Isaac v. Housing Authority Of Baltimore City
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 9/21/2016. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANNETTE P. ISAAC,
HOUSING AUTHORITY OF BALTIMORE
Civil Action No. GLR-16-327
THIS MATTER is before the Court on Defendant Housing Authority
of Baltimore City’s (“HABC”) Motion to Dismiss, Motion for More
Definite Statement, or, in the Alternative, Motion for Summary
Judgment (ECF No. 8).
The Motion is ripe for disposition, and no
hearing is necessary.
See Local Rule 105.6 (D.Md. 2016).
reasons outlined below, the Court will grant the Motion.
(Am Compl. ¶ 2, ECF No. 1-5); (see ECF No. 1-10).
Isaac has worked for HABC for eight years, and she is an active
(Am. Compl. ¶ 2).
On June 11, 2015, Isaac filed a
notice of intent to file a union grievance against HABC.
Isaac filed the grievance on June 15, 2015, detailing
several instances of what she considers verbal harassment by her
On December 28, 2015, Isaac sued HABC in the Circuit Court for
Baltimore City, Maryland. (ECF No. 1-2).
On February 9, 2016,
Isaac filed an Amended Complaint, also styled as a “Motion for
Summary Judgment,” raising three claims under Title VII of the
Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. §§
2000e et seq. (2012): (1) retaliatory harassment; (2) disparate
treatment; and (3) religious discrimination.
Amended Complaint also raises state claims for negligence and
The gravamen of Isaac’s allegations appears to be that HABC
has refused to promote her to the positon of Energy Program
Specialist “as promised.” (Am. Compl. at 6).
Isaac alleges she is
the only employee in her department that has not been promoted.
(Id. at 7).
Isaac’s Amended Complaint also includes ancillary allegations
concerning isolated incidents of what she characterizes as verbal
harassment or defamation.
On at least one occasion, Isaac’s
supervisor James Larsah told Isaac she “look[ed] like she was white
. . . because of her auburn colored hair.”
On June 11,
In her Opposition to HABC’s Motion, Isaac attempts to raise
a claim against her union for breach of the duty of fair
representation. The Court will not consider this claim because
Isaac has not named the union as a defendant or served the union,
and Isaac is bound by the allegations in her Amended Complaint.
See Zachair, Ltd. v. Driggs, 965 F.Supp. 741, 748 n.5 (D.Md. 1997)
aff’d, 141 F.3d 1162 (4th Cir. 1998) (explaining that a plaintiff
is bound by the allegations in the complaint and cannot, through
the use of motion briefs, amend the complaint).
2015, HABC’s Real Estate Manager Faith Young “verbally abused”
Isaac with profanity and insinuated Isaac was not a Christian.
(Id. at 8).
Additionally, in July 2014, one of Isaac’s coworkers,
Shavonne Ricketts, “intentionally attempted to defame” Isaac when
she reported that Isaac “was not cooperating and [was] being
difficult” at a meeting.
(Id. at 9).
On March 4, 2016, HABC filed the present Motion to Dismiss,
Motion for More Definite Statement, or, in the Alternative, Motion
for Summary Judgment (ECF No. 8).
Isaac responded on March 24,
2016 (ECF No. 11), and HABC replied on April 12, 2016 (ECF No. 14).
Isaac filed a surreply on April 25, 2016, which the Court will not
consider because Isaac did not move for leave to file a surreply.
See Local Rule 105.2(a) (D.Md. 2016) (“Unless otherwise ordered by
the court, surreply memoranda are not permitted to be filed.”).
Standard of Review
HABC styles its Motion as a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) or, in the alternative, for
summary judgment under Rule 56.
A motion styled in this manner
implicates the Court’s discretion under Rule 12(d).
Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F.Supp.2d 431, 436–37
(D.Md. 2011), aff’d sub nom., Kensington Volunteer Fire Dep’t, Inc.
v. Montgomery Cty., 684 F.3d 462 (4th Cir. 2012).
Pursuant to Rule
12(d), when “matters outside the pleadings are presented to and not
excluded by the court, the [Rule 12(b)(6)] motion must be treated
as one for summary judgment under Rule 56.”
The United States
Court of Appeals for the Fourth Circuit has articulated two
requirements for proper conversion of a Rule 12(b)(6) motion to a
Rule 56 motion.
First, that the “parties be given some indication
by the court that it is treating the 12(b)(6) motion as a motion
for summary judgment” and second, “that the parties first ‘be
afforded a reasonable opportunity for discovery.’”
Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 721 F.3d 264,
281 (4th Cir. 2013) (quoting Gay v. Wall, 761 F.2d 175, 177 (4th
alternative” as one for summary judgment and submits matters
outside the pleadings for the court’s consideration, the parties
are deemed to be on notice that conversion under Rule 12(d) may
See Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005).
If the nonmovant is on notice that conversion may occur, the
without discovery unless that party had made an attempt to oppose
the motion on the grounds that more time was needed for discovery.”
Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th
Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)).
Rule 56(d) provides that the Court
nonmovant shows by affidavit or declaration that, for specified
“[T]he failure to file an affidavit under Rule
56[(d)] 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)).
Here, HABC captions its Motion in the alternative for summary
judgment and attaches matters beyond Isaac’s Amended Complaint for
the Court’s consideration.
Isaac has not submitted a Rule 56(d)
affidavit expressing a need for discovery.
Instead, she attaches
her own extra-pleading material to her Opposition to HABC’s Motion.
(See ECF Nos. 11-1 through 11-4).2
Accordingly, the Court will
treat HABC’s Motion as one for summary judgment.
In reviewing a motion for summary judgment, the Court views
the facts in a light most favorable to the nonmovant, drawing all
justifiable inferences in that party’s favor.
Ricci v. DeStefano,
557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144,
Summary judgment is proper when the movant
demonstrates, through “particular parts of materials in the record,
Additionally, although the Amended Complaint is not styled as
a “verified” complaint, Isaac swears it under the penalties of
perjury. (Am. Compl. at 11). As such, the Court will construe it
as an affidavit for purposes of determining whether she generates a
genuine dispute of material fact for her claims.
admissions, interrogatory answers, or other materials,” that “there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a),
Once a motion for summary judgment is properly made and
supported, the nonmovant has the burden of showing that a genuine
dispute of material fact exists.
Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
If the nonmoving
party has failed to make a sufficient showing on an essential
element of her case where she has the burden of proof, “there can
be ‘no genuine [dispute] as to any material fact,’ since a complete
failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
A “material fact” is one that might affect the outcome of a
Anderson, 477 U.S. 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.
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.”
477 U.S. at 248; accord Hooven-Lewis, 249 F.3d at 265.
dispute concerning a “material” fact arises when the evidence is
sufficient to allow a reasonable jury to return a verdict in the
nonmoving party’s favor.
Anderson, 477 U.S. at 248.
Title VII Claims
The Court will grant HABC’s Motion as to Isaac’s Title VII
claims because Isaac fails to make out a prima facie case for any
of her Title VII claims.
Title VII makes it unlawful for an employer to “discriminate
against any individual with respect to his compensation, terms,
individual’s race, color, religion, sex, or national origin.”
U.S.C. § 2000e-2 (2012).
“[A] Title VII plaintiff may ‘avert summary judgment . . .
through two avenues of proof.’”
Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005) (quoting Hill v.
Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284 (4th Cir.
First, “a plaintiff can survive a motion for summary
judgment by presenting direct or circumstantial evidence that
impermissible factor such as race motivated the employer’s adverse
Id. (citing Hill, 354 F.3d at 284). Second,
the plaintiff may proceed under the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–06
Id. (citing Hill, 354 F.3d at 285).
Because Isaac does not present any direct or circumstantial
evidence of Title VII discrimination, the Court will apply the
McDonnell Douglas framework.
Under this framework, the plaintiff
discrimination by a preponderance of the evidence.
Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981).
Court will explain below, Isaac fails to make out a prima facie
case for any of her Title VII claims.
To establish a prima facie case of retaliatory harassment,
Isaac must show: (1) “she engaged in protected activity of which
[HABC] was aware[;]” (2) “she was subjected to harassment ‘so
severe or pervasive so as to alter the conditions of her employment
and create an abusive working environment[;]’” and (3) “a causal
Cobb v. Potter, No. 1:04CV128, 2006 WL 2457812, at *9
(W.D.N.C. Aug. 22, 2006), aff’d, 233 F.App’x 331 (4th Cir. 2007);
see Hinton v. Va. Union Univ., No. 3:15CV569, 2016 WL 2621967, at
*24 (E.D.Va. May 5, 2016) (“A prima facie claim for retaliatory
harassment requires establishing the same facts as a retaliation
claim, save that the ‘materially adverse’ element is replaced by
‘subjected to severe or pervasive retaliatory harassment by a
supervisor.’” (quoting Laster v. City of Kalamazoo, 746 F.3d 714,
731 n.5 (6th Cir. 2014))), motion to certify appeal denied, No.
3:15CV569, 2016 WL 3922053 (E.D.Va. July 20, 2016).
To satisfy the first prong of a prima facie case, Isaac need
not show she filed a formal charge of discrimination.
activities also include “utilizing informal grievance procedures as
well as staging informal protests and voicing one’s opinions in
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 259 (4th Cir. 1998).
To satisfy the third element of a prima facie case, Isaac must
show HABC employees harassed her
she engaged in the
See Dowe v. Total Action Against Poverty in
Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998).
definition, an employer cannot take action because of a factor of
which it is unaware, the employer’s knowledge that the plaintiff
establish the third element of the prima facie case.”
Here, by presenting her union grievance, Isaac demonstrates
that she engaged in a protected activity.
Nevertheless, Isaac does
not satisfy the first or third prongs of a prima facie case.
fails to present any evidence that Larsah or Young knew Isaac filed
What is more, Isaac filed her grievance on June 15,
2015, but she maintains Young harassed her on June 11, 2015.
assuming Young learned that Isaac filed a grievance, because Young
allegedly harassed Isaac before Isaac filed the grievance, no
reasonable jury could infer Young harassed Isaac because of her
Thus, the Court concludes HABC is entitled to
summary judgment on Isaac’s retaliatory harassment claim.
To make out a prima facie case of disparate treatment by means
of failure to promote, Isaac must show: “(1) she is a member of a
protected group, (2) she applied for the position in question, (3)
she was qualified for that position, and (4) the defendants
rejected her application under circumstances that give rise to an
inference of unlawful discrimination.”
Anderson v. Westinghouse
Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005).
There is an
inference of unlawful discrimination when an employer fills a
position with an applicant outside the plaintiff’s protected class.
See Carter v. Ball, 33 F.3d 450, 458 (4th Cir. 1994) (explaining
that to satisfy the fourth prong of a claim for discriminatory
failure to promote, the plaintiff “need only show that the position
was filled by a white applicant”).
As an African-American, Isaac is a member of a protected
See Gbenoba v. Montgomery Cty. Dep’t of Health & Human
Servs., 209 F.Supp.2d 572, 576 (D.Md. 2002), aff’d, 57 F.App’x 572
(4th Cir. 2003).
Isaac, however, fails to satisfy the second
element of a prima facie case because she presents no evidence that
a position as an Energy Program Specialist ever became available or
that she applied for such a position.
Isaac merely maintains that
HABC “promised” that she would become an Energy Program Specialist.
(Am Compl. at 6).
Furthermore, there is no evidence from which a
reasonable jury could infer unlawful discrimination because Isaac
fails to show that someone outside her protected class obtained the
Energy Program Specialist position Isaac desired.
that Ricketts became an “Energy Analyst,” (Id. at 6), but even
assuming an Energy Analyst is the same as an Energy Program
Specialist, Isaac does not demonstrate Ricketts is Caucasian.
Court will, therefore, grant HABC’s Motion as to Isaac’s disparate
Isaac does not assert that HABC did not promote her because of
her religion, but rather that Young harassed her because of her
As such, the Court will construe Isaac’s claim as one
for hostile work environment.
To establish a prima facie case of
hostile work environment, Isaac must show: “(1) that she was
subjected to unwelcome conduct; (2) the unwelcome conduct was based
on . . . religion; (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
Khoury v. Meserve, 268 F.Supp.2d 600, 612 (D.Md.
2003), aff’d, 85 F.App’x 960 (4th Cir. 2004).
In determining whether Isaac satisfies the third element of a
circumstances, including the ‘frequency of the discriminatory
conduct; its severity; whether it is physically threatening or
unreasonably interferes with an employee’s work performance.’”
at 613 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23
In the Fourth Circuit, “plaintiffs must clear a high bar”
to satisfy this element.
E.E.O.C. v. Sunbelt Rentals, Inc., 521
F.3d 306, 315 (4th Cir. 2008).
Indeed, the harassing “conduct must
be [so] extreme [as] to amount to a change in the terms and
conditions of employment.”
Id. (alteration in original) (quoting
Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).
utterance of an . . . epithet which engenders offensive feelings in
a[n] employee, does not sufficiently affect the conditions of
employment to implicate Title VII.”
Harris, 510 U.S. at 21.
Likewise, “simple teasing, offhand comments, and isolated incidents
changes in the terms and conditions of employment.”
Rentals, 521 F.3d at 315 (quoting Faragher, 524 U.S. at 788).
Isaac describes a single incident of what she characterizes as
harassment based on her religion.
On June 11, 2015, Young impeded
Isaac from leaving an office within the HABC facility and “verbally
abused” Isaac “with profanity,” “making innuendo’s [sic] about
[Isaac] not being a Christian.”
(Am. Compl. at 8).
At best, Isaac shows that Young’s comment engendered offensive
feelings in Isaac.
No reasonable jury could infer this comment,
which Young made during an isolated incident, was so extreme that
it altered the terms and conditions of Isaac’s employment.
Accordingly, the Court concludes Isaac fails to satisfy at least
the third element of a prima face case, and the Court will grant
HABC’s Motion as to Isaac’s claim for hostile work environment.
Because the Court will enter summary judgment for HABC on all
of Isaac’s federal claims, the Court must determine whether to
exercise supplemental jurisdiction over Isaac’s state claims.
28 U.S.C. § 1367(c)(3) (2012) (stating that district courts may
decline to exercise supplemental jurisdiction over a state claim if
“the district court has dismissed all claims over which it has
District courts “enjoy wide latitude in determining whether or
not to retain jurisdiction over state claims when all federal
claims have been extinguished.”
110 (4th Cir. 1995).
Shanaghan v. Cahill, 58 F.3d 106,
In exercising its discretion, courts consider
the following factors: “convenience and fairness to the parties,
the existence of any underlying issues of federal policy, comity,
and considerations of judicial economy.”
Id. (citing Carnegie–
Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).
As the Court will explain below, a cursory review of the
record shows Isaac fails to create a genuine dispute of material
fact for her claims of negligence and defamation.
convenience and judicial economy dictate that the Court retain
jurisdiction over Isaac’s state claims and enter judgment for HABC.
In Maryland, “a plaintiff must establish four elements to
prove negligence: (1) a duty owed by the defendant; (2) a breach of
that duty by the defendant; (3) ‘a legally cognizable causal
relationship between the breach of duty and the harm suffered’; and
McKinney v. Fulton Bank, 776 F.Supp.2d 97, 104
(D.Md. 2010) (quoting Jacques v. First Nat’l Bank of Md., 515 A.2d
756, 758 (Md. 1986).3 To support her negligence claim, Isaac merely
recites these elements in her Amended Complaint -- she fails to
present evidence of a single material fact.
Thus, the Court will
enter summary judgment for HABC on Isaac’s negligence claim.
To sustain a defamation claim, a plaintiff must demonstrate
four elements: “(1) the defendant made a defamatory communication
The United States Supreme Court’s opinion in Erie R. Co. v.
Tompkins, 304 U.S. 64 (1938) mandates that federal courts apply the
state substantive law when exercising supplemental jurisdiction
over state claims.
Ground Zero Museum Workshop v. Wilson, 813
F.Supp.2d 678, 696 (D.Md. 2011).
to a third person; (2) that the statement was false; (3) that the
defendant was at fault in communicating the statement; and (4) that
the plaintiff suffered harm.”
Ziemkiewicz v. R+L Carriers, Inc.,
Tschechtelin, 763 A.2d 209, 241—42 (Md.Ct.Spec.App. 2000)).
assuming Isaac satisfies the first three elements, she fails to
generate a genuine dispute as to the fourth element.
In deciding whether a plaintiff has satisfied the fourth
element of defamation claim, the Court first considers whether, as
a matter of law, the statement is defamatory per se or per quod.
See Samuels, 763 A.2d at 244–45 (citing Shapiro v. Massengill, 661
A.2d 202, 217 (Md.Ct.Spec.App. 1995)).
A statement is defamatory
per se when its “injurious character is a self-evident fact of
Id. at 244 (quoting M & S Furniture Sales Co.
v. Edward J. DeBartolo Corp., 241 A.2d 126, 128 (Md. 1968).
Statements that “adversely affect an employee’s fitness for
the proper conduct of his or her business” are defamatory per se.
Lewis v. Forest Pharm., Inc., 217 F.Supp.2d 638, 657 (D.Md. 2002)
performance is potentially defamatory.”
Id. (citing Leese v. Balt.
Cty., 497 A.2d 159 (Md.Ct.Spec.App. 1985)).
For a statement to be
defamatory per se, “the words must go so far as to impute to the
employee some incapacity or lack of qualification to fill the
Id. (quoting Kilgour v. Evening Star Co., 53 A. 716
When a statement is defamatory per se and the plaintiff
demonstrates the defendant made the statement with actual malice,
damages are presumed.
Samuels, 763 A.2d at 244 (quoting M & S
Furniture, 241 A.2d at 128).
To show actual malice, the plaintiff
must prove by clear and convincing evidence that “the defendant
published the statement in issue either with reckless disregard for
its truth or with actual knowledge of its falsity.”
(quoting Shapiro, 661 A.2d 202).
Id. at 242
If the plaintiff does not prove
actual malice, she plaintiff must prove actual damages.
Id. at 245
(citing Hearst Corp., 466 A.2d 486).
character of the statement is not self-evident.
Id. at 244
challenging a statement that is only defamatory per quod must plead
and prove actual damages.
Id. (quoting M & S Furniture, 241 A.2d
Isaac asserts that in July 2014, Ricketts reported to Monica
Watkins, HABC’s Director of Energy and Environmental Programs, that
during a HABC meeting with the Baltimore City community, Isaac “was
not cooperating and being difficult.”
(Am. Compl. at 9).
viewing the evidence in the light most favorable to Isaac, this
statement does not go so far as to imply that Isaac is not
qualified to carry out her position as a Senior Administrative
uncooperative and difficult. Rather, Ricketts was expressing her
As such, the Court concludes Isaac must prove actual damages
because Ricketts’s statement was defamatory per quod.4
Accordingly, the Court will grant HABC’s Motion as to Isaac’s
For the foregoing reasons, the Court will GRANT HABC’s Motion
Alternative, Motion for Summary Judgment (ECF No. 8).
will also direct the Clerk to DISMISS Isaac’s Complaint (ECF No. 15), ENTER judgment for HABC, and CLOSE this case.
A separate Order
Entered this 21st day of September, 2016
George L. Russell, III
United States District Judge
Even assuming Ricketts’s statement was defamatory per se,
Isaac presents no evidence from which a reasonable jury could
conclude Ricketts acted with actual malice.
Thus, Isaac would
still be required to prove actual damages. Samuels, 763 A.2d at
245 (citing Hearst Corp., 466 A.2d 486).
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