Davenport v. Anne Arundel County Board of Education

Filing 12

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 12/4/12. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CHRISTINE DAVENPORT,

:

Plaintiff,

:

v.

:

ANNE ARUNDEL COUNTY
BOARD OF EDUCATION,

:

Civil Case No. GLR-12-1335

:
Defendant.
:

MEMORANDUM OPINION
THIS MATTER is before the Court on Defendant Anne Arundel
County Board of Education’s1
Plaintiff

Christine

(the “Board”) Motion to Dismiss

Davenport’s

Complaint

pursuant

12(b)(6)of the Federal Rules of Civil Procedure.

to

Rule

(ECF No. 3).

Ms. Davenport principally seeks relief for alleged violations of
the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§
621 et seq. (2012).

Specifically, Ms. Davenport alleges that

the Board intentionally discriminated against her because of her
age by repeatedly failing to offer her a position for which she
was

qualified

in

favor

qualified applicants.

of

substantially

younger

and

less-

Moreover, Ms. Davenport alleges that, in

retaliation for her legal action against the Board, she was

1

The Board notes that its proper name is Board of Education
of Anne Arundel County.

demoted

to

a

teaching

position

and

thereafter

subjected

to

increased observation at work.
The issues before the Court are whether (1) a plaintiff has
pled a plausible claim for relief when she alleges acts that
occurred more than 300 days prior to when she filed an ADEA
discrimination
Commission

charge

(“EEOC”);

with
(2)

a

the

Equal

plaintiff

Employment
can

allege

Opportunity
retaliation

under the ADEA if she does not first allege it in her EEOC
discrimination

charge;

(3)

the

Employee

Retirement

Income

Security Act (“ERISA”) applies to employment contracts between a
county board of education and its employees; (4) a county board
of education can raise a defense of sovereign immunity under the
Eleventh Amendment in contract actions in federal court; (5) Ms.
Davenport

alleged

intentional

misrepresentation

with

the

required specificity; and (6) Ms. Davenport pled a plausible
claim for relief for negligent misrepresentation.
The issues have been fully briefed and the Motion is ripe
for disposition.

No hearing is necessary pursuant to Local Rule

105.6 (D.Md. 2011).

For the reasons that follow, the Board’s

Motion to Dismiss is granted in part and denied in part.

2 

BACKGROUND2

I.
Ms.
employee

Davenport
of

is

Anne

a

sixty-two-year-old,

Arundel

County

Public

thirty-nine-year

Schools

(“AACPS”).

After thirty-five years of employment, Ms. Davenport sought a
promotion
requires

to

an

assistant

assistant

principal

principal

position.

applicants

to

The

either

Board

have

a

Master’s Degree in Administration or receive an Administrative
Certificate

from

the

AACPS-sponsored

Administrative

Cohort

Program.

(Pl.’s Opp’n to Def.’s Mot. to Dismiss at 9, ECF No.

8).

accordance

In

enrolled

in

the

with

these

Administrative

requirements,

Ms.

Davenport

Cohort

Program

to

receive

completed

the

Cohort

an

Administrative Certificate.
In

2005,

Ms.

Davenport

Program,

received her Administrative Certificate, and became eligible for
an assistant principal position with AACPS.

She also accepted a

position as an administrative trainee, which typically served as
an

internship

candidates.
applicant

and

mentoring

position

for

assistant

principal

Ms. Davenport remained in the assistant principal
pool

for

five

years,

during

which

time

she

consistently garnered positive evaluations.
Under an employment contract that Ms. Davenport signed in
1972, AACPS job vacancies must be announced to candidates and

2

Unless otherwise noted, the following facts are taken from
the Complaint and accepted as true for the purposes of this
Motion.
3 

can only be filled by applicants who have been interviewed.
These

procedures

circumstances,

can

where

only

be

vacancies

are

resignations, illness, or death.”
During

Ms.

Davenport’s

bypassed

time

in

under

“created

emergency
by

late

(Compl. ¶ 18, ECF No. 1).
the

applicant

pool,

however,

AACPS allegedly hired younger applicants who did not complete
similar

certification

or

internship

programs,

and

were

not

evaluated.
Moreover, Ms. Davenport alleges that prior to one of her
interviews in 2008, another applicant revealed that he was given
a list of questions in advance to prepare for his interview (the
“cheat sheet”).

The applicant, who was under forty years old,

explained that the interviewers asked him the same questions as
those contained in the cheat sheet.3

Ms. Davenport confronted

AACPS officials about the questions in her interview and, in
2008, discussed the disparate treatment with Arlen Liverman, the
Board’s Deputy Superintendent of Schools.

Mr. Liverman informed

Ms. Davenport that she would not become an assistant principal
“because of her seniority.”

(Id. ¶¶ 23–24).

After she raised

the age discrimination and disparate treatment issues with Mr.
Liverman, AACPS reassigned Ms. Davenport from her administrative

3

To Ms. Davenport’s knowledge, all candidates who received
a cheat sheet are under the age of forty.
Other than the one
given to her by the other applicant, Ms. Davenport has never
received a cheat sheet.
4 

position to a position as a classroom teacher at Marley Middle
School.
On October 8, 2010, Ms. Davenport filed a claim with the
Maryland Commission on Human Relations (“MCHR”) and the EEOC,
alleging

violations

Practices Act.

of

the

ADEA

and

the

Fair

Employment

Subsequent to that filing, Kevin Buckley and

Susan Sargeant, the principal and assistant principal of Marley
Middle

School

respectively,

were

allegedly

told

to

increase

their observation and evaluation of Ms. Davenport’s classroom
performance as part of a “plan of action” that required her to
improve in certain areas or face sanctions.

(Compl. ¶ 29).

Ms. Davenport’s Complaint, filed on May 1, 2012, alleges
age discrimination and retaliation in violation of the ADEA,
violation

of

(“ERISA”),

the

29

Employment

U.S.C.

§

Retirement

1140

(2012),

Income

Security

breach

of

Act

contract,

intentional misrepresentation, and negligent misrepresentation.
In

addition

to

lost

wages

and

hospital

expenses,

she

seeks

$1,000,000 in compensatory damages and $1,000,000 in punitive
damages.

The Board now moves to dismiss each claim for failure

to state a claim upon which relief may be granted.
II.
A.

DISCUSSION

Standard of Review
To

survive

a

Federal

Rule

of

Civil

Procedure

12(b)(6)

motion, the complaint must allege facts that, when accepted as
5 

true, “state a claim to relief that is plausible on its face.”
Ashcroft

v.

Iqbal,

556

U.S.

662,

678

(2009)

(quoting

Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (internal
quotation marks omitted).

A claim is plausible on its face when

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

Id. (citing Twombly, 550 U.S. at 556).

Legal conclusions or conclusory statements do not suffice and
are

not

entitled

to

the

assumption

Twombly, 550 U.S. at 555).

of

truth.

Id.

(citing

Thus, the Court “must determine

whether it is plausible that the factual allegations in the
complaint

are

enough

speculative level.”

to

raise

a

right

to

relief

above

the

Monroe v. City of Charlottesville, 579 F.3d

380, 386 (4th Cir. 2009) (quoting Andrew v. Clark, 561 F.3d 261,
266 (4th Cir. 2009)) (internal quotation marks omitted).
In determining whether to dismiss, the Court must examine
the complaint as a whole, consider the factual allegations in
the complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff.

Lambeth v. Bd. of

Comm'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005);
Albright v. Oliver, 510 U.S. 266, 268 (1994).
Under

Rule

12(d),

however,

if

“matters

outside

the

pleadings are presented to and not excluded by the Court, the
motion must be treated as one for summary judgment under Rule
6 

56,” and “[a]ll parties must be a given a reasonable opportunity
to present all the material that is pertinent to the motion.”
Fed.R.Civ.P.

12(d).

Nonetheless,

the

Court

may

consider

a

document not attached to the complaint “in determining whether
to dismiss the complaint [where the document] was integral to
and

explicitly

plaintiffs

do

relied
not

on

in

the

challenge

[the

complaint

and

document’s]

[where]

the

authenticity.”

Phillips v. LCI Int’l, Inc., 190 F.3d 609, 618 (4th Cir. 1999)
(citations omitted).

Although the Board has presented matters

outside of the pleadings, the Court does not rely upon those
that

are

not

Complaint.

integral

to

and

explicitly

relied

on

in

the

The Board’s Motion, therefore, is not converted into

one for summary judgment.
B.

Analysis
1.

ADEA Claims
a.

Time-Barred Acts

Many of the acts Ms. Davenport alleges are time-barred.
number

of

steps

must

occur

before

a

plaintiff

can

file

commence an action for age discrimination under the ADEA.
29 U.S.C. § 626 (2012).

A
or
See

Importantly, the discrimination charge

must be filed within 180 or, in a deferral state, 300 days of
when the alleged conduct occurred.
most,

discrete

acts

are

Id. § 626(d)(1)(A)-(B).

precluded

from

this

At

Court’s

consideration if they occurred more than 300 days prior to the
7 

filing of the EEOC claim, even if they are reasonably related to
acts that were timely filed.4

Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 105, 113 (2002).

Discrete acts include

“[e]ach incident of discrimination and each retaliatory adverse
employment decision,” and must be alleged within the appropriate
timeframe because each one represents actionable conduct.

Id.

at 113–14.
All conduct alleged from 2008, including Ms. Davenport’s
interview, the secret interview questions, and Ms. Davenport’s
complaints

to

the

interviewers

and

Deputy

Superintendent,

occurred more than 300 days prior to when Ms. Davenport filed
the EEOC claim in October 2010.

They are thus time-barred and

precluded from this Court’s consideration.
b.
The

Age Discrimination

Court

denies

the

Board’s

Motion

to

Dismiss

as

to

Davenport’s age discrimination claim because Ms. Davenport pled
a

plausible

claim

for

relief.5

The

ADEA

prohibits

age

discrimination in employment and applies to individuals who are

4

For hostile work environment claims, discrete acts alleged
outside the appropriate timeframe are permissible if they are
reasonably related to an act that occurs during the statutory
period.
Morgan, 536 U.S. at 105.
This Court cannot consider
any facts alleged beyond the appropriate timeframe here because
Ms. Davenport does not allege a hostile work environment.
5
Although Ms. Davenport does not allege that the EEOC sent
her a letter giving her the right to sue in federal court, there
are sufficient facts to show that she, at the very least, filed
a claim with the EEOC, thereby exhausting her administrative
remedies regarding her discrimination claim.
8 

at

least

(2012).

forty

years

old.

29

U.S.C.

§§ 621(b)

and

631(a)

It provides, in relevant part, that it is illegal for

any employer to deny employment opportunities to an employee
because of her age.

Id. § 623(a)(2).

To demonstrate age discrimination, and thus qualify under
§ 623(a)(2), the plaintiff must show that: “(1) [s]he is at
least 40; (2) [s]he applied for an open position; (3) [s]he was
rejected even though qualified; and (4) the position remained
open

or

was

filled

by

a

similarly-qualified

substantially younger than [her].”

applicant

Cepada v. Bd. of Educ. of

Balt. Cnty., 814 F.Supp.2d 500, 512 (D.Md. 2011) (citing
v. Harvey, 438 F.3d 404, 430 (4th Cir. 2006)).

Laber

The plaintiff

need not show that she is the better qualified candidate, but
only

that

she

was

qualified

for

the

position.

Anderson

v.

Westinghouse Savannah River Co., 406 F.3d 248, 269 (4th Cir.
2005) (citations omitted).

In addition, a plaintiff alleging

employment discrimination does not have to plead “specific facts
establishing a prima facie case of discrimination.”

Reed v.

Airtran Airways, 531 F.Supp.2d 660, 666 (D.Md. 2008) (citations
and internal quotation marks omitted).

The plaintiff, however,

still has the burden “to allege facts sufficient to state all
the elements of her claim.”

Id.

The Board contends that Ms. Davenport failed to state a
prima facie case for age discrimination, and that most of the
9 

alleged facts are time-barred because they occurred in 2008,
more than 300 days before Ms. Davenport filed her 2010 EEOC
claim.

Ms.

Davenport

argues

those

factual

allegations

are

reasonably related to the Board’s continuing violation of the
ADEA, and that she sufficiently established a prima facie case
of age discrimination by alleging the Board’s repeated denial of
her

promotion

in

favor

of

younger

candidates

despite

her

qualifications.
This Court agrees that Ms. Davenport sufficiently pled a
claim for age discrimination.
she

is

sixty-two

proactively

or

years

First, Ms. Davenport alleges that

old

and

automatically,

for

principal positions starting in 2005.

that
a

she

applied,

number

of

either

assistant

Second, Ms. Davenport met

the Board’s requirements for assistant principal applicants by
becoming Cohort certified and accepting an administrative intern
position.

Lastly, Ms. Davenport alleged in her EEOC claim that

three individuals in their thirties were selected for assistant
principal positions that she should have been considered for in
2010.

Based upon her alleged qualifications and the hiring of

three substantially younger candidates in 2010, Ms. Davenport’s
Complaint, at least for the purpose of the pending Motion to
Dismiss, states a plausible claim of failure to promote based
upon age discrimination.

10 

As a result, the Court denies the Board’s Motion to Dismiss
as to Davenport’s age discrimination claim.
c.

Retaliation

The Court denies the Board’s Motion to Dismiss as to Ms.
Davenport’s
show

the

retaliation

alleged

claim

increased

because

she

observation

alleges

and

facts

stringent

that

working

conditions imposed upon her may be causally connected to the
filing of the EEOC claim.

Further, because these acts occurred

after she filed the administrative claim, Ms. Davenport was not
required to allege retaliation in the EEOC claim.
The ADEA’s anti-retaliation provision prohibits employers
from retaliating against employees for exercising their right to
raise a discrimination claim.

29 U.S.C. § 623(d) (2012).

To

demonstrate retaliation, the plaintiff must show that: (1) she
engaged

in

a

protected

activity;

(2)

her

employer

took

a

materially adverse employment action against her; and (3) there
is a causal connection between the protected activity engaged in
by

the

plaintiff

and

the

subsequent

action

taken

by

her

employer.

Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239,

242

Cir.

(4th

1997).

An

activity

is

protected

when

the

plaintiff has “an objectively reasonable belief that she was
complaining about” discriminatory conduct.
at

671

(citations

omitted).

Materially

Reed, 531 F.Supp.2d
adverse

actions

are

those that cause injury or harm so that it would “dissuade[] a
11 

reasonable

worker

from

making

or

supporting

discrimination” against her employer.

a

charge

of

Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 67–68 (2006).
depends on the particular circumstances.

Material adversity

See id. at 69 (noting,

for example, that while simply excluding an employee from a
social

gathering

employee

from

at
a

lunch

is

weekly

not

retaliation,

training

lunch

“excluding

that

an

contributes

significantly to the employee's professional advancement might
well

deter

a

reasonable

employee

from

complaining

about

discrimination” and is therefore retaliation).
The Board argues Ms. Davenport was reassigned before she
filed her EEOC claim and, as a result, she was required to
allege retaliation in her administrative claim.

Conversely,

Ms. Davenport argues the retaliation in question, namely the
increased observation and stringent working conditions, occurred
only after she filed the EEOC claim.

Ms. Davenport argues she

does not have to file a separate EEOC claim alleging retaliation
for those actions.
On

the

materially

one

hand,

adverse

the

August

employment

2010

action

reassignment
that

was

a

significantly

inhibited Ms. Davenport’s prospects for professional advancement
and would have deterred a reasonable employee from complaining
about discrimination.

Ms. Davenport’s reassignment, however, is

not retaliatory because it occurred before she filed her EEOC
12 

claim in October 2010.

Therefore, the reassignment cannot be

causally connected to Ms. Davenport’s protected activity.

On

the other hand, the increased observation and stringent working
conditions, which allegedly occurred after Ms. Davenport filed
her

EEOC

actions.

claim,

may

constitute

materially

adverse

employment

See White, 548 U.S. at 69 (citation omitted) (noting

“the significance of any given act of retaliation will often
depend

upon

the

particular

circumstances”

and

that

“context

matters”).
Retaliation claims arising after “filing an EEOC complaint
[can be] raised for the first time in federal court,” as long as
the alleged retaliation occurs after the EEOC claim is filed.
Plunkett v. Potter, 751 F.Supp.2d 807, 811 (D.Md. 2010) (citing
Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992); Jones v.
Calvert Group, Ltd., 551 F.3d 297, 303 (4th Cir. 2009)).

Ms.

Davenport

the

can

permissibly

raise

retaliation

here

because

increased observation and stringent working conditions occurred
after Ms. Davenport filed the EEOC claim.
As a result, the Court denies the Board’s Motion to Dismiss
Ms. Davenport’s retaliation claim.
d.

ADEA Claims Limited to $100,000

The Board argues sovereign immunity bars Ms. Davenport’s
discrimination claims.
and,

therefore,

is

The Board is a state agency of Maryland
shielded

from
13 

most

lawsuits,

including

discrimination
immunity.

under

the

ADEA,

by

the

doctrine

of

sovereign

Lee-Thomas v. Prince George’s Cnty. Pub. Sch., 666

F.3d 244, 248 n.5 (4th Cir. 2012) (citations omitted); Williams
v. Wicomico Cnty. Bd. of Educ., 836 F.Supp.2d 387, 395 (D.Md.
2011)

(citation

omitted).

Section

5–518(c)

of

the

Maryland

Code, however, provides that “[a] county board of education may
not raise the defense of sovereign immunity to any claim of
$100,000 or less.”

Md. Code Ann., Cts. & Jud. Proc. § 5-518(c)

(West 2012).

Therefore, Ms. Davenport’s ADEA claims are capped

at $100,000.

See Cepada, 814 F.Supp.2d at 509 (limiting the

plaintiff’s discrimination claims to $100,000 against a county
board of education).
2.

ERISA Violations

The Court grants the Board’s Motion to Dismiss as to Ms.
Davenport’s ERISA claim because Ms. Davenport’s employment plan
through the Board is a governmental plan, which is not covered
by ERISA.

ERISA, thus, is not applicable here.

Ms. Davenport contends that ERISA applies to all employee
benefits plans that are maintained by an employer who engages in
any activity affecting commerce.

The Board argues ERISA does

not apply because Ms. Davenport’s benefits plan falls under an
exception for governmental plans.
The Court agrees with the Board.

ERISA applies to “all

employee benefit plans that are established or maintained by an
14 

employer engaged in commerce or in any . . . activity affecting
commerce, an employee organization, or both.”

Custer v. Pan Am.

Life Ins. Co., 12 F.3d 410, 417 (4th Cir. 1993) (quoting 29
U.S.C. § 1003(a) (2012)) (internal quotation marks omitted); see
Mazer v. Safeway, Inc., 398 F.Supp.2d 412, 418 (D.Md. 2005)
(citation omitted) (“ERISA applies to employee benefit plans,
not

simply

to

governmental

benefits.”).

plans,

which

It

does

include

not,

however,

“plan[s]

apply

established

to
or

maintained for its employees . . . by the government of any
State or political subdivision thereof, or by any agency or
instrumentality of [the State].”

29 U.S.C. §§ 1002(32) and

1003(b) (2012).
Here,

ERISA

benefits plan.

does

not

apply

to

Ms.

Davenport’s

employee

Although Ms. Davenport maintains an employee

benefits plan through the Board, her employee benefits plan is a
governmental plan because it was established for employees of
the Board, which is an agency or instrumentality of the State of
Maryland.
As a result, ERISA is not applicable here and this claim is
dismissed.
3.

Breach of Contract

The Court grants the Board’s Motion to Dismiss as to Ms.
Davenport’s breach of contract claim because the Board has not
waived

its

right

to

sovereign
15 

immunity

under

the

Eleventh

Amendment of the U.S. Constitution.
bars

suit

in

federal

court

“The Eleventh Amendment

against

a

state

or

one

of

its

agencies or departments,” unless the state’s sovereign immunity
is expressly waived by Congress or the state.

Sharafeldin v.

Md., Dep’t of Pub. Safety & Corr. Servs., 94 F.Supp.2d 680, 686
(D.Md. 2000) (citations omitted).
The

Board

is

sovereign

immunity

Eleventh

Amendment.

a

state

agency

protection

in

Lee-Thomas,

and

thus

federal
666

F.3d

is

entitled

to

court

under

the

n.5,

255

at

248

(citations omitted); Bd. of Educ. of Balt. Cnty. v. ZimmerRubert, 973 A.2d 233, 236 (Md. 2009) (citations omitted); Lewis
v. Bd. of Educ. of Talbot Cnty., 262 F.Supp.2d 608, 612 (D.Md.
2003).

Although the State expressly waived sovereign immunity

in contract actions, the General Assembly limited this waiver to
state courts only.

Md. Code Ann., State Gov’t § 12-201(a) (West

2012); see also Zimmer-Rubert, 973 A.2d at 240 (“[T]he plain
language ‘in a court of the State’ exclude[s] Eleventh Amendment
immunity from § 12-201’s general waiver of sovereign immunity.”)
(emphasis in original).

As a result, the waiver of sovereign

immunity under § 12-201(a) does not apply to a state’s sovereign
immunity under the Eleventh Amendment in federal courts.6

See

6

Section 5-518 of the Maryland Code, discussed supra, also
does not waive the Board’s sovereign immunity here.
The Court
of Appeals of Maryland, in BEKA Indus., Inc. v. Worcestor Cnty.
16 

Sharafeldin,

94

F.Supp.2d

Congress

nor

the

Eleventh

Amendment

State

at

687–88

expressly

sovereign

(finding

waived

immunity

in

a

that
state

breach

of

neither
agency’s
contract

claims).
Thus, Ms. Davenport’s breach of contract claim is dismissed
on the ground that the Board has sovereign immunity under the
Eleventh Amendment in contract actions brought in federal court.
4.

Intentional Misrepresentation

The Court grants the Board’s Motion to Dismiss as to Ms.
Davenport’s

intentional

misrepresentation

claim

because

Ms.

Davenport does not plead the time, place, and identity of the
entity

or

person

who

conveyed

either

of

the

two

alleged

misrepresentations with the required particularity.
To demonstrate intentional misrepresentation under Maryland
law, the plaintiff must show that: (1) the defendant made a
false representation to the plaintiff; (2) the defendant knew
the statement was false or made the statement with reckless
indifference

for

misrepresentation

the
was

truth;
to

(3)

defraud

the
the

purpose

of

the

plaintiff;

(4)

the

plaintiff relied on the misrepresentation and had the right to
rely on it; and (5) the plaintiff suffered compensable injury as
a result of the misrepresentation.

SpinCycle, Inc. v. Kalendar,

Bd. of Educ., 18 A.3d 890 (Md. 2011),
application to “tort or insurable claim[s].”
17 

limited § 5-518’s
Id. at 907.

186 F.Supp.2d 585, 590 (D.Md. 2002) (quoting Alleco Inc. v.
Harry & Jeanette Weinberg Found., Inc., 665 A.2d 1038, 1047–48
(Md. 1995) (citations omitted)).
Moreover, Rule 9(b) imposes a heightened pleading standard,
requiring allegations of fraud to be pled with particularity.
See Fed.R.Civ.P. 9(b) (“In alleging fraud or mistake, a party
must

state

with

particularity

fraud or mistake.”).
include

“the

time,

the

circumstances

constituting

“Circumstances” has been interpreted to
place

and

contents

of

the

false

representation, as well as the identity of the person making the
misrepresentation and what [was] obtained thereby.”

Avery v.

Chariots For Hire, 748 F.Supp.2d 492, 504 (D.Md. 2010) (citation
and internal quotation marks omitted).

In addition, a court

“should hesitate to dismiss a complaint under Rule 9(b) if [it]
is satisfied (1) that the defendant has been made aware of the
particular circumstances for which [it] will have to prepare a
defense at trial and (2) that [the] plaintiff has substantial
prediscovery

evidence

of

those

facts.”

Id.

(citation

and

internal quotation marks omitted).
Finally, fraud generally cannot be predicated on promissory
statements because the failure to fulfill a promise is a breach
of

contract,

(citations

not

fraud.

omitted).

A

Alleco
promissory

Inc.,

665

A.2d

representation,

at

1048

however,

“made with an existing intention not to perform is actionable
18 

for

fraud.”

Sims

v.

Ryland

Grp.,

Inc.,

378

A.2d

1,

2

(Md.Ct.Spec.App. 1977) (citations omitted).
The Board argues Ms. Davenport does not allege the identity
of any speakers or specific representations made.

Instead, the

Board argues, Ms. Davenport only alleges subjective conclusions
based

on

“the

relative

fairness

of

competitive

interview

processes.”

(Def.’s Mem. Supp. Mot. to Dismiss at 12–13, ECF

No.

Ms.

3-1).

Davenport

argues

she

meets

the

specificity

standard because she alleges information conveyed directly from
the Board.

According to Ms. Davenport, the Board advised that

(1) a Cohort certification or Master’s degree were prerequisites
for assistant principal positions, and that (2) the selection
process for assistant principal candidates was impartial.
Davenport

contends

that

these

were

false

representations

Ms.
of

material fact upon which she relied to her detriment.
These

facts

under Rule 9(b).

fall

far

short

of

the

specificity

required

Ms. Davenport does not allege a time or place

in which she was informed of, or a person who told her about,
the

Board’s

degree

were

policy

that

required

Cohort

for

certification

assistant

or

principal

a

Master’s

candidates.

Although Ms. Davenport alleges that she signed the employment
contract in 1972, she does not allege that the Board’s policy
was communicated to her or agreed upon in that contract.

19 

In

addition,

Ms.

Davenport

specifically

notes

that

impartiality is an “implicit” component of her contract, never
alleging that any individual ever represented to her that the
interviews

would

be

conducted

through

“a

fair

and

impartial

interview process, and . . . [that] she would be in as good or
better a position as similarly situated candidates.”
65, 79).

(Compl. ¶¶

Ms. Davenport additionally never alleges that any

individual ever represented to her that she “would be in as good
or

better

a

position”

than

any

interviewing and being evaluated.

other

candidate

simply

by

The fact that Ms. Davenport

also does not alternatively allege that the Board never intended
to fulfill its promise to follow its own procedure, which could
be actionable for fraud, is equally fatal to Ms. Davenport’s
claim.
As a consequence, Ms. Davenport did not plead with the
particularity

required

to

establish

a

plausible

claim

for

intentional misrepresentation, and her claim is dismissed.
5.

Negligent Misrepresentation

The Court grants the Board’s Motion to Dismiss as to Ms.
Davenport’s

negligent

misrepresentation

claim

because

Ms.

Davenport fails to identify who asserted the allegedly false
statement and, in one instance, admits that the allegedly false
statement was implied but not asserted.

20 

To demonstrate negligent misrepresentation under Maryland
law, the plaintiff must show that: (1) the defendant, owing a
duty of care to the plaintiff, negligently asserted a false
statement; (2) the defendant intended the plaintiff to act upon
his

statement;

plaintiff

(3)

would

the

probably

defendant
rely

on

had

his

knowledge

statement,

that

which

the
would

cause loss or injury if erroneous; (4) the plaintiff relied on
the statement and justifiably took action; and (5) the plaintiff
suffered harm proximately caused by the defendant’s negligence.
Martens Chevrolet, Inc. v. Seney, 439 A.2d 534, 539 (Md. 1982).
Because negligent misrepresentation does not include fraud, it
is not subject to the Rule 9(b) heightened pleading standard.
The

Board

argues

misrepresentation

that,

claim,

similar

Ms.

to

Davenport

her

intentional

merely

advances

conclusory allegations and fails to plead the required elements
with

any

specificity.

Ms.

Davenport

argues

that

negligent

misrepresentation does not include the element of fraud and thus
is not subject to a heightened pleading standard.
Although

Ms.

Davenport

is

correct,

her

negligent

misrepresentation claim largely suffers from the same pitfalls
as her claim for intentional misrepresentation.
Davenport
Board’s
Master’s

failed

alleged
degree

to

indicate

policy
as

a

to

from

require

prerequisite
21 

whom
Cohort
for

she

Namely, Ms.

learned

of

certification
assistant

the
or

a

principal

positions, and she alleges that fairness and impartiality in the
hiring process was only implied but not asserted.

Although Ms.

Davenport relied on these representations, it is impossible to
determine whether the individual or entity owed a duty to Ms.
Davenport and negligently communicated a false statement to Ms.
Davenport when she does not identify the source or leads the
Court

to

infer

that

the

representation

was,

in

fact,

never

communicated to her at all.
Therefore, Ms. Davenport also fails to state a plausible
claim

for

negligent

misrepresentation,

and

her

claim

is

dismissed.
III. CONCLUSION
For the foregoing reasons, it is hereby ordered that the
Board’s Motion to Dismiss (ECF No. 3) is GRANTED in part and
DENIED

in

part.

Counts

III,

IV,

V,

and

Counts I and II will proceed to discovery.

VI

are

dismissed.

A separate Order

follows.
Entered this 4th day of December, 2012

/s/
____________________________
George L. Russell, III
United States District Judge

22