Autrey, et al. v. State of Maryland, et al.

Filing 24

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 1/29/2016. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KRISTLE AUTREY, et al.,

:

Plaintiffs,

:

v.

:

STATE OF MARYLAND, et al.,

:

Defendants.

Civil Action No. GLR-14-3064

:
MEMORANDUM OPINION

THIS MATTER is before the Court on Defendants’, State of
Maryland

and

Correctional
(ECF No. 17).

Maryland
Services,

Department
Motion

to

of

Public

Dismiss

Safety

Amended

The Motion is ripe for disposition.

and

Complaint.
The Court,

having reviewed the Motion and supporting documents, finds no
hearing necessary pursuant to Local Rule 105.6 (D.Md. 2014).
For the reasons outlined below, the Motion to Dismiss will be
granted in part and denied in part.
I.

BACKGROUND 1

Plaintiff Kristle Autrey, a white female, was employed as a
correctional

officer

by

Defendants

at

Correctional Facility in Jessup, Maryland.
began

dating

another

correctional

officer

Plaintiff Adrean Morris, a black male.

1

the

Brockbridge

In May 2011, Autrey
at

the

facility,

In September 2011, a co-

Unless otherwise noted, the following facts are alleged in
the Amended Complaint (ECF No. 14).

worker learned of Plaintiffs’ relationship and soon thereafter
their supervisors became aware of the relationship.
After

learning

supervisor,

Captain

of

Plaintiffs’

Francine

relationship,

Davis,

removed

Autrey’s

Autrey

from

a

recently assigned position as a sanitation officer.
Plaintiffs’
policy

manual

supervisors

solely

began

against

to

strictly

Plaintiffs.

For

enforce

the

instance,

the

policy prohibiting officers from making or receiving personal
telephones

was

correctional

only

officers

enforced
were

as

to

Plaintiffs,

permitted

while

to

the

violate

other

policy.

When Plaintiffs were seen on a telephone call, personal or workrelated,
Plaintiffs

their

supervisor

were

the

only

would

publicly

reprimand

them.

officers

required

to

their

supervisor when they went on a break.

inform

Plaintiffs were the only

officers prohibited from going to another officer’s post during
their shift to eat lunch, in accordance with the policy manual.
On a near daily basis between September 2011 and May 2012,
other

officers

failed

to

relieve

break in a timely manner.

Plaintiffs

for

their

lunch

Between September 2011 and March

2012, Plaintiffs’ supervisors made complaints about Plaintiffs
during “roll call” in front of other officers.
2012,

Lieutenant

Donald

Long

stated

about her relationship with Morris:

2

the

following

In January
to

Autrey

I hope you’re on birth control because you
know if your white ass gets pregnant by him
he’s just going to leave you and have
nothing to do with the kid. That’s what
black men do. . . . Why are you with him?
You have such nice hair and his hair is so
nappy. . . . It’s disgusting that you two
are together. He’s old enough to be your
dad. . . . You know no white men will ever
sleep with you now that you’ve been with
that black man. . . . You know your baby
daddy will take you children away once he
finds out a black man is raising his kids.

(Am. Compl. ¶ 63, ECF No. 14).

On multiple occasions, Long also

made sexually-explicit statements within earshot of Plaintiffs
when they submitted leave requests.
In February 2012, Davis told Autrey that it “sickened” her
to see Autrey with Morris.
to

discuss

Plaintiffs.

Plaintiffs’

In March 2012, Autrey met with Davis
supervisors’

ongoing

treatment

of

Davis began yelling at Autrey and told her to “shut

up” and “get your white ass out of my office.”

Later that day,

Davis grabbed Autrey by the arm and forced Autrey into a women’s
bathroom, shut the door, and locked it.

While blocking the

exit, Davis stated she was only treating Autrey in such a way
because she was “trying to show [Autrey] how the real world
works when dealing with a black man.”
would

not

tolerate

Plaintiffs’

Davis further stated she

relationship.

The

next

day,

Autrey requested a referral to the employee assistance program
from Lieutenant Laster to make a complaint regarding Davis’s

3

behavior.

Laster stated Davis “could do whatever it is she

wants to do” and “there’s nothing [Autrey] can do about it.”
Autrey

and

Morris

filed

internal

complaints

of

discrimination on March 5 and March 8, 2012, respectively.

On

March 8, 2012, Davis issued Morris a “written counseling form.”
On

March

9,

2012,

Davis

gave

Autrey

a

shift

change

notice.

Davis was aware that Autrey could not work a shift other than
the 10:00 p.m. to 6:00 a.m. shift because of her child-care
responsibilities.
was rescinded.

On March 19, 2012, the shift change notice

In May 2012, Autrey took leave pursuant to the

Family and Medical Leave Act of 1993 (“FMLA”), as amended, 29
U.S.C. § 2601 (2012), due to physical, mental, and emotional
stress.
On July 19, 2012, Autrey filed a charge with the Maryland
Commission on Civil Rights (“MCCR”).
filed a charge with the MCCR.
issued

another

written

On July 26, 2012, Morris

On August 3, 2012, Morris was

counseling

form.

In

Autrey was terminated from her employment.
Autrey

filed

discrimination
Morris

an

amended

regarding

received

a

right

her
to

and

letter

On
from

Employment Opportunity Commission (“EEOC”).

2012,

On May 31, 2013,

supplemental

termination.
sue

September

charge

July
the

of

7,

2014,

U.S.

Equal

On September 24,

2014, Autrey received a right to sue letter from the EEOC.
September

29,

2014,

Plaintiffs
4

filed

a

Complaint

On

alleging

employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§ 2000e
et seq. (2012).

(ECF No. 1).

filed an Amended Complaint.

On April 29, 2015, Plaintiffs

(ECF No. 14).

Defendants filed a Motion to Dismiss. 2

On June 12, 2015,

(ECF No. 17).

On July

24, 2015, Plaintiffs filed an Opposition to the Motion.
No. 22).

(ECF

On August 5, 2015, Defendants filed a Reply to the

Opposition.

(ECF No. 23).
II.

DISCUSSION

A. Standard of Review
A complaint fails to state a claim if it does not contain
“a

short

and

plain

statement

of

the

claim

showing

that

the

pleader is entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does
not state “a plausible claim for relief,” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)).

“Threadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do
not suffice.”

Id. (citing Twombly, 550 U.S. at 555).

Though the plaintiff is not required to forecast evidence
to prove the elements of the claim, the complaint must allege
sufficient facts to establish each element.
2

Goss v. Bank of

Defendants filed a Motion to Dismiss the original
Complaint on March 20, 2015.
(ECF No. 9).
Because the March
20, 2015 Motion is nearly identical to the June 12, 2015 Motion
and addresses the original Complaint, the Court will deny the
March 20, 2015 Motion as moot.
5

Am., N.A., 917 F.Supp.2d 445, 449 (D.Md. 2013) (quoting Walters
v.

McMahen,

684

F.3d

435,

439

(4th

Cir.

2012))

(internal

quotation marks omitted), aff’d sub nom., Goss v. Bank of Am.,
NA, 546 F.App’x 165 (4th Cir. 2013).

In considering a Rule

12(b)(6) motion, the court must construe the complaint in the
light most favorable to the plaintiff, read the complaint as a
whole,

and

take

the

facts

asserted

therein

as

true.

See

Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783
(4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993)).
B. Analysis
1. Disparate Treatment
The

Court

will

deny

the

Motion

to

Dismiss

regarding

Plaintiffs disparate treatment claims.
Title VII of the Civil Rights Act of 1964 provides that
“[i]t shall be an unlawful employment practice for an employer .
. . to discriminate against any individual with respect to his
compensation,
because

of

terms,

such

individual’s

national origin.”
To

survive

conditions,

or

race,

privileges
color,

of

employment,

religion,

sex,

or

42 U.S.C. § 2000e-2(a)(1) (2012).
a

motion

to

dismiss

a

claim

for

disparate

treatment, Plaintiffs must allege that they were treated less
favorably “because of” their interracial relationship.
Holcomb

v.

Iona

Coll.,

521

F.3d
6

130,

139

(2d

See id.;

Cir.

2008)

(“[W]here an employee is subjected to adverse action because an
employer

disapproves

of

interracial

association,

the

employee

suffers discrimination because of the employee’s own race.”);
Collin v. Rectors & Visitors of Univ. of Va., 163 F.3d 598, 598
(4th Cir. 1998) (per curiam) (“[I]t is generally accepted that
the spouses of members of protected parties may be able to make
out a prima facie case of discriminatory discharge.”); see also
Murrell v. Ocean Mecca Motel, Inc., 262 F.3d 253, 258 (4th Cir.
2001) (“It is well-settled that a claim of discrimination based
on

an

under

interracial
[42

U.S.C.

relationship
§]

1981.”

or

association

(quoting

is

Rosenblatt

cognizable

v.

Bivona

&

Cohen, P.C., 946 F.Supp. 298, 300 (S.D.N.Y. 1996))).
Plaintiffs
class;

(2)

employment

must

allege:

satisfactory
action;

and

“(1)

job

(4)

membership

performance;

different

in

a

(3)

treatment

an
of

situated employees outside the protected class.” 3
Leggett,

955

employment

F.Supp.2d

action

is

474,
a

491

(D.Md.

discriminatory

2013).
act

protected

that

adverse
similarly

Hawkins v.
“An

adverse

‘adversely

affect[s] the terms, conditions, or benefits of the plaintiff’s
employment.’”

Holland v. Wash. Homes, Inc., 487 F.3d 208, 219

3

To survive a motion to dismiss, however, a plaintiff need
not establish a prima facie case. Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 510-11 (2002) (concluding that “the prima facie
case . . . is an evidentiary standard, not a pleading
requirement”). Instead, a plaintiff must plead facts sufficient
to state each element of the asserted claim.
Bass v. E.I.
DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
7

(4th Cir. 2007) (quoting James v. Booz-Allen & Hamilton, Inc.,
368 F.3d 371, 375 (4th Cir. 2004)).

“Although conduct ‘short of

ultimate employment decisions can constitute adverse employment
action,’ there still must be a ‘tangible effect on the terms and
conditions of employment.’”

Geist v. Gill/Kardash P’ship, 671

F.Supp.2d 729, 737 n.6 (D.Md. 2009) (quoting James, 368 F.3d at
371,

377).

A

less

appealing

job

constitute adverse employment action.

reassignment

does

not

James, 368 F.3d at 376

(citing Von Gunten v. Maryland, 243 F.3d 858, 868 (4th Cir.
2001)).
A “reassignment can only form the basis of a
valid Title VII claim if the plaintiff can
show
that
the
reassignment
had
some
significant detrimental effect.” “[A]bsent
any decrease in compensation, job title,
level of responsibility, or opportunity for
promotion, reassignment to a new position
commensurate with one’s salary level does
not constitute an adverse employment action
even if the new job does cause some modest
stress not present in the old position.”
Id. (quoting Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999).
Autrey alleges she was removed from her permanent position
as a sanitation officer.

Autrey, however, fails to allege any

significant detrimental effect or decrease in compensation, job
title, level of responsibility, or opportunity for promotion.
The

Court,

therefore,

finds

Autrey’s

job

reassignment

form the basis of her disparate treatment claim.

8

cannot

Additionally,
counseling

Morris

forms.

alleges

“Issuing

a

he

was

issued

counseling

two

written

memorandum

is

an

instructional communication and is not a disciplinary action.”
Md.Code Ann., State Pers. & Pens. § 11-107(a)(1) (West 2015).
The

counseling

evaluations.

forms

See

are

Thorn

v.

similar

to

Sebelius,

766

poor

performance

F.Supp.2d

(D.Md. 2011) aff’d, 465 F.App’x 274 (4th Cir. 2012).

585,

598

“[A] poor

performance evaluation ‘is actionable only where the employer
subsequently uses the evaluation as a basis to detrimentally
alter the terms or conditions of the recipient’s employment.’”
James, 368 F.3d at 377 (quoting Spears v. Mo. Dep’t of Corr. &
Human Res., 210 F.3d 850, 854 (8th Cir. 2000)).

Morris has not

alleged the counseling forms altered the terms or conditions of
his employment in any way.

The Court, therefore, finds the

counseling forms cannot form the basis of Morris’s disparate
treatment claim.
Plaintiffs also allege a claim for disparate discipline,
which is a species of disparate treatment.
prima

facie

Plaintiffs
class;

(2)

case

must
the

of

disparate

allege:

(1)

prohibited

In order to plead a

discipline

they

conduct

are
in

under

members
which

of

they

Title
a

VII,

protected

engaged

was

comparable in seriousness to misconduct of employees outside the
protected

class;

and

(3)

the

disciplinary

measures

enforced

against them were more severe than those enforced against other
9

employees.

Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th

Cir. 1993).
Here, Plaintiffs allege they violated Defendants’ policies
of making and receiving personal telephone calls and going to
another officer’s post during his or her shift to eat lunch.
Plaintiffs

also

allege

officers

who

relationships violated the policies.

were

not

in

interracial

Lastly, Plaintiffs allege

they were the only officers publicly reprimanded and made to
adhere to the policies.

The Court, therefore, finds Plaintiffs

have sufficiently plead a claim for disparate discipline and
will deny the Motion to Dismiss as to this claim.
2. Hostile Work Environment
The Court will deny the Motion to Dismiss as to Plaintiffs’
hostile work environment claims.
To

state

a

claim

for

a

hostile

work

environment,

a

plaintiff must plead that there is “(1) unwelcome conduct; (2)
that is based on the plaintiff’s [interracial relationship]; (3)
which

is

sufficiently

severe

or

pervasive

to

alter

the

plaintiff’s conditions of employment and to create an abusive
work environment; and (4) which is imputable to the employer.”
Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th
Cir. 2015) (quoting Okoli v. City of Balt., 648 F.3d 216, 220
(4th

Cir.

2011)).

Determining

whether

the

environment

is

objectively hostile or abusive requires the Court to look at all
10

the

circumstances,

including

“the

frequency

of

the

discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether

it

unreasonably

performance.”

Id.

at

interferes

277

with

(quoting

an

Harris

employee’s

work

Forklift

Sys.,

v.

Inc., 510 U.S. 17, 23 (1993)).
“‘[S]imple
incidents

teasing,’

(unless

discriminatory
employment.’”

off-hand

extremely

changes

in

comments,

serious)
the

will

‘terms

and
not

and

isolated
amount

to

conditions

of

Faragher v. City of Boca Raton, 524 U.S. 775, 788

(1998) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 82 (1998)).
An isolated incident can be extremely serious if it amounts
“to

discriminatory

employment.”
conduct,

the

changes

Id.

In

status

of

in

the

measuring
the

terms
the

harasser

and

conditions

severity

as

a

of

of

harassing

supervisor

may

be

significant because “a supervisor’s power and authority invests
his

or

her

character.”

harassing

conduct

with

a

particular

threatening

Boyer-Liberto, 786 F.3d at 278 (quoting Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 763 (1998)).

Also, the

harasser’s status as a supervisor may cause the employer to be
held strictly liable for the harasser’s behavior.

Id.

“The

status of the harasser also is relevant to element four of a

11

hostile work environment claim, which necessitates proof that
the harassment is imputable to the employer.”
Plaintiffs

allege

they

were

Id.

harassed

based

on

their

interracial relationship and their supervisors, Davis and Long,
made

comments

disgusting

to

and

Autrey,

stating

sickening.

Given

their

the

relationship

status

of

was

Plaintiffs’

harassers as supervisors, as well as the frequency and nature of
the

harassment,

the

Court

finds

Plaintiffs

have

sufficiently

alleged a hostile work environment based on their interracial
relationship at this stage of the litigation.
Motion

to

Dismiss

is

denied

as

to

Accordingly, the

Plaintiffs’

hostile

work

environment claim.
3. Retaliation
The Court will deny the Motion to Dismiss as to Autrey’s
retaliation claim and grant the Motion as to Morris’s claim.
To state a Title VII claim for retaliation, Plaintiffs must
allege that: “(1) [they] engaged in protected activity; (2) an
adverse

employment

action

was

taken

against

[them];

and

(3)

there was a causal link between the protected activity and the
adverse action.”
2006).

The

Laber v. Harvey, 438 F.3d 404, 432 (4th Cir.

plain

language

of

Title

VII

limits

“protected

activities” to a distinct few activities, including opposing an
unlawful employment practice.

See 42 U.S.C. § 2000e-3(a).

12

Additionally,
protected

a

activity

plaintiff

must
the

constituted

plead

that

“but-for”

adverse employment action by the employer.

his

or

her

cause

of

the

Univ. of Tex. Sw.

Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013).

Little is

required to plead causation.

See Karpel v. Inova Health Sys.

Servs.,

(4th

134

temporal

F.3d

1222,

proximity

1229

between

the

Cir.

1998).

protected

Ordinarily,

activity

adverse action is sufficient to suggest causality.

and

the

Constantine

v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501
(4th Cir. 2005).
Autrey alleges she filed an internal complaint regarding
the alleged discrimination on March 5, 2012.

She also alleges

that, on March 9, 2012, Davis gave her a shift change notice,
but the notice was rescinded before the shift change went into
effect.
and

Because the notice did not tangibly change the terms

conditions

of

Autrey’s

employment,

the

Court

finds

the

notice cannot form the basis of a retaliation claim. 4
Autrey also alleges she filed a charge with the MCCR on
July

19,

2012

and

was

terminated

4

while

on

FMLA

leave

in

Though Plaintiffs argue increased scrutiny and oversight
can form the basis of a retaliation claim, Plaintiffs did not
allege any scrutiny or oversight exceeding that which they
already experienced when their supervisors first became aware of
their relationship.
13

September 2012. 5

Defendants argue Autrey was terminated because

she remained on FMLA leave for more than twelve weeks.

This

contention, however, is not apparent on the face of the Amended
Complaint.

While the FMLA guarantees eligible employees twelve

weeks of leave in a one-year period, some employers allow more
than the twelve-week minimum.

See Ragsdale v. Wolverine World

Wide, Inc., 535 U.S. 81, 87 (2002) (citing U.S. Dept. of Labor,
D. Cantor et al., Balancing the Needs of Families and Employers:
Family

and

Medical

Leave

Surveys

5–10,

5–12

(2001)).

The

Amended Complaint does not allege, nor do Defendants state, the
amount of leave Defendants allow their employees.

Given the

temporal proximity of Autrey’s MCCR charge and her termination,
the

Court

finds

Autrey

has

sufficiently

pled

a

retaliatory

termination claim and will deny the Motion to Dismiss as to her
claim.
Morris alleges he filed an internal complaint regarding the
alleged discrimination on March 8, 2012.

On March 8, 2012,

Davis issued Morris a written counseling form.

On July 26,

2012, Morris filed a charge with the MCCR, and on August 3,
5

Defendants argue Autrey’s retaliation claim regarding her
termination
must
be
dismissed
for
failure
to
exhaust
administrative remedies.
Autrey alleges she filed an amended
and
supplemental
charge
of
discrimination
regarding
her
termination with the EEOC on May 31, 2013.
Assuming the wellpleaded allegations in the Amended Complaint are true, the Court
finds Autrey has exhausted her administrative remedies regarding
her retaliatory termination claim at this stage of the
litigation.
14

2012, Morris was issued another written counseling form.
previously

stated,

the

counseling

adverse employment actions.

forms

are

not

As

actionable

The Court, therefore, finds Morris

has failed to allege a claim for retaliation and will grant the
Motion to Dismiss as to his claim.
III.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss
(ECF No. 17) is GRANTED in part and DENIED in part.

Count III

of the Amended Complaint (ECF No. 14) is DISMISSED as to Morris.
A separate Order follows.
Entered this 29th day of January, 2016

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

15