E-Alert Case Updates

Filing a Retaliation Claim While Litigating a Discrimination Claim is not Impermissible Claim Splitting

Jenkins v. Gaylord Entertainment Co.
Case No. 8:11-cv-02869 (D. Md. January 3, 2012)
by Gregory L. Arbogast, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Jenkins v. Gaylord Entertainment Co. is a claim-splitting case in which Judge Williams of the United States District Court for the District of Maryland permitted Plaintiff to file a second lawsuit which arose out of similar facts to a pre-existing lawsuit. Judge Williams found that the two claims were sufficiently distinct to permit Plaintiff to file two (2) separate actions. Judge Williams did dismiss one (1) of the counts in the second case, however, on the basis that the count was impermissible claim splitting.

Jenkins is an employment discrimination case in which Marissa Jenkins (“Plaintiff”) asserted a Section 1981 retaliation claim and discrimination against her former employer, Gaylord Entertainment Company (“Gaylord”). Jenkins is the second of a pair of related cases. In the first case, Plaintiff filed a Title VII employment discrimination case in which she alleged discrimination based upon her race and national origin.

In the first case, Plaintiff attempted to amend her Complaint to include a Title VII retaliation claim. The Court, however, denied Plaintiff’s request to amend on the basis that it was futile. The Court found that a Title VII retaliation claim required Plaintiff to exhaust her administrative remedies, which she failed to do. Therefore, the first case was limited to Plaintiff’s discrimination claim.

Since the Court denied Plaintiff leave to amend her Complaint, Plaintiff filed a second action, this time under Section 1981, alleging a Section 1981 retaliation claim and a discrimination claim. Significantly, Section 1981, unlike Title VII, does not require that Plaintiff exhaust her administrative remedies prior to filing suit in the United States District Court. Gaylord moved to dismiss the second claim on the bases that: (1) the statute of limitations barred the second suit; and (2) the second suit constituted impermissible claim splitting.

The Court immediately dismissed Gaylord’s argument that the statute of limitations barred Plaintiff’s second suit. Gaylord argued that the proper statute of limitations was Maryland’s three (3)-year personal injury statute of limitations. Federal statutes, however, clearly set the statute of limitations for Section 1981 retaliation claims at four (4) years. Plaintiff filed her claim well within the four (4)-year statute of limitations.

The Court next analyzed whether the retaliation claim was impermissible claim splitting with Plaintiff’s initial discrimination claim. While the two (2) claims were related, they were sufficiently distinct to permit two (2) lawsuits. Plaintiff’s discrimination claim alleged that her employer discriminated against her on the basis of her race. In discovery in the first suit, however, Gaylord produced an email in which Plaintiff informed her superior that she intended to file a discrimination claim. Two (2) days later, Gaylord fired Plaintiff. Therefore, the Court held that the retaliation claim was based on the email, not the initial discrimination. The two (2) separate incidents permitted Plaintiff to file two (2) separate lawsuits. The Court, however, dismissed Plaintiff’s Section 1981 discrimination claim because the Court found that the second discrimination claim arose out of the same facts as the first discrimination claim.