Newcomer v. Mom's Organic Market, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
IMANI NEWCOMER, 	*
Plaintiff, 	*
v. 	* 	Civ. No. 8:24-cv-00562-PX
MOM’S ORGANIC MARKET, INC., 	*
Defendant. 	*
***
MEMORANDUM OPINION
Pending is Plaintiff Imani Newcomer (“Newcomer”)’s motion for leave to file an amended
complaint that Defendant MOM’s Organic Market, Inc. (“MOM’s”) opposes as futile. ECF Nos.
24 & 25. The Court finds no need for a hearing. See D. Md. Loc. R. 105.6. For the following
reasons, the motion to amend is granted in part and denied in part.
I. 	Background
The lawsuit arises from MOM’s alleged race, color and gender discrimination leveled
against Newcomer. 	The Court has previously recited the operative facts in its prior decision at
ECF No. 20 and incorporates those facts here. In that same decision, the Court dismissed without
prejudice Newcomer’s discrimination and hostile work environment claims, but allowed the
retaliation claims to proceed. ECF Nos. 20 & 21. Newcomer now seeks to amend the Complaint
to cure the previously identified pleading defects. ECF No. 24. 	For the following reasons, the
Court allows amendment as to the hostile work environment claims but not as to the discrimination
claims.
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II. 	Standard of Review
Amendment of pleadings should be granted liberally, unless the amended pleading is
prejudicial, futile or brought in bad faith. See Fed. R. Civ. P. 15(a)(2); Mayfield v. National Ass’n
for Stock Car Auto Racing, Inc., 674 F.3d 369, 379 (4th Cir. 2012) (quoting Matrix Capital Mgmt.
Fund, LP v. BearingPoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009)). 	“Futility is apparent if the
proposed amended complaint fails to state a claim under the applicable rules and accompanying
standards.” Katyle v. Penn Nat. Gaming, Inc., 637 F.3d 462, 471 (4th Cir. 2011) (quoting United
States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4th Cir. 2008)) (internal
quotation marks omitted). In assessing whether a claim is futile, the Court reviews the claim for
sufficiency pursuant to Federal Rule of Civil Procedure 12(b)(6). 	Kerrigan v. Bd. of Educ. of
Carroll Cnty., No. JKB-14-3153, 2016 WL 470827, at *3 (D. Md. Feb. 8, 2016). The Court must
“accept the well-pled allegations of the complaint as true,” and “construe the facts and reasonable
inferences derived therefrom in the light most favorable to the plaintiff.” Ibarra v. United States,
120 F.3d 472, 474 (4th Cir. 1997). The factual allegations must be enough to “raise a right to relief
above the speculative level.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
MOM’s principally contends that amendment should be denied because the claims still fail
as a matter of law. The Court first considers the amended discrimination counts (Counts I and IV)
and next turns to the hostile work environment counts (Counts II and V).
III. 	Analysis
A. Section 1981 and Title VII Discrimination (Counts I and IV)
The proposed amended complaint asserts the same theories of discrimination as before:
that MOM’s discriminated against Newcomer by (1) paying her less than White employees; (2)
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failing to promote her at a comparable rate to White assistant managers (3) giving her less
“desirable” work shifts and (4) terminating her. The Court considers each theory in turn.
1. 	Discriminatory Termination
First, the parties dispute whether the proposed amended complaint now makes plausible a
theory of direct discrimination as to Newcomer’s termination. 	A direct discrimination claim is
made plausible where the “conduct or statements . . . reflect directly the alleged discriminatory
attitude and that bear directly on the contested employment decision.” Warch v. Ohio Cas. Ins.
Co., 435 F.3d 510, 520 (4th Cir. 2006) (quoting Taylor v. Virginia Union Univ., 193 F.3d 219, 232
(4th Cir. 1999)). For the claim to survive dismissal, a plaintiff must plead facts that show “some
nexus . . . between the alleged discriminatory statements” and the adverse action, here the
plaintiff’s termination. 	O’Connor v. Consol. Coin Caterers Corp., 56 F.3d 542, 549 (4th Cir.
1995) (quotation marks omitted), rev’d on other grounds by 517 U.S. 308 (1996).
Importantly, “to satisfy the nexus requirement in a direct evidence case, the person making
the 	statement 	must 	hold 	the 	status 	of 	‘decisionmaker’ 	within 	the 	defendant 	employer’s
organization.” U.S. E.E.O.C. v. CTI Glob. Sols., Inc., 815 F. Supp. 2d 897, 907 (D. Md. 2011). A
“decisionmaker” includes agents of the employer who have “principal responsibility” over the
adverse employment decision. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 289
(4th Cir. 2004), overruled in part on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S.
167 (2009).
Newcomer argues that the proposed amendment makes clear that Assistant General
Manager Stacie May (“May”)—the alleged direct discriminator—was also involved in the decision
to terminate Newcomer. The Court disagrees. Although May was present for the meeting in which
Regional Operations Manager Lara McCallum and Human Resources Director Patricia Kotler
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informed Newcomer that she would be fired if she did not move to the Rockville store, May’s
mere presence does not make plausible her involvement in the termination decision. Cf. Moody v.
Bd. of Educ. of Wicomico Cnty., No. CV SAG-25-00642, 2025 WL 3119201, at *11 (D. Md. Nov.
7, 2025) (cat’s paw theory). Nor is such theory plausible when considering that Newcomer and
May were both Assistant General Managers which suggests that May had no supervisory authority
over Newcomer. 	ECF No. 24-2 ¶¶ 24, 71. 	Indeed, even the proposed pleading avers that
Newcomer’s termination was the product of a Human Resources’ “investigation” and an
“anonymous employee survey,” not because of any decision May made. Id. ¶¶ 137–52. Because
no facts make plausible that May had been a decisionmaker in terminating Newcomer, the direct
theory of discrimination fails.
Next, under the McDonnell Douglas burden shifting framework, the discrimination claim
will survive if some facts make plausible that (1) the plaintiff belonged to a protected class; (2)
she performed her job satisfactorily; (3) she suffered an adverse employment action; and (4)
similarly situated employees who were not a member of her protected class received more
favorable treatment. See White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004). If
the plaintiff makes that prima facie showing, the burden shifts to the employer to assert a
legitimate, nondiscriminatory reason for its conduct, McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973), and then the burden shifts back to the plaintiff to show that the stated rationale is
a pretext for discrimination. See Foster v. Summer Vill. Cmty. Ass’n, Inc., 520 F. Supp. 3d 734,
742 (D. Md. 2021) (citing E.E.O.C. v. Sears Roebuck & Co., 243 F.3d 846, 852 (4th Cir. 2001)).
Although at the pleading stage the plaintiff need not plead every element of the prima facie case,
she must aver some facts that give rise to the inference that she was treated adversely on account
of a protected characteristic. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002). See also
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McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.
2015).
When viewing the proposed amended complaint most favorably to Newcomer, no facts
give rise to the plausible inference that she was fired because of her race. To be sure, the amended
pleading makes plausible that Newcomer had been terminated because she had reported May’s
racist behaviors. 	But complaining about a coworker’s discriminatory animus, prompting quick
termination, is actionable in retaliation. Cf. U.S. E.E.O.C., 815 F. Supp. 2d at 907. In this respect,
the additional allegations regarding Newcomer’s complaints having created an “Us vs. Them” and
“toxic” work environment further support the retaliation claims. ECF No. 24-2 ¶¶ 138–42. But
none make plausible that Newcomer had been fired on account of her race. 	Thus, this liability
theory cannot proceed.
2. 	Disparate Pay
Turning next to the disparate pay liability theory, the proposed amended complaint largely
rehashes the same allegations as before, compare ECF No. 1 ¶¶ 252–57, 276–82 to ECF No. 24-2
¶¶ 152–58, 175–80. Accordingly, the claim still fails to make plausible that Newcomer had been
paid less than any White employee who was similarly situated in all material respects. See Spencer
v. Virginia State Univ., 919 F.3d 199, 207 (4th Cir. 2019), as amended (Mar. 26, 2019). Although
no “bright line” test exists for what makes employees “similarly situated,” factors such as similar
job description, employment standards, supervisory structure, and comparable experience or
education are considered. 	Id. (quoting Bio v. Fed. Express Corp., 424 F.3d 593, 597 (7th Cir.
2005)).
At best, the proposed pleading avers that Newcomer was paid less than Jessica Ladow.
Ladow, however, allegedly was paid more than Newcomer as of 2018, but this pay disparity is
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beyond the applicable limitations period for suit to proceed. 	See ECF No. 20 at 10 n.2. 	The
proposed amendment otherwise avers generally that Newcomer made less than other Assistant
General Managers, and that she asked for a salary to “bring her in line” with those employees.
ECF No. 24-2 ¶ 73–74. 	But no other facts make plausible that Newcomer was in all material
respects the same as the other Assistant General Managers such that discriminatory animus
explains the difference in pay. 	Lastly, to the extent Newcomer relies on May as a suitable
comparator, the Amended Complaint avers that May had considerably more experience than
Newcomer, which itself supports a legitimate non-discriminatory reason for the pay differential.
ECF No. 24-2 ¶ 76. See also Bio, 424 F.3d at 597 (“This substantial gap in experience precludes
a finding that the two were similarly situated.”). This liability theory also fails.
3. 	Non-Promotion
Next, Newcomer alleges discrimination based on MOM’s failure to timely promote her to
Assistant General Manager. 	To make plausible a failure-to-promote theory of discrimination,
some facts must show that the plaintiff “(1) is a member of a protected class; (2) applied for the
position in question; (3) was qualified for the position; and (4) was rejected for the position under
circumstances giving rise to an inference of unlawful discrimination.” 	Amirmokri v. Baltimore
Gas and Elec. Co., 60 F.3d 1126, 1129 (4th Cir. 1995). The problem for Newcomer is that she
ultimately received the promotion, just not as quickly as others. But this difference alone does not
make plausible a failure to promote claim. Thus, this liability theory still fails.
4. 	Assigned Less Desirable Shifts
As with the original Complaint, Newcomer still presses that she was the victim of race
discrimination because her supervisor Kyle Young assigned only her to work “the undesirable 3:00
am to 11:00 am or 4:00 am to 12:00 am shifts.” 	ECF No. 24-2 ¶¶ 95–97. 	The Court assumes
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purely for the sake of argument that assignment to an “undesirable” shift amounts to a sufficiently
disadvantageous change to terms of employment to sustain the claim. See Herkert v. Bisignano,
151 F.4th 157, 165 (4th Cir. 2025). That said, Young’s decision to assign Newcomer these difficult
shifts, following Newcomer’s complaints about May, could support the retaliation claims. But no
facts make plausible that Young assigned her these shifts because of her race or any other protected
characteristic.
For these reasons, the Court DENIES Newcomer’s motion to amend the discrimination
claims, Counts I and IV. Those counts are dismissed with prejudice. The Court next turns to the
hostile work environment claims.
B. Hostile Work Environment in Violation of Section 1981 (Count II) and Title VII
(Count V)
Newcomer’s amendments to the hostile work environment claims are limited but
meaningful. 	The claim is now clearly premised on MOM’s continued refusal to curb May’s
assaultive and derogatory behaviors aimed at Newcomer and other persons of color. 	For a hostile
work environment claim to survive challenge, some facts must make plausible that the plaintiff (1)
experienced unwelcome conduct, (2) that was imputable to the employer, (3) that the conduct was
aimed at a protected characteristic, and (4) was sufficiently severe and pervasive to alter the
conditions of her employment. See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183–84 (4th
Cir. 2001); see also Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 299 (4th Cir. 2015). See
also Evans v. Int’l Paper Co., 936 F.3d 183, 192 (4th Cir. 2019) (quoting E.E.O.C. v. Sunbelt
Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008)). Whether the work-place harassment was
sufficiently severe or pervasive depends on the “totality of the circumstances,” Spriggs, 242 F.3d
at 184, taking into account “frequency of the discriminatory conduct; its severity; whether it was
physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably
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interfered with the employee’s work performance,” Sunbelt Rentals, 521 F.3d at 315 (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
The Court had originally dismissed this claim because no facts connected May’s racially
derogatory conduct generally to Newcomer more particularly, or made clear how May’s assaultive
acts were linked to Newcomer’s race. 	ECF No. 20 at 15. 	The proposed amended complaint,
however, makes plausible that May routinely spoke to people of color in a harsh, belittling manner
in contrast to the cordiality May showed White employees. ECF No. 24-2 at ¶¶ 29–30. May was
also hypercritical of Black employees and contemporaneously assaulted them. Id. ¶ 31–32. May
often placed people of color in “chokeholds” but did not do so with White employees. Id. ¶ 32.
Newcomer, in turn, tried to speak with May about the litany of complaints received from
Black and Brown employees, at which point May trained her sights on Newcomer. 	She called
Newcomer one of the “ABWs” (angry Black women) who acted like a “pack of wolves” ready to
attack May. ECF No. 24-2 ¶¶ 51–53. On several occasions, May also snuck up behind Newcomer
and put her in a chokehold as she did with other people of color. And May did not stop even after
Newcomer protested. Id. ¶¶ 31–34, 47–50, 58, 77–78. Nor did management curb May’s abusive
behavior once they learned about it. Id. ¶¶ 130–34 (Newcomer complaining to supervisor about
May having placed her and other people of color in chokeholds and speaking to them in racially
derogatory terms). 	See also id. ¶¶ 55, 91 (Newcomer complaining about May’s conduct to
management). As a result, Newcomer sought therapy to cope with the racially hostile and toxic
work environment that May had created. Id. ¶ 70.
From this, the proposed amended complaint makes plausible that Newcomer had been
“subjected to a hostile work environment on the basis of race” because MOM’s allowed “May to
assault her and other Black and Hispanic Employees and use racist and gendered slurs—while she
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did not similarly assault White employees.” Id. ¶¶ 160, 185. See also Spriggs, 242 F.3d at 185
(explaining that the n-word is a “pure anathema to African Americans” such that “no single act
can more quickly alter the conditions of employment”) (quoting Rodgers v. Western–Southern Life
Ins. Co., 12 F.3d 668, 675 (7th Cir. 1993)); see also id. (explaining that “[t]o suggest that a human
being’s physical appearance is essentially a caricature of a jungle beast goes far beyond the merely
unflattering; it is degrading and humiliating in the extreme,” in response to a supervisor calling a
Black employee a “monkey”). May’s conduct was objectively hostile and race-directed, as made
plausible by the other Black and Brown employees who found working with May to be
uncomfortable, unacceptable, and in one case, so opprobrious that the employee asked not to work
with May any longer. 	ECF No. 24-2 ¶¶ 28, 50. 	When viewing the facts most favorably to
Newcomer, the hostile work environment claims will proceed.
IV. 	Conclusion
In sum, although the discrimination claims still fail, rendering amendment futile as to
Counts I and IV, the proposed amended complaint does make plausible the hostile work
environment claims at Counts II and V. 1 Accordingly, Counts II and V will proceed alongside the
retaliation claims at Counts III and VI. The motion to amend is thus granted in part and denied in
part.
A separate order follows.
2/5/2026 	/s/
Date 	Paula Xinis
United States District Judge
1 MOM’s also briefly argues that permitting amendment would “prejudice” the company. ECF No. 25 at 13. The
argument is unpersuasive. The proposed amendment does not “prejudice” MOM’s simply because MOM’s chose to
oppose amendment. Id. Nor was Newcomer’s motion to amend frivolous. Indeed, the Court had invited Newcomer
to seek amendment if she wished and Newcomer successfully cured a few of the previously dismissed claims.
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