Farrell et al v. Board of Education of Allegany County et al

Filing 13

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 3/21/2017. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LORELEE M. FARRELL, et al.,

:

Plaintiffs,

:

v.

:
Civil Action No. GLR-16-2262

BOARD OF EDUCATION OF ALLEGANY
COUNTY, et al.,

:
:

Defendants.
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants’, Board of
Education

of

Allegany

County

(the

“Board”),

David

A.

Cox,

Benjamin Brauer, and Sheree Witt, Motion to Dismiss (ECF No. 6).
This 42 U.S.C. § 1983 action arises from Plaintiffs’, Lorelee M.
Farrell and Robert S. Farrell, involvement in the Board’s 2014
election

and

the

subsequent

end

of

their

Allegany County Public Schools (“ACPS”).
disposition, and no hearing is necessary.
(D.Md. 2016).

employment

with

The Motion is ripe for
See Local Rule 105.6

For the reasons outlined below, the Court will

grant in part and deny in part the Motion.
I.

BACKGROUND1

Mr. Farrell was a tenured teacher with ACPS.
ECF No. 2).

(Compl. ¶ 13,

He first worked as a teacher from 2003 to 2007 and

then worked as the Coordinator of Safety and Security from 2007
1

Unless otherwise noted, the Court describes facts taken
from the Complaint and accepts them as true.
See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

until his termination in 2015.
Mr.

Farrell,

he

was

a

(Id. ¶¶ 16, 36).

successful

teacher

According to
and

received

commendable evaluations for most of his time with ACPS.
18).

Mrs.

Farrell

was

Supervisor with ACPS.
Farrell

experienced

a

Health

and

(Id. ¶ 15).
success

at

Family

Life

(Id. ¶

Assistant

Like Mr. Farrell, Mrs.

her

position

and

received

commendable evaluations for most of her time with ACPS.

(Id. ¶

19).
In

2014,

Board.

Mrs.

Farrell

(Id. ¶ 21).

Farrell’s

campaign.

ran

for

elected

office

with

the

Mr. Farrell spoke in support of Mrs.
(Id.

¶¶

21,

50).

One

campaign

issue

publically discussed leading up to the Board election was a 2013
revision of the Board’s communication policy (“Revised Policy”).
(Id.

¶¶

22,

communication

24,

25).

between

The
Board

Revised

Policy

employees

to

required

all

through

the

go

Superintendent, Defendant Cox, who enacted the Policy.
¶¶ 24, 27).

(Id.

Mrs. Farrell voiced her opposition to the Revised

Policy during her 2014 campaign.

(Id. ¶¶ 22, 26).

She argued

that the Revised Policy limited communication and that, instead,
the

Board

interest.
the

should

foster

(Id. ¶ 26).

Revised

Policy.

communication

to

further

the

public

Mr. Farrell also opposed Cox’s stance on
(See

id.

¶

29).

Later

in

the

2014

campaign, the Board revised the communication policy again to

2

remove the 2013 revisions and formally encourage communication
between Board employees.

(Id. ¶ 28).

During the 2014 campaign, Defendant Brauer, Mr. Farrell’s
supervisor, conducted a performance evaluation of Mr. Farrell
and found he needed improvement, for the first time, in four
categories of his job.
January

16,

2015,

(Id. ¶ 30).

Defendant

Witt,

After the election, on

Mrs.

Farrell’s

supervisor,

conducted a performance evaluation of Mrs. Farrell and found she
needed improvement, for the first time, in three categories of
her job evaluation.

(Id. ¶ 31).

In May of 2015, the Board granted Mrs. Farrell’s request
for leave to receive cancer treatment.
16,

2015,

hearing

in

Brauer

and

February

Witt
of

required

2015

in

(Id. ¶ 37).
Mr.

order

Farrell
to

On January
to

provide

attend
him

a

“due

process” -- but did not reveal any additional details about the
hearing’s purpose.

(Id. ¶ 32).

Witt also told Mr. Farrell that

he “doesn’t live in a vacuum” at the Board, which Mr. Farrell
interpreted as a threat to his employment.

(Id. ¶ 33).

Mr.

Farrell never received any notice detailing any charges against
him or any evidence that would serve as a basis for employment
decisions.

(Id. ¶ 34).

The hearing took place on February 2, 2015, and Mr. Farrell
attended with counsel.

(Id. ¶¶ 32, 34).

Mr. Farrell sought

additional information regarding any charges against him, notice
3

of

offense,

or

evidence

that

would

serve

as

a

basis

for

employment decisions, but neither Witt nor Brauer provided any
of

that

information

during

the

hearing.

(Id.

Farrell objected to the Board’s hearing.

¶

(Id.).

35).

Mr.

On June 30,

2015, the Board terminated Mr. Farrell’s employment with ACPS,
citing the elimination of Mr. Farrell’s Coordinator of Safety
and Security position as its reason.
Farrell

returned

from

leave

in

(Id. ¶ 36).

December

of

When Mrs.

2015,

the

Board

significantly changed her job responsibilities, placing her in a
position equivalent to a teacher’s classroom assistant.
¶ 38).

She later retired in January of 2016 “solely as a result

of the acts and actions” of the Board.
On

(Id.

May

17,

2016,

The

Farrells

(Id. ¶ 39).
sued

Circuit Court for Allegany County, Maryland.
allege three counts:

(1)

violation of

Defendants
(Compl.).

in

the
They

Mrs. Farrell’s First

Amendment rights; (2) violation of Mr. Farrell’s First Amendment
rights; and (3) violation of Mr. Farrell’s due process rights
under the Fourteenth Amendment to the United States Constitution
and under Article 24
(Id.).

of the Maryland Declaration of Rights.

The Farrells seek monetary damages and retrospective and

prospective injunctive relief.

On June 21, 2016, Defendants

removed the action to this Court.

(ECF No. 1).

On June 28,

2016, Defendants move to dismiss each claim for failure to state
a claim upon which relief may be granted under Federal Rule of
4

Civil Procedure 12(b)(6).

(ECF No. 6).

On July 22, 2016, the

Farrells filed a Response, (ECF No. 11), and on August 8, 2016,
Defendants filed a Reply.

(ECF No. 12).
II.

A.

DISCUSSION

Standard of Review
The

purpose

of

a

Rule

complaint,”

sufficiency

of

a

surrounding

the

facts,

12(b)(6)
not

to

merits

the

applicability of defenses.”

motion

of

“is

to

test

“resolve
a

the

contests

claim,

or

the

Edwards v. City of Goldsboro, 178

F.3d 231, 243–44 (4th Cir. 1999) (quoting Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992)).

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,” Rule 8(a)(2), or does not “state a claim to relief that
is plausible on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
pleads

A claim is facially plausible “when the plaintiff

factual

reasonable

content

inference

misconduct alleged.”
“Threadbare

recitals

that

that

allows

the

the

defendant

court
is

to

draw

the

for

the

liable

Id. (citing Twombly, 550 U.S. at 556).
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

prove

to

forecast

evidence

to
5

the

elements

of

the

claim, the complaint must allege sufficient facts to establish
each element.

Goss v. Bank of Am., N.A., 917 F.Supp.2d 445, 449

(D.Md. 2013) (quoting Walters v. McMahen, 684 F.3d 435, 439 (4th
Cir.

2012)),

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, a court must examine
the complaint as a whole, consider the factual allegations in
the complaint as true, and construe the factual allegations in
the light most favorable to the plaintiff.

Albright v. Oliver,

510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm’rs of Davidson
Cty.,

407

F.3d

266,

268

(4th

Cir.

Rhodes, 416 U.S. 232, 236 (1974)).

2005)

(citing

Scheuer

v.

But, the court need not

accept unsupported or conclusory factual allegations devoid of
any reference to actual events, United Black Firefighters v.
Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions
couched as factual allegations, Iqbal, 556 U.S. at 678.
B.

Analysis
1.

Eleventh Amendment Immunity from Suit

The Farrells bring their claims under § 1983.

Section 1983

provides that a plaintiff may file suit against any person who,
acting under color of state law, “subjects, or causes to be
subjected, any citizen of the United States or other person
within

the

jurisdiction

thereof

to

the

deprivation

of

any

rights, privileges, or immunities secured by the Constitution
6

and laws” of the United States.
“is

not

itself

provides

‘a

a

source

method

conferred.”

for

Albright

of

42 U.S.C. § 1983.
substantive

vindicating
v.

Oliver,

rights,’

federal
510

Section 1983

U.S.

but

rights
266,

merely

elsewhere

271

(1994)

(quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

To

state a claim under § 1983, “a plaintiff must aver that a person
acting under color of state law deprived him of a constitutional
right or a right conferred by a law of the United States.”

Wahi

v. Charleston Area Med. Ctr., 562 F.3d 599, 615 (4th Cir. 2009).
As

a

threshold

matter,

the

Court

must

determine

which

Defendants are amenable to suit under the Eleventh Amendment.
At bottom, the Court concludes: (1) the Board is entitled to
Eleventh Amendment immunity; (2) Cox, Brauer, and Witt, in their
personal capacities, are amenable to suit; (3) Cox, Brauer, and
Witt, in their official capacities, are entitled to Eleventh
Amendment
relief;

immunity

and

capacities,

(4)
are

for

Cox,

damages
Brauer,

amenable

to

and
and

suit

retrospective
Witt,

for

in

injunctive

their

prospective

official

injunctive

relief.2
Agencies that are arms of the state, such as boards of
education, are entitled to Eleventh Amendment immunity from suit
under § 1983.

2

See, e.g.,

The Farrells
conclusions.

and

Shank v. Balt. City Bd. of Sch.

Defendants
7

agree

with

each

of

these

Comm’rs, No. WMN-11-1067, 2014 WL 198343, at *2 (D.Md. Jan. 14,
2014) (“The Eleventh Amendment explicitly bars [the plaintiff’s]
suit

against

respect

to

the
his

Board

of

federal

Education

law

claims

as

a

state

under

[§

agency

1983]

.

with
.

.”

(alteration in original) (quoting Chi v. Bd. of Educ. of Harford
Cnty., No. 93–3569, 1995 WL 131288, at *3 (D.Md. Feb. 6, 1995)
(internal

quotation

marks

omitted))).

By

contrast,

state

officials sued in their personal capacities are amenable to suit
as “persons” under § 1983.

See, e.g., Williams v. Wicomico Cty.

Bd. of Educ., 836 F.Supp.2d 387, 392 (D.Md. 2011) (explaining
that § 1983 provides a cause of action in suits against state
officials acting in their personal capacity).
Court

will

dismiss

all

of

the

Farrells’

Accordingly, the

claims

against

the

Board, but the Farrells’ claims against Cox, Brauer, and Witt,
in their personal capacities, remain.
State officials sued in their official capacity are also
entitled

to

Eleventh

Amendment

retrospective injunctive relief.
Educ.

of

Talbot

Cty.,

262

immunity

for

damages

or

See, e.g., Lewis v. Bd. of

F.Supp.2d

608,

612

(D.Md.

2003).

Accordingly, the Court will dismiss all of the Farrells’ claims
against Cox, Brauer, and Witt to the extent they are sued in
their

official

injunctive
capacity,

capacities

relief.
however,

State
are

for

damages

officials

amenable
8

to

sued
suit

or
in

retrospective
their

under

the

official
Eleventh

Amendment for prospective injunctive relief.

Id.

Thus, the

Farrells’ claims against Cox, Brauer, and Witt in their official
capacities for prospective injunctive relief remain.
In sum, the Court will dismiss the Board and Cox, Brauer,
and

Witt,

in

their

official

monetary

capacities

damages

and

to

the

extent

Farrells

seek

retrospective

relief.

The Farrells’ claims against Cox, Brauer, and

the

injunctive
Witt

remain in their official capacities to the extent the Farrells
seek

prospective

claims

against

personal

injunctive

Cox,

relief.

Brauer,

capacities.

The

and

Court

Finally,

Witt
now

also
turns

the

remain
to

the

Farrells’
in

their

Farrells’

claims on the merits against Cox, Brauer, and Witt.
2.

First Amendment Retaliation

The Farrells each bring retaliation claims under the First
Amendment.

The

First

Amendment

to

the

United

States

Constitution provides that “Congress shall make no law . . .
abridging the freedom of speech . . . or the right of the people
peaceably to assemble.”

U.S. Const. amend. I.

The Fourteenth

Amendment makes this prohibition applicable to the states.
Fisher v. King, 232 F.3d 391, 396 (4th Cir. 2000).

See

The First

Amendment protects not only the affirmative right to speak, but
also the “right to be free from retaliation by a public official
for the exercise of that right.”
N.C.-Wilmington,

640

F.3d

550,
9

Adams v. Trs. of the Univ. of
560

(4th

Cir.

2011)

(quoting

Suarez

Corp.

Indus.

v.

McGraw,

202

F.3d

676,

685

(4th

Cir.

2000)) (internal quotation marks omitted).
In their Motion, Defendants rely on the Fourth Circuit’s
three-prong test in Constantine v. Rectors & Visitors of George
Mason University, 411 F.3d 474 (4th Cir. 2005) to evaluate the
Farrells’ First Amendment retaliation claims.

While Constantine

is instructive for First Amendment retaliation claims brought by
private speakers, here, the Farrells are both former government
employees.

As a result, a more searching standard applies.

See

Crouse v. Town of Moncks Corner, -- F3d. --, 2017 WL 624166, at
*3

(4th

Cir.

2017)

(“[A]

governmental

employer

may

impose

certain restraints on the speech of its employees . . . that
would be unconstitutional if applied to the general public.”
(quoting City of San Diego v. Roe, 543 U.S. 77, 80 (2004) (per
curiam))

(internal

quotation

marks

omitted));

see

generally

McVey v. Stacy, 157 F.3d 271, 277–79 (4th Cir. 1998) (describing
the standard for First Amendment retaliation claims brought by
government employees).

The Court now addresses the Farrells’

First Amendment claims using this standard.
i.

Sufficiently
Retaliatory
Government Employer

Actions

by

the

Defendants argue that the Farrells each failed to allege
actions

that

are

sufficiently

10

retaliatory

under

the

First

Amendment.3

The

Court

concludes

that

the

Farrells’

claims

related to their evaluations are not violative of their First
Amendment rights.

The Court also concludes, however, that Mrs.

Farrell’s claim related to her transfer to a teaching assistant
position is sufficiently retaliatory under the First Amendment.4
For a government employee to invoke protection under the
First Amendment’s bar on retaliation, the employee must allege
that

a

government

employer

action against the employee.

took

a

sufficiently

The nature of the retaliatory act

must be “more than de minimis or trivial.”
686.

retaliatory

Suarez, 202 F.3d at

On one hand, a government employer takes a sufficiently

retaliatory action against an employee when the employer makes
decisions that relate to the “promotion, transfer, recall, and
hiring” of the employee based on the employee’s exercise of his
or her First Amendment rights.

Id. (quoting Rutan v. Republican

3

Defendants make their argument under Constantine’s second
prong requiring an “action that adversely affected” the
speaker’s First Amendment Rights. Constantine, 411 F.3d at 499.
Because the Court finds Constantine inapplicable, the Court will
apply the standards described in Suarez; those standards also
address the scope of retaliatory acts protected by the First
Amendment. 202 F.3d at 686.
4
Defendants also argue that because Mr. Farrell only
alleges that the Board eliminated his position, the Court should
dismiss Cox, Brauer, and Witt from Mr. Farrell’s claims.
(See
Compl. ¶ 36).
The Court, however, is required to examine the
Complaint as a whole and construe the factual allegations in the
light most favorable to Mr. Farrell. See Albright, 510 U.S. at
268; Lambeth, 407 F.3d at 268 (citing Scheuer, 416 U.S. at 236).
The Court, therefore, infers that Mr. Farrell is bringing his
claims against the Board as well as Cox, Brauer, and Witt.
11

Party, 497 U.S. 62, 79 (1990).

On the other hand, when the

government employer takes an action that simply “critici[zes],
false[ly] accus[es], or verbal[ly] reprimands” the employee, the
action is insufficiently retaliatory.

Id.

Here, Defendants argue that the Farrells’ claims related to
their evaluations are insufficiently retaliatory under the First
Amendment.

The Court agrees.

The Farrells allege merely that

Defendants violated their First Amendment rights when Defendants
provided

them

“untruthful

(Compl. ¶¶ 44, 53).

and

will

evaluations.

Yet “criticism” and “false accusations” are

insufficiently retaliatory.
Court

unsubstantiated”

dismiss

Count

Suarez, 202 F.3d at 686.
I

and

Count

II

to

the

Thus, the
extent

the

Farrells seek relief relating to their evaluations.
Defendants also argue that Mrs. Farrells’ claims related to
Defendants transferring her to a teaching assistant position are
insufficiently retaliatory under the First Amendment.
disagrees.

Mrs.

Farrell

alleges

that

after

the

The Court
2014

Board

election, when she returned from leave, Defendants “stripp[ed]
from

her

the

job

functions

and

duties

of

her

position”

by

placing her in a position equivalent to a teacher’s classroom
assistant.

(Compl. ¶¶ 38, 44).

Defendants’ decision to place

her in that position is a decision to transfer her.

Thus, the

Court will not dismiss Count I to the extent Mrs. Farrell seeks

12

See Suarez, 202 F.3d at 686.5,6

relief relating to her transfer.

The Court turns to whether the alleged retaliatory acts meet the
elements for First Amendment retaliation.
ii.
When

McVey Three-Prong Test

government

employees

claim

that

their

employer

disciplined them because of their speech, the Fourth Circuit
applies a three-prong test to determine whether their employer
violated their First Amendment rights.

McVey, 157 F.3d at 277.

Known as the McVey test, courts determine the following: (1)
whether the employee “was speaking as a citizen upon a matter of
public concern or as an employee about a matter of personal
interest;”
freely

(2)

whether

outweighs

the

“the

employee’s

government’s

interest
interest

in
in

speaking
providing

effective and efficient services to the public,” known as the
Pickering

balancing;

and

(3)

caused the disciplinary action.
2017

WL

624166,

at

*3

whether

employee’s

speech

Id. at 277–78; see also Crouse,

(describing

Pickering balancing test).

the

the

second

prong

as

the

The first two prongs are questions

of law, while the third is a factual inquiry.

5

Crouse, 2017 WL

Defendants also argue that because Mrs. Farrell alleges
that she retired “solely as a result of the acts and actions of
the [Board],” the Court should dismiss Cox and Brauer as to her
claim.
(See Compl. ¶ 39).
The Court declines to do so.
See
note 4, supra.
6
Defendants do not contest that Mr. Farrell’s alleged
termination was sufficiently retaliatory under the First
Amendment.
13

624166, at *3 (citing Brooks v. Arthur, 685 F.3d 367, 371 (4th
Cir. 2012)).
Defendants

first

argue7

that

Mr.

Farrell

fails

to

sufficiently state a claim under McVey’s first prong -- whether
the employee was speaking as a citizen upon a matter of public
concern.8
Under

See McVey, 157 F.3d at 277.
McVey’s

first

prong,

a

The Court disagrees.

government

employee

speaks

upon a matter of public concern when the speech “addresses ‘an
issue of social, political, or other interest to a community.”
Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 316
(4th Cir. 2006) (quoting Urofsky v. Gilmore, 216 F.3d 401, 406–
07 (4th Cir. 2000) (en banc)).
form,

and

record.”

context”

of

the

speech

This turns on “the content,
“as

revealed

by

the

whole

Hamilton v. Mayor of Balt., 807 F.Supp.2d 331, 347

(D.Md. 2011) (quoting Connick v. Myers, 461 U.S. 138, 147–48 &
n.7 (1983)) (internal quotation marks omitted).

At the Rule

12(b)(6) stage, however, a district court may dismiss a claim
“only if ‘it appears beyond all doubt that the plaintiff can

7

Defendants make their argument under Constantine’s first
prong requiring plaintiffs to “engage[] in protected First
Amendment activity.”
Constantine, 411 F.3d at 499 (citing
Suarez, 202 F.3d at 686).
Because the Court will not be
applying Constantine, the Court will apply Defendants’ argument
to McVey’s first prong, which also addresses the nature of
speech required for First Amendment protection.
8
Defendants do not contest that the nature of Mrs.
Farrell’s speech sufficiently states a claim for First Amendment
protection.
14

prove no set of facts in support of his claim that would entitle
him to relief.”

Ridpath, 447 F.3d at 317 (quoting Trulock v.

Freeh, 275 F.3d 391, 405 (4th Cir. 2001)) (emphasis added).
Here, Mr. Farrell sufficiently states a claim under McVey’s
first prong.

Defendants highlight Mr. Farrell’s allegation that

he “exercised his right of free speech in respect to matters of
public importance concerning the operation of the ACPS System,”
which Defendants argue is conclusory.

(See Compl. ¶ 21).

But

within that same paragraph, Defendants overlook Mr. Farrell’s
allegation specifying that his speech supported Mrs. Farrell’s
campaign.

(Id.;

Complaint,

Mr.

see

also

Farrell

id.

further

¶

50).

Elsewhere

specifies

that

opposed Cox’s stance on the Revised Policy.
(“While

vindicated

in

[Mrs.

Farrell’s]

he

in

the

publicly

(See id. ¶ 29
public

position

concerning the role of communication between public and staff
. . . her husband . . . for having opposed the position of
[Cox],

did

[Board].”).

not

fare

well

in

[his]

employment

with

the

Because Mr. Farrell specifies the nature of speech

at issue, Defendants’ assertion that Mr. Farrell’s allegations
are conclusory under the first prong is misplaced.
Defendants next argue9 that both Mr. and Mrs. Farrell fail
to

sufficiently

state

a

claim

9

under

McVey’s

third

prong

--

Defendants make their argument under Constantine’s third
prong requiring a “causal relationship between [the] protected
15

whether

their

received.

speech

caused

the

disciplinary

See McVey, 157 F.3d at 277.

action

they

The Court disagrees.

When reviewing a First Amendment retaliation claim at the
Rule 12(b)(6) stage, courts “generally infer causation” based on
the

complaint’s

allegations

because

courts

unwilling to speculate as to the outcome.”

are

“unable

and

Lane v. Anderson,

660 F.App’x 185, 193 (4th Cir. 2016) (quoting Tobey v. Jones,
706 F.3d 379, 391 (4th Cir. 2013)) (internal quotation marks
omitted).

Here, Mr. Farrell alleges that after he opposed the

Revised Policy and otherwise supported Mrs. Farrell’s campaign,
Defendants eliminated Mr. Farrell’s Coordinator of Safety and
Security position.

(Compl. ¶ 36).

after

the

she

opposed

significantly

her

job

Revised

Mrs. Farrell alleges that
Policy,

responsibilities,

Defendants
placing

changed

her

position equivalent to a teacher’s classroom assistant.
¶ 38).

in

a

(Id.

Based on these allegations, the Court infers causation.

See Lane, 660 F.App’x at 193.

Thus, the Court concludes the

Farrells sufficiently state a claim under McVey’s third prong.
The

Court,

sufficiently

state

therefore,
a

claim

concludes
under

the

that
McVey

the
test

Farrells
for

their

surviving First Amendment claims against Cox, Brauer, and Witt.

activity and the defendants’ conduct.” Constantine, 411 F.3d at
499 (citing Suarez, 202 F.3d at 686).
Because the Court will
not be applying Constantine, the Court will apply Defendants’
argument to McVey’s third prong, which also addresses causation.
16

In

sum,

the

Court

will

dismiss

the

Farrells’

claims

to

the

extent they seek relief for claims related to their evaluations.
The Farrells’ claims that seek relief related to Mrs. Farrell’s
transfer and Mr. Farrell’s termination, however, remain against
Cox, Brauer, and Witt in their personal capacities because the
Farrells sufficiently state a claim under McVey.
C.

Procedural Due Process
The

remaining

issue

is

Mr.

Farrell’s

claim

under

the

Fourteenth Amendment’s due process clause and Article 24 of the
Maryland Declaration of Rights.

The Court concludes Mr. Farrell

sufficiently states a claim because he alleges that he was a
tenured teacher.
The Constitution protects individuals against deprivation
by the State of their liberty or property without due process of
law. U.S. Const. amends. V, XIV.
claim,

the

starting

point

protected property interest.

is

In considering any due process
identifying

a

constitutionally

Gardner v. City of Balt. Mayor,

969 F.2d 63, 68 (4th Cir. 1992); see Frall Developers, Inc. v.
Bd. of Cty. Comm’rs for Frederick Cty., No. CCB-07-2731, 2008 WL
4533910, at *8 (D.Md. Sept. 30, 2008) (“[T]he ‘starting point’
for analyzing any procedural due process claim is to determine
whether

the

plaintiff

has

a

protected

property

interest

‘sufficient to trigger federal due process guarantees.” (quoting
Scott v. Greenville Cty., 716 F.2d 1409, 1418 (4th Cir. 1983))).
17

State

or

local

government

employees

have

a

constitutionally

protected property interest in continued public employment only
if they can show a “legitimate claim of entitlement” to their
job under state or local law.

Luy v. Balt. Police Dept., 326

F.Supp.2d 682, 689 (2004) (quoting Bd. of Regents v. Roth, 408
U.S.

564,

577–78

The

employment

(1972))
rights

of

(internal
a

quotation

tenured

marks

teacher

omitted).

constitute

a

sufficient property interest to warrant due process protection.
See Kalme v. W. Va. Bd. of Regents, 539 F.2d 1346, 1348 (4th
Cir. 1976) (citing Roth, 408 U.S. 564 (1972); Slochower v. Bd.
of Educ., 350 U.S. 551 (1956)) (holding that the rights of a
tenured professor sufficiently constitutes a property interest
entitled to due process protection).
Here,

Mr.

Farrell

alleges

that

he

“was,

at

all

times

relevant to these proceedings, a tenured teacher in the ACPS
system.”

(Compl. ¶ 13).

Defendants argue that Mr. Farrell’s

assertion that he was a tenured teacher is an unsupported legal
conclusion.

Defendants further argue that Mr. Farrell fails to

allege that his tenured status carried over from his teaching
position to his position as Coordinator of Safety and Security.
Mr. Farrell argues that his assertion of possessing tenure is a
factual allegation -- rather than a legal conclusion -- and that
arguing

otherwise

amounts

to

a

agrees with Mr. Farrell.
18

factual

dispute.

The

Court

In Cleveland Board of Education v. Loudermill, 470 U.S.
532, 539

n.5 (1985),

the Supreme Court rejected an argument

similar to Defendants’.

There, the Cleveland Board of Education

argued Loudermill did not have tenure because he lied on his job
application.

Id.

The Court rejected the Cleveland Board of

Education’s argument, treating Loudermill’s tenure allegation as
a factual one.

See id.

The Court explained, inter alia, that

the Cleveland Board of Education made a “factual assumption” by
arguing Loudermill lied, an assumption “inconsistent with the
allegations of the complaint and inappropriate at this stage of
the litigation.”

Id.

Similarly, here, the Board’s assertion

that Mr. Farrell did not actually possess tenure is likewise a
factual assumption -- not a legal conclusion -- that contradicts
Mr. Farrell’s allegation that he “at all times relevant to these
proceedings” possessed tenure.

(Compl. ¶ 13).

Thus, whether

Mr.

is

appropriately

Farrell

considered

possessed

only

at

a

tenure
later

stage

Loudermill, 470 U.S. at 563 n.5.
deny

the

Motion

as

to

Mr.

a
of

question
the

litigation.

See

Accordingly, the Court will

Farrell’s

procedural

due

process

claim.10

10

For the aforementioned reasons, the Court will deny the
Motion as to Mr. Farrell’s claim under Article 24 of the
Maryland Declaration of Rights.
Generally, Article 24 due
process claims are read in pari materia with Fourteenth
Amendment due process claims, except in limited circumstances
when Article 24 may be interpreted more broadly. Ross v. Cecil
19

III. CONCLUSION
For the foregoing reasons, the Court will GRANT in part and
DENY in part Defendants’ Motion (ECF No. 6).
GRANT the Motion as to the Board.

The Court will

The Court will also GRANT the

Motion as to Cox, Brauer, and Witt in their official capacities
to

the

extent

injunctive

the

relief.

extent the Farrells

Farrells
The

seek

Court

will

damages
GRANT

or
the

retrospective
Motion

to

the

seek relief for claims related to their

evaluations.
The Court will DENY the Motion to the extent the Farrells
seek prospective injunctive relief against Cox, Brauer, and Witt
in their official capacities and to the extent the Farrells seek
relief against them in their personal capacities.

The Court

will also DENY the Motion to the extent the Farrells seek relief
related

to

termination.

Mrs.

Farrell’s

transfer

and

Mr.

Farrell’s

The Court will direct the Clerk to TERMINATE the

Board of Education of Allegany County as a Defendant in this
case.

Finally, the Court will order Cox, Brauer, and Witt to

file an Answer within fourteen days of the date of the Court’s
Order.

A separate Order follows.

Cty. Dep’t of Soc. Servs., 878 F.Supp.2d 606, 622 (D.Md. 2012)
(citing Koshko v. Haining, 921 A.2d 171, 194 n.22 (Md. 2007)).
Because the Court denies the Motion as to Mr. Farrell’s
Fourteenth Amendment due process claim, it necessarily follows
that the Court will deny the Motion as to his Article 24 claim,
which offers greater protections.
20

Entered this 21st day of March, 2017
/s/
________________________
George L. Russell, III
United States District Judge

21