Messick et al v. Board of Education of Wicomico County et al

Filing 43

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 12/18/2014. (c/m 12/18//14 bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STACY MESSICK, et al.,

:

Plaintiffs,

:

v.

:
Civil Action No. GLR-14-2690

BOARD OF EDUCATION OF
WICOMICO COUNTY, et al.,

:
:

Defendants.
:
MEMORANDUM OPINION
Pending
Motion

for

before
More

the

Court

Definite

is

Defendant

Statement

(ECF

Judith

No.

14),

Bresler’s
Defendants

Wicomico County Board of Education (the “Board”), current and
former

Board

Carolyn

members

Elmore,

Wright,

and

Marvin

Donald

Cathy

Blye,

Tyrone

Fitzgerald,

Townsend’s

Chase,

Ronald

Larry

Willey,

(collectively

the

Dodd,

Michelle
“Board

Defendants”) Motion to Dismiss or in the Alternative for Summary
Judgment

(ECF

No.

15),

and

Defendant

John

E.

Fredericksen’s

Motion to Dismiss or in the Alternative for Summary Judgment
(ECF No. 16).

Pro se Plaintiffs Stacy Messick and Stephanie

Moses’s response was due November 26, 2014.

(See ECF No. 31).

To date, Plaintiffs have not filed a response.

Accordingly,

Defendants’ Motions will be considered unopposed.

No hearing is

necessary.

See Local Rule 105.6 (D.Md. 2014).

For the reasons

set forth below, Fredericksen and the Board Defendants’ Motions

1

for Summary Judgment will be granted and Bresler’s Motion for
More Definite Statement will be denied as moot.
I. BACKGROUND
A.

Factual Background
On November 1, 1995, Moses accepted employment with the

Wicomico County Public School System (“WCPS”) as a Personnel
Specialist.

She

was

later

promoted

Coordinator of Human Resources.
required

to

meet,

negotiate,

and

re-classified

as

the

In that capacity, Moses was
and

work

cooperatively

with

employees of the WCPS, as well as heads of bargaining units and
Union Representatives.

Prior to September 2011, Moses’s job

performance was generally satisfactory.
Messick is an adult female born in 1980. On July 20, 2009,
she began working for the WCPS as the Coordinator of Employee
Relations.

In that capacity Messick was also required to meet,

negotiate, and work cooperatively with employees of the WCPS, as
well as heads of bargaining units and Union Representatives.
Prior to September 2011, Messick’s job performance was generally
satisfactory.
Messick alleges, beginning in July 2010, Defendant John E.
Fredericksen, Ph. D., Superintendent of the WCPS, harassed and
discriminated against her by continually questioning her work
performance and educational credentials based on her age and
sex.

She

further

alleges

she
2

was

issued

a

disciplinary

Memorandum

on

September

28,

2011

(the

“September

28

Memorandum”), which underscored this ongoing harassing behavior
and

disparate

treatment.

Messick

submitted

to

the

Board

a

rebuttal to the September 28 Memorandum and requested that it be
removed from her file.
Moses similarly alleges there were no documented concerns
with

her

job

Fredericksen
“September

performance
issued

29

her

until
a

Memorandum”)

September

29,

disciplinary

citing

his

2011,

when

Memorandum

displeasure

handling of the potential hiring of an employee.

(the

with

her

Moses also

submitted to the Board a rebuttal to the September 29 Memorandum
and requested that it be removed from her file.

Plaintiffs

collectively allege, however, the Board denied them unspecified
rights

afforded

to

all

other

employees

facing

potential

disciplinary action.
On

October

18,

2011,

Plaintiffs

met

with

Dave

White,

President of Wicomico County Education Association, to discuss
the

budget,

personnel

issues,

upcoming

negotiations,

and

the

county council. White later relayed to Fredericksen that, during
this

meeting,

Plaintiffs

continuously

changed

the

subject

to

topics such as: (1) Plaintiffs’ insistence that White assist
them in an attempt to thwart Fredericksen’s contract renewal
efforts; (2) Plaintiffs’ attempts to persuade White to delay the
implementation of Fredericksen’s upcoming media campaign; and
3

(3) Fredericksen’s alleged affair with the former President of
the Board.
On October 25, 2011, Plaintiffs filed a formal appeal and
discrimination complaint with the Board concerning the September
28

and

29

Memoranda

Memoranda,

be

Fredericksen’s
with

removed

reiterating
from

their

discriminatory

requesting

a

formal

their

files

actions

request

and

cease.

administrative

that

the

requesting
In

that

conjunction

appeal,

Plaintiffs

demanded that the Board instruct Fredericksen to refrain from
directly addressing them in any supervisory capacity without the
involvement of Cathy Townsend, Assistant Superintendent of the
WCPS.

Plaintiffs allege the Board discriminated and retaliated

against

them

by

not

promptly

and

fairly

investigating

their

appeal.1
On December 5, 2011, Fredericksen notified Plaintiffs that
he

became

aware

of,

about,

the

content of Plaintiffs’ October 18, 2011 meeting with White.

He

advised

On

Plaintiffs

and

that

was

extremely

disciplinary

concerned

action

may

result.

December 9, 2011, Plaintiffs filed a charge of discrimination
with the Equal Employment Opportunity Commission on the basis of
sex and age discrimination and retaliation.

1

Plaintiffs concede the Board ultimately hired an outside
investigator to investigate their complaints, but allege the
investigation was neither neutral nor thorough.
4

On December 28, 2011, Plaintiffs met with Fredericksen to
discuss

the

Plaintiffs’

content
October

Plaintiffs

having

of,
18,

and

Fredericksen’s

2011

denied

meeting

making

concern

with
attempt

an

White.
to

with,
Despite

thwart

his

authority as Superintendent, Fredericksen placed Plaintiffs on
administrative leave following the December 28, 2011 meeting.
Plaintiffs contend they were unfairly denied an opportunity to
respond to Fredericksen’s accusations prior to being placed on
administrative
inconsistent

leave.

with

Further,

other

that

disciplinary

this

matters

depravation

was

handled

the

by

Board.
On

January

letters.
be

11,

2012,

Plaintiffs

received

termination

Fredericksen advised Plaintiffs that he found White to

credible

in

reporting

Plaintiffs’

wish

to

sabotage

his

chances for reappointment as Superintendent, intent to delay a
school media project he had desired, and spreading false rumors
about

his

result,

alleged

affair

Fredericksen

lost

with
the

another

Board

necessary

member.

faith,

trust,

As

a

and

confidence that Plaintiffs, as senior members of his leadership
team, were interested in working with him in a team-oriented
manner.

The termination letters outlined, as the reason for

Plaintiffs’ terminations, Fredericksen’s inability to work with
Plaintiffs because of their continued attempts to undermine his
authority as Superintendent.
5

On August 20, 2014, Plaintiffs filed their Complaint pro se
alleging sex and age discrimination in violation of Title VII of
the

Civil

Rights

Act

of

1964

(“Title

VII”),

as

amended,

42

U.S.C. §§ 2000e-16 et seq. (2012) and the Age Discrimination in
Employment

Act

of

1967

(“ADEA”),

29

U.S.C.

§§

633a

et

seq.

(2012) (Counts I,II), violations of the Civil Rights Act of
1991, 42 U.S.C. §§ 1983, 1985 (2012) (Count III), and violations
of various state law torts, including Intentional Infliction of
Emotional Distress (Count IV), Invasion of Privacy (Count V),
False Light (Count VI), and wrongful termination (Count VII).
B.

Procedural Background
On

October

14,

2014,

Bresler

filed

a

Motion

for

More

Definite Statement (ECF No. 14), the Board Defendants filed a
Motion to Dismiss or in the Alternative for Summary Judgment
(ECF No. 15), and Fredericksen filed a Motion to Dismiss or in
the Alternative for Summary Judgment (ECF No. 16).

On October

15, 2014, as a courtesy to Plaintiffs, the Clerk’s office issued
Rule 12/56 Letters advising them of their duty to respond to the
Motions within seventeen days of the date of the Rule 12/56
Letters. (ECF No. 17).
On

October

24,

2014,

Plaintiffs

moved

for

a

extension of time to obtain counsel in this matter.
28).

ninety-day
(ECF No.

Upon consideration of Plaintiffs’ Request for Extension of

Deadline for Response to Defendants’ Motions, the Court granted
6

in part and denied in part Plaintiffs’ Request.
Plaintiffs

were

granted

an

extension

of

(ECF No. 31).

time,

up

to

and

including November 26, 2014, to file responses to Defendants’
Motions.
On

(See id.).
November

6,

pending

the

outcome

review

of

their

2014,

Defendants.

of

Plaintiff

the

charge

(ECF No. 33).

filed

Department
of

of

a

Motion

to

Stay

Justice’s

(“DOJ”)

brought

against

retaliation

The Court denied Plaintiffs’ Motion

for Stay on November 13, 2014.

(ECF No. 36).

In lieu of responding to Defendants’ pending Motions on
November 26, 2014, Plaintiffs filed a Request for Continuance.
(ECF No. 37).

On November 25, 2014, Plaintiffs received Right-

To-Sue letters from the DOJ and contend they are entitled to a
ninety-day

continuance

claims of retaliation.

to

amend

(See id.).

their

Complaint

with

The Court denied Plaintiffs’

Request for Continuance on December 16, 2014.

(ECF No. 42).

Thus, Plaintiffs’ response was due by November 26, 2014.
date,

Plaintiffs

have

not

filed

their

a

response.

To

Accordingly,

Defendants’ Motions will be considered unopposed.
II. DISCUSSION
A.

Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a complaint

must set forth “a claim for relief that is plausible on its
face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl.
7

Corp. v. Twombly, 550 U.S. 544, 570 (2007).

A claim is facially

plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Twombly, 550 U.S. at 556.

Iqbal, 556 U.S. at 678;

“In considering a motion to dismiss,

the court should accept as true all well-pleaded allegations and
should

view

plaintiff.”

the

complaint

in

a

light

most

favorable

to

the

Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134

(4th Cir. 1993).
“When matters outside the pleading are presented to and not
excluded by the court, the [12(b)(6)] motion shall be treated as
one for summary judgment and disposed of as provided in Rule
56.”

Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253,

260-61

(4th

Cir.

1998)

(alteration

in

original)

(quoting

Fed.R.Civ.P. 12(b)) (internal quotation marks omitted).

Under

Federal Rule of Civil Procedure 56, the Court must grant summary
judgment if the moving party demonstrates there is no genuine
issue as to any material fact, and the moving party is entitled
to judgment as a matter of law.

Fed.R.Civ.P. 56(a).

In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the non-moving party.
Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

255

(1986)

(citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970)).
Once

a

motion

for

summary

judgment
8

is

properly

made

and

supported, the opposing party has the burden of showing that a
genuine dispute exists.

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586-87 (1986).

“[T]he mere existence

of some alleged factual dispute between the parties will not
defeat

an

otherwise

properly

supported

motion

for

summary

judgment; the requirement is that there be no genuine issue of
material fact.”

Anderson, 477 U.S. at 247-48 (alteration in

original).
A “material fact” is one that might affect the outcome of a
party’s case.

Id. at 248; see also JKC Holding Co. v. Wash.

Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing
Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by
the substantive law, and “[o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”

Anderson, 477

U.S. at 248; accord Hooven-Lewis, 249 F.3d at 265.
Here, because the Court will consider matters outside of
the pleading, Defendants’ Motions will be construed as Motions
for Summary Judgment.2

2

The United States Court of Appeals for the Fourth Circuit
has articulated two requirements for proper conversion of a Rule
12(b)(6) motion.
First, the “parties [must] be given some
indication by the court that it is treating the 12(b)(6) motion
as a motion for summary judgment” and, second, “the parties
[must]
first
be
afforded
a
reasonable
opportunity
for
9

B.

Analysis
As

a

preliminary

matter,

discrimination will be dismissed.

Messick’s

claim

of

age

The discrimination prohibited

by the ADEA is limited to those who are 40 or older.

29 U.S.C.

§ 631(a) (“The prohibitions in this chapter shall be limited to
individuals
O'Connor

who

v.

are

Consol.

at

least

Coin

40

Caterers

(1996) (explaining the same).
therefore,
Messick’s

is

outside

claim

of

years

the

of

Corp.,

age.”);
517

U.S.

see
308,

also
312

Messick was born in 1980 and,
protected

discrimination

class.

under

the

Accordingly,
ADEA

will

be

dismissed with prejudice.
Further, to the extent Plaintiffs allege the individually
named

members

of

the

Board

are

liable

in

their

individual

discovery.” Greater Balt. Ctr. for Pregnancy Concerns, Inc. v.
Mayor & City Council of Balt., 721 F.3d 264, 281 (4th Cir. 2013)
(quoting Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985))
(internal quotation marks omitted). The alternative caption of
Defendants’ Motions and the attached exhibits are sufficient
indicia that the Motions might be treated as ones for summary
judgment. See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md.
2005).
Once notified, “summary judgment is appropriate only after
‘adequate time for discovery.’” Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
The failure to
file an affidavit specifying legitimate needs for discovery “is
itself sufficient grounds to reject a claim that the opportunity
for discovery was inadequate.”
Nguyen v. CNA Corp., 44 F.3d
234, 242 (4th Cir. 1995) (quoting Paddington Partners v.
Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994)) (internal quotation
marks omitted). Here, because Plaintiffs have failed to specify
a need for discovery, construing Defendants’ Motions as ones for
summary judgment is appropriate.
10

capacities for sex discrimination in violation of Title VII,
those allegation will be dismissed with prejudice.
does

not

impose

liability

individual capacities.3

on

an

employer’s

Title VII

agent

in

their

See Birkbeck v. Marvel Lighting Corp.,

30 F.3d 507, 510 (4th Cir. 1994) (excluding the employer’s agent
from the definition of the term “employer” under the ADEA); see
Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998)
(analyzing the Title VII definition of employer in the same
fashion as the ADEA definition of employer).

Accordingly, the

individually named members of the Board cannot be held liable in
their individual capacities under Title VII.
Next, the Complaint fails to make clear whether Plaintiffs’
claims

of

sex

discrimination

are

brought

under

a

wrongful

discharge or disparate treatment theory of discrimination.

This

distinction informs the prima facie proof necessary to establish
sex-based discrimination. See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 n.13 (1973) (explaining that the prima facie
proof necessary to establish sex-based discrimination will vary
with respect to differing factual situations).

In construing

the Complaint in the light most favorable to Plaintiffs, the

3

To the extent Plaintiffs allege the individually named
members of the Board are liable in their individual capacities
for sex discrimination in violation of their right to equal
protection under § 1983, the Eleventh Amendment does not shield
state officials, sued in their individual capacities, from
personal liability. Hafer v. Melo, 502 U.S. 21, 31 (1991).
11

Court finds Plaintiffs have sufficiently alleged, and Defendants
have

failed

to

dispute,

a

prima

facie

case

of

wrongful

termination.4
To

show

a

prima

facie

case

of

wrongful

termination,

Plaintiffs are required to establish that they (1) are members
of a protected class; (2) suffered an adverse employment action;
(3)

were

performing

employer’s

legitimate

discharge;

and

qualified

(4)

applicants

their

jobs

at

expectations
the

position

outside

the

a

level

that

met

their

at

the

time

of

their

was

filled

protected

by

class.

similarly
Scott

v.

4

Defendants argue Plaintiffs fail to present sufficient
evidence of similarly situated employees outside the protected
class being treated differently.
The Court agrees that
Plaintiffs’ general allegations of being subjected to harsher
discipline than any other employees for the same or comparable
offenses falls short of their burden to establish that male
comparators were disciplined less harshly for similar violations
under a disparate treatment theory.
See Lightner v. City of
Wilmington, N.C., 545 F.3d 260, 265 (4th Cir. 2008) (“The
similarity between comparators and the seriousness of their
respective offenses must be clearly established in order to be
meaningful.”). Nevertheless,
a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal
pleadings drafted by lawyers and can only be dismissed
for failure to state a claim if it appears beyond
doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to
relief.
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (quoting Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)) (internal quotation marks
omitted); see discussion supra (finding unopposed, prima facie
allegations of wrongful discharge).

12

Health Net Fed. Servs., LLC, 463 F.App’x 206, 208 (4th Cir.
2012) (citing Hill v. Lockheed Martin Logistics Mgmt., Inc., 354
F.3d 277, 285 (4th Cir.2004) (en banc)).

Plaintiffs satisfy the

first two elements of wrongful termination, as women who were
terminated from their respective positions.

Further, Plaintiffs

allege,

dispute,

and

Defendants

have

failed

to

generally

satisfactory job performance and, upon their termination, male
replacements.
Because

Plaintiffs

discrimination,
discharge

offer

however,

claims

must

the
be

no

adjudication

analyzed

articulated in McDonnell Douglas.
(employing

the

McDonnell

discrimination
evidence).

claim
Under

under

of
the

evidence
their

of

wrongful

proof

scheme

See Hill, 354 F.3d at 285-86

Douglas

based

the

direct

framework

principally

McDonnell

Douglas

on

to

analyze

a

circumstantial

standard,

once

a

plaintiff has meet her burden of establishing a prima facie case
of

discrimination,

a

defendant

can

rebut

the

presumption

of

discrimination raised by the prima facie case by establishing a
legitimate, nondiscriminatory reason for the termination.
at 285.
then

Id.

Once a defendant succeeds in doing so, plaintiffs must

“prove

by

a

preponderance

of

the

evidence

that

the

legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.”
Cmty.

Affairs

v.

Burdine,

450
13

U.S.

248,

253

Tex. Dep’t of
(1981)

(citing

McDonnell
ultimate

Douglas,
burden

411

of

U.S.

proving

at

804).

that

discriminated against [them].”

Plaintiffs

[the

Board]

bear

“the

intentionally

Evans, 80 F.3d at 959 (citing

Burdine, 450 U.S. at 253).
Here,

the

Board

has

proffered

evidence

of

a

legitimate

rationale for the Plaintiffs’ terminations— actively challenging
and

undermining

the

authority

of

the

Superintendent.

(See

Defendants’ Mot. Dismiss or for Summ. J. Exs. D, E, ECF Nos. 157,8).

The Board is not required to persuade the Court that the

proffered

reason

motivation

for

for
its

Plaintiffs’
decision;

but

terminations
“must

was

merely

its

actual

articulate

a

justification that is legally sufficient to justify a judgment
in its favor.”

Mereish v. Walker, 359 F.3d 330, 335 (4th Cir.

2004) (quoting Burdine, 450 U.S. at 255) (internal quotation
marks omitted).

The Court concludes the Board’s stated reason

constitutes

legitimate,

a

nondiscriminatory

reason

for

Plaintiffs’ terminations.
Plaintiffs failed to oppose Defendants’ Motion and there is
no evidence in the record to demonstrate that the Board’s reason
for

their

terminations

is

pretext

for

discrimination.

Accordingly, Defendants are entitled to summary judgment with
respect to all claims of sex discrimination in violation of
Title VII.

14

Moreover, Plaintiffs’ claims that they were discriminated
against because of their sex in violation of their Fourteenth
Amendment

right

to

equal

protection

are

allegations as their Title VII claims.

based

on

the

same

The McDonnell Douglas

burden-shifting scheme of proof used in Title VII cases also
applies to similar litigation under § 1983.
30 F.3d 524, 529 (4th Cir. 1994).
failure

to

rebut

the

Board’s

Beardsley v. Webb,

Plaintiffs’ above-discussed

legitimate,

nondiscriminatory

reason for their terminations under Title VII, therefore, is
similarly fatal to their claims under § 1983 and § 1985.5
Finally, with respect to the remaining state tort claims,
the Court declines to exercise supplemental jurisdiction where
it has dismissed the federal claims.
(2012);
(1988)

Carnegie
(stating

Mellon
where

Univ.
a

v.

federal

See 28 U.S.C. § 1367(c)

Cohill,
claim

484
is

U.S.

343,

dismissed

350

early,

federal courts are inclined to dismiss the state law claims
without prejudice rather than retain supplemental jurisdiction).
Accordingly,

the

state

tort

claims

(Counts

VI-VII)

will

be

dismissed without prejudice.
III. CONCLUSION
For

the

foregoing

reasons,

Fredericksen’s

Motion

for

Summary Judgment (ECF No. 16), and the Board Defendants’ Motion
5

Section 1985 is the conspiracy counterpart to § 1983.
Zombro v. Balt. City Police Dep’t, 868 F.2d 1364, 1367 (4th Cir.
1989).
15

for Summary Judgment (ECF No. 15) will be granted.
will

be

dismissed

with

prejudice

dismissed without prejudice.

and

Counts

Counts I-III

VI-VII

will

be

Bresler’s Motion for More Definite

Statement (ECF No. 14) will be denied as moot.6

A separate Order

will follow.
Entered this 18th day of December, 2014

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

6

Because Plaintiffs’ claims against Bresler are based on
the same allegations as those against the other Defendants,
Bresler will be dismissed from this action.
Accordingly, her
Motion for More Definite Statement is moot.
16