Davenport v. State of Maryland et al
Filing
50
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/6/14. (apls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LAURIE DAVENPORT,
:
Plaintiffs,
:
v.
:
STATE OF MARYLAND, et al.,
:
Defendants.
Civil Action No. GLR-13-1249
:
MEMORANDUM OPINION
This employment discrimination action is before the Court
on
Defendants
Sutton,
Captain
State
of
Robert
Maryland
(“State”),
MacKenzie,
Margaret
Sergeant
Bruce
Chippendale,
and
William Filbert’s Motion to Dismiss Plaintiff Laurie Davenport’s
Amended Complaint.
Defendant
William
Complaint.
(ECF No. 37).
Blackiston’s
(ECF No. 38).2
Also before the Court is
Motion
to
Dismiss1
Amended
Davenport, a former employee of the
Maryland Department of Public Safety and Correctional Services
(“DPSCS”),
alleges
the
State
committed
numerous
unlawful
employment practices in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e
et
seq.
(2012)
and
Maryland’s
Fair
Employment
Practices
Act
1
Blackiston does not make any original arguments in his
Motion to Dismiss, but rather joins and incorporates by
reference all legal arguments in the State’s Motion to Dismiss.
(See Def. Blackiston’s Mot. to Dismiss at 1, ECF No. 38).
Therefore, the Court will address both Motions to Dismiss as one
motion.
2
Defendant Michael Hancock has not filed a Motion to
Dismiss.
(“FEPA”), as amended, Md. Code. Ann., State Gov’t §§ 20–601 et
seq.
(West
2014).
She
also
alleges
Defendants
violated
42
U.S.C. § 1985(3) (2012)3 by conspiring to deprive her of equal
protection of the law and committed numerous torts.
The
Court,
having
reviewed
the
pleadings
documents, finds no hearing necessary.
(D.Md. 2014).
and
supporting
See Local Rule 105.6
For the reasons outlined below, the Court will
grant in part and deny in part Defendants’ Motion.
I.
BACKGROUND4
On or about June 30, 2006, Davenport began working for the
DPSCS as a corrections officer at the Eastern Pre-Release Unit
(“EPRU”) in Church Hill, Maryland.
EPRU is a “pre-release”
facility that houses inmates who are in the last three years of
their sentences.
Blackiston was the facility administrator at EPRU and he
served
as
Davenport’s
second-line
supervisor.
Hancock
and
Sutton were corrections officers at EPRU and they served as
Davenport’s direct supervisors.
Blackiston directly supervised
Sutton, Hancock, and MacKenzie.
Chippendale served as Assistant
Warden and Filbert served as Warden.
3
Davenport mislabels her Section 1985 claim as a Section
1983 claim.
4
Unless otherwise noted, the following facts are taken from
the Amended Complaint and are accepted as true for the purposes
of Defendants’ Motion.
2
Davenport interacted with Blackiston, Hancock, and Sutton
on a daily basis.
Hancock and Sutton would give Davenport daily
orders regarding her duties and responsibilities.
Although her
duties varied, she frequently performed searches of inmates and
their lockers, cleaned the facility, and transported inmates to
other facilities.
Davenport
alleges
Blackiston,
Sutton,
and
Hancock
made
demeaning, threatening, and sexually suggestive comments to her
during her employment at EPRU.
pulled
her
hair
on
several
She further alleges Hancock
occasions
while
making
sexually
suggestive comments.
Exasperated
by
the
conduct
of
Blackiston,
Sutton,
and
Hancock, Davenport submitted a request to MacKenzie to work as
part of the Road Crew.5
This assignment would require minimum
interaction with Blackiston, Sutton, and Hancock.
MacKenzie,
however, denied this request and instead gave the position to a
male officer who had less years of experience at the facility
than Davenport.
At
some
point
during
her
employment
at
EPRU,
applied for a promotion to the rank of sergeant.6
Davenport
When she
advised Blackiston of her intent to apply, he told her, “don’t
5
Davenport
assignment.
6
Davenport
position.
does
not
specify
when
she
applied
for
this
does
not
specify
when
she
applied
for
this
3
bother, you’re not ready.”
Despite Blackiston’s discouraging
comments, Davenport applied.
more
qualified
and
having
She alleges that despite being
tested
higher
than
all
the
other
officers who applied for the position, she did not obtain an
interview.
When Davenport met with Blackiston to ask him why
she did not obtain an interview, he said, “I told you, you
weren’t ready.”
On
September
30,
2010,
Blackiston
Davenport on the premises of EPRU.
sexually
assaulted
On that date, Davenport was
working in the control room when another corrections officer
asked
that
she
process
Blackiston
through
security.
After
walking through the scanner, Blackiston pushed Davenport against
a table and grabbed her groin.
Davenport immediately screamed
and attempted to push Blackiston away.
Due to Blackiston’s
large size, however, she was unable to free herself from his
grasp.
Blackiston groped her groin for approximately twelve
seconds.
In
October
discrimination
2010,
with
Davenport
the
Division of the DPSCS.
submitted
a
letter
Equal
filed
a
Employment
complaint
Opportunity
of
(EEO)
Along with the complaint, Davenport
that
detailed
Blackiston, Sutton, and Hancock.
her
4
interactions
with
(Pl.’s Opp’n Defs.’ Mot. to
Dismiss [“Opp’n”] Ex. 1, ECF No. 45-2).
formal
On November 4, 2010,
Blackiston was transferred out of EPRU.
On that same date,
Davenport alleges gunshots were fired at or near her residence.
On December 20, 2010, Davenport filed a formal Charge of
Discrimination with the Baltimore field office of the United
States Equal Employment Opportunity Commission (“EEOC”) and the
Maryland Commission on Human Relations.
45-6).
(Opp’n Ex. 5, ECF No.
On January 4, 2011, Davenport returned to work at EPRU.7
When she attempted to clock-in, she discovered a threatening
note on the back of her time card.
In October 2011, Blackiston pled guilty to two counts of
second-degree assault of two female coworkers and was given a
suspended sentence of one year by the Circuit Court of Queen
Anne’s County, Maryland.
agreeing
to
a
statement
Blackiston entered an Alford plea,
of
facts
that
described
his
assault of a contractual medical employee in May 2010.
sexual
The
statement also included an admission that on September 30, 2010,
Blackiston pressed his body against Davenport and grabbed her
groin.
On March 1, 2012, Davenport resigned from her position at
EPRU.
On January 29, 2013, she received a letter from the
Baltimore EEOC dismissing her discrimination charge.
(Opp’n Ex.
6, ECF No. 45-7).
7
It is unclear from the Amended Complaint when Davenport
left work.
5
Davenport filed the present action on April 26, 2013.
No. 1).
(ECF
In her fifteen-count Amended Complaint, she alleges:
battery (Count I); hostile work environment (Count II), quid pro
quo
sexual
harassment
(Count
III),
disparate
treatment
and
disparate impact discrimination (Count IV), retaliation under
Title VII (Count V); unlawful employment practices (Count VI);
retaliation under FEPA (Count VII); conspiracy to deprive her of
equal protection of the law (Count VIII); wrongful discharge
(Count
IX);
gross
negligence
(Count
X);
general
negligence
(Count XI); intentional infliction of emotional distress (Count
XII);
civil
conspiracy
(Count
XIII);
negligent
hiring
and
retention (Count XIV); and negligent training and supervision
(Count XV).
Davenport sues all individually named Defendants in
their individual and official capacities.
She seeks $1,000,000
in compensatory damages and $2,000,000 in punitive damages.
The Defendants now move to dismiss each claim, with the
exception of Count I, for lack of subject matter jurisdiction
and/or for failure to state a claim upon which relief may be
granted.
II-VII.8
Davenport opposes the Motions with respect to Counts
(ECF Nos. 45 & 46).
8
Although Davenport does not oppose Defendants’ Motion with
respect to Counts VIII-XV, the Court will address whether she
states a claim for these Counts.
See Pisani v. Balt. City
Police, No. CIV. WDQ-12-1654, 2013 WL 4176956 (D.Md. Aug. 14,
2013) (addressing an unopposed motion to dismiss in an
employment discrimination case).
6
II.
DISCUSSION
A.
Standard of Review
A motion to dismiss for lack of subject matter jurisdiction
is governed by Federal Rule of Civil Procedure 12(b)(1).
plaintiff
bears
the
burden
of
proving
that
subject
jurisdiction properly exists in the federal court.
The
matter
See Evans v.
B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642,
647 (4th Cir. 1999).
In determining whether subject matter
jurisdiction exists, the court may consider evidence outside the
pleadings
judgment.
without
converting
the
motion
to
one
for
summary
Richmond, Fredericksburg & Potomac R.R. Co. v. U.S.,
945 F.2d 765, 768 (4th Cir. 1991) (citing Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982)).
The court should grant a Rule
12(b)(1) motion “only if the material jurisdictional facts are
not in dispute and the moving party is entitled to prevail as a
matter
of
law.”
Id.
(citing
Trentacosta
v.
Frontier
Pac.
Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987)).
Conversely, a motion to dismiss for failure to state a
claim
is
governed
by
Rule
12(b)(6).
The
purpose
of
Rule
12(b)(6) is to test the sufficiency of a complaint and not to
resolve contests surrounding the facts, the merits of a claim,
or the applicability of defenses.
Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th Cir. 1999) (quoting Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
7
To
survive
a
Rule
12(b)(6)
motion,
the
complaint
must
allege facts that, when accepted as true, “state a claim to
relief that is plausible on its face.”
Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)) (internal quotation marks omitted).
claim
is
plausible
on
its
face
when
“the
plaintiff
A
pleads
factual content that allows the court to draw the reasonable
inference
alleged.”
that
the
Id.
defendant
(citing
is
Twombly,
liable
550
for
U.S.
the
at
misconduct
556).
Legal
conclusions or conclusory statements do not suffice and are not
entitled to the assumption of truth.
Id. (citing Twombly, 550
U.S. at 555).
Thus, the Court “must determine whether it is
plausible
the
that
factual
allegations
in
the
complaint
are
enough to raise a right to relief above the speculative level.”
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
12(b)(6),
determining
the
Court
whether
must
to
examine
dismiss
the
pursuant
complaint
as
to
a
Rule
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).
8
B.
Analysis
1.
Claims against the State
a.
Title VII
i.
Hostile Work Environment (Count II)
Defendants argue Davenport’s Hostile Work Environment claim
fails because it relies on factual allegations that were not
timely filed with the EEOC or, alternatively, because she does
not allege conduct sufficiently severe or pervasive to state a
claim.
The Court disagrees.
Davenport alleges she was subjected to sexual harassment by
Sutton,
Hancock,
and
Blackiston,
and
that
the
harassment
commenced on June 30, 2006, her first day of employment at EPRU.
In Maryland, a Title VII plaintiff must file an administrative
charge of discrimination with the EEOC within 300 days of the
alleged
unlawful
employment
practice.
42
U.S.C.
§
2000e-
5(e)(1); Tinsley v. First Union Nat’l Bank, 155 F.3d 435, 439
(4th Cir. 1998).
“[A]lleged discriminatory acts which occurred
more than 300 days prior to the filing of the EEOC charge may
not be subsequently challenged in a Title VII suit.”
Mezu v.
Morgan State Univ., 264 F.Supp.2d 292, 294 (D.Md. 2003) (citing
Van Slyke v. Northrop Grumman Corp., 115 F.Supp.2d 587, 592
(D.Md. 2000)), aff’d sub nom. Mezu v. Dolan, 75 F.App’x 910 (4th
Cir. 2003).
9
Under the continuing violation doctrine, however, a hostile
work environment claim may include incidents occurring prior to
the
limitations
period
if
Davenport
can
show
some
act
contributing to the claim occurred within the limitations period
and was a continuing part of the discriminatory activity that
began prior to the limitations period.
See Gilliam v. S.C.
Dep’t of Juvenile Justice, 474 F.3d 134, 140 (4th Cir. 2007)
(explaining the same).
In reviewing a decision from the United
States Court of Appeals for the Ninth Circuit, the United States
Supreme Court agreed that where the “pre- and post-limitations
period incidents involve[d] the same type of employment actions,
occurred relatively frequently, and were perpetrated by the same
managers” many of the acts that occurred outside the limitations
period
claim.
were
part
of
the
same
actionable
hostile
environment
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 120
(2002) (alteration in the original).
Here
the
300-day
limitations
period
includes
the
period
from February 23, 2010 to December 20, 2010 (the date Davenport
filed her charge of discrimination with the Maryland Commission
on
Human
alleges
Relations
she
was
and
sexually
the
EEOC).
assaulted
Davenport
by
Blackiston
specifically
within
the
limitations period, and generally alleges she was subjected to
inappropriate sexual suggestions and comments from Hancock and
Sutton “several times a week, often [two] to [three] times per
10
day, throughout [her] employment at EPRU.”
(Am. Compl. ¶ 107).
Davenport’s allegations with respect to Hancock and Sutton are
flawed in two respects.
First,
although
the
allegations
of
sexual
harassment
occurred relatively frequently and are related to Blackiston’s
sexual assault, they were not perpetrated by the same managers.
Second, the allegations are not pled with sufficient specificity
to survive a Motion to Dismiss.9
Thus, in considering whether
Davenport alleges conduct sufficiently severe or pervasive to
state a hostile work environment claim, the Court will consider
only Blackiston’s sexual assault.
Nevertheless,
that
an
allegation
“sufficiently
severe
pleading stage.”
F.App’x
231,
concludes
claim
the
for
that
Fourth
of
a
or
Circuit
sexual
has
assault
pervasive
to
recently
by
survive
a
concluded
coworker
review
at
was
the
Davis v. City of Charlottesville Sch. Bd., 498
233
(4th
Cir.
Davenport
relief
as
2012).
has
to
Accordingly,
sufficiently
Blackiston
stated
only,
Defendants’ Motion with respect to Count II.
and
the
a
Court
plausible
will
deny
The Court will,
9
The United States Court of Appeals for the Fourth Circuit
has
held
that
“conclusory
statements,
without
specific
evidentiary support, cannot support an actionable claim for
harassment,” E.E.O.C. v. Xerxes Corp., 639 F.3d 658, 676 (4th
Cir. 2011) (quoting Causey v. Balog, 162 F.3d 795, 802 (4th Cir.
1998)) (internal quotation marks omitted), and that allegations
“unsubstantiated by accounts of specific dates, times or
circumstances,” are too “general” to suffice, id. (quoting
Carter v. Ball, 33 F.3d 450, 461–62 (4th Cir. 1994)).
11
however,
dismiss
the
allegation
with
respect
to
Hancock
and
Sutton.
ii.
Next,
Quid Pro Quo (Count III)
Defendants
argue
Davenport
failed
to
exhaust
administrative remedies with respect to her Quid Pro Quo Sexual
Harassment claim.
The Court agrees.
Before a plaintiff has standing to file suit under Title
VII, she must exhaust her administrative remedies by filing a
charge with the EEOC.
Bryant v. Bell Atl. Md., Inc., 288 F.3d
124, 132 (4th Cir. 2002).
The allegations in an EEOC charge are
critical because they define the scope of a plaintiff’s right to
institute a civil suit.
Id.
Only those discrimination claims
stated in the initial charge, those reasonably related to the
initial charge, and those developed by reasonable investigation
of the initial charge may be maintained in a subsequent Title
VII lawsuit.
Evans v. Techs. Applications & Serv. Co., 80 F.3d
954, 963 (4th Cir. 1996) (citing King v. Seaboard Coast Line
R.R., 538 F.2d 581, 583 (4th Cir. 1976)).
complaint
exceeds
this
scope,
the
When a plaintiff’s
plaintiff
has
failed
to
exhaust her administrative remedies and the Court must dismiss
the complaint.
See Bryant, 288 F.3d at 133; Sloop v. Mem’l
Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir. 1999).
“[T]o establish quid pro quo liability, a plaintiff must
prove that a ‘tangible employment action resulted from a refusal
12
to submit to a supervisor’s sexual demands.’”
Moser v. MCC
Outdoor, L.L.C., 256 F.App’x 634, 642 (4th Cir. 2007) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998)).
While
Davenport
does
allege
sexual
harassment
in
her
EEOC
charge, she does not allege quid pro quo sexual harassment.
(See Opp’n Ex. 5, at 9).
Further, because quid pro quo requires
proof of an element that hostile work environment does not (i.e.
quid pro quo), a quid pro quo claim is not reasonably related to
and does not reasonably follow from an investigation of a charge
of
hostile
work
Interdiction,
environment.
LLC,
No.
See
2:12CV690,
Porch
2013
WL
v.
American
4804285,
at
K-9
*7
(E.D.Va. Sept. 6, 2013); Bolt v. Norfolk Southern Corp., 22
F.Supp.2d 512, 517 (E.D.Va. 1997).
Accordingly, the Court will dismiss Count III.
iii. Disparate Treatment and Disparate Impact
Discrimination (Count IV)10
Defendants
argue
Davenport
also
failed
to
exhaust
administrative remedies with respect to her claim for Disparate
Impact/Treatment or, alternatively, she has failed to state a
claim.
The
Court
finds
that
Davenport
did
exhaust
administrative remedies with respect to a claim for disparate
10
Davenport does not specify whether she is bringing a
claim
for
disparate
impact
or
disparate
treatment
discrimination.
The Court will assume Davenport intended to
plead a claim for both causes of action.
13
treatment,
but
failed
to
sufficiently
allege
an
adverse
employment action, which is necessary to state a claim.
As
discussed
above,
“the
relevant
test
in
determining
whether [Davenport] was required to exhaust her administrative
remedies . . . is whether the acts alleged in the subsequent
Title VII suit are fairly within the scope of the prior EEOC
complaint, or the investigation arising therefrom.”
Parsons, 729 F.2d 233, 237 (3d Cir. 1984).
Waiters v.
“Title VII prohibits
both intentional discrimination (known as ‘disparate treatment’)
as well as, in some cases, practices that are not intended to
discriminate
but
in
fact
have
a
disproportionately
effect on minorities (known as ‘disparate impact’).”
adverse
Ricci v.
DeStefano, 557 U.S. 557, 577 (2009).
Here, Davenport unquestionably alleges sex discrimination
in her EEOC charge, but does not specifically allege either
disparate
treatment
or
disparate
impact.
While
a
claim
of
disparate impact requires that a plaintiff identify an specific
employment
policy
or
practice
that
allegedly
produces
a
disparate impact, a disparate treatment claim is a more general
cause of action that “occur[s] where an employer has ‘treated
[a] particular person less favorably than others because of’ a
protected trait.”
Ricci, 557 U.S. at 577 (quoting Watson v.
Fort Worth Bank & Trust, 487 U.S. 977, 985–86 (1988)).
Although
Davenport’s EEOC charge does not directly refer to disparate
14
treatment,
the
claim
is
fairly
within
the
scope
of
her
allegation of sex discrimination because both claims arise from
the same alleged sexual harassment she suffered at the hands of
Blackiston, Sutton, and Hancock.
The EEOC, therefore, had an
opportunity to investigate Davenport’s allegations that she was
treated less favorably than others based on her sex.
Notwithstanding
the
Court’s
acceptance
of
Davenport’s
disparate treatment claim, she fails to properly allege that she
was subjected to an adverse employment action.
To sufficiently
allege disparate treatment, a plaintiff must plead, inter alia,
that she was subjected to an adverse employment action.
Coleman
v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d
sub
nom.
(2012).
Coleman
v.
Ct.
of
Appeals
of
Md.,
132
S.Ct.
1327
“An adverse employment action is a discriminatory act
that adversely affect[s] the terms, conditions, or benefits of
the plaintiff’s employment.”
F.3d
208,
219
(4th
Cir.
Holland v. Wash. Homes, Inc., 487
2007)
(alteration
in
the
original)
(quoting James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375
(4th Cir. 2004)) (internal quotation marks omitted).
be
no
adverse
employment
action
where
an
There can
employee’s
conditions, and benefits of employment remain the same.
terms,
See
James, 368 F.3d at 376-77.
Davenport makes two allegations of specific discriminatory
conduct.
First, she alleges when she applied for a promotion to
15
the rank of sergeant, she did not receive an interview despite
the fact that she “was more qualified and tested higher than any
other officers who had applied for the position.”
111).
She
further
alleges
“other
officers,
(Am. Compl. ¶
who
were
less
qualified and had tested lower than Plaintiff, received letters
for oral interviews.”
(Id.).
Second, Davenport alleges she asked MacKenzie to work as
part of the “Road Crew detail,” but her request was denied and
MacKenzie gave the position to a male officer who had less years
of experience.
(Am. Compl. ¶ 121).
Because this conduct did
not adversely affect the terms, conditions, or benefits of her
employment, Davenport has failed to properly allege that she was
subject to an adverse employment action.
Accordingly, the Court
will grant Defendants’ Motion with respect to Count IV.
iv.
Retaliation (Count V)
Defendants argue Davenport’s retaliation claim under Title
VII fails to allege facts sufficient to state a claim.
The
Court agrees.
Title VII prohibits discrimination against an employee in
retaliation for the employee’s opposing the employer’s illegal
discrimination
practices
enforcement proceedings.
or
participating
in
42 U.S.C. § 2000e-3(a).
Title
VII
To properly
plead retaliation, Davenport must allege “(1) that she engaged
in protected activity, (2) that an adverse employment action was
16
taken against her, and (3) that there was a causal link between
the
protected
activity
and
the
adverse
employment
action.”
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 258 (4th
Cir. 1998).
The
adverse
action
element
of
a
retaliation
different from that of a disparate treatment claim.
plaintiff
claiming
retaliation
need
only
claim
is
A Title VII
allege
that
she
suffered an action that was “materially adverse,” meaning that
the action “might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.”
Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting
Rochon
v.
Gonzales,
438
F.3d
1211,
(internal quotation marks omitted).
1219
(D.C.Cir.
2006))
The retaliation Davenport
alleges to be adverse employment actions include gun shots fired
at or near her residence one month after filing her EEOC charge
and an anonymous, threatening note on the back of her time card
two weeks after filing her EEOC charge.
acts
constitute
establish
that
adverse
her
employment
co-workers
Even assuming these
actions,
retaliated
Davenport
against
cannot
her
for
asserting her Title VII rights because she cannot identify the
person or persons who committed these retaliatory acts.
Caldwell
v.
Jackson,
No.
1:03CV707,
2009
WL
2487850,
See
at
*9
(M.D.N.C. Aug. 11, 2009) (“[Defendant] cannot make out a prima
facie case of retaliation based on acts by anonymous persons.”),
17
report and recommendation adopted, 831 F.Supp.2d 911 (M.D.N.C.
2010); see also Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir.
2008)
(finding
retaliation
that
was
the
plaintiff
causally
could
not
to
her
related
show
that
the
complaint
of
discrimination because she could not identify who committed the
retaliatory acts).
Accordingly, the Court concludes that Davenport has failed
to sufficiently state a plausible claim for relief under Title
VII, and will grant Defendants’ Motion with respect to Count V.
Also, because “FEPA is the state law analogue of Title VII and
its interpretation is guided by federal cases interpreting Title
VII,” Finkle v. Howard Cnty., No. CIV. JKB-13-3236, 2014 WL
1396386, at *3 (D.Md. Apr. 10, 2014) (citing Haas v. Lockheed
Martin Corp., 914 A.2d 735, 742 (Md. 2007)), the Court will
dismiss the FEPA retaliation claim (Count VII).
b.
FEPA - Unlawful Employment Practices (Count VI)
The State challenges Davenport’s FEPA claim for unlawful
employment
waived
its
practices
sovereign
on
three
bases:
immunity
with
(1)
regard
the
State
to
claims
has
not
arising
under § 20–606 in federal court; (2) Davenport did not file the
instant action within FEPA’s statutory limitations period; and
(3) Davenport fails to state a claim.
each of these arguments in turn.
18
The Court will address
i.
Under
the
The State is not immune from FEPA suits in
federal court
Eleventh
Amendment
to
the
United
States
Constitution, a state, its agencies, and departments are immune
from
suits
in
federal
court
brought
by
its
citizens
citizens of another state, unless it consents.
or
the
See Penhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984).
“The
test for determining whether a State has waived its immunity
from federal-court jurisdiction is a stringent one.”
Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985).11
Under this
stringent
test,
a
state
will
be
deemed
to
have
waived
its
immunity “only where stated by the most express language or by
such overwhelming implication from the text as will leave no
room
for
any
other
reasonable
construction.”
Id.
at
240
(quoting Edelman v. Jordan, 415 U.S. 651, 673 (1974)) (internal
quotation marks and alteration omitted).
The
State’s
discrimination
Government
waiver
cases
Article
of
appears
of
the
sovereign
in
immunity
Section
Maryland
20-903
Code.
in
employment
of
the
This
State
provision
provides that “[t]he State, its officers, and its units may not
raise sovereign immunity as a defense against an award in an
11
The specific holdings of Atascadero State Hospital and
Garcia have been overruled by subsequent legislation.
See 42
U.S.C. § 2000d–7 (West Supp.).
However, the analysis relied
upon here is unchanged.
19
employment
discrimination
case
under
this
Ann., State Gov’t § 20-903 (West 2014).
title.”
Md.
Code
This Court has recently
held that Maryland’s waiver of sovereign immunity in Section 20903 applies in both state and federal court.
See Hartman v.
Univ. of Md. at Balt., No. ELH-10-2041, 2013 WL 6858854, at *4
(D.Md.
Dec.
20,
Accordingly,
2013).
the
State
The
is
same
not
analysis
immune
from
applies
here.
Davenport’s
FEPA
claims.
Conversely,
however,
while
Maryland
has
also
waived
its
sovereign immunity in state court for certain tortious actions
of state personnel, Md. Code Ann., State Gov’t § 12-104, it has
not consented to tort suits in federal court, id. § 12-103(2).
See also Weller v. Dep’t of Soc. Servs. for City of Balt., 901
F.2d 387, 397 (4th Cir. 1990) (“The waiver of sovereign immunity
in the Maryland Torts Claims Act clearly limits the state’s
waiver of immunity to actions brought in the Maryland state
courts.”
(citing
(D.Md.1988))).
Smith
v.
Accordingly,
Bernier,
the
State
701
is
F.Supp.
immune
from
1171
the
various tort claims alleged in Counts IX-XV.12
12
Counts IX-XV are alleged against the State and the
individually named Defendants in their official capacities.
A
suit against a state officer in his official capacity is the
equivalent to a suit against the state itself.
See Brandon v.
Holt, 469 U.S. 464, 471-72 (1985). Thus, the claims against the
individually named Defendants in their official capacities must
also be dismissed.
20
ii.
Defendants
The statute of limitations does not bar
this claim
contend
that
because
all
of
Davenport’s
allegations concern acts and incidents occurring more than two
years
prior
to
April
26,
2013,
Davenport’s
unlawful employment practices is barred.
Section
20-1013
of
the
State
FEPA
claim
for
The Court disagrees.
Government
Article
of
the
Maryland Code requires that a civil action alleging “an unlawful
employment practice” be filed “within 2 years after the alleged
unlawful employment practice occurred.”
Gov’t § 20-1013(a)(3).
26, 2013.
Md. Code Ann., State
Davenport commenced this action on April
(See ECF No. 1).
She alleges Defendants created a hostile and unsafe work
environment through her last day of employment on March 1, 2012
in retaliation for her filing an EEOC charge.
Because March 1,
2012
Court
is
within
the
limitations
period,
the
concludes
Section 20-1013 does not bar Davenport’s claim.
Further, Counts X and XI allege the Defendants breached a
professional duty of care only owed by the Defendants in their
official capacities: “a duty of reasonable care to . . . not
create or maintain a dangerous condition.” (Am. Compl. ¶¶ 273,
279). Even if Counts X and XI were not barred by the Eleventh
Amendment against the individually named Defendants in their
official capacities, these Counts must be dismissed because
“under [Maryland’s] workmen’s compensation scheme as well as
under the common law, the supervisory employee should not be
held liable for breaching a duty such as providing a safe place
to work.” Athas v. Hill, 476 A.2d 710, 718 (Md. 1984).
21
iii. Davenport states a FEPA claim for unlawful
employment practices
Based on the Court’s Title VII analysis articulated above,
Davenport
properly
pleads
a
hostile
work
environment
claim.
Because a hostile work environment is an example of an “unlawful
employment practice” under Title VII, see Jordan v. Alternative
Res. Corp., 458 F.3d 332, 339 (4th Cir. 2006), and FEPA analysis
is guided by federal case law interpreting Title VII, the Court
will deny Defendants’ Motion with respect to Count VI.
2.
Claims against all Defendants
a.
42 USC § 1985 (Count VIII)
Defendants argue Davenport fails to state a claim for a
violation
of
42
U.S.C.
§
1985
because
she
only
alleges
a
conspiracy in a bare and conclusory manner and a conspiracy to
violate a plaintiff’s Title VII rights cannot form the basis of
a Section 1985 conspiracy claim.
The Court agrees.
Federal law authorizes a cause of action if “two or more
persons in any State or Territory conspire . . . for the purpose
of depriving, either directly or indirectly, any person or class
of persons of the equal protection of the laws, or of equal
privileges and immunities under the laws . . . .”
1985(3) (2012).
In order to establish a sufficient cause of
action under Section 1985(3), a plaintiff must prove:
22
42 U.S.C. §
(1) a conspiracy of two or more persons, (2)
who are motivated by a specific class-based,
invidiously discriminatory animus to (3)
deprive the plaintiff of the equal enjoyment
of rights secured by the law to all, (4) and
which results in injury to the plaintiff as
(5) a consequence of an overt act committed
by the defendants in connection with the
conspiracy.
Simmons
v.
Poe,
47
F.3d
1370,
1376
(4th
Cir.
1995)
(citing
Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985)).
To
survive
a
motion
to
dismiss,
plaintiffs
alleging
conspiracy under Section 1985(3) must “plead specific facts in a
nonconclusory fashion.”
Gooden v. Howard Cnty., Md., 954 F.2d
960, 970 (4th Cir. 1992).
requirement
because
she
Here, Davenport fails to satisfy that
has
made
only
bare,
conclusory
allegations without alleging any facts from which this Court can
draw a reasonable inference that such a conspiracy occurred.
Additionally, the essence of Davenport’s Amended Complaint
is
employment
discrimination.
To
the
extent
Count
VIII
is
premised upon an alleged conspiracy to violate Davenport’s Title
VII
rights,
her
claim
is
foreclosed
by
the
Supreme
Court’s
decision in Great American Federal Savings & Loan Association v.
Novotny, 442 U.S. 366 (1979).
In Novotny, the Court held that
“deprivation of a right created by Title VII cannot be the basis
for a cause of action under § 1985(3).”
442 U.S. at 378; see
Bradley v. Balt. Police Dep’t, 887 F.Supp.2d 642, 648 (D.Md.
2012) (dismissing the plaintiff’s § 1985(3) claim for failure to
23
state a claim where the essence of the complaint was employment
discrimination).
Accordingly,
Davenport’s
allegations
are
insufficient
to
state a claim under Section 1985(3), and the Court will dismiss
Count VIII.
b.
Tort Claims (Counts IX-XV)
i.
Individually Named Defendants in their
Individual Capacities
a.
Defendants
Emotion
argue
Distress
Intentional Infliction of Emotional
Distress (Count XII)
Count
(“IIED”),
XII,
Intentional
fails
to
allege
Infliction
the
of
“truly
outrageous” and “atrocious” conduct required under the strict
standard imposed by Maryland law.
The Court does not reach the
issue, however, because it finds that Davenport has failed to
allege
a
reach
the
severely
high
disabling
burden
emotional
imposed
by
the
response
sufficient
requirement
that
to
her
emotional distress be severe.
To state a claim for IIED, a plaintiff must allege four
elements: (1) intentional or reckless conduct; (2) extreme and
outrageous conduct; (3) a causal connection between the wrongful
conduct and the emotional distress; and (4) severe emotional
distress.
Harris v. Jones, 380 A.2d 611, 614 (Md. 1977); Arbabi
v. Fred Meyers, Inc., 205 F.Supp.2d 462, 465-66 (D.Md. 2002).
In Maryland, IIED claims are “rarely viable” and, thus, subject
24
to a heightened pleading standard.
Bagwell v. Peninsula Reg’l
Med. Ctr., 665 A.2d 297, 319 (Md.Ct.Spec.App. 1995).
Each of
the four elements of an IIED claim must “be pled . . . with
specificity.”
Foor v. Juvenile Servs. Admin., 552 A.2d 947, 959
(Md.Ct.Spec.App. 1989).
The requirement that a plaintiff’s emotional distress be
severe imposes a “high burden.”
See Manikhi v. Mass Transit
Admin., 758 A.2d 95, 114-15 (Md. 2000) (collecting cases).
“In
order for distress to be sufficiently severe to state a claim
for IIED, the plaintiff must show that [she] suffered a severely
disabling
emotional
response
to
the
defendant’s
conduct,
and
that the distress was so severe that no reasonable man could be
expected to endure it.”
Solis v. Prince George’s Cnty., 153
F.Supp.2d 793, 804 (D.Md. 2001) (quoting Thacker v. City of
Hyattsville, 762 A.2d 172, 197 (Md.Ct.Spec.App. 2000)) (internal
quotation marks omitted).
Here, Davenport alleges that after the sexual assault, she
“feared for her safety,” (Am. Compl. ¶ 163), and was “afraid to
return to work,” (id. ¶ 170).
She does not allege that her
emotional distress interfered with normal activities outside of
work.
and
Additionally, Davenport alleges that she has “suffer[ed]
continues
to
suffer
.
.
.
mental
pain
and
suffering,
including but not limited to, undue emotional distress, mental
anguish,
humiliation,
embarrassment,
25
loss
of
respect,
shame,
[and]
loss
of
enjoyment
of
life.”
(Id.
¶
292).
Because
Davenport neither alleges that her emotional distress interferes
with
her
normal
activities
outside
of
work
nor
provides
sufficiently specific details concerning the nature, intensity,
or duration of her emotional distress, she fails to properly
allege IIED.
plaintiff’s
See Solis, 153 F.Supp.2d at 804 (dismissing the
complaint
where
although
the
plaintiff
could
not
return to work, there was no evidence his emotional distress
interfered
Manikhi,
with
758
his
A.2d
normal
at
115
life
activities
(affirming
the
outside
dismissal
work);
of
the
plaintiff’s IIED claim where the complaint did not “state with
reasonable certainty the nature, intensity or duration of the
alleged emotional injury.”).
Accordingly the Court will dismiss Count XII.
b.
Civil Conspiracy (Count XIII)
Finally, Defendants argue Davenport fails to state a claim
for civil conspiracy because Maryland does not recognize the
independent tort of civil conspiracy.
Maryland
combination
courts
of
two
define
or
tortious
more
The Court agrees.
civil
persons
by
conspiracy
an
as
“a
agreement
or
understanding to accomplish an unlawful act or to use unlawful
means
to
accomplish
an
act
not
in
itself
illegal,
with
the
further requirement that the act or the means employed must
result in damages to the plaintiff.”
26
Hoffman v. Stamper, 867
A.2d
276,
290
(Md.
2005)
(quoting
Green
v.
Wash.
Sub.
San.
Comm’n, 269 A.2d 815, 824 (Md. 1970)) (internal quotation marks
omitted).
Maryland does not recognize an independent cause of
action for civil conspiracy.
Clark v. Md. Dep’t of Pub. Safety
& Corr. Servs., 247 F.Supp.2d 773, 777 (D.Md. 2003) (citing
Alleco Inc. v. Harry & Jeanette Weinberg Found., Inc., 665 A.2d
1038, 1044–45 (Md. 1995)).
Rather, a “defendant’s liability for
civil
entirely
conspiracy
substantive
depends
tort.”
Id.
(quoting
on
Fare
its
liability
Deals,
Ltd.
for
v.
a
World
Choice Travel.Com, Inc., 180 F.Supp.2d 678, 692 (D.Md. 2001))
(internal
quotation
marks
omitted).
Therefore,
because
Davenport has failed to state a claim for any substantive torts,
her claim for civil conspiracy must be dismissed.
III. CONCLUSION
For
the
foregoing
reasons,
the
Court
will,
by
separate
Order, grant in part and deny in part Defendants’ Motion to
Dismiss.
(ECF Nos. 37 & 38).
The Court will grant Defendants’
Motion with respect to Counts III-V and VII-XV, but will deny it
with respect to Counts II and VI.
Entered this 6th day of August, 2014
/s/
_____________________________
George L. Russell, III
United States District Judge
27
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