Shank v. Baltimore City Board of School Commissioners et al

Filing 17

MEMORANDUM. Signed by Judge William M Nickerson on 2/1/2012. (aos, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ROBERT A. SHANK
v.
BALTIMORE CITY BOARD OF
SCHOOL COMMISSIONERS et al.
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Civil Action No. WMN-11-1067

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MEMORANDUM
Plaintiff Robert Shank filed this action against his former
employer, the Baltimore City Board of School Commissioners
(BCBSC) alleging that he was discriminated against on the basis
of his race (white).

He also named as defendants several

employees of BCBSC (Jerome Jones, Jerry Watkins, and William
Watkins) and one former employee of BCBSC (Kevin Seawright).
The Complaint contains four counts: Count I – a race
discrimination claim under Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. § 2000e et seq. (Title VII); Count
II – a race discrimination claim under the Civil Rights Act of
1867, 42 U.S.C. § 1981; Count III – a race discrimination claim
under the Civil Rights Act of 1871, 42 U.S.C. § 1983; and Count
IV – a due process claim under 42 U.S.C § 1983.

Counts I and II

are brought against Defendant BCBSC only; Counts III and IV are
brought against all Defendants.

Defendants Jones, Jerry Watkins and William Watkins have
filed Answers to the Complaint.

Defendant BCBSC, however, has

filed a motion to dismiss the Complaint in its entirety, ECF No.
7, arguing under Rule 12(b)(6) of the Federal Rules of Civil
Procedure that the Complaint fails to state a claim upon which
relief can be granted.

Defendant BCBSC also argues in its

motion that it is an arm of the state and therefore is immune
from suit under § 1983.

Also pending is a motion filed by

Plaintiff for default judgment against Defendant Seawright.

ECF

No. 12.
The Court turns first to the motion for default judgment.
The record reveals that Plaintiff mailed summonses to Seawright
at an address associated with BCBSC headquarters and also to his
home address, understanding that Seawright had recently resigned
from his position with Baltimore City schools.

A restricted

delivery receipt signed by Defendant Seawright and reflecting
delivery at Seawright’s home address was submitted with
Plaintiff’s Proof of Service filed on August 22, 2011.
3.

ECF No.

When no answer was filed by Seawright, Plaintiff moved for

entry of default judgment against Seawright on October 28, 2011.
ECF No. 12.

With that motion, Plaintiff’s counsel submitted an

affidavit clearly indicating that service had been made on
Seawright at his home address.

ECF NO. 12-1, Morris Decl. at ¶

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2.

The Clerk of the Court entered the default on November 1,

2011, but no default judgment was entered by the Court.
Notwithstanding the clear indication in the record that
Seawright had been properly served, counsel for the remaining
Defendants, as “friends of the Court,” filed an opposition to
the motion for default judgment, opining that Seawright was
“never served with process.”

ECF No. 14 at 1.

Apparently not

reading Plaintiff’s motion, Defendants’ counsel accuses
Plaintiff of having “never made any efforts to confirm whether
Defendant Seawright received service or not.”

Id. at 5.

Apparently not reading their own submission either, Defendants’
counsel improperly identifies the Defendants in this action as
“Neil Duke and Andres A. Alonso.”

Id. at 3.

After Plaintiff’s

counsel in his reply relayed for the third time that Seawright
was served at his home address, counsel for the remaining
Defendants filed an answer on behalf of Defendant Seawright.
ECF No. 16.
While the Court finds that Defendant Seawright was properly
placed in default, the Court concludes that the default,
nonetheless, should be vacated.

Where possible, federal courts

favor the resolution of disputes on their merits, rather than on
procedural grounds.

Cf. Foman v. Davis, 371 U.S. 178, 181-182

(1962) (observing, in the context of Rule 15, that “it is ...
entirely contrary to the Federal Rules of Civil Procedure for
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decisions on the merits to be avoided on the basis of ... mere
technicalities”).

Default judgment is a drastic measure because

it prevents the court from doing just that.

Accordingly, Rule

55(c) permits a court to set aside a default “for good cause
shown,” a decision which “is a matter which lies largely within
the discretion of the trial judge.”

Fed. R. Civ. P. 55(c);

Payne ex. rel. Estate of Caldaza v. Brake, 439 F.3d 198, 204-205
(4th Cir. 2006).

Rule 55(c) therefore must be “liberally

construed in order to provide relief from the onerous
consequences of defaults and default judgments.”

Lolatchy v.

Arthur Murray, Inc., 816 F.2d 951, 954 (4th Cir. 1987)
(citations omitted).
In Payne, the Fourth Circuit restated the six factors that
a trial court should consider when determining whether a
defendant has shown “good cause” to vacate a default. They are,
(1) whether the moving party has a meritorious defense, (2)
whether it acts with reasonable promptness, (3) the personal
responsibility of the defaulting party, (4) the prejudice to the
party, (5) whether there is a history of dilatory action, and
(6) the availability of sanctions less drastic.”
204-205.

439 F.3d at

Here, Defendant Seawright has tendered a potentially

valid defense, it is early in the litigation, Seawright has
acted with reasonable promptness, and the prejudice caused by
defense counsel’s error is minimal.
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In light of the strong

preference for decisions on the merits, the Court will vacate
the default.
Turning to Defendant BCBSC’s motion to dismiss, the Court
finds limited merit in BCBSC’s Rule 12(b)(6) argument.
Plaintiff presents detailed allegations concerning the events
that led to his termination.

Plaintiff was hired as an

Education Building Supervisor in July 2006 by BCBSC’s Facilities
Director, Thomas Palardy, a white male.

Shortly thereafter,

Palardy was replaced by Defendant Jerry Watkins, an African
American male.
new position.

Plaintiff was initially highly successful in his
At a meeting of other Education Building

Supervisors and other facilities staff, including Plaintiff’s
supervisors, Plaintiff was singled out by BCBSC’s Chief
Operating Officer Keith Scroggins for his exceptional
performance in handling the maintenance of his assigned school.
After being singled out by Scroggins for recognition,
Plaintiff alleges his relationship with his supervisors,
Defendants in this action, turned immediately for the worst.
Plaintiff was subjected to disciplinary action on the basis of
falsified accusations and was otherwise frustrated in the
performance of his assigned duties.

In February 2009,

Plaintiff’s employment with BCBSC was terminated.

Plaintiff

alleges that Defendants, who are African American, were
motivated by “racial jealousy arising out of a combination of
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circumstances, including exceptional performance by Plaintiff,
the recognition of that performance by COO Scroggins, and
Plaintiff’s race.”

Compl. ¶ 20 (emphasis in original).

In moving to dismiss under Rule 12(b)(6), BCBSC does little
more than recite the basic elements of a Title VII claim.
Apparently pasting its argument from a brief from another case,
it then contends that “[t]he Complaint is made of mostly of
[sic] Plaintiff’s bald allegations of discrimination based on
her [sic] admitted “problematic” relationship with her [sic]
immediate supervisor and other supervisory staff.”

Mot. at 6.

Although Plaintiff soundly met BCBSC’s Rule 12(b)(6) argument in
his Opposition, BCBSC did not file any Reply in further support
of their motion to dismiss.
The Court acknowledges that the allegations in support of
Plaintiff’s discrimination claim could be stronger.

Under the

facts alleged in the Complaint, plain jealousy without a racial
motivation could be inferred as the reason for Plaintiff’s
termination.

To survive a Rule 12(b)(6) motion, however, a

complaint must simply “contain sufficient factual matter . . .
to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)).

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw
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the reasonable inference that the defendant is liable for the
misconduct alleged.”

In considering such a motion, the court is

required to accept as true all well-pled allegations in the
Complaint, and to construe the facts and reasonable inferences
from those facts in the light most favorable to the plaintiff.
Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997).

One

inference that the Court could draw from the facts alleged is
that the actions of Defendants were racially motivated.

At this

stage in the litigation, that is sufficient.
The Court will also defer resolving the issue of BCBSC’s
status as an arm of the state and entitlement to Eleventh
Amendment immunity at this stage of the litigation.

In the

Complaint, Plaintiff asserts that Defendant BCBSC
operates under the State provision that created it as
an entity independent of the State of Maryland, and,
as such, it is not an agency of the State of Maryland.
The Defendant Board was established to replace the
administration of schools in Baltimore City, which
schools previously had been administered directly by
the Mayor and City Council of Baltimore. For many of
its essential functions, the Defendant Board remains
still dependent upon the City of Baltimore. In its
capacity as a creation of State law to administer the
public schools in a political subdivision of the
State, Baltimore City, Defendant Board is a person for
purposes of applying 42 U.S.C. § 1983.
Compl. ¶ 4.

In moving to dismiss on the ground of Eleventh

Amendment immunity, BCBSC relies heavily on a recent decision of
the Maryland Court of Special Appeals in which that court opined
in a footnote that, in its view, “there is no doubt that [BCBSC]
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is properly regarded as a State agency.”

Baltimore City Bd. Of

Sch. Comm’rs v. Koba Inst., 5 A.3d 60, 66 n.12 (Md. Ct. Spec.
App. 2010) (noting the evolving status of the Baltimore City
school board over the years), cert. denied, 20 A.3d 116 (Md.
2010).
While immunity issues are generally decided at the earliest
possible stage of litigation, this Court has previously deferred
that decision in the face of poor briefing and an inadequate
factual record.

See Thornton v. Baltimore City Bd. Of Sch.

Comm’rs, Civ. No. WMN-07-1555 (D. Md. March 3, 2008).

The Court

also notes that, regardless of any decision on immunity issues
as to the § 1983 claim, this case will go forward against BCBPS
on the very similar Title VII claim.

Defendants BCBSC’s motion

insofar as it raises immunity under the Eleventh Amendment will
be denied, without prejudice to BCBSC’s right to re-raise that
issue on motion for summary judgment.

____________/s/___________________
William M. Nickerson
Senior United States District Judge

DATED: February 1, 2012.

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