Jr., Brian Steinbach, EPSTEIN, BECKER & GREEN, PC, Washington,
DC, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kathryn Lea Harman brought this action against Unisys
Corporation (“Unisys”) and several of its employees asserting,
in part, claims of gender discrimination and retaliation, in
violation of Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e to 2000e-17 (2006) (“Title VII”);
age discrimination and retaliation, in violation of the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C.
§§ 621 to 634 (2006) (“ADEA”); overtime compensation and
retaliation, in violation of the Fair Labor Standards Act,
29 U.S.C. § 216(b) (2006) (“FLSA”); and race discrimination and
retaliation, in violation of 42 U.S.C. § 1981 (2006). The
district court granted Defendants’ motion to dismiss all of her
claims except the FLSA overtime compensation claim. That claim
proceeded to a jury trial. After the jury determined that
Unisys properly classified Harman as an exempt administrative
employee under the FLSA and returned a verdict in favor of
Unisys, the district court entered judgment in Unisys’s favor
and Harman timely appealed.
On appeal, Harman asserts that: (i) the district court
misconstrued Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),
when it granted Unisys’s motion to dismiss her Title VII, ADEA
and § 1981 claims against it; (ii) this court should overrule
Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 363-65
2
(4th Cir. 2000) (holding that the “testimony” clause of the
FLSA’s retaliation provision only applies to procedures in
judicial or administrative tribunals, not informal internal
discussions about what testimony might be if a lawsuit were
filed), and recognize a FLSA retaliation cause of action based
on informal internal complaints; and (iii) the district court
abused its discretion when it denied Harman’s motion for
sanctions against Unisys and its counsel based on the latter’s
electronic posting of Harman’s address and date of birth. 1
Having reviewed Harman’s contentions, we affirm in part, and
vacate in part and remand for further proceedings.
We find that the magistrate judge 2 did not abuse its
discretion when it denied Harman’s motion for sanctions. Cf.
Chaudhry v. Gallerizzo, 174 F.3d 394, 410 (4th Cir. 1999)
1
We reject Harman’s assertion that the district court
abused its discretion when it allowed Unisys to file its
opposition to Harman’s summary judgment motion one day out of
time. See Fed. R. Civ. P. 6(b)(2) (allowing a district court to
extend filing deadlines if “the failure to act was the result of
excusable neglect”); Pioneer Inv. Servs. Co. v. Brunswick
Assocs., 507 U.S. 380, 391-92 (1993) (“Although inadvertence,
ignorance of the rules, or mistakes construing the rules do not
usually constitute ‘excusable’ neglect, it is clear that
‘excusable neglect’ under Rule 6(b) is a somewhat ‘elastic
concept’ and is not limited strictly to omissions caused by
circumstances beyond the control of the movant.”).
2
The district court designated a magistrate judge to
determine pretrial matters in this case, in accordance with
28 U.S.C. § 636(b)(1)(A) (2006).
3
(reviewing the imposition of sanctions pursuant to Fed. R. Civ.
P. 11 for abuse of discretion). The record establishes that
Defendants’ posting of Harman’s address and date of birth was a
mere oversight, that the information was posted online for less
than one week, and that as soon as Harman made Defendants aware
of the error, Defendants moved to remedy the error and seal the
document. Accordingly, Harman was not entitled to have
sanctions imposed upon Defendants.
Second, we decline Harman’s invitation to reverse our
holding in Ball. Even assuming that Ball bars a FLSA
retaliation claim based on an informal internal complaint like
the one made by Harman, one panel of this court may not overrule
a decision of another panel. See, e.g., Scotts Co. v. United
Indus. Corp., 315 F.3d 264, 271-72 n.2 (4th Cir. 2002).
We also reject Harman’s contention that the district
court erred when it granted Unisys’s motion to dismiss her Title
VII, ADEA and § 1981 disparate treatment claims. We review de
novo a district court’s Rule 12(b)(6) dismissal, “focus[ing]
only on the legal sufficiency of the complaint.” Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008). “[W]hen ruling on a
defendant’s motion to dismiss, a judge must accept as true all
of the factual allegations contained in the complaint.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).
While a plaintiff’s statement of his claim “need only give the
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defendant fair notice of what the . . . claim is and the grounds
upon which it rests,” id. at 93 (citations and internal
quotation marks omitted), a complaint may survive a motion to
dismiss only if it “states a plausible claim for relief” that
“permit[s] the court to infer more than the mere possibility of
misconduct” based upon “its judicial experience and common
sense.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009)
(internal citation omitted).
Under the notice pleading requirements of Fed. R. Civ.
P. 8(a)(2), a complaint must contain only a “short plain
statement of the claim showing that the pleader is entitled to
relief.” Moreover, although the plaintiff need not plead facts
that constitute a prima facie case under the framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in order
to survive a motion to dismiss, Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 510-15 (2002), a civil rights plaintiff retains
the burden of alleging facts sufficient to state a claim
entitling her to relief. See Jordan v. Alternative Res. Corp.,
458 F.3d 332, 346-47 (4th Cir. 2006).
Harman’s disparate treatment allegations tell a story
about her repeated challenges to management’s actions and
business decisions and summarily assume that with each
challenge, “upon information and belief,” Unisys believed that a
younger, African American or male employee would not have
5
challenged their actions or would have been more easily
influenced to abide by their decisions. Such conclusory
allegations are insufficient to defeat a motion to dismiss.
Twombly, 550 U.S. at 555.
Viewing the complaint in its entirety, see Tellabs,
Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)
(holding that a court must “consider the complaint in its
entirety” when ruling on a Rule 12(b)(6) motion to dismiss), we
find that the district court correctly held that Harman’s
allegations failed to establish that she suffered an adverse
employment action sufficient to state a claim for disparate
treatment based on her race, age or gender. See Page v. Bolger,
645 F.2d 227, 233 (4th Cir. 1981) (holding that for purposes of
a disparate treatment claim, an adverse employment action must
be an act that affects hiring, granting leave, promoting and
compensating).
We nonetheless find that the district court erred when
it granted the motion to dismiss her Title VII, ADEA and § 1981
retaliation claims against Unisys. Assuming Harman’s factual
allegations are true, see Erickson v. Pardus, 551 U.S. 89, 94
(2007), we cannot conclude, as a matter of law, that Harman
failed to allege that she suffered a materially adverse
employment action after she complained of discrimination. See
Burlington N. & Sante Fe Ry. v. White, 548 U.S. 53, 68 (2006)
6
(holding that to establish an adverse employment action for
purposes of a Title VII retaliation claim, “a plaintiff must
show that a reasonable employee would have found the challenged
action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or
supporting a charge of discrimination”) (internal quotations and
citations omitted).
Harman’s complaint is cumbersome and voluminous and
contains numerous irrelevant allegations. Moreover, Harman’s
complaint could have been more succinct and more specific with
regard to when some of the challenged actions took place, and
which individuals she alleged were her comparators for purposes
of her retaliation claims. We nonetheless hold that the
district court should have allowed Harman an opportunity to
refine her Title VII, ADEA and § 1981 retaliation claims by
amending her complaint, rather than dismiss those claims with
prejudice. Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir.
1999) (recognizing that rather than dismiss a defective pleading
with prejudice, a plaintiff should “be given every opportunity
to cure a formal defect in his pleading[,] . . . even though the
court doubts that plaintiff will be able to overcome the
defects”); see also Teachers’ Retirement System Of LA v. Hunter,
477 F.3d 162, 170 (4th Cir. 2007) (“[U]nder this scheme of
notice pleading and broad discovery, consideration of a motion
7
to dismiss must account for the possibility that a noticed claim
could become legally sufficient if the necessary facts were to
be developed during discovery.”).
Accordingly, we vacate that portion of the district
court’s order granting Unisys’s motion to dismiss Harman’s Title
VII, ADEA and § 1981 retaliation claims against it, and remand
to the district court for further proceedings. 3 We nonetheless
affirm the remainder of the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
3
By this disposition, we intimate no view as to the
appropriate resolution of Harman’s retaliation claims against
Unisys.
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