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
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