Kathryn Lea HARMAN, Plaintiff-Appellant, v. UNISYS CORPORATION, Defendant-Appellee.
No. 09-1298
United States Court of Appeals, Fourth Circuit
Submitted: Oct. 27, 2009. Decided: Dec. 4, 2009.
638 F. App‘x 638
AFFIRMED.
Kathryn Lea Harman, Appellant Pro Se. Frank Charles Morris, Jr., Brian Steinbach, Epstein, Becker & Green, PC, Washington, DC, for Appellee.
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.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,
On appeal, Harman asserts that: (i) the district court misconstrued Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 (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
We find that the magistrate judge2 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) (reviewing the imposition of sanctions pursuant to
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
Under the notice pleading requirements of
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 challenged their actions or would have been more easily influenced to abide by their decisions. Such conclusory allegations are insufficient
Viewing the complaint in its entirety, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (holding that a court must “consider the complaint in its entirety” when ruling on a
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, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (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, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (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 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.