Jordan v. Maryland Transportation Administration et al

Filing 14

MEMORANDUM AND ORDER granting 9 Motion of defendants to Dismiss. Signed by Judge Marvin J. Garbis on 2/2/2017. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KENDRICK A. JORDAN
Plaintiff
vs.

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MARYLAND TRANSIT
ADMINISTRATION, ET AL.

CIVIL ACTION NO. MJG-15-3253

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Defendants
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MEMORANDUM AND ORDER RE: MOTION TO DISMISS
The Court has before it Defendants’ Motion to Dismiss [ECF
No. 9] and the materials submitted related thereto. The Court
finds no need for a hearing.

I.

BACKGROUND
Plaintiff Kendrick A. Jordan (“Jordan” or “Plaintiff”) sues

Defendants Maryland Transportation Administration (“MTA”) and
Colonel John Gavrilis, Chief, Maryland Transportation
Administration Police Force (“Gavrilis”).

Jordan asserts claims

for alleged racial discrimination and retaliation pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5,
and for alleged violations of his constitutional rights pursuant
to 42 U.S.C. §§ 1981 and 1983.
By the instant motion, Defendants seek dismissal of all
claims.

II.

LEGAL STANDARDS
A. Rule 12(b)(1)
A motion to dismiss under Rule1 12(b)(1) raises the

fundamental question as to whether this Court has jurisdiction
to adjudicate the claims presented.

The Plaintiff has the

burden of proving that subject matter jurisdiction exists when a
defense is raised pursuant to Rule 12(b)(1).

Richmond,

Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d
765, 768 (4th Cir. 1991).
Unlike a motion to dismiss filed pursuant to Rule
12(b)(6), which confines the Court’s analysis to the allegations
in the pleadings, a motion challenging subject matter
jurisdiction under Rule 12(b)(1) allows consideration of
evidence outside the Complaint.

Id.

In ruling on a 12(b)(1)

motion, a court must “apply the standard applicable to a motion
for summary judgment, under which the nonmoving party must set
forth specific facts beyond the pleadings to show that a genuine
issue of material facts exists.”

Id.

B. Rule 12(b)(6)
A motion to dismiss filed pursuant to Rule 12(b)(6) tests
the legal sufficiency of a complaint.

A complaint need only

contain “‘a short and plain statement of the claim showing that
1

All Rule references herein refer to the Federal Rules of
Civil Procedure.
2

the pleader is entitled to relief,’ in order to ‘give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.’”

Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (alteration in original) (citations omitted).
When evaluating a 12(b)(6) motion to dismiss, a plaintiff’s
well-pleaded allegations are accepted as true and the complaint
is viewed in the light most favorable to the plaintiff.
However, conclusory statements or “a formulaic recitation of the
elements of a cause of action will not [suffice].”

Id.

A

complaint must allege sufficient facts “to cross ‘the line
between possibility and plausibility of entitlement to relief.’”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(quoting Twombly, 550 U.S. at 557)).
Inquiry into whether a complaint states a plausible claim
is “‘a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.’”

Id.

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

Thus, if

“the well-pleaded facts [contained within a complaint] do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’
– ‘that the pleader is entitled to relief.’”

Id. (quoting

Iqbal, 556 U.S. at 679 (alteration in original)).

3

III. DISCUSSION
A. Alleged Facts2
Jordan, an African-American male, was hired by the MTA
Police Force in 1999 as a Probationary Police Officer.
8.3

Compl. ¶

He was promoted to the rank of Corporal in 2006 and to the

rank of Sergeant in 2009.

Id.

He alleges that the MTA Police

Force, and Gavrilis as Chief, engaged in several actions
violative of his rights.

1.

Denial of Promotion to Lieutenant

In or about the summer of 2011, Jordan took the
Lieutenant’s promotional exam, achieving the fourth-highest
score.

Id. at ¶¶ 9–10.

The top four ranked candidates were

African-American and the sixth was Caucasian.

Id. at ¶ 10.

In

August 2011, the first- and second-ranked candidates were
promoted to Lieutenant and the third-ranked candidate declined
the promotion.

Id. at ¶ 11.

In January 2012, Gavrilis promoted

the fifth- and sixth-ranked candidates, passing over Jordan.
Id. at ¶ 13.

In January 2012, shortly after being denied the

promotion, Plaintiff filed an internal complaint, presumably
alleging that he had been passed over for promotion because of
his race.

Id. at ¶ 14.

2

The facts as related herein represent Plaintiff’s version of
the facts and are not necessarily agreed to by Defendants.
3
All ¶ references herein are to the Complaint [ECF No. 1].
4

Jordan’s factual allegations regarding his denial of the
promotion consist of the conclusory statement:
Upon information and belief, Plaintiff
was
denied
promotion
to
the
rank
of
Lieutenant based upon his race and/or color
and
his
internal
complaints
of
discrimination.
Id. at ¶ 15.

2.

Performance Evaluation Lowered

In February 2012, Jordan’s performance evaluation — that
had initially stated his performance exceeded expectations — was
revised by Gavrilis to indicate that his performance did not
exceed expectations.

3.

Id. at ¶ 16.

Demotion and Reprimand

In March 2012, Plaintiff was administratively charged with
two infractions, one “serious” and one “minor.”

Id. at ¶ 17.

He was found not guilty of the major infraction but guilty of
the minor one with a recommendation of the loss of three days of
leave.

Gavrilis, however, increased the sanction to a demotion

of two ranks from Sergeant to Police Officer, loss of ten days
of leave, and issued a severe letter of reprimand.

Id. at ¶ 20.

This was a more severe punishment than that recommended by the
board that considered his infraction charges, and was more

5

severe than that typically given to departmental members for the
same or similar infractions.

4.

Id. at ¶¶ 19, 21.

Denials of Promotion to Corporal

In January 2013, Plaintiff took the exam for promotion to
the rank of Corporal.

Id. at ¶ 22.

He was not promoted,

despite being the only candidate eligible for the promotion.
Id. at ¶ 24.

In August 2013, Plaintiff inquired as to why

Gavrilis had not promoted him and was told that Gavrilis “did
not feel like he deserved to be promoted.”

Id. at ¶ 27.

In October 2013, Plaintiff again took the Corporal’s
promotional exam and once again was the only eligible candidate
for promotion.

Id. at ¶ 29.

Again, Gavrilis did not promote

him, and the promotional list expired in March 2014.

Id. at ¶

31.

B.

Procedural Steps

On September 25, 2013, or December 13, 2013,4 Jordan filed a
charge with the EEOC asserting claims for racial and retaliatory
discrimination stating:
I am currently employed as a Police Officer
under the supervision of Sergeant Jackson.
4

The Complaint states that the charge was filed September
25, 2013 (¶ 28) but EEOC Charge, Ex. A to Defs.’ Mem. [ECF No.
9-1] at 29 has a December 13, 2013 signing date. The filing
date difference is, in any event, immaterial.
6

On October 15, 2012, I received a demotion
of two ranks from Sergeant to Officer, a 10
day suspension, and a letter of reprimand
for a minor infraction.
Officer Donalie
Anderson (White) however, only received a 35
day suspension and 10 days of lost leave for
an egregious infraction.
On August 23,
2013, I was denied a promotion to Corporal
despite being the only eligible candidate.
I was told I would not be promoted
because Colonel John Gaurius, (sic) Chief of
Police, did not feel I deserved it.
No
explanation was provided for Respondent’s
other actions.
I believe I have been discriminated
against because of my race (Black) and
retaliated against for engaging in protected
activity
with
respect
to
demotion
and
promotion in violation of Title VII of the
Civil Rights Act of 1964, as amended.
EEOC Charge, Ex. A to Defs.’ Mem. [ECF No. 9-1] at 29.
On July 27, 2015, Jordan received a “right to sue letter”
and, on October 23, 2015, filed the Complaint [ECF No. 1]
asserting claims in three Counts, (referred to as “Claims”):
First Claim – Violations of Title VII
Second Claim – Violations of [42] U.S.C. § 1981
Third Claim - Violations of [42] U.S.C. § 1983

C.

First Claim – Title VII

Jordan asserts Title VII claims for alleged race-based
discrimination and retaliation against MTA and Gavrilis.

The

Title VII claims against Gavrilis are invalid altogether because

7

he was not Jordan’s employer.5

The Title VII claims against MTA,

as discussed herein, shall be dismissed due to the absence of
jurisdiction and the inadequacy of the pleading.

1. Jurisdiction
“Before a plaintiff has standing to file suit under Title
VII, he must exhaust his administrative remedies by filing a
charge with the EEOC.”

Bryant v. Bell Atl. Md., Inc., 288 F.3d

124, 132 (4th Cir. 2002).

“[F]ederal courts lack subject matter

jurisdiction over Title VII claims for which a plaintiff has
failed to exhaust administrative remedies.”

Balas v. Huntington

Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013).
In order to be timely under Title VII, administrative
charges must be “filed within one hundred and eighty days after
the alleged unlawful employment practice occurred.”
§ 2000e–5(e)(1).

42 U.S.C.

In Maryland, the 180-day period is extended to

300 days because “state law proscribes the alleged employment
practice and the charge has initially been filed with a state
deferral agency.”6

Tinsley v. First Union Nat’l Bank, 155 F.3d

5

Supervisors and managers sued in their individual
capacities are not subject to liability under Title VII, which
applies only to “employers.” Lissau v. S. Food Serv., Inc., 159
F.3d 177, 180–81 (4th Cir. 1998).
6
Jordan filed his 2013 charge with the Baltimore Community
Relations Commission, a local agency, and the EEOC.
8

435, 439 (4th Cir. 1998), overruled on other grounds, Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 111 n.6 (2002).
Jordan asserts, in the Complaint, claims based upon
alleged:


Denial of promotion to Lieutenant in January
2012, Compl. ¶ 13;



Downgrading of performance review in February
2012, id. ¶ 16;



Excessive punishment for departmental
infraction, including demotion and ten-day
suspension in October 2012,7 id. ¶ 20;



Denial of promotion to Corporal in August 2013,
id. ¶ 27; and



Denial of promotion to Corporal in March 2014,
id. ¶ 31.

However, “[o]nly those discrimination claims stated in the
initial charge, those reasonably related to the original
complaint, and those developed by reasonable investigation of
the original complaint may be maintained in a subsequent Title
VII lawsuit.”
Cir. 2005).

Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th

Allegations in an administrative charge are not

“reasonably related” to the allegations in the complaint where
they do not “implicate the same time frame, actors and
discriminatory conduct.”

Johnson v. Balt. City Police Dep’t,

7

Plaintiff’s complaint does not specify when this punishment
occurred, however his EEOC charge alleges that it occurred on
October 15, 2012. See EEOC Charge, Exh. 1 to Defs.’ Mot. [ECF
No. 9].
9

No. 12-cv-2519-ELH, 2014 WL 1281602, at *11 (D. Md. Mar. 27,
2014).
In Jordan’s EEOC complaint he specifically referred only to
the October 15, 2012 demotion and suspension, and the August
2013 denial of promotion.

Since Jordan filed the EEOC Complaint8

no earlier than September 25, 2013,9 only the August 2013 denial
of promotion was within 300 days of the filing and the October
15, 2012 claim is time-barred.

Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 115 (2002); see also 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).
Jordan contends that, because he alleged a continuing
action, none of the EEOC charge claims is untimely.

It is true

that a hostile work environment claim can include within it
events occurring more than 300 days prior to the filing of the
EEOC charge.

See Nat’l R.R. Passenger Corp., 536 U.S. at 117

(determining that as long as one component act of a hostile work
environment claim occurred within the filing period, the hostile
8

The Court may consider the uncontested contents of the EEOC
Charge in deciding a defendant’s motion to dismiss Title VII
claims. See CACI Int’l, Inc. v. St. Paul Fire & Marine Ins.
Co., 566 F.3d 150, 154 (4th Cir. 2009)(“[C]ourts may consider a
document that the defendant attaches to its motion to dismiss if
the document was integral to and explicitly relied on in the
complaint and if the plaintiffs do not challenge its
authenticity.”).
9
The filing date alleged in the Complaint. ¶ 28. The EEOC
complaint of record reflects a signature date of December 13,
2013, with some type of received stamp date in February 2014.
10

work environment claim is timely).

However, hostile environment

claims are different in kind from discrete acts.

Id. at 115.

“Discrete acts such as termination, failure to promote, denial
of transfer, or refusal to hire” occur “on the day that [they]
‘happened,’” and each “constitutes a separate actionable
‘unlawful employment practice.’”

Id. at 110, 114.

To determine

if a plaintiff has adequately alleged a hostile work environment
claim, a Court must “look to all 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 interferes with
an employee’s work performance.’”

Id. at 116 (quoting Harris v.

Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
Jordan’s allegations do not, by any means, present a
plausible hostile work environment claim.

The alleged unlawful

actions represent a variety of conduct, occurring at specific
times over a several year period, each of which would constitute
independently actionable instances of discrimination.

See

Edwards v. Murphy-Brown, L.L.C., 760 F.Supp. 2d 607, 619 (E.D.
Va. 2011) (“A party may not attempt to make an earlier discrete
discriminatory action, for which time has expired, timely once
again by ‘bootstrapping’ it to a timely charge, even if both
incidents are related.”).

11

Therefore, the only act of discrimination timely presented
in the EEOC charge is the August 2013 denial of promotion.
However, the March 2014, denial of promotion to Corporal
occurred after the filing of the EEOC complaint.

This action

can be viewed as reasonably likely to grow out of an
investigation of the 2013 denial of promotion charge.
Accordingly, the Court has jurisdiction over Jordan’s Title
VII charges only with regard to the 2013 and 2014 denials of
promotion.

2.

Adequacy of Pleading

Jordan’s Title VII claims regarding the 2013 and 2014
denials of promotion are based upon asserted discrimination
based on race and retaliation.

a.

Race-Based Discrimination

In order to plead a plausible prima facie claim of racebased discrimination, Jordan must present factual allegations,
not mere conclusions, to establish that he (1) was a member of a
protected group, (2) was qualified for promotion, (3) did not
get the promotion, and (4) that similarly situated employees
outside of the protected group were treated more favorably.
See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93

12

(1973); Holland v. Washington Homes, Inc., 487 F.3d 208, 214
(4th Cir. 2007).
In regard to both the August 2013 and March 2014 denial-ofpromotion claims, Jordan alleges that he was a member of a
protected group and was qualified for promotion that he did not
receive, but he does not plausibly allege that similarly
situated employees outside of the protected group were treated
more favorably.
periods.

In fact, no one was promoted during those time

Jordan presents no more than conclusory statements

that he was victim of racial discrimination.
He has not adequately pleaded a Title VII racial
discrimination claim.

b. Retaliation
To plead a retaliation claim, Jordan must present factual
allegations sufficient to

present a plausible claim that

(1)

he engaged in protected activity,

(2)

an adverse employment action was taken
against him, and

(3)

there was a causal link between the
protected activity and the adverse
employment action.

Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 258
(4th Cir. 1998).

13

There is no doubt that Jordan engaged in the protected
activity of filing discrimination complaints in January 2012 and
September or December 2013 and adverse employment actions
(denial of promotion) were taken against him in August 201310 and
March 2014.
However, Jordan has not presented factual allegations
adequate to present a plausible claim that the August 2013
and/or March 2014 denials of promotion had a causal relation to
his protected activities.

The January 2012 complaint and the

August 2013 denial were separated by more than a year, and the
March 2014 denial occurred at least three months after the EEOC
complaint.

See Clark Cnty. School Dist. v. Breeden, 532 U.S.

268, 274 (2001)(suggesting that a three-month period is
insufficient to establish causation based on temporal
proximity).

Nor has Jordan alleged that the Defendants even

knew that he filed the 2013 EEOC discrimination complaint.
Indeed, his allegation consists of stating the word
“retaliation” twice.

Compl. ¶¶ 35-36.

This is by no means

adequate to plead an action for retaliation.

10

This action occurred before the filing of the EEOC
complaint.
14

D. Second Claim -

§ 1981

Title 42 Section 1981 provides that “[a]ll persons within
the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce
contracts . . . .” 42 U.S.C. § 1981(a).

In 1991, § 1981 was

amended to clarify that the language “make and enforce
contracts” includes “the enjoyment of all benefits, privileges,
terms, and conditions of the contractual relationship.”

See 42

U.S.C. § 1981(b); Civil Rights Act of 1991, Pub. L. No. 102–166,
105 Stat. 1071.

This amendment expanded the scope of the rights

created by § 1981 to include the right to be free from racial
discrimination and harassment in the workplace.

See Dennis v.

Cnty. of Fairfax, 55 F.3d 151, 155 (4th Cir. 1995).
However, when the defendant is a state actor, then “[t]o
the extent that [racial discrimination] claims [are] pleaded
under § 1981, they run afoul of Jett . . . . [which] held that
when suit is brought against a state actor, § 1983 is the
‘exclusive federal remedy for violations of the rights
guaranteed in § 1981.’”

Dennis, 55 F.3d at 156 (quoting Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989)).
Accordingly, Jordan’s § 1981 claims shall be dismissed and
considered pursuant to § 1983.

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E. Third Claim -

§ 1983

Jordan has sued Gavrilis11 in his personal capacity pursuant
to 42 U.S.C. § 1983.
To establish a § 1983 claim, a plaintiff must prove that a
defendant:
1. Acted under color of state law,
2. Deprived him/her of a right secured by the
Constitution, and
3. Is not entitled to qualified immunity.12
Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009).
There is no doubt that Gavrilis acted under color of state
law and has no qualified immunity in regard to the claims
asserted by Jordan because no reasonable official could believe
that it is lawful to deny government employees promotions on the
basis of their race.

See Adams v. Univ. of Maryland at Coll.

Park, No. Civ.A. AW-00-3177, 2001 WL 333095, at *3 (D. Md. Mar.
6, 2001).

11

MTA, a state agency, would be entitled to dismissal by
virtue of the Eleventh Amendment. See Constantine v. Rectors &
Visitors of George Mason Univ., 411 F.3d 474, 479 (4th Cir.
2005).
12
That is, the right must have been clearly established at
the time of events at issue. See Graham v. Gagnon, 831 F.3d 176,
182 (4th Cir. 2016).
16

Therefore, the question presented is whether Jordan has
asserted a plausible, timely claim that Gavrilis deprived him of
a constitutional right.
1.

Timeliness

In Maryland, § 1983 “borrows” the three-year statute of
limitations from analogous state law.

Owens v. Balt. City

State’s Attorneys Office, 767 F.3d 379, 388 (4th Cir. 2014).
Since this case was filed on October 23, 2015, claims based
upon actions occurring prior to October 3, 2012, are timebarred.

See Hodge v. Coll. of S. Md., 121 F.Supp. 3d 486, 497

(D. Md. 2015).

Thus, the only timely § 1983 claims presented

are for the August 2013 and March 2014 denials of promotion.

2.

Adequacy of Pleading

Jordan has failed to plead a plausible claim that Gavrilis
deprived him of rights, privileges, or immunities guaranteed by
the United States Constitution or federal law.
Jordan does not state what constitutional right or federal
law he claims was violated.

See Chapman v. Houston Welfare

Rights Org., 441 U.S. 600, 618 (1979) (“Standing alone, § 1983
clearly provides no protection for civil rights since, as we
have just concluded, § 1983 does not provide any substantive
rights at all.”).

Presumably, he wishes to assert his

17

Fourteenth Amendment right to the equal protection of the law.13
See Holder v. City of Raleigh, 867 F.2d 823, 828 (4th Cir.
1989)(“A state employee may still bring a Fourteenth Amendment
challenge under 42 U.S.C. § 1983 to discriminatory employment
decisions.”).

Nevertheless, the pleading is inadequate.

The Court’s analysis under Title VII applies to claims of
unconstitutional employment discrimination under § 1983.

See

id. at 828 (“Our analysis with respect to Title VII also governs
plaintiff’s claims under 42 U.S.C. §§ 1981 and 1983.”).

Similar

to his Title VII claim, Jordan fails to plead a plausible
violation of the Equal Protection Clause of the Fourteenth
Amendment.
In conclusory fashion, Jordan alleges that Defendants
discriminated against him “on the basis of his race and/or color
by . . . denying him job promotions afforded to similarly
situated and/or less qualified employees of a different race or
color.”

Compl. ¶ 35.

He also states that he “has been

subjected to discriminatory treatment on the basis of his race
and/or color in the form of retaliation, desperate [sic]
treatment and a hostile work environment.”

Id. ¶ 33.

Such conclusory statements merely parrot the elements of
the claim and are insufficient to render Jordan’s claims of
13

“No state shall . . . deny to any person within its
jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1.
18

relief plausible.

See Iqbal, 556 U.S. at 678 (“Threadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”).
Moreover, the Complaint states that nobody was promoted to
Corporal in 2013 or 2014, contradicting the allegation that the
2013 and 2014 denials were instances where Jordan was “den[ied]
job promotions afforded to similarly situated and/or less
qualified employees of a different race or color.”14

Compl. ¶

35.
Accordingly, Jordan has not adequately pleaded a
constitutional or other violation.

IV.

CONCLUSION
For the foregoing reasons:
1. Defendants’ Motion to Dismiss [ECF No. 9] is GRANTED.
2. Judgment shall be entered by separate Order.

SO ORDERED, this February 2, 2017.

/s/__________
Marvin J. Garbis
United States District Judge

14

Furthermore, the complaint states that Gavrilis had
previously promoted other African-Americans. Compl. ¶¶ 10, 11.
19