Karen Greene v. Harris Corporation

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1601

KAREN E. GREENE,

Plaintiff - Appellant,

v.

HARRIS CORPORATION; HARL DAN PIERCE,

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District
Judge. (1:13-cv-00190-MJG)

Argued: March 22, 2016 Decided: June 22, 2016

Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.

Affirmed by unpublished opinion. Judge Keenan wrote the
majority opinion, in which Judge Wilkinson joined. Chief Judge
Traxler wrote a dissenting opinion.

ARGUED: James R. Klimaski, KLIMASKI & ASSOCIATES, P.C.,
Washington, D.C., for Appellant. Lynn E. Calkins, HOLLAND &
KNIGHT LLP, Washington, D.C., for Appellees. ON BRIEF: John P.
Racin, Lynn I. Miller, KLIMASKI & ASSOCIATES, P.C., Washington,
D.C., for Appellant.

Unpublished opinions are not binding precedent in this circuit.
BARBARA MILANO KEENAN, Circuit Judge:

This case arose from plaintiff Karen Greene’s employment as

a janitor with Eurest Services, Inc. (Eurest). Eurest had

assigned Greene to provide cleaning services at the office of

the defendant, Harris Corporation (Harris), which Greene

maintained also was her employer under a joint employment

doctrine. Greene alleged that while working at Harris’ office,

Harris and its employee, Harl Dan Pierce, discriminated against

her based on her sexual orientation and personal appearance, in

violation of local anti-discrimination laws.

The district court dismissed Greene’s complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6), concluding that Greene

had failed to allege sufficiently that she was an “employee” of

Harris as required by the relevant anti-discrimination laws.

Upon our review, we affirm the district court’s judgment.

I.

Before her employment with Eurest, Greene had provided

janitorial services for Harris for 14 years under contracts

between Harris and the cleaning company that Greene formerly

operated. 1 In October 2008, during the period of Greene’s

1Because the district court dismissed the complaint under
Rule 12(b)(6), we accept the factual allegations in the
complaint as true and construe them in the light most favorable
(Continued)
2
contracts with Harris, Pierce began working in Harris’ office in

Columbia, Maryland (Harris’ office). Pierce generally treated

Greene in a rude manner. Pierce also made derogatory statements

about Greene to other employees, including that she was “frumpy,

dumpy, and dress[ed] like a man in flannel and jeans.”

In January or February 2010, Pierce learned from another

employee that Greene was a lesbian, and soon after terminated

her contract. Greene first learned of the decision when she saw

a termination letter while cleaning Pierce’s office. Pierce

later informed Greene that her contract was being terminated for

budgetary reasons. Greene’s last day at Harris under the

terminated contract was March 31, 2010.

Later in the same year, Harris and Eurest entered into a

contract for cleaning services under which Eurest agreed to

assign some of its janitorial employees to clean Harris’ office.

Under the terms of the Eurest-Harris contract, Harris was

required to provide cleaning supplies for Eurest’s cleaning crew

and to conduct on-site supervision of the crew’s work. Harris

also retained the ability to evaluate assigned Eurest personnel,

and to exercise its discretion to refuse an assigned janitor

“for cause.”

to the plaintiff. Coleman v. Md. Court of Appeals, 626 F.3d
187, 189 (4th Cir. 2010).

3
 Eurest hired Greene as a full-time Eurest employee on

December 6, 2010, and assigned her to work at Harris’ office.

On her first day at Harris’ office, Pierce saw Greene and

“immediately had Harris security escort her from the premises.” 2

Pierce sent an email the same day to Harris’ facilities manager

stating:

I came to work this morning to find Karen Greene
cleaning the facility. This is the woman whom we
dismissed because she was charging us $5000 a month.
This is the woman who inappropriately searched my
office and screamed obscenities at me.

Russ, what is going on?

Four days later, Pierce placed a telephone call to Eurest,

stating that Harris had banned Greene from the premises and

directing Eurest “to immediately remove her from working at the

office.” After receiving Pierce’s complaint, Eurest terminated

Greene’s employment.

Greene filed this civil action 3 against Harris and Pierce

(the defendants), alleging: (1) discrimination based on her

2
In her complaint, Greene alleges that Pierce noticed her
working at the office on December 6, 2010, and had her removed
from the premises the same day. During the administrative
investigation conducted by the Howard County Office of Human
Rights, however, Greene stated that she worked at Harris for
four days in December 2010. This discrepancy does not affect
our analysis of the sufficiency of Greene’s complaint.
3
Greene originally filed her complaint in the Circuit Court
for Howard County, Maryland. Harris removed the case to the
United States District Court for the District of Maryland.

4
sexual orientation and personal appearance, in violation of

Howard County, Maryland Code §§ 12.208, I(a) & II(a)(1); 4 and (2)

a claim under Maryland law for tortious interference with her

business relationship with Eurest. The district court granted

the defendants’ motion to dismiss the complaint under Federal

Rule of Civil Procedure 12(b)(6). The court concluded that

Greene was not an “employee” of Harris and, therefore, was not

protected against Pierce’s conduct under the Howard County anti-

discrimination laws. The court also held that Greene had not

plausibly alleged that Harris committed a “wrongful act,” as

required under Maryland law for a tortious interference claim.

This appeal followed.

II.

We review de novo the district court’s dismissal of a

complaint for failure to state a claim under Rule 12(b)(6).

Andon, LLC v. City of Newport News, Va., 813 F.3d 510, 513 (4th

Cir. 2016). The allegations in a plaintiff’s complaint “must

state a claim to relief that is plausible on its face.” Id. at

513-14 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))

4
Maryland State Government Code § 20-1202(b) authorizes “a
person that is subjected to a discriminatory act prohibited by
the county code [to] bring and maintain a civil action against
the person that committed the alleged discriminatory act for
damages, injunctive relief, or other civil relief.”

5
(internal quotation marks omitted). Accordingly, to survive a

motion to dismiss, the “[f]actual allegations [of a complaint]

must be enough to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A.

Greene first argues that she was an employee of both Eurest

and Harris on December 6, 2010, and that the district court

erred in concluding that she failed to allege an employment

relationship with Harris. Although Greene’s complaint relies

heavily on selected language from the contract between Eurest

and Harris, the record before us does not contain the entire

contract. Nevertheless, Greene contends that because the

contract gave Harris some authority to evaluate and supervise

Eurest janitorial personnel, the contract thereby established an

employment relationship between Greene and Harris. We disagree

with Greene’s argument.

As relevant here, the Howard County Code (the Code)

prohibits employers from discharging an employee because of the

person’s sexual orientation or personal appearance. Howard

County, Maryland Code (HCC) § 12.208, I(a), II(a). The Code

defines the term “employer” as “a person, engaged in an industry

or business, who has five or more full-time or part-time

employees for each working day in each [of] 20 or more calendar

weeks in the current or previous calendar year and any agent of

6
such a person.” Id. § 12.208, (I)(d). The term “employee” is

defined in a circular fashion as “an individual employed by an

employer.” Id. § 12.208, (I)(c). Because the definition of

“employer” in the Code is analogous to the definition of that

term in Title VII of the Civil Rights Act of 1964 (Title VII),

see 42 U.S.C. § 2000e(b), we are guided by federal precedent in

interpreting the Code’s definition. See Taylor v. Giant of Md.,

LLC, 33 A.3d 445, 459 (Md. 2011) (explaining Maryland courts’

“history of consulting federal precedent in the equal employment

area”) (citing Haas v. Lockheed Martin Corp., 914 A.2d 735, 742

(Md. 2007)).

After the district court’s decision in this case, we issued

our opinion in Butler v. Drive Automotive Industries of America,

Inc., in which we held that a plaintiff pursuing a claim under

Title VII may be considered an employee of more than one

employer under the joint employment doctrine. 793 F.3d 404, 408

(4th Cir. 2015). We emphasized that this doctrine is intended

to prevent “those who effectively employ a worker from evading

liability by hiding behind another entity, such as a staffing

agency.” Id. at 410.

We established a nine-factor test to determine whether an

employee of a staffing agency also was employed by the client to

which she was assigned, focusing on the amount of control the

7
client exercised over the putative employee. Id. at 414. Under

this test, we may consider:

(1) [the putative employer’s] authority to hire and
fire the individual;

(2) [the] day-to-day supervision of the individual,
including employee discipline;

(3) whether the putative employer furnishes the
equipment used and the place of work;

(4) possession of and responsibility over the
individual’s employment records, including payroll,
insurance, and taxes;

(5) the length of time during which the individual has
worked for the putative employer;

(6) whether the putative employer provides the
individual with formal or informal training;

(7) whether the individual’s duties are akin to a
regular employee’s duties;

(8) whether the individual is assigned solely to the
putative employer; and

(9) whether the individual and putative employer
intended to enter into an employment relationship.

Id.

The plaintiff in Butler was employed directly by a staffing

agency, which conducted many traditional employer functions such

as issuing paychecks and imposing employee discipline. Id. at

415. However, because the plaintiff in that case worked side-

by-side with workers employed solely by the client, was directly

engaged in producing the client’s product, and was supervised by

a manager employed by the client, we concluded that the

8
plaintiff had established an employment relationship necessary

to subject the client to potential liability under Title VII.

Id.

In contrast, Greene wholly has failed to plead plausible

allegations of an employment relationship with Harris. Although

Eurest assigned Greene exclusively to clean Harris’ office,

Greene’s complaint alleges that she worked there only for a few

hours in December 2010, undermining any contention that she

developed an employment relationship with Harris over the course

of an ongoing work assignment. The limited facts that Greene

offers to support her allegation of an employment relationship

are: (1) Harris provided the cleaning supplies for Eurest

janitors, (2) Harris had the ability to interview prospective

janitorial workers provided by Eurest, “evaluate” Eurest

personnel, “accept or reject any individual(s) based upon their

experience,” and request that Eurest remove a person from the

Harris assignment “for cause,” (3) an on-site Harris employee

supervised Eurest cleaning personnel, and (4) Harris selected

the days on which Greene would work at its office.

These allegations are based largely on the contract between

Eurest and Harris. Because the full contract was not made a

part of the present record, we are unable to evaluate the full

context of the parties’ relative contractual responsibilities.

Greene has not identified in her complaint how the cited

9
contractual provisions were applied in practice to her, other

than the fact that a Harris employee was named as her on-site

supervisor. Under the terms of the Eurest-Harris contract,

Harris and its on-site supervisor regularly would “review

effectiveness” of Eurest janitorial workers. And, notably,

Greene does not allege that she actually met with or received

any direction from any Harris supervisor during the few hours in

December 2010 that she was present at Harris’ facility.

Construing the allegations most favorably to Greene, we conclude

that the “effectiveness review” provision included in the

contract does not amount to the “day-to-day supervision”

controlling the manner in which work would be completed, which

we found relevant in Butler. See Butler, 793 F.3d at 414-15.

Greene also has not alleged that her duties were related to

Harris’ business product, or that she performed work that also

was undertaken by Harris employees. Nor has she plausibly

alleged that Eurest or Harris intended that their contractual

agreement establish any type of employment relationship between

Eurest employees and Harris. See generally id. at 414.

Although Greene alleges that Harris possessed some control

over which Eurest employees were assigned to Harris’ contract,

we conclude that these allegations alone do not establish an

employment relationship between Greene and Harris. Our concern

with the putative employer’s authority to hire and fire in

10
Butler arose from the circumstances of the staffing agency-

client relationship, namely, that the client could terminate

staffing agency employees who were performing the work of the

client, as it could its own direct employees. In contrast,

here, Harris’ authority to approve or reject Eurest employees

arises from its authority to ensure that the services contract

is performed to Harris’ satisfaction.

The factors set forth in Butler are not intended for

mechanical application, but instead provide a framework to

elicit the true nature of a putative employment relationship.

In the present case, considering all the facts alleged in

Greene’s complaint, we conclude that the contractual arrangement

between Eurest and Harris is not analogous to the staffing

agency-client relationship that supported our conclusion of a

joint employment relationship in Butler. Instead, the

contractual provisions cited by Greene describe a contract for

janitorial services between a vendor of those services and its

business client. We therefore hold that the district court did

not err in concluding that Greene failed to state a claim of

discrimination on which relief can be granted.

Apart from this conclusion, we observe that the conduct

alleged in Greene’s complaint is egregious in nature. However,

allegations of animus or discriminatory behavior cannot create

an employment relationship when such a relationship has not

11
otherwise been pleaded. Although remedial in nature, see

Butler, 793 F.3d at 409, anti-discrimination laws do not provide

a remedy for all reprehensible conduct in society. See, e.g.,

HCC § 12.208, I(d) (limiting the Code’s remedial scheme to

employers with five or more employees); cf. Cilecek v. Inova

Health Sys. Servs., 115 F.3d 256, 257-58 (4th Cir. 1997)

(concluding that an independent contractor was not entitled to

protection under Title VII). Thus, while future changes in the

law may provide a remedy for such conduct as that alleged in

Greene’s complaint, this Court cannot create a remedy simply

because it wants to achieve that result.

We also emphasize that because Greene did not challenge in

her complaint Harris’ earlier decision, in March 2010, to

terminate her longstanding contract with Harris, we have not

considered any indicia of employment that may have been present

in that prior relationship. Thus, we necessarily have decided

only the case that Greene has set before us.

B.

Greene next argues that the district court erred in

dismissing her claim under Maryland law for tortious

interference with a business relationship. She contends that

Pierce tortiously interfered with her business relationship with

12
Eurest, by defaming her 5 in falsely stating to Eurest personnel

that Harris previously had barred her from its premises. We

disagree with Greene’s argument.

To state a claim under Maryland law for tortious

interference with a business relationship, a plaintiff must

allege:

(1) intentional and willful acts; (2) calculated to
cause damage to the plaintiffs in their lawful
business; (3) done with the unlawful purpose to cause
such damage and loss, without right or justifiable
cause on the part of the defendants (which constitutes
malice); and (4) actual damage and loss resulting.

Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 354 (4th Cir.

2013) (quoting Alexander & Alexander Inc. v. B. Dixon Evander &

Assocs., Inc., 650 A.2d 260, 269 (Md. 1994)). In presenting a

claim of this nature, the plaintiff must show that a defendant

engaged in wrongful conduct, such as defamation or other common

law tort. Alexander & Alexander, 650 A.2d at 271. A plaintiff

asserting defamation bears the burden of proving that the

challenged statement was “not substantially correct.” Batson v.

Shiflett, 602 A.2d 1191, 1210, 1212 (Md. 1992).

5 Although Greene did not allege defamation explicitly in
her complaint as a basis for her tortious interference claim,
she did allege that Pierce made a false statement to Eurest, and
argued a defamation theory before the district court and on
appeal.

13
 We conclude that Greene has not alleged facts raising a

plausible inference that Pierce’s statement, that Greene had

previously been barred from Harris’ office, was false. In her

complaint, Greene acknowledges that her original contract was

terminated effective March 31, 2010, and that Pierce

“immediately had Harris security escort her from the premises”

upon observing her at the office on December 6, 2010.

Accordingly, Greene’s own pleading refutes her assertion that

Pierce’s statement in December 2010, regarding Greene’s

exclusion from the premises, was not “substantially correct.”

Batson, 602 A.2d at 1212. Thus, because Greene’s tortious

interference claim rested on the purported falsity of that one

statement, we conclude that the district court properly

dismissed the claim under Rule 12(b)(6). 6

III.

For these reasons, we affirm the district court’s judgment.

AFFIRMED

6
Greene’s tortious interference claim also fails on the
separate ground that Pierce’s alleged statement was not
defamatory. To qualify as defamatory, a statement must “tend[]
to expose a person to public scorn, hatred, contempt, or
ridicule, thereby discouraging others in the community from
having a good opinion of, or from associating or dealing with,
that person.” Batson, 602 A.2d at 1210. Pierce’s statement
that Greene was barred from Harris’ office falls well short of
this standard.

14
TRAXLER, Chief Judge, dissenting:

In March 2010, Dan Pierce terminated Karen Greene’s

fourteen-year stint as the janitor at Harris Corporation because

Greene is a lesbian and, in Pierce’s view, dressed like a man.

In December 2010, Greene came back to Harris as a janitor

through a cleaning service, and Pierce terminated Greene as soon

as he saw her there, again because Greene is a lesbian and

dressed like a man. To justify his discriminatory actions,

Pierce claimed that he terminated Greene’s contract in March

because she charged too much. That was false. He claimed that

Greene had inappropriately searched his desk. That was false.

He claimed Greene screamed obscenities at him before she left in

March. That was false. He also informed Eurest that Greene was

not allowed to return to work at Harris because she had been

previously banned from Harris’ premises. That was false as

well. Yet somehow Greene cannot get past the pleading stage of

this litigation.

The two questions presently before us are these: Did

Greene allege facts in her complaint sufficient to state a claim

that Harris was a joint employer of Greene when she was

terminated in December 2010? And did Greene allege facts

sufficient to state a claim that Pierce tortiously interfered

with her employment relationship with Eurest in December 2010.

In my view, both questions must be answered in the affirmative.

15
 I.

The following facts are derived from Greene’s 34-page

complaint, which is comprised of 255 separate allegations. For

purposes of the Rule 12(b)(6) motion, all of the factual

allegations in the complaint must be accepted as true, and all

reasonable inferences must be drawn in favor of Greene. See

Wright v. North Carolina, 787 F.3d 256, 263 (4th Cir. 2015).

Greene cleaned the Harris office in Maryland, without

incident, for fourteen years. From March 1, 2008, through March

1, 2010, she did so under an automatically renewable contract

with Harris. However, Harris was Greene’s only customer.

In October 2008, Pierce began working for Harris as the

Director of Engineering. He treated Greene rudely from the

outset, and in December 2009, “made overt discriminatory

comments to other staff members about Ms. Greene’s personal

appearance and manner of dress.” J.A. 75. “According to

eyewitnesses, Mr. Pierce stated that Ms. Greene dressed like a

man, ‘which really bothered him,’” and “described Ms. Greene as

‘frumpy, dumpy and dresses like a man in flannel and jeans.’”

J.A. 75. “In late January to early February 2010, a different

set of Harris employees in a staff meeting [also] witnessed Mr.

Pierce make derogatory remarks concerning Ms. Greene’s personal

appearance.” J.A. 76. One of the Harris employees “laughed

and, in a manner demeaning to Ms. Greene, informed Mr. Pierce

16
that, ‘Well, Dan, you know she’s a lesbian, don’t you?’” J.A.

76. “The staff members stated that Mr. Pierce did not respond,

but appeared visibly upset and then disgusted.” J.A. 77.

In early March, 2010, Pierce reviewed Greene’s contract,

“claim[ing] that the [New York] office had instructed him to do

so.” J.A. 77. That was untrue. Greene was informed that her

contract was being terminated for budgetary reasons. That was

also untrue. Pierce terminated Greene’s contract because her

sexual orientation and manner of dress were offensive to him.

Pierce asked Greene to continue to clean until March 31, 2010,

which gave him time to make alternate cleaning arrangements, and

she agreed. However, “Pierce continued to disparage her” during

this interim period and took steps to intentionally avoid her.

J.A. 81. Pierce also falsely informed Harris’ human resources

representative that Greene had “rifled through his desk” and

“cursed him out” when he terminated her contract. J.A. 80

(internal quotation marks omitted). 1

1After Greene was terminated in December 2010, she
initiated her claims for employment discrimination and
interference with her employment relationship with Eurest before
the Howard County Office of Human Rights (“OHR”). During the
course of the administrative investigation, Harris and Pierce
were forced to recant their claims that Greene had “rifled
through [Pierce’s] desk” and “cursed him out” because several
Harris employees who witnessed Greene’s March termination were
poised to directly contradict Pierce’s account.

17
 On April 1, 2010, Pierce chose Eurest to be the successor

cleaning service for Harris. Among other things, the cleaning

contract required Eurest to “immediately remove” any janitor

whose services Harris “found to be unacceptable . . . for cause,

including, but not limited to, a reasonable belief that he or

she is not qualified to perform or is not performing the

Services as required.” J.A. 85 (emphasis added). Things did

not go well. Several janitors were hired, but they often failed

to show up and cleaned poorly when they did. This resulted in

the “Harris employees continually complain[ing] about Eurest’s

service.” J.A. 83.

In December 2010, Eurest hired Greene to clean the Harris

office. “During the time Ms. Greene worked at Harris, she

thoroughly cleaned the office,” and the “Harris employees

commented about the once-again spic-and-span office.” J.A. 86.

However, “[w]hen Mr. Pierce saw Ms. Greene cleaning the office,

he immediately had Harris security escort her from the

premises.” J.A. 86. In other words, he fired her as soon as he

saw her, because what he saw was a lesbian. To justify this

action, Pierce resorted to his earlier lies about Greene. He

first emailed Russell Moodie, the Senior Facilities Manager at

Harris, demanding to know “what is going on,” J.A. 86, and

repeating his claims that Greene was “the woman whom we

dismissed because she was charging [too much],” and “the woman

18
who [had] inappropriately searched [his] office and screamed

obscenities at [him].” J.A. 86 (internal quotation marks

omitted). Pierce also contacted Eurest “and lied, saying that

Harris had prohibited Ms. Greene from the premises and Eurest

had to immediately remove her from working at the office.” J.A.

87. Eurest, in turn, “presumed Ms. Greene had issues with

Harris when she cleaned for them directly.” J.A. 88. Because

the “contract gave Harris the right to dismiss any individual

Eurest provided for cause,” “Eurest immediately terminated Ms.

Greene’s employment.” J.A. 88. “Eurest explained that but for

Mr. Pierce’s false information, Ms. Greene would still be

employed at Harris.” J.A. 88. 2

II.
“The joint employment doctrine captures instances in which

multiple entities control an employee.” Butler v. Drive Auto.

Indus. of Am., Inc., 793 F.3d 404, 409 (4th Cir. 2015). It

recognizes that “two parties can be considered joint employers

and therefore both be liable under Title VII if they share or

2As noted by the majority, there is some discrepancy as to
how long Greene had been on the job in December. The complaint
indicates that she only worked a portion of her first day on the
job. However, the OHR report and the parties seem to agree that
Greene had been on the job for four days. I agree with the
majority that the discrepancy is unimportant for purposes of
this motion. Under either factual scenario, Greene had been
hired and was on the job cleaning the Harris office when her
employment was terminated.

19
co-determine those matters governing the essential terms and

conditions of employment.” Id. at 408 (internal quotation marks

omitted). “Otherwise, an employer who exercises actual control

could avoid Title VII liability by hiding behind another

entity.” Id. at 415.

We recently adopted the “joint employer doctrine” as the

law in this circuit, and formulated a nine-factor test that

“specifically aims to pierce the legal formalities of an

employment relationship to determine the loci of effective

control over an employee, while not discounting those

formalities entirely.” Id. at 415. “[N]one of the[] factors

are dispositive.” Id. at 414. However, the first three – “(1)

authority to hire and fire the individual”; “(2) day-to-day

supervision of the individual, including employee discipline”;

and “(3) whether the putative employer furnishes the equipment

used and the place of work” are the “most important.” Id.

A.

Under the Harris/Eurest contract, Eurest was responsible

for payroll, benefits, insurance, and taxes associated with the

janitors assigned to Harris’ worksite. Harris, however,

retained more than a mere modicum of control over the hiring and

firing of the individual janitors, as well as over their day-to-

day activities. Among other things, the Harris/Eurest contract

provided that:

20
 (1) “Harris shall have the right to interview and
otherwise evaluate all [Eurest] personnel assigned to
perform services under this Agreement and to accept or
reject any individual(s) based upon their experience.”

(2) “Harris shall have the right to require [Eurest]
personnel to submit to Harris’ standard drug testing
at Harris’ expense, or to require drug testing
comparable to Harris’ standard to be performed by
[Eurest] on all personnel if the personnel are to be
onsite at any of Harris’ facilities.”

(3) “In the event that any [Eurest] personnel
performing Services under th[e] Agreement are found to
be unacceptable to Harris for cause, including, but
not limited to, a reasonable belief that he or she is
not qualified to perform or is not performing the
Services as required, Harris shall notify [Eurest] of
such fact in writing, setting forth such cause.
[Eurest] shall immediately remove said employee from
performing Services. . . . Harris is the sole judge
as to performance capability but shall exercise its
discretion reasonably.”

J.A. 84-85. Harris provided an on-site supervisor for the

janitor. Harris was also to “meet with [the] on site supervisor

and review effectiveness [of the janitor] on a weekly basis for

the first 3 months,” and, thereafter, “no more than on a bi-

weekly basis but no less than monthly.” J.A. 85.

With regard to Greene in particular, she was assigned

exclusively to Harris and was intended “to be on a long-term

relationship with Harris.” J.A. 86. “Harris chose the days on

which Ms. Greene worked at its office” and “Kellee Peebles, a

Harris employee, was to be Ms. Greene’s on-site supervisor.”

J.A. 85. “For security purposes, Harris required that a Harris

21
employee escort Ms. Greene when she cleaned in a ‘Closed Area,’

i.e., an area performing classified work.” J.A. 86.

These allegations, viewed in the light most favorable to

Greene, are sufficient to state a claim that Harris was a joint

employer of Greene when she was terminated in December.

Although Eurest was Greene’s direct employer, Harris reserved

much of the first three and “most important” Butler factors to

itself -- authority to hire and fire, day-to-day supervision,

and where and how the work was to take place. When Harris chose

Eurest to replace Greene, it retained the right to interview

individual janitors, the right to evaluate their experience and

qualifications to perform cleaning services, the right to accept

or reject the janitors based upon their experience, the right to

submit the janitors to drug testing, and the right to terminate

the janitors for cause. Harris also maintained control over the

day-to-day supervision of the janitors, including Greene, and

where and how the work would take place. Harris chose the days

on which Greene was to work. Harris furnished the cleaning

supplies and equipment for her use. Harris assigned an on-site

supervisor to physically accompany her. And Harris was charged

with conducting ongoing, periodic evaluations of her work.

Moreover, Pierce’s discriminatory animus and false

accusations in March (which he resurrected to justify her

immediate termination in December) are not irrelevant to the

22
inquiry. Greene might well have been able to develop evidence

and a persuasive argument that Pierce, when he “chose [Eurest to

be the] successor cleaning service” for Harris, J.A. 82,

maintained substantial control over the individual janitors just

so he could “evad[e] liability [for his bigotry] by hiding

behind another entity.” Butler, 793 F.3d at 410. According to

the majority view, Harris and Pierce were at liberty to reject

any janitor for any discriminatory reason – race, color,

religion, sex or national origin – even though they were working

exclusively at Harris’ office, under the day-to-day supervision

of Harris employees, and using Harris supplies. That premise, I

believe, is wholly inconsistent with the remedial principles

that informed our decision in Butler.

B.

The majority concludes that dismissal under Rule 12(b)(6)

is justified because the Harris/Eurest contract is a mere

contract for janitorial services between a vendor and its client

and does not fit the staffing agency-client relationship that we

found to be a joint employment arrangement in Butler. Although

discovery may have proven this to be true, I believe this at the

very least to be a premature determination on our part.

First, Butler considered the joint employment doctrine for

the first time and at the summary judgment stage. If anything,

we recognized the fact-specific nature of the inquiry and

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cautioned against rigid application of its factors. See Butler,

793 F.3d at 413-14; id. at 414 (noting “that an employer-

employee relationship is a ‘fact-intensive consideration of all

aspects of the working relationship between the parties’”

(quoting Hunt v. State of Mo., Dep’t of Corr., 297 F.3d 735, 741

(8th Cir. 2002)); id. at 415 (noting that “no one factor is

determinative, and the consideration of factors must relate to

the particular relationship under consideration” (quoting

Cilecek v. Inova Health Sys. Servs., 115 F.3d 256, 260 (4th Cir.

1997)). Also, while I might presume that a routine vendor-

client contract for janitorial services would allow for the

client to terminate services or refuse to pay if the cleaning is

substandard, I cannot say at the Rule 12(b)(6) stage that the

level of control that Harris retained over individual janitors

is the norm.

Second, Butler did not purport to set the outer boundary

for “joint employment” relationships. At a minimum, I believe

that Greene’s allegations place the Harris/Eurest contract

somewhere between the staffing agency-client relationship we

considered in Butler and a simple contract for janitorial

services between a vendor and a business client. And because

Greene’s allegations “do not fall within the four corners of our

prior case law,” dismissal under Rule 12(b)(6) is not justified.

Wright, 787 F.3d at 263 (internal quotation marks omitted). “On

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the contrary, Rule 12(b)(6) dismissals are especially disfavored

in cases where the complaint sets forth a novel legal theory

that can best be assessed after factual development.” Id.

(internal quotation marks omitted)). “[A]s the law firms up in

unsettled areas, it may be more feasible to dismiss weaker cases

on the pleadings; otherwise, plaintiffs should be given an

opportunity to develop evidence before the merits are resolved.”

Id. (internal quotation marks and alteration omitted).

C.

To conclude, I believe that Greene has set forth sufficient

allegations to present a plausible claim that Harris was a joint

employer “who exercise[d] actual control” over the individual

janitors assigned exclusively to its premises, exercised that

control against Greene in a discriminatory manner, and should

not be allowed to “avoid . . . liability by hiding behind

another entity.” Butler, 793 F.3d at 415. Somehow, Greene is

faulted for not having worked longer in December and for not

having established more evidence of supervision and control by

Harris. But she was at work and she was terminated as soon as

Pierce saw her. That is how discrimination manifests itself.

You lose your job because of how you look, where you come from,

or for some other immutable characteristic. Race, color,

national origin, religion, sex, or, as in this case, sexual

orientation and the way you dress mean everything; and job

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performance means nothing. That is what Greene alleges happened

to her and I believe she should be allowed to go forward with

her case. Accordingly, I would vacate the district court’s

dismissal of Greene’s employment discrimination claim and remand

for further proceedings.

III.

I also believe that Greene has alleged sufficient facts to

state a claim for tortious interference with her economic

relationship with Eurest.

A.

Maryland recognizes a tort action for “maliciously or

wrongfully interfering with economic relationships.” Alexander

& Alexander Inc. v. B. Dixon Evander & Assocs., Inc., 650 A.2d

260, 268 (Md. 1994) (internal quotation marks omitted). To

state a claim, the plaintiff must allege: “‘(1) intentional and

willful acts; (2) calculated to cause damage to the plaintiffs

in their lawful business; (3) done with the unlawful purpose to

cause such damage and loss, without right or justifiable cause

on the part of the defendants (which constitutes malice); and

(4) actual damage and loss resulting.’” Painter’s Mill Grille,

LLC v. Brown, 716 F.3d 342, 354 (4th Cir. 2013) (quoting

Alexander, 650 A.2d at 269).

“[W]rongful or malicious interference with economic

relations is interference by conduct that is independently

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wrongful or unlawful, quite apart from its effect on the

plaintiff’s business relationships. Wrongful or unlawful acts

include common law torts and ‘violence or intimidation,

defamation, injurious falsehood or other fraud, violation of

criminal law, and the institution or threat of groundless civil

suits or criminal prosecutions in bad faith.’” Alexander, 650

A.2d at 271 (internal quotation marks omitted). “In addition,

“‘actual malice,’ in the sense of ill will, hatred or spite, may

be sufficient to make an act of interference wrongful where the

defendant’s malice is the primary factor that motivates the

interference.” Id.

B.

In this case, Greene has alleged that Pierce immediately

halted her in the performance of her janitorial duties under the

Harris/Eurest contract and had Harris security escort her from

the premises in December 2010 for the same malicious reason that

he terminated her contract in March 2010 – “Greene’s sexual

orientation (Lesbian) and appearance/manner of dress” were

offensive to him. J.A. 100.

Pierce then set about proclaiming a litany of lies about

Greene that were calculated to justify his action as one

supported by legitimate employment reasons. Pierce falsely

informed Moodie that Greene was the woman that he had dismissed

in March 2010 for budgetary reasons and repeated his false claim

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that Greene had “inappropriately searched [his] office and

screamed obscenities at [him]” before she left. J.A. 98

(internal quotation marks omitted). Pierce then “falsely

informed [Eurest] that it had to immediately remove Ms. Greene

from cleaning at Harris because Harris had previously barred her

from the premises,” J.A. 70, leading Eurest to reasonably

believe that “Greene had issues with Harris when she cleaned for

them directly,” J.A. 100. And “[b]ecause the contract between

Harris and Eurest gave Harris the right to remove a Eurest

employee, Eurest had to terminate Ms. Greene.” J.A. 70.

By falsely representing to Eurest that Harris had “banned”

or “barred” Greene when she worked directly for Harris in March,

Pierce at a minimum implied that Greene had done something

during her first stint that justified his accompanying demand

that Eurest immediately remove her from the position in

December. See Hearst Corp. v. Hughes, 466 A.2d 486, 489 (Md.

1983) (A statement that “adversely affect[s] [an employee’s]

fitness for the proper conduct of his business . . . [is]

actionable per se.”); see also Samuels v. Tschechtelin, 763 A.2d

209, 242 (Md. Ct. Spec. App. 2000) (explaining that falsity of

facts implied in allegedly defamatory statement can be basis for

finding that statement was false); cf. id. at 245 (holding that

statement that person was fired for poor performance on the job

suggested that the judgment of those firing the person was

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founded on fact); Restatement (Second) of Torts § 566 (1977) (“A

defamatory communication may consist of a statement in the form

of an opinion, but a statement of this nature is actionable only

if it implies the allegation of undisclosed defamatory facts as

the basis for the opinion.”).

This implication is even clearer in light of the fact that

the context for Pierce’s statement was that he was exercising

Harris’ contractual right to terminate Greene “for cause,

including, but not limited to, a reasonable belief that . . .

she [was] not qualified to perform or [was] not performing the

[s]ervices as required.” J.A. 84. Although Pierce may not have

explicitly conveyed false reasons for why Greene was banned, to

cover for his discriminatory ones, the clear implication in his

statement was that she had done something to bring about the ban

that would be cause for Harris’ rejection of her under Harris’

contract with Eurest.

Accordingly, I believe that Greene has stated a plausible

claim that Pierce, motivated by his discriminatory animus

against lesbians, engaged in intentional and willful acts that

were calculated to damage Greene’s work reputation and result in

her termination, and which succeeded in causing actual damage

and loss to Greene by (not surprisingly) causing Eurest to fire

her.

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 C.

The majority is of the opinion that Greene’s claim must be

dismissed under Rule 12(b)(6) because Greene acknowledged in her

complaint that Harris had terminated her original contract in

March and that Pierce had Harris security escort her from the

premises upon seeing her in December. Building upon these

acknowledgments, the majority appears to draw the factual

inference that Pierce’s statement to Eurest must be true and,

therefore, could not be defamatory. But to read the complaint

in this fashion, one must read it in the light most favorable to

Harris and Pierce, not to Greene.

Greene plainly alleged that Pierce “falsely informed

[Eurest] that it had to immediately remove Ms. Greene from

cleaning at Harris because Harris had previously barred her from

the premises.” J.A. 70 (emphasis added). But Greene did not

stop there. Greene also alleged that “after [Pierce] terminated

her and her contract [in March], Mr. Pierce asked [her] to stay

and clean another month until he obtained a successor cleaning

service,” and “[n]either Mr. Pierce nor anyone else at the

[Harris] office ever told Ms. Greene she was barred from the

premises.” J.A. 99. Greene was informed in March that she was

being replaced for budgetary reasons only and, of course, Greene

returned to Harris to clean as a direct employee of Eurest in

December. Clearly, these supporting allegations were intended

30
to demonstrate the falsity of Pierce’s statement to Eurest in

December that Greene had been banned from the Harris property

when he terminated her in March.

Viewing these supporting factual allegations in the light

most favorable to Greene, the only reasonable factual inference

that can be drawn (were we at liberty to draw one) would be that

Pierce did not ban Greene from the premises in March and that he

only claimed to have done so to justify his hasty ejection of

her from the premises in December. But it is enough to say that

Greene’s acknowledgement that Pierce terminated her contract in

March and had security remove her from the premises in December

simply does not contradict her allegation that Pierce lied to

Eurest in December, nor does it provide a basis for dismissing

her complaint on a Rule 12(b)(6) motion to dismiss. 3

Accordingly, I would vacate the district court’s dismissal

of Greene’s tortious interference claim and also remand it for

further proceedings.

3 For the reasons set forth above, I also disagree with the
majority’s view that Pierce’s representation to Eurest that
Greene had been “banned” or “barred” from Harris’ premises after
her earlier stint with them, even if false, was not defamatory.
Such a statement, from one employer to another, could hardly
have any connotation other than that Greene was not worthy of
enjoying a good opinion or reputation as an employee.

31