Messick et al v. Board of Education of Wicomico County et al
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.,
Civil Action No. GLR-14-2690
BOARD OF EDUCATION OF
WICOMICO COUNTY, et al.,
Wicomico County Board of Education (the “Board”), current and
Defendants”) Motion to Dismiss or in the Alternative for Summary
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.
Defendants’ Motions will be considered unopposed.
No hearing is
See Local Rule 105.6 (D.Md. 2014).
For the reasons
set forth below, Fredericksen and the Board Defendants’ Motions
for Summary Judgment will be granted and Bresler’s Motion for
More Definite Statement will be denied as moot.
On November 1, 1995, Moses accepted employment with the
Wicomico County Public School System (“WCPS”) as a Personnel
Coordinator of Human Resources.
In that capacity, Moses was
employees of the WCPS, as well as heads of bargaining units and
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
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
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
Memorandum”), which underscored this ongoing harassing behavior
rebuttal to the September 28 Memorandum and requested that it be
removed from her file.
Moses similarly alleges there were no documented concerns
handling of the potential hiring of an employee.
submitted to the Board a rebuttal to the September 29 Memorandum
and requested that it be removed from her file.
collectively allege, however, the Board denied them unspecified
President of Wicomico County Education Association, to discuss
county council. White later relayed to Fredericksen that, during
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) Fredericksen’s alleged affair with the former President of
On October 25, 2011, Plaintiffs filed a formal appeal and
discrimination complaint with the Board concerning the September
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
Plaintiffs allege the Board discriminated and retaliated
On December 5, 2011, Fredericksen notified Plaintiffs that
content of Plaintiffs’ October 18, 2011 meeting with White.
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.
Plaintiffs concede the Board ultimately hired an outside
investigator to investigate their complaints, but allege the
investigation was neither neutral nor thorough.
On December 28, 2011, Plaintiffs met with Fredericksen to
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
Fredericksen advised Plaintiffs that he found White to
chances for reappointment as Superintendent, intent to delay a
school media project he had desired, and spreading false rumors
confidence that Plaintiffs, as senior members of his leadership
team, were interested in working with him in a team-oriented
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.
On August 20, 2014, Plaintiffs filed their Complaint pro se
alleging sex and age discrimination in violation of Title VII of
U.S.C. §§ 2000e-16 et seq. (2012) and the Age Discrimination in
(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).
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).
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).
extension of time to obtain counsel in this matter.
Upon consideration of Plaintiffs’ Request for Extension of
Deadline for Response to Defendants’ Motions, the Court granted
in part and denied in part Plaintiffs’ Request.
(ECF No. 31).
including November 26, 2014, to file responses to Defendants’
(ECF No. 33).
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
claims of retaliation.
The Court denied Plaintiffs’
Request for Continuance on December 16, 2014.
(ECF No. 42).
Thus, Plaintiffs’ response was due by November 26, 2014.
Defendants’ Motions will be considered unopposed.
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
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl.
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
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
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253,
Fed.R.Civ.P. 12(b)) (internal quotation marks omitted).
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.
In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the non-moving party.
(citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970)).
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
judgment; the requirement is that there be no genuine issue of
Anderson, 477 U.S. at 247-48 (alteration in
A “material fact” is one that might affect the outcome of a
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.”
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
The United States Court of Appeals for the Fourth Circuit
has articulated two requirements for proper conversion of a Rule
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
discrimination will be dismissed.
The discrimination prohibited
by the ADEA is limited to those who are 40 or older.
§ 631(a) (“The prohibitions in this chapter shall be limited to
(1996) (explaining the same).
Messick was born in 1980 and,
dismissed with prejudice.
Further, to the extent Plaintiffs allege the individually
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.
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.
capacities for sex discrimination in violation of Title VII,
those allegation will be dismissed with prejudice.
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).
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’
discharge or disparate treatment theory of discrimination.
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).
the Complaint in the light most favorable to Plaintiffs, the
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).
Court finds Plaintiffs have sufficiently alleged, and Defendants
Plaintiffs are required to establish that they (1) are members
of a protected class; (2) suffered an adverse employment action;
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
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
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).
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.
satisfactory job performance and, upon their termination, male
articulated in McDonnell Douglas.
See Hill, 354 F.3d at 285-86
plaintiff has meet her burden of establishing a prima facie case
discrimination raised by the prima facie case by establishing a
legitimate, nondiscriminatory reason for the termination.
Once a defendant succeeds in doing so, plaintiffs must
legitimate reasons offered by the defendant were not its true
reasons, but were a pretext for discrimination.”
Tex. Dep’t of
discriminated against [them].”
Evans, 80 F.3d at 959 (citing
Burdine, 450 U.S. at 253).
rationale for the Plaintiffs’ terminations— actively challenging
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
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
The Court concludes the Board’s stated reason
Plaintiffs failed to oppose Defendants’ Motion and there is
no evidence in the record to demonstrate that the Board’s reason
Accordingly, Defendants are entitled to summary judgment with
respect to all claims of sex discrimination in violation of
Moreover, Plaintiffs’ claims that they were discriminated
against because of their sex in violation of their Fourteenth
allegations as their Title VII claims.
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).
Beardsley v. Webb,
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.
See 28 U.S.C. § 1367(c)
federal courts are inclined to dismiss the state law claims
without prejudice rather than retain supplemental jurisdiction).
dismissed without prejudice.
Summary Judgment (ECF No. 16), and the Board Defendants’ Motion
Section 1985 is the conspiracy counterpart to § 1983.
Zombro v. Balt. City Police Dep’t, 868 F.2d 1364, 1367 (4th Cir.
for Summary Judgment (ECF No. 15) will be granted.
dismissed without prejudice.
Bresler’s Motion for More Definite
Statement (ECF No. 14) will be denied as moot.6
A separate Order
Entered this 18th day of December, 2014
George L. Russell, III
United States District Judge
Because Plaintiffs’ claims against Bresler are based on
the same allegations as those against the other Defendants,
Bresler will be dismissed from this action.
Motion for More Definite Statement is moot.
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