Stewart v. The City of Baltimore et al

Filing 15

MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 9/23/2015. (c/m 9/23/2015 nd2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
BUTCH STEWART,

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Plaintiff,

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v.

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THE CITY OF BALTIMORE, et al.

Civil Action No. RDB-14-03567

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Defendants.
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MEMORANDUM OPINION
Plaintiff Butch Stewart (“Stewart” or “Plaintiff”) brings this pro se action against
Defendants Mayor and City Council of Baltimore (“the City”),1 Larry Greene (“Greene”),
Mayor Stephanie Rawlings-Blake (“Rawlings-Blake”), Marguerite Murray (“Murray”), and
Baltimore City Councilman Robert Curran (“Curran”), and Antoine Banks (“Banks”)

Plaintiff identifies this party separately as “The City of Baltimore,” “Baltimore City Hall” and “Mayor of
Baltimore.” See Compl., ECF No. 1. The proper name for this entity is “Mayor and City Council of Baltimore.”
Baltimore City Charter, Art. 1, §1 (2010). The “City of Baltimore,” “Baltimore City Hall,” and “Mayor of
Baltimore” are not legal entities and therefore lack the capacity to be sued. See Owens v. Baltimore City State's Attorneys
Office, 767 F.3d 379, 393 (4th Cir. 2014) cert. denied sub nom. Baltimore City Police Dep't v. Owens, 135 S. Ct. 1893 (2015)
(citing Boyer v. State, 323 Md. 558, 594 A.2d 121, 128 n.9 (1991)). The Baltimore City Charter states, “[t]he
inhabitants of the City of Baltimore are a corporation, by the name of the ‘Mayor and City Council of Baltimore,’
and by that name . . . may sue and be sued.” Id. Maryland law is not unique in this designation, as federal courts
have traditionally recognized that individual government departments lack the capacity to be sued. See, e.g., Strebeck
v. Baltimore Cnty. Police Dept., Civ. A. No. JFM–05–2580, 2005 WL 2897932, at *1 (D. Md. Oct. 17, 2005) (holding
that neither the Baltimore County Police Department nor the Baltimore County Council can be sued); Adams v.
Calvert Cnty. Pub. Schools, 201 F. Supp. 2d 516, 520 n.3 (D. Md. 2002) (holding that a school district cannot be
sued); James v. Frederick Cnty. Pub. Sch., 441 F. Supp. 2d 755, 758 (D. Md. 2006) (concluding that the Frederick
County Fire Department and public schools cannot be sued). As Plaintiff’s Complaint names the “City of
Baltimore,” “Baltimore City Hall,” and “Mayor of Baltimore,” these defendants must be dismissed in accordance
with Maryland law, and the entity “Mayor and City Council of Baltimore” will be substituted for these parties as a
defendant to this action. Pursuant to the separate Order that follows, the Clerk of the Court is directed to recaption the case accordingly.

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(collectively, “Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e, et seq., 42 U.S.C. § 1983 (“§ 1983”), as well as various state law claims.
Pending before this Court is Defendants’ Motion to Dismiss (ECF No. 9). The
parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6
(D. Md. 2014). For the reasons that follow, Defendants’ Motion to Dismiss (ECF No. 9) is
GRANTED and this case is DISMISSED.
BACKGROUND
In ruling on a motion to dismiss, this Court must accept the factual allegations in the
plaintiff’s complaint as true and construe those facts in the light most favorable to the
plaintiff. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). Moreover, a
pro se litigant’s complaint should not be dismissed unless it appears beyond doubt that the
litigant can prove no set of facts in support of his claim that would entitle him to relief.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Yet, a plaintiff’s status as pro se does not
absolve him of the duty to plead adequately. See Stone v. Warfield, 184 F.R.D. 553, 555 (D.
Md. 1999) (citing Anderson v. Univ. of Md. Sch. Of Law, 130 F.R.D. 616, 617 (D. Md. 1989),
aff’d, 900 F.2d 249, 1990 WL 41120 (4th Cir. 1990)).
This action arises out of alleged discrimination and sexual harassment directed at
Plaintiff Stewart, a gay African-American male, while he was an employee of the City.
Compl. ¶ 4, ECF No. 1. In May 2012, Stewart began his employment as a Fiscal Policy
Analyst and Fiscal Officer under the direct supervision of Defendant Larry Greene. Id. ¶ 13.
Near the end of July 2012, Plaintiff complained to Greene that he had received
harassing phone calls to his office number, in which an individual would call his phone
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number and immediately hang up after Stewart answered the call. Id. ¶ 17. Stewart’s phone
number was subsequently changed as the calls could not be traced. Id.
In October 2012, Stewart claims that Defendant Marguerite Murray entered his office
in the evening after the work day wearing only a bathing suit, flirted with him, and looked at
his “gentile [sic] region.” Id. ¶ 18. After this incident, Plaintiff alleges that Murray continued
to flirt with Stewart in the following months while implying that Stewart was a homosexual.
Id. Plaintiff did not report any harassment by Murray to a supervisor until June 2014, over
one and a half years later. Id. ¶ 49.
In mid-March 2013, the Plaintiff alleges that Greene received a request from an
unknown individual at the office of the President of Baltimore City Council asking that
Stewart be removed as lead analyst of the City Council’s Budget and Appropriations
Committee. Id. ¶ 21. Plaintiff was not removed. Id. The following month, an unidentified coworker allegedly entered his office and searched his briefcase, where he or she discovered
Stewart’s prescription medication and shared this information with other office members. Id.
¶ 22.
Plaintiff further alleges that Defendant Curran stood inappropriately near Stewart
during a budget hearing in May 2013, specifically placing his “genital region in close
proximity to Plaintiff’s face.” Id. ¶ 23. Shortly thereafter, Stewart claims that the City
Council President harassed him when he was ordered to dispose of a dead cockroach. Id. ¶
24. Additionally, Stewart alleges that his personal home computer had been “compromised”
and that information collected identifying Stewart’s homosexuality had been communicated
to unnamed Councilmembers and staff. Id. ¶ 27.
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In August 2013, Stewart alleges that Defendant Antoine Banks assaulted him when
Banks made contract with him in the hall. Id. ¶ 30. Stewart claims an assault of a “similar
nature” occurred two weeks later. Id. After Stewart reported these alleged incidents to
Greene the next month, Banks apologized for the previous contact. Id. ¶ 31. Greene also
directed Banks to apologize if similar events occurred in the future and instructed Stewart to
contact the Employee’s Assistance Program. Id. Stewart subsequently filed a report with the
Baltimore City Department of Human Resources (“DHR”) and a complaint with the
Baltimore City Police Department (“BCPD”) in September 2013. Id. ¶¶ 31, 34. The DHR
found the report unsubstantiated, whereas the BCPD elected not to follow up on Stewart’s
allegations. Id. ¶¶ 31, 34. In March 2014, Stewart retained counsel regarding the assault, and
that counsel also found the allegations unsubstantiated. Id. ¶¶ 41, 44. At the same time,
Plaintiff contends that his job duties were reduced to clerical work, Id. ¶ 28, while Greene
filed written warnings on Stewart’s tardiness, and “yelled at Plaintiff” for not saying hello or
acknowledging him. Id. ¶¶ 28, 29, 32.
In September 2013, Plaintiff filed for leave under the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 (2006). Compl. ¶ 36. He began his FMLA leave in November
2013. Id. Plaintiff alleges that at or around this time, his work-stress related medical
conditions necessitated the services of a psychologist, his circulatory system became
inflamed, he suffered from chest pain, and “he began cracking his fingers so frequently and
vigorously because of the stress that he broke his left ring finger.” Id. ¶¶ 33, 35, 38, 40.
After Stewart returned to work in February 2014, Greene and a DHR coordinator
offered him severance pay, which he declined. Id. ¶ 45. He alleges that he was subsequently
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the victim of further harassment and retaliatory behavior. Id. Murray allegedly began to lie
about Stewart’s conduct towards her in April and May 2014. Id. ¶ 47. After Stewart reported
to Greene that Murray had sexually harassed him, Greene suspended Stewart in June 2014.
Id. ¶ 49. A pre-termination hearing was then held at which Stewart was again offered
severance pay. Id. ¶ 50. Stewart claims that the compensation was to be in exchange for
indemnification of the Defendants. Id. Stewart declined the offer. Id. He was ultimately
terminated in June 2014. Id. ¶ 51. In May of 2014 Stewart filed a charge of discrimination
with the United States Equal Opportunity Commission (“EEOC”), alleging violations of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The EEOC denied his
claim and issued a right-to-sue letter dated August 14, 2014, although Plaintiff’s filings with
this Court claim he received the letter on August 20. See Compl. Attachs. 1, 2, ECF Nos. 1-2,
1-3.
Plaintiff subsequently filed the present action in this Court pursuant to federal
question jurisdiction under 28 U.S.C. § 1367. Plaintiff asserts numerous violations of federal
and state law. Specifically, he contends he suffered employment discrimination on the basis
of gender, race, and national origin under Title VII (Counts I, IV, and V). Further, Plaintiff
asserts that he was deprived of his constitutional rights under 42 U.S.C. § 1983, due to his
gender, race, and national origin (Count II). Stewart also alleges state law claims for wrongful
termination and implied contract (Count III), and intentional infliction of emotional distress
(Count IV). Finally, he asserts a claim of assault and battery solely against Defendant Banks
(Count VI). Defendants have moved to dismiss all Counts. See Mot. to Dismiss, ECF No. 9.
STANDARD OF REVIEW
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A. Motion to Dismiss Under Rule 12(b)(1) of the Federal Rules of Civil
Procedure
A motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure for
lack of subject matter jurisdiction challenges a court’s authority to hear the matter brought
by a complaint. See Davis v. Thompson, 367 F. Supp. 2d 792, 799 (D. Md. 2005). This challenge
under Rule 12(b)(1) may proceed either as a facial challenge, asserting that the allegations in
the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge,
asserting “that the jurisdictional allegations of the complaint [are] not true.” Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted). A plaintiff carries the burden of
establishing subject matter jurisdiction. Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999).
With respect to a facial challenge, a court will grant a motion to dismiss for lack of
subject matter jurisdiction “where a claim fails to allege facts upon which the court may base
jurisdiction.” Davis, 367 F. Supp. 2d at 799. Where the challenge is factual, “the district
court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction.”
Kerns, 585 F3d at 192. “[T]he court may look beyond the pleadings and ‘the jurisdictional
allegations of the complaint and view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists.’” Khoury v. Meserve, 268 F. Supp.
2d 600, 606 (D. Md. 2003) (citation omitted). The court “may regard the pleadings as mere
evidence on the issue and may consider evidence outside the pleadings without converting
the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398
(4th Cir. 2004); see also Sharafeldin v. Maryland Dept. of Public Safety & Correctional Services, 94 F.
Supp. 2d 680, 684-85 (D. Md. 2000).
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B. Motion to Dismiss Under Rule 12(b)(6) of the Federal Rules of Civil
Procedure
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain
a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes the
dismissal of a complaint if it fails to state a claim upon which relief can be granted. 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.” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Supreme Court’s recent opinions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), “require that complaints in civil actions be
alleged with greater specificity than previously was required.” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012) (citation omitted). In Twombly, the Supreme Court articulated “[t]wo
working principles” that courts must employ when ruling on Rule 12(b)(6) motions to
dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual
allegations contained in the complaint, legal conclusions drawn from those facts are not
afforded such deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice” to plead a claim). In the
context of pro se litigants, however, pleadings are “to be liberally construed,” and are “held to
less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551
U.S. 89, 94 (2007) (citation omitted); accord Brown v. N.C. Dept. of Corr., 612 F.3d 720, 724 (4th
Cir. 2010).
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Second, even a pro se complaint must be dismissed if it does not allege “a plausible
claim for relief.” Iqbal, 556 U.S. at 679; see also O’Neil v. Ponzi, 394 F. App’x. 795, 796 (2d Cir.
2010). Under the plausibility standard, a complaint must contain “more than labels and
conclusions” or a “formulaic recitation of the elements of a cause of action.” Twombly, 550
U.S. at 555. Although the plausibility requirement does not impose a “probability
requirement,” id. at 556, “[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Robertson v. Sea Pines Real Estate Cos.,
679 F.3d 278, 291 (4th Cir. 2012) (“A complaint need not make a case against a defendant or
forecast evidence sufficient to prove an element of the claim. It need only allege facts sufficient to
state elements of the claim.” (emphasis in original) (internal quotation marks and citation
omitted)).
In the employment discrimination context, this pleading standard should not be
“onerous.” Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764 (4th Cir. 2003). The
Supreme Court has indicated that an employment discrimination plaintiff need not plead
particular facts conclusively satisfying each element of a prima facie case. Swierkiewicz v.
Sorema, 534 U.S. 506 (2002).2 Swierkiewicz, however, did not abrogate the requirement that the
plaintiff allege “facts sufficient to state all the elements of her claim.” Bass, 324 F.3d at 765
(emphasis added); see Coleman v. Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)
(explaining that Swierkiewicz does not nullify the heightened pleading requirements of
Although the general 12(b)(6) standard used in Swierkiewicz was overruled by Twombly, see Francis v. Giacomelli, 588
F.3d 186, 192 (4th Cir. 2009), the analysis cited here remains good law. Reed v. Airtran Airways, 531 F. Supp. 2d 660,
666 (D. Md. 2008) (“The Twombly Court made clear that its holding did not contradict the Swierkiewicz rule that ‘a
complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case
of discrimination.’” (citations omitted)).

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Twombly and Iqbal); Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002) (“[T]he
Supreme Court’s holding in Swierkiewicz v. Sorema did not alter the basic pleading requirement
that a plaintiff set forth facts sufficient to allege each element of his claim.” (internal citation
omitted)).
Even with the degree of flexibility arguably given to employment discrimination
plaintiffs, the court must consider whether plaintiff’s complaint has met the plausibility
requirement of Twombly and Iqbal. See Miller v. Carolinas Healthcare System, 561 F. App’x 239,
241 (4th Cir. 2014) (explaining that, in the Fourth Circuit, “Swierkiewicz left untouched the
burden of a plaintiff to allege facts sufficient to state all elements of her claim.” (internal
quotation marks and citation omitted)). In making this assessment, a court must “draw on its
judicial experience and common sense” to determine whether the pleader has stated a
plausible claim for relief. Iqbal, 556 U.S. at 679. “At bottom, a plaintiff must nudge [its]
claims across the line from conceivable to plausible to resist dismissal.” Wag More Dogs, LLC
v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (internal quotation marks omitted).
ANALYSIS
I.

Title VII of the Civil Rights Act of 1964 (Counts I, IV & V)3
A. No Liability under Title VII for Individual Defendants
Under Title VII of the Civil Rights Act, it is well established that “supervisors are not

liable in their individual capacities for Title VII violations.” Lissau v. Southern Food Servs., Inc.,
159 F.3d 177, 180 (4th Cir. 1998). In Lissau, the United States Court of Appeals for the
Fourth Circuit held that only an employer may be held liable for Title VII violations,
Count IV alleges both federal and state law claims. Those parts of Count IV related to Title VII will be dealt with
here, while those parts sounding in state law will be discussed infra.
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whereas individual liability under the Act “would improperly expand the remedial scheme
crafted by Congress.” Id. As such, Stewart has failed to state a claim for relief under Title VII
against Defendants Greene, Rawlings-Blake, Murray, Curran, and Banks. The Title VII
claims (Counts I and V) are thereby DISMISSED as to Greene, Rawlings-Blake, Murray,
Curran, and Banks.
B. The Mayor and City Council of Baltimore
i. Timeliness and Failure to Exhaust Administrative Remedies
The Mayor and City Council of Baltimore argue that Stewart failed to exhaust
administrative remedies for his Title VII claims, thereby necessitating dismissal pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. This argument should, in fact, be
analyzed under Rule 12(b)(1), as a motion to dismiss for failure to exhaust administrative
remedies is an argument that this Court lacks subject matter jurisdiction. Khoury v. Meserve,
268 F. Supp. 2d 600, 606 (D. Md. 2003). A court will grant a motion to dismiss for lack of
subject matter jurisdiction “where a claim fails to allege facts upon which the court may base
jurisdiction.” Davis, 367 F. Supp. 2d at 799.
Prior to filing a Title VII claim in federal court, “a plaintiff must first exhaust his
administrative remedies by filing a charge of discrimination with the EEOC.” Edelman v.
Lynchburg College, 228 F.3d 503, 506 (4th Cir. 2000). In Maryland, a deferral state,4 a Title VII
claim of discrimination must be filed with the EEOC within 300 days of the alleged
discriminatory action. 42 U.S.C. § 2000e–5(e)(1). “If a charging party fails to comply with
A deferral state is one with “a State or local agency with authority to grant or seek relief from such practice or to
institute criminal proceedings with respect thereto upon receiving notice thereof.” 42 U.S.C. § 2000e–5(e)(1); 29
U.S.C. § 626(d)(2). Maryland is classified as a deferral state because the Maryland Commission on Human
Relations constitutes a state agency that is capable of providing relief from discrimination.
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this statutorily mandated filing period, alleged discriminatory acts which occurred more than
300 days prior to the filing of the EEOC charge may not subsequently be challenged in a
Title VII suit.” Van Slyke v. Northrop Grumman Corp., 115 F. Supp. 2d 587, 592 (D. Md. 2000)
aff'd, 17 F. App'x 154 (4th Cir. 2001); see also Beall v. Abbott Laboratories, 130 F.3d 614, 620
(4th Cir. 1997) (“[i]ncidents outside the statutory window are time-barred”). Courts strictly
enforce the timeliness requirements that govern actions alleging employment discrimination.
Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587, 597 (D. Md. 2000); see also Christian v. City
of Annapolis, Civ. A. No. JFM–06–1119, 2006 WL 2294539, at *1 (D. Md. Aug. 9, 2006)
(dismissing discrimination claim as untimely because it was not filed with the EEOC until
301 days after the alleged discriminatory act); Langford v. Yale Univ. School of Medicine, 39 F.
App’x 683, 685 (2d Cir. 2002) (affirming dismissal of discrimination claim that was filed with
the EEOC two days after the 300 day deadline).
Stewart alleges that he filed his charge of discrimination in May 2014, however the
original charge has not been located. See Compl. ¶ 11. Assuming he did file in May 2014, any
sex-based discrimination or retaliation incidents occurring before July 5, 2013 are barred.5 As
the “time limitations period commence[s] with the date of the alleged ‘unlawful employment
practice’” and “the pendency of a grievance, or some other method of collateral review of an
employment decision, does not toll the running of the limitations period,” Del. State Coll. v.
Ricks, 449 U.S. 250, 261-62 (1980) (citations omitted), any alleged incidents before this date
occurred more than 300 days prior to Stewart’s EEOC filing. Stewart has thus failed to
exhaust his administrative remedies for such alleged incidents. The unexhausted allegations
As Plaintiff does not provide the specific date on which he filed his charge with the EEOC, this Court will
assume that the alleged EEOC charge was filed May 1st.

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consist of the hang up calls (July 2012), Murray’s entrance into Stewart’s office in a bathing
suit (October 2012), the riffling through the Plaintiff’s briefcase (April 2013), the alleged
inappropriate behavior by Curran (May 2013), and the alleged cockroach disposal (May
2013).
As Stewart has not satisfied the prerequisite of administrative exhaustion for any
alleged discrimination occurrences before July 5, 2013, this Court may not exercise subject
matter jurisdiction over the associated claims. Johnson v. State of Md., 940 F. Supp. 873, 875
(D. Md. 1996) aff'd, 113 F.3d 1232 (4th Cir. 1997); Davis, 367 F. Supp. 2d at 799.
Accordingly, such claims are DISMISSED WITH PREJUDICE. The only allegations against
the Mayor and City Council of Baltimore properly exhausted are the August 2013 alleged
hallway assault, Greene’s written warnings, and Stewart’s June 2014 suspension.
ii. Sex-Based Hostile Work Environment (Count I)
Under Title VII, an employer may not “fail or refuse to hire or to discharge . . . or
otherwise discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s . . . sex.” 42 U.S.C. §
2000e-2(a)(1). This protection prohibits an employer from creating an “abusive working
environment” in which the “workplace is permeated with discriminatory [sex-based]
intimidation, ridicule, and insult[.]” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). To
demonstrate a prima facie case of hostile work environment sexual harassment, Stewart must
show: “(1) that he was subjected to unwelcome conduct; (2) the unwelcome conduct was
based on sex; (3) it was sufficiently pervasive or severe to alter the conditions of employment
and to create a hostile work environment; and (4) some basis exists for imputing liability to
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the employer.” Rachel–Smith v. FTData, Inc., 247 F. Supp. 2d 734, 749 (D. Md. 2003) (citing
Smith v. First Union Nat'l Bank, 202 F.3d 234 (4th Cir. 2000)).
Plaintiff’s Complaint faces several difficulties. First, he alleges only three specific
discriminatory incidents within the statutory period relevant to this claim – the August 2013
hallway assault, Greene’s written warnings, and his June 2014 suspension – instead referring
throughout the Complaint to general and unnamed harassment and retaliatory behavior.
Although an employment discrimination plaintiff need not prove each element of a prima
facie case in his complaint, Iqbal and Twombly require sufficient detail to make the complaint
plausible, not merely possible. See Iqbal, 556 U.S. at 678. Stewart’s generalized and
unspecified assertions do not suffice to support a plausible claim for relief. This Court must
thus consider only the hallway assault, the written warnings, and the June 2014 suspension as
the “offending conduct” at issue.
Even given these incidents, Stewart’s claims are deficient, as he fails to allege facts
sufficient to support an inference of sex-based discrimination. He speculates as to
Defendants’ motives, but simply omits any facts connecting the hallway assaults, written
warnings, and June 2014 suspension to his sex. See Nicole v. Grafton School, Inc., 181 F. Supp.
2d 475, 483 (D. Md. 2002) (holding that a sex-based hostile work environment may not be
supported where plaintiff provided no facts, “apart from her own speculation,” that the
offending conduct was sex-based). Mere conjecture, without more, does not establish a
plausible connection between the incidents and sex-based motivation.
Moreover, Stewart fails to allege any facts with respect to whether the offending
conduct was “sufficiently pervasive or severe.” Stewart simply states that he was subject to
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“further harassment and retaliatory behavior.” See Compl. ¶ 46. Such conclusory allegations
cannot suffice, as even an employment discrimination plaintiff must allege more than
“[t]hreadbare recitals of a cause of action’s elements.” Iqbal, 556 U.S. at 678.
Finally, Stewart fails to allege facts sufficient to impute liability to the City. A hostile
work environment may be imputed to the employer if the employer knew of the offending
conduct but did not “respond with remedial action.” E.E.O.C. v. Sunbelt Rentals, Inc., 521
F.3d 306, 319 (4th Cir. 2008) (finding that once an employer has notice of harassment of an
employee by co-employees, it must respond with remedial action reasonably calculated to
end the harassment in order to avoid liability under Title VII). Stewart fails to allege any
notice of sexual harassment to management until June 2014, when he for the first time
reported Murray’s alleged harassment of May 2012. This Court however, lacks subject matter
jurisdiction over that incident. Indeed, even assuming that the hallway contact with Banks
reflected a sex-based hostile work environment, Stewart’s superiors promptly addressed his
concern by both instructing him to contact the Employee’s Assistance Program and ordering
Banks to apologize for his conduct in that and any future cases. While the Plaintiff labels this
action as nominal and inadequate, he omits any subsequent harassing acts directed toward
him by Banks.
Due to Stewart’s failure to allege any facts related to the second, third, and fourth
elements of a sex-based hostile work environment claim, he has failed to state a claim upon
which relief may be granted. Count I is accordingly DISMISSED with respect to the sexbased hostile work environment claim.
iii. Failure to Investigate (Count V)
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Count V of the Plaintiff’s Complaint is similarly deficient. Stewart contends that the
City’s alleged failure to investigate his claims violates Title VII. Yet, he specifically references
an investigation conducted by both the DHR and the BCPD into his discrimination
allegations. See Compl. ¶ 31, 34, 44; Compl. Attach. 1, ECF No. 1-2. Plaintiff makes no
mention of any other incidents where he requested an investigation and the City failed to act.
Accordingly, Count V of the Complaint is DISMISSED.
iv. Retaliation under Title VII (Counts I & IV)6
In moving to dismiss Plaintiff’s claims of retaliation, the City argues that Stewart
pleads no facts that demonstrate a causal connection between his protected activity and any
adverse employment actions. Under Title VII, an employer may not discriminate against an
employee who “has opposed any . . . unlawful employment practice” covered by the statute.
42 U.S.C. § 2000e-3(a). To state a claim of retaliation under Title VII, a plaintiff must show
that “(1) she engaged in protected activity; (2) the employer acted adversely against her; and
(3) there was a causal connection between the protected activity and the asserted adverse
action.” Ziskie v. Mineta, 547 F.3d 220, 229 (4th Cir. 2008) (citing Holland v. Washington Homes,
Inc., 487 F.3d 208, 218 (4th Cir. 2007)). A plaintiff’s conclusory assertion on the existence of
a causal connection is insufficient, although a “close” temporal relationship between the
protected activity and the alleged adverse action, may suffice to establish a causal connection
at the pleading stage. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (holding
that alleged “temporal proximity” must be “very close” to satisfy this third element, however

6

See supra note 3.

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“[k]nowledge of a charge is essential to a retaliation claim.”); see also Dowe v. Total Action
against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998).
The City does not dispute that Stewart engaged in protected activity when he filed his
charge of discrimination with the EEOC, nor does it contend that his termination did not
constitute adverse action. Rather, the City argues that Stewart provides no facts to indicate a
causal connection between the protected activity and the adverse action. While this Court
notes some temporal proximity, Stewart makes no specific allegations tending to show that
his termination was causally connected to his protected EEOC activity. By his own
admission, the EEOC right-to-sue letter is dated August 14, 2014, whereas Stewart was
dismissed in June 2014. See EEOC Letter, at 2. Plaintiff never alleges, however, that the City
had any knowledge of the EEOC investigatory process, nor that Plaintiff had filed a charge
with the EEOC, prior to terminating Stewart. Id. The bare temporal proximity between
Plaintiff’s protected actions and his termination does not rise to that level required by this
claim’s third prong.
Accordingly, Plaintiff’s retaliation claims in Counts I and IV are DISMISSED.
II.

Section 1983 (Count II)
42 U.S.C. § 1983 provides that “every person who, under color of any statute,

ordinance, regulation, custom, or usage of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action at law.”
42 U.S.C. § 1983. In order to state a claim under Section 1983, a plaintiff must allege (1) a
deprivation of a right or privilege secured by the Constitution and laws of the United States
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and that (2) the deprivation was caused by an individual acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988). However, “merely private conduct, no matter how
discriminatory or wrongful[,]’” fails to constitute state action. See Mentavlos v. Anderson, 249
F.3d 301, 301 (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999))
(quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). “[P]rivate activity will generally not be
deemed “state action” unless the state has so dominated such activity as to convert it to state
action: ‘Mere approval of or acquiescence in the initiatives of a private party is insufficient.’”
Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 616 (4th Cir. 2009) (quoting DeBauche v.
Trani, 191 F.3d 499, 507 (4th Cir. 1999)).
While under Monell v. Dep't of Social Servs. Of City of New York, 436 U.S. 658 (1978),
Section 1983 liability against a local government or municipality may arise when execution of
the government’s unconstitutional policy or custom causes a plaintiff injury, see Walker v.
Prince George’s Cnty., Md., 575 F.3d 426, 431 (4th Cir. 2009), in order to support a claim, “(1)
the municipality must have actual or constructive knowledge of the custom and usage by its
responsible policymakers, and (2) there must be a failure by those policymakers, as a matter
of specific intent or deliberate indifference, to correct or terminate the improper custom and
usage.” Randall v. Prince George's Cnty., Md., 302 F.3d 188, 210 (4th Cir. 2002) (internal
quotation marks omitted). When a plaintiff brings a “custom or usage” claim under
Monell, the alleged practice must be “so ‘persistent and widespread’ as to constitute a ‘custom
or usage with the force of law.’” Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir. 2003) (quoting
Carter v. Morris, 164 F.3d 215, 217 (4th Cir. 1999)).

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The Complaint utterly fails to allege any facts indicating that the individual
Defendant’s actions were taken under the color of state law. Further, Stewart’s bare assertion
that “[t]he discrimination stemmed from a custom, policy or practice of the City of
Baltimore, and not from an individual aberration of isolated act, even one committed under
color of law” (Compl. ¶ 58), lacks the specificity required to nudge Stewart’s allegations from
conceivably performed to plausibly performed if interpreted as a custom or usage claim. See
Iqbal, 556 U.S. at 678; Wag More Dogs, 680 F.3d at 365; Lytle, 326 F.3d at 471. Accordingly,
Count II is DISMISSED.
III.

State Law Claims (Counts III, IV, & VI)

Pursuant to 28 U.S.C. § 1367, a federal court may exercise supplemental jurisdiction
over claims that otherwise would not be within federal jurisdiction, because the claims arise
from the same set of facts as those claims that are properly before the federal court. See
generally 13 C. WRIGHT, A. MILLER, & E. COOPER, FEDERAL PRACTICE AND PROCEDURE §
3523 (1984); ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 5.4 (4th ed. 2003); cf. 28
U.S.C. 1367 (2000). However, under 28 U.S.C. § 1367(c)(3), a federal court has the discretion
to decline to exercise supplemental jurisdiction over a claim if the district court has
dismissed all claims over which it has original jurisdiction. Hilliard v. Kaiser Found. Health Plan
of the Mid–Atlantic States, 169 F. Supp.2d 416, 418–19 (D. Md. 2001). The United States
Supreme Court has cautioned against the use of supplemental jurisdiction and suggested that
in cases where the federal claims are dismissed before trial, “the state claims should be
dismissed as well.” United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d
218 (1966); see also Walker v. City of Salisbury, 170 F. Supp. 2d 541, 552 (D. Md. 2001)
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(declining to exercise pendent jurisdiction over plaintiffs' remaining state law claims when
the court granted defendants' motion to dismiss all of plaintiffs' federal claims against the
defendant).
As the federal claims against the Defendants have been dismissed, the only remaining
claims sound in Maryland state law. Consequently, this court declines to exercise
supplemental jurisdiction over these claims and DISMISSES them WITHOUT
PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3); see e.g., Hinson v. Norwest Financial South
Carolina, Inc., 239 F.3d 611, 616 (4th Cir. 2001) (holding that under 28 U.S.C. § 1367(c) a
district court has discretion to remand removed state claims when the federal claims drop
out of the case) (citing Carnegie–Mellon University v. Cohill, 484 U.S. 343, 357 (1988)).
CONCLUSION
For the reasons stated above, Defendants’ Motion to Dismiss (ECF No. 9) is
GRANTED and the Plaintiff’s Complaint is DISMISSED.
A separate Order follows.
Dated:

Sept 23, 2015

/s/_________________________________
Richard D. Bennett
United States District Judge

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