McCleary-Evans v. Maryland Department of Transportation, State Highway Administration

Filing 7

MEMORANDUM. Signed by Judge Catherine C. Blake on 11/5/13. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAWNN MCCLEARY-EVANS
v.
MARYLAND DEPARTMENT OF
TRANSPORTATION, STATE HIGHWAY
ADMINSTRATION

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Civil Case No. CCB-13-990

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MEMORANDUM

Plaintiff Dawnn McCleary-Evans initiated this action against defendants Maryland
Department of Transportation and State Highway Administration (collectively “MDOT”),
alleging discriminatory treatment based on race and gender in violation of Title VII of the Civil
Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e, et seq.
MDOT has moved to dismiss McCleary-Evans’s complaint, or, in the alternative, for summary
judgment. This matter has been fully briefed, and no hearing is necessary. See Local Rule
105.6. (D. Md. 2011). For the reasons stated below, MDOT’s motion to dismiss will be granted.
BACKGROUND
McCleary-Evans, an African American female, is a former management employee of
various state agencies including MDOT, the Maryland Transit Administration (“MTA”), and the
Maryland Department of Natural Resources (“DNR”).

(Pl. Compl. ¶¶ 8-9, ECF No. 1).

McCleary-Evans alleges that she interviewed for two open positions with MDOT’s State
Highway Administration (“SHA”) Environmental Compliance Division in late 2009 and early
2010. At the time of the interviews, McCleary-Evans asserts that she had over twenty years of
experience managing environmental regulatory compliance projects. Id. ¶¶ 7-9. According to

her complaint, McCleary-Evans’s prior experience with the DNR and MTA “directly related to
the proposed duties for both positions[,]” and she was more than qualified for the positions. Id. ¶
10. McCleary-Evans further alleges that the application process was subject to a review panel
“influenced and controlled” by SHA official Gregory Keenan, who is a white male, and Sonal
Sangahvi, a non-black female. Id. ¶ 11. McCleary-Evans was not selected for either open
position.

Id. ¶¶ 11-12 (two successive paragraphs in the complaint are labeled as ¶ 11).

McCleary-Evans alleges that SHA officials, including Keenan and Sangahvi, overlooked the
African American candidates in the applicant pool, and for reasons of race and gender selected a
white male and white female candidate for the two open positions. Id. ¶ 13. McCleary-Evans
filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), and received
a right-to-sue notice on January 2, 2013. (Pl. Opp’n Ex. 1; Pl. Opp’n Ex. 2, ECF No. 5). On
April 2, 2013, McCleary-Evans filed suit under Title VII. (ECF No. 1).
ANALYSIS
MDOT seeks to dismiss the complaint, or, in the alternative, moves for summary
judgment. Under Rule 12(b) of the Federal Rules of Civil Procedure, a complaint may be
dismissed, inter alia, for lack of subject-matter jurisdiction, or for failure to state a complaint
upon which relief can be granted. Fed. R. Civ. P. 12(b)(1), 12(b)(6). Under Rule 56, summary
judgment is deemed appropriate where “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.
I.

Timeliness
A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether

a court is permitted to adjudicate the claims brought before it. The district court should grant the
Rule 12(b)(1) motion to dismiss “only if the material jurisdictional facts are not in dispute and

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the moving party is entitled to prevail as a matter of law.” Evans v. B.F. Perkins Co., 166 F.3d
642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States,
945 F.2d 765, 768 (4th Cir.1991)).
MDOT initially challenged the timeliness of McCleary-Evans’s complaint. (Def.’s Mot.
5-6, ECF No. 4).1 Under Title VII, a plaintiff must file suit in federal court ninety days after
receipt of a right-to-sue letter. 42 U.S.C. §2000e-5(f)(1). The date of postmark ordinarily
governs the calculation of when a notice was actually placed in the mail, and generally three
days are added to the ninety-day period to account for mail receipt. McCleary-Evans has
submitted a copy of the envelope for the right-to-sue letter showing a December 31, 2012
postmark date. (Pl.’s Resp. Ex. 2-3, ECF No. 5). In addition, she wrote on the envelope that she
received the letter on the next mail delivery date, January 2, 2013. Id. Without the handwritten
notation, the presumed receipt date would be January 3, 2013. Because McCleary-Evans filed
her complaint on April 2, 2013, exactly ninety days after her notations indicate she received the
EEOC notice, and one day before the presumed statutory period expired, McCleary-Evans met
the time limit to file suit.
II.

Failure to State a Claim
A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint.

Jordan v. Alternative Resources Corp., 458 F.3d 332, 338 (4th Cir. 2006). When ruling on a
motion under Rule 12(b)(6), 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) (citing
Little v. Federal Bureau of Investigation, 1 F.3d 255, 256 (4th Cir. 1993)). “Even though the

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MDOT appears to abandon the claim in its reply, presumably because of the postmarked envelope
attached to McCleary-Evans’s opposition.
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requirements for pleading a proper complaint are substantially aimed at assuring that the
defendant be given adequate notice of the nature of a claim being made against him, they also
provide criteria for defining issues for trial and for early disposition of inappropriate
complaints.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). “The mere recital of
elements of a cause of action, supported only by conclusory statements, is not sufficient to
survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th
Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss,
the factual allegations of a complaint “must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
and alterations omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence
sufficient to prove the elements of the claim. . . . However, the complaint must allege sufficient
facts to establish those elements.” Walters, 684 F.3d at 439 (quotations and citation omitted).
“Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is
‘probable,’ the complaint must advance the plaintiff’s claim ‘across the line from conceivable to
plausible.’” Id. (quoting Twombly, 550 U.S. at 570).
In the context of employment discrimination, the Supreme Court has clarified that
pleadings need not “contain specific facts establishing a prima facie case of discrimination under
the framework set forth” in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002). Instead, an employment discrimination
complaint need only contain “a short and plain statement of the claim showing that the pleader is
entitled to relief[.]” Id. (citing Fed. R. Civ. P. 8(a)(2)); see also Twombly, 550 U.S. at 569-70
(explaining that Swierkiewicz is consistent with more recent case law and simply reiterated “the

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Federal Rules’ structure of liberal pleading requirements”). Nevertheless, the plaintiff retains the
burden to allege facts sufficient to state all the elements of her claim. Jordan v. Alternative
Resources Corp., 458 F.3d 332, 346-47 (4th Cir. 2006).
McCleary Evans does not allege facts that plausibly support a claim of discrimination.
Where there is no direct evidence of discrimination, a plaintiff may state a prima facie case of
discrimination for failure to hire by showing: (1) that she is a member of the protected class; (2)
that the employer had an open position for which she applied or sought to apply; (3) that she was
qualified for the position; and (4) that she was rejected under circumstances giving rise to an
inference of unlawful discrimination. Evans v. Technologies Applications & Serv. Co., 80 F.3d
954, 959-60 (4th Cir. 1996) (citations omitted). It is undisputed that McCleary-Evans is a
member of a protected class and applied for two open positions in the SHA Environmental
Compliance Division. (Pl. Comp. ¶¶ 3, 7). On the facts pled by McCleary-Evans, it is plausible
that she was qualified for the open positions, as she had over twenty years of experience
managing environmental regulatory compliance projects at similar state entities.

Id.

¶ 8.

Therefore, the crux of MDOT’s motion to dismiss turns on whether McCleary-Evans has stated
facts sufficient to meet the pleading requirements as to the fourth prong.
McCleary-Evans avers that a white male and non African American female on the hiring
review panel sought to fill both positions with either a white male or white female candidate.
(Pl. Compl. ¶ 11). There is no indication of how many people sit on the panel, nor any factual
support for the hypothesis that the two members in question wield such control over the panel
that they might direct its members to make discriminatory selections in hiring. To survive a
motion to dismiss, the complaint must set forth sufficient facts to give rise to an inference of
discrimination; conclusory allegations of discrimination are insufficient. Simpson v. Welch, 900

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F.2d 33, 35 (4th Cir. 1990). McCleary-Evans offers nothing to support her conclusory assertions
beyond an unsubstantiated mention of “a history of hires” within the division, and statements
identifying her race, the races of the two members of the hiring review panel, and the races of the
two applicants hired for the positions. (Pl. Compl. ¶¶ 11, 13). She cites no evidence of any
discriminatory statements or actions, and provides no information about the qualifications of the
selected candidates. Because discrimination cannot be presumed simply because one candidate
is selected over another candidate, McCleary-Evans has not pled adequate facts to give rise to a
reasonable inference of discrimination. Moreover, McCleary-Evans’s complaint alleges gender
discrimination while acknowledging that a female candidate was selected for one of the two
positions. See id. ¶ 13. McCleary-Evans, therefore, has provided insufficient facts to meet the
plausibility threshold.
CONCLUSION
For the foregoing reasons, the defendants’ motion to dismiss under Rule 12(b)(6) will be
granted, and McCleary-Evans’s complaint will be dismissed.
A separate order follows.

Dated: November 5, 2013

/s/
Catherine C. Blake
United States District Judge

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