Brown v. Mayor and City Council of Baltimore et al
MEMORANDUM AND ORDER GRANTING IN PART and DENYING IN PART 19 Motion to Dismiss for Failure to State a Claim or in the Alternative for Summary Judgment; DIRECTING plaintiff to arrange a telephone conference to address scheduling by 8/9/17. Signed by Judge Marvin J. Garbis on 7/26/2017. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
HOUSING AUTHORITY OF
BALTIMORE CITY, et al.
CIVIL ACTION NO. MJG-16-3616
MEMORANDUM & ORDER RE: MOTION TO DISMISS
The Court has before it Defendant Housing Authority of
Baltimore City’s Motion to Dismiss Complaint or in the
Alternative for Summary Judgment [ECF No. 19] and the materials
submitted relating thereto.
The Court finds a hearing
At times relevant hereto, Plaintiff Inshallah Brown
(“Brown”), an African-American woman, was employed by Defendant
Housing Authority of Baltimore City (“HABC”) and received
housing through HABC’s Housing Choice Voucher Program.
had problems with her landlords and problems in the work
environment that eventually resulted in the termination of her
employment and her filing the instant lawsuit.
In this lawsuit,
Brown presents claims in Six Counts, seeking to impose liability
for racial discrimination and retaliation against HABC.
By the instant motion, HABC seeks dismissal of all claims
against it pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure1 and/or Rule 12(c), or, in the alternative, for
summary judgment pursuant to Rule 56.
The Court finds the summary judgment motion premature and
disallows it without prejudice.
As discussed herein, the Court
grants dismissal of some, but not all, claims asserted in the
A. Rule 12(b)(6)
A motion to dismiss filed pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure tests the legal sufficiency of
A complaint need only contain “‘a short and plain
statement of the claim showing that 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.’”
Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted).
When evaluating a Rule 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
All “Rule” references herein are to the Federal Rules of
However, conclusory statements or “a formulaic
recitation of the elements of a cause of action will not
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.’”
(quoting Twombly, 550 U.S. at 557).
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 Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009) (alteration in original)).
The motion for judgment on the pleadings filed pursuant to
Rule 12(c) is, in the instant case, duplicative of the motion to
dismiss pursuant to Rule 12(b)(6).
See Occupy Columbia v.
Haley, 738 F.3d 107, 115 (4th Cir. 2013)(“A motion for judgment
on the pleadings under Rule 12(c) is assessed under the same
standards as a motion to dismiss under Rule 12(b)(6).”).
A. Factual Allegations2
At all times relevant hereto, HABC has been a “public body
corporate and politic” that administers the Section 8 Housing
Choice Voucher Program (“HCVP”) in Baltimore City.
Ann., Hous. & Cmty. Dev. § 15-104 (2006).
Brown is an individual who commenced her employment with
HABC on February 14, 2006, as a maintenance worker.
promoted rapidly and, in the year 2011, began working in the
Leasing Department of the HCVP until the termination of her
employment on April 15, 2015.
Complaint [ECF No. 1] ¶¶3 3,4.
1. First EEOC Charge: Race-Based Discrimination
In 2012, Brown received a voucher for subsidized housing
through the Section 8 Housing Choice Voucher Program.
She utilized the voucher and rented an apartment from Defendants
The “facts” as stated herein are as alleged by Plaintiff
and are not necessarily agreed upon by Defendants. The Court
will consider the facts as alleged in the Complaint, as well as
any incorporated documents or documents referred to in the
Complaint and relied upon by Brown in bringing this suit, such
as complaints made to the EEOC. Biospherics, Inc. v. Forbes,
Inc., 989 F. Supp. 748, 749 (D. Md. 1997), aff’d, 151 F.3d 180
(4th Cir. 1998). The Court will not consider other evidence of
matters outside of the pleadings, nor convert the motion to one
for summary judgment under Rule 56. See A. S. Abell Co. v.
Baltimore Typographical Union No. 12, 338 F.2d 190, 193 (4th
References to “¶” herein are to paragraphs of the Complaint
[ECF No. 1].
Dwayne London and Alicia London (“the Landlords”).
In June 2014, Brown filed a complaint against the Landlords
with Code Enforcement, Housing, and Community Development and
the HCVP, alleging various health and safety violations in her
Two inspectors investigated Brown’s allegations and wrote
up violations against the Landlords in June 2014.
Thereafter, and allegedly in retaliation, Landlord Dwayne
London sent emails to Brown’s managers at HABC falsely alleging
that Brown did not pay rent and that she had unauthorized
occupants and drug activity in her home.
allegations put Brown in danger of losing her job and housing
On July 15, 2014, Brown was asked to meet about these
allegations with HABC’s then Acting Administrator, Norman Young,
and the Associate Deputy Director of the HCVP, Nicholas Calace
In the meeting, Calace questioned Brown about the
Brown denied them and told Calace that she thought
that the Landlords had made false accusations against her to
retaliate for her housing complaint against them and because
Brown is an African-American woman.
¶¶ 33, 36.
Dwayne London gave Calace notice that he wanted to inspect
Brown’s house on a specific date.
Brown did not allow
inspection on the date London requested because of her work
As a result of the scheduling conflict, Calace
threatened to withhold Brown’s housing voucher and possibly
terminate her job if she did not allow London to inspect on the
day he wanted.
On September 18, 2014, Brown filed an administrative
complaint with the Maryland Commission on Civil Rights (“the
First Charge”) [ECF No. 19-5 at 6] stating therein that she
believed she had been discriminated against on the basis of her
race and describing the alleged Landlord violations and her
complaint about the way the situation was handled by Calace.
She stated “I do not believe that Caucasian employees are
treated the same way. I believe that Mr. Calace’s actions and
statements were designed to harass and intimidate me. I believe
that the only reason that I am being treated in this manner is
because of my race.”
Id. at 6.
Brown has not supplied the document that presented the
findings resulting from her First Charge or the date upon which
the findings were made.
However, she does not allege that there
was any finding of probable cause that the alleged race-based
2. Hostile Work Environment and Retaliation Allegations
Brown alleges that in 2014-2015, an assistant manager,
Dawnay L. Green-Chrisp (“Green-Chrisp”), and Brown’s supervisor,
David Harper (“Harper”), repeatedly removed files from her desk
without notice, which made it difficult for her to do her job.
Brown alleges that she “believed that her efforts to do her job
were being sabotaged by management because of her race and
because of retaliation over her filing the EEOC complaint
Both Harper and Green-Chrisp are
Christopher Monroe (“Monroe”), a white male, was a program
specialist who worked on the same files as Brown.
that Monroe often did not process his part of the files on time.
Monroe’s untimeliness caused Brown’s files to be delinquent.
Brown was disciplined and eventually terminated for not
processing files in a timely manner. ¶ 68.
Monroe was not
disciplined for his lateness and was promoted.
also had delinquent files, but was not disciplined.
Brown alleges that she received a negative performance
evaluation and was placed, without notice to her, under a
Performance Improvement Program (“PIP”) by Harper and Calace.4
Brown alleges that the HABC management sabotaged her efforts to
comply with the PIP and perform her job duties by giving her
extra work with short deadlines, failing to answer her questions
about the PIP, and not attending progress meetings with her as
Brown alleges that she did not know that she was under a
PIP until her tuition reimbursement was denied in January 2015.
specified under the PIP.
Brown filed a grievance in January 2015 regarding being
placed on the PIP, her heavy caseload, and the files being
removed from her desk.
A grievance hearing took place on
February 24, 2015. ¶ 85.
In March 2015, Brown received a warning for an unprocessed
account, which Brown attributes to someone’s removing the file
from her desk and a computer system malfunction. ¶ 95.
On April 15, 2015, Brown received notice that HABC had
terminated her employment. ¶ 102.
Brown filed another grievance against HABC through the
At her grievance hearing, Brown’s witnesses were
not allowed to testify and the hearing was stopped prematurely
because a Human Resources Officer had a meeting and because the
Union representative said the grievance would be handled in
arbitration. ¶¶ 104-05.
Brown was notified on July 10, 2015,
that the HABC Hearing Officer ruled against her grievance and
that the Union would not take her case to arbitration. ¶ 106.
On June 1, 2015, Brown filed an EEOC Complaint (“the Second
Charge”) [ECF No. 19-5 at 16] claiming that HABC had retaliated
against her for filing the First Charge.
On August 31, 2016,
she received a “right to sue letter” in response.
B. Procedural Posture
Brown filed the Complaint [ECF No. 1] on November 2, 2016,
asserting claims in six Counts:
Count I —
Racial discrimination/harassment in
violation of 42 U.S.C. § 2000e (Title VII)
Count II —
Racial discrimination in violation of 42
U.S.C. § 1981 (against HABC);
Count III —
Retaliation claim under Title VII, § 2003(e)
[sic], § 704(a), and under 42 U.S.C. § 1981
Count IV —
Violations of the Fourteenth Amendment of
the United States Constitution and Article
24 of the Maryland Declaration of Rights
(against HABC and Mayor and City Council);
Count V —
Tortious Interference With Employment or
“Economic Advantage” under Maryland Law
(against the Londons only);
Count VI —
Intentional Infliction of Emotional Distress
(against all Defendants).
By the Court’s Order Approving Notice of Voluntary
Dismissal [ECF No. 15], all claims against the Mayor and City
Council of Baltimore were dismissed from the suit.
On December 29, 2016, HABC filed the instant Motion to
Dismiss or in the Alternative, Motion for Summary Judgment [ECF
No. 19] seeking dismissal of all claims against it in the
C. Count I (Racial Discrimination, Title VII)
In Count I, Brown asserts a claim under Title VII of the
Civil Rights Act of 1964, stating that she was a victim of
racial discrimination in employment, alleging disparate
treatment and hostile work environment.
Title VII states, in relevant part:
It shall be an unlawful employment practice for an
(1) to discharge * * * or otherwise to discriminate
compensation, terms, conditions, or privileges of
. . . .
42 U.S.C. § 2000e–2(a)(1) (2012).
HABC contends that Brown’s Title VII claims in Count I must
be dismissed because they are untimely and her pleading is
inadequate to establish a claim of racial discrimination.
An aggrieved individual may bring a civil action under
Title VII within ninety days of receipt of a “right to sue”
letter from the EEOC. 42 U.S.C. § 2000e-5 (2012); 29 C.F.R.
Brown filed the First Charge [ECF No. 19-5 at 6] on or
about September 18, 2014. Compl. ¶ 35.
Brown contends that she
filed the Complaint in the instant case within ninety days of
receiving her Dismissal and Notice of Right to Sue, but she does
not specify if that relates to the First Charge.
[ECF No. 22-1] at 5-6.
She also contends that her suit is
timely as to the allegations in the First Charge because her
Second Charge for retaliation was based on her termination,
which was “a continuous violation from Calace’s race-based
threat of termination” detailed in her First EEOC Charge. Id. at
“The continuing violation theory allows for consideration
of incidents that occurred outside the time bar when those
incidents are part of a single, ongoing pattern of
discrimination, i.e., when the incidents make up part of a
hostile work environment claim.”
Holland v. Washington Homes,
Inc., 487 F.3d 208, 219 (4th Cir. 2007).
violations theory does not apply when a plaintiff alleges
Here, the actions of Brown’s supervisor Calace disclosed in
the First Charge stemmed from distinct problems with the
In the Second Charge, signed June 1, 2015, Brown
referred to “acts of retaliation” for the First Charge,
referring generally to a disputed poor performance evaluation, a
tuition reimbursement denial, being placed on a PIP, and being
discharged on April 15, 2015.
These are discrete violations
involving different actors and times, and, as alleged, not part
of a continuing violation of disparate treatment.
However, the record as it now exists does not establish
when Plaintiff received Notice from the EEOC regarding the First
Therefore, the Court shall not dismiss Count 1 as time-
barred because essential facts underlying the Defendant’s time
bar contention are not clearly established by the pleadings.
See Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993); Redding v. D.C., 828 F. Supp. 2d 272,
279 (D.D.C. 2011)(comparing ninety day bar to statute of
limitations and declining to dismiss claim when complaint did
not reveal when ninety days commenced).
2. Adequacy of Pleading
Brown asserts that she has presented plausible racial
discrimination claims in the Complaint because her factual
allegations establish disparate treatment and a hostile work
“[A]n employment discrimination plaintiff need not plead a
prima facie case of discrimination . . . to survive [a] motion
to dismiss,” but the plaintiff’s factual allegations must be
evaluated under the “ordinary rules for assessing the
sufficiency of a complaint” that require a plaintiff to state a
plausible claim that rises above the speculative level. See
McCleary-Evans v. Maryland Dep’t of Transp., State Highway
Admin., 780 F.3d 582, 584-85 (4th Cir. 2015), cert. denied, 136
S. Ct. 1162 (2016)(quoting Swierkiewicz v. Sorema N.A., 534 U.S.
506, 511, 515 (2002)).
To state a race-based discrimination claim a plaintiff must
allege facts to satisfy the cause of action created by the
statute — i.e., that she was terminated and disciplined more
severely than other employees outside the protected class
because of her race.
See McCleary-Evans, 780 F.3d at 585.
Brown alleges that she was a member of a protected group
and that she suffered adverse employment actions by being placed
on a PIP, being given warnings, and eventually being terminated
because her files were delinquent and she was not managing her
Brown alleges that her co-workers, Monroe, who is white,
and Green-Chrisp, who is African American, “both had accounts
and files that were unprocessed or processed untimely, yet
neither was placed on a PIP, given an unsatisfactory rating, or
terminated; in fact, both were promoted.” ¶ 101.
These conclusory allegations simply do not support an
inference that Brown was put on a PIP, admonished for late
files, and later terminated because of her race.
the Complaint sets forth facts showing that both white and
African-American employees were treated differently than Brown,
which leads to a reasonable inference that something unique to
Brown, outside of her race, contributed to actions taken against
her. Compare Brown v. Target Inc., No. 14-CV-0950, 2015 WL
6163609, at *7 (D. Md. Oct. 16, 2015)(holding complaint stated
sufficient Title VII claim when an African-American plaintiff
identified four younger, less qualified, white women who were
promoted over her for no given reason and alleged that there
were no black team-leaders in the store); Westmoreland v. Prince
George's Cty., Md., No. 09-CV-2453 AW, 2011 WL 3880422, at *6
(D. Md. Aug. 31, 2011)(concluding complaint adequately alleged
Title VII sex discrimination claim when plaintiff alleged she
was one of only a few African-American women in the Academy,
white males were treated differently, and she was replaced with
two white males).
Moreover, Brown’s allegations that her work
was being sabotaged by her supervisors because of her race are
The factual allegations in the Complaint do not present a
plausible claim of racial discrimination.
Accordingly, Brown has not adequately pleaded a Title VII
disparate treatment claim.
Hostile Work Environment
To establish a Title VII hostile work environment claim, a
plaintiff must allege:5
(1) Unwelcome conduct;
(2) Based on her race;
(3) Sufficiently severe or pervasive to alter the
conditions of employment and to create an abusive work
(4) Which is imputable to the employer.
See Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-84 (4th
To avoid dismissal of the
hostile work environment
claims, the Complaint must allege facts showing that “the
workplace is permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of [Brown’s] employment.”
Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal citations
The factual allegations Brown provides to support her
hostile work environment claim are (1) that she was treated
differently than a white co-worker whose files were also
delinquent, (2) that Harper and Green-Chrisp, both African
Although Plaintiff is not required to show a prima facie
case to survive a motion to dismiss, the elements of a prima
facie claim are helpful in analyzing the plausibility of the
claim as alleged.
American, repeatedly moved files off her desk and stopped
supporting her work efforts in order to sabotage her because of
her race, and (3) that on July 15, 2014, Calace threatened to
revoke her housing voucher and discipline her at work if she did
not allow the Landlords to inspect her home on a particular
The Complaint presents insufficient factual allegations to
present a plausible inference that the actions of HABC’s
employees were racially motivated.
The Complaint sets forth
actions of Brown’s co-workers and supervisors, but the alleged
actions have no racial component or discriminatory tone that
would permit the Court to infer that these actions were done
because of Brown’s race.
In fact, Brown alleges that Green-
Chrisp did not follow the procedure for notifying program
specialists when she removed files from their desks in general —
not just when she removed files from Brown’s desk. ¶ 57.
Brown’s factual allegations are speculative and conclusory
and do not set forth a plausible Title VII claim of hostile work
As for the July 15, 2014 incident, Brown has not alleged
that any non-black housing voucher holders were treated
differently than she was, or that Calace made any racial
comments or threats. Indeed, the Complaint states merely that
“Plaintiff believed” that Calace discriminated against her based
on her race. ¶ 33. “Only speculation can fill the gaps in her
complaint,” which is not sufficient under the Iqbal and Twombly.
McCleary-Evans, 780 F.3d at 586.
Accordingly, all claims in Count I shall be dismissed.
D. Count III (Retaliation, Title VII)
Title VII provides that:
It shall be an unlawful employment practice for an
employer to discriminate against any of his employees
. . . because he has made a charge [under Title VII].
42 U.S.C. § 2000e–3(a)(2012).
To establish a retaliation claim, a plaintiff must
establish (1) that she engaged in a protected activity; (2) HABC
acted adversely against her; and (3) the protected activity was
causally connected to the adverse action. See Holland, 487 F.3d
Brown has alleged that she engaged in a protected activity
by filing her First Charge on September 18, 2014.
Brown has alleged that HABC acted adversely against her in
over-scrutinizing her work,
placing her on a PIP,
failing to take into account her FMLA status,7
sabotaging her efforts to do her job satisfactorily,
treating her differently than non-black employees,
failing to provide her with due process,
not allowing her fair grievance hearings, and
Brown alleges that she took FMLA leave in or around March –
terminating her from her employment.
The Court will assume, as contended by Brown, that at
least her placement on the PIP,8 and her termination, are both
possibly actionable adverse employment actions.9
The Court concludes that, when viewing the Complaint in a
light most favorable to Brown, it presents factual allegations
adequate to present a plausible claim that these adverse
employment actions had a causal relationship to her protected
Brown filed the First Charge on September 18, 2014.
appears that HABC received Notice of the First Charge on or
about December 2, 2014. Notice [ECF No. 19-5] at 3. Brown
alleges that she received a negative performance evaluation
three weeks later, on December 24, 2014, and was placed under a
PIP in December 2014.
Brown received a written warning in March 2015 for an
unprocessed account, and only a month later, on April 15, 2015,
Brown’s employment was terminated.
In her Second Charge, Brown
stated that she was the only person to be discharged, rather
See Chowdhury v. Bair, 604 F. Supp. 2d 90, 97 (D.D.C.
2009)(finding that placing plaintiff on a PIP was a materially
adverse action to support retaliation claim). But see Givens v.
Cingular Wireless, 396 F.3d 998, 998 (8th Cir. 2005)(“[P]lacing
[plaintiff] on a ‘performance improvement plan,’ without more,
did not constitute an adverse employment action.”)
And these are the only adverse actions Brown advances in
her Opposition to the Motion to Dismiss. [ECF No. 22-1] at 8.
than suspended, after a first write up. Second Charge [ECF No.
19-5] at 16.
“[A] causal connection for purposes of demonstrating a
prima facie case exists where the employer takes adverse
employment action against an employee shortly after learning of
the protected activity.”
Price v. Thompson, 380 F.3d 209, 213
(4th Cir. 2004), abrogated on other grounds by Foster v. Univ.
of Md.-E. Shore, 787 F.3d 243 (4th Cir. 2015).
proximity between HABC’s receiving Notice of the First Charge
and Brown’s negative evaluation, contrasted with a positive
recommendation she had received about a month prior to her
filing the First Charge allows a plausible inference of
Therefore, Brown’s Title VII retaliation claim (Count III)
shall not be dismissed.
E. Section 1981 Claims (Racial Discrimination, Count II, and
Retaliation, Count III)
42 U.S.C. § 1981 provides:
(a) All persons . . . shall have the same right . . .
to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of
all laws and proceedings for the security of persons
and property as is enjoyed by white citizens . . . .
* * *
(c) The rights protected by this section are protected
against impairment by nongovernmental discrimination
and impairment under color of State law.
Brown may not plead a § 1981 racial discrimination or
retaliation claim against HABC, a state actor.
To 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.’
Thus, the § 1983 requirement that plaintiffs show an
official policy or custom of discrimination also
controls in § 1981 actions against state entities.
Dennis v. Cty. of Fairfax, 55 F.3d 151, 156 (4th Cir.
1995)(quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
733, 735-36 (1989)); see also Toomer-Frazier v. Columbia, City
of, No. 16-2096, 2017 WL 1032090, at *1 (4th Cir. Mar. 16,
2017)(confirming that a retaliation claim under § 1981 is not
available against a municipality absent an official policy or
custom of retaliation).
Brown has not pled the existence of an official policy or
custom of discrimination by HABC.
Accordingly, Brown’s § 1981 discrimination and retaliation
claims in Counts II and III shall be dismissed.10
The Court is not, in the instant decision, addressing any
issues as to the admissibility of evidence relating to these
§ 1981 claims in regard to other claims asserted by Brown.
F. Count IV (Constitutional Claims, Fourteenth Amendment and
In Count IV, Brown asserts a claim under the Fourteenth
Amendment of the United States Constitution and Article 2411 of
the Maryland Declaration of Rights
for the deprivation of Plaintiff’s rights under equal
protection of the law and due process of law because
her grievance went unaddressed and she was not
afforded a fair, adequate hearing despite controlling
law requiring remedy.
Compl. [ECF No. 1] at 18.
As a local government agency,12 HABC may be sued directly
for federal constitutional violations through 42 U.S.C § 1983.
See Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S.
658, 690 (1978).
A Monell claim against a local government must
be “based on an official policy or custom that causes a
violation of the plaintiff’s federal rights,” not on the
wrongdoings of its individual agents. Sager v. Hous. Comm’n of
Anne Arundel Cty., 855 F. Supp. 2d 524, 568 n. 56 (D. Md. 2012);
see also Walker v. Prince George’s Cty., MD, 575 F.3d 426, 431
(4th Cir. 2009).
Article 24 of the Maryland Declaration of Rights provides
“[t]hat no man ought to be taken or imprisoned . . . or deprived
of his life, liberty or property, but by the judgment of his
peers, or by the Law of the land.” Md. Const. Decl. of Rts.
Maryland housing authorities are not state agencies for
purposes of state tort and § 1983 liability. See Sager v. Hous.
Comm’n of Anne Arundel Cty., 855 F. Supp. 2d 524, 568 (D. Md.
Brown did not adequately plead constitutional claims
pursuant to § 1983, nor has she alleged that HABC maintained a
policy or practice of depriving individuals of their
Furthermore, Brown fails to allege that she was deprived of
a liberty or property interest protected by the Fourteenth
Amendment Due Process Clause or Article 24.13
An employee of a state or local government has a
employment only if he can show a “legitimate claim of
entitlement” to his job under state or local law. A
establish such an entitlement, and thus cannot claim
any Fourteenth Amendment due process protection. As a
general rule, state and local employees are considered
at-will under Maryland law.
Luy v. Baltimore Police Dep’t, 326 F. Supp. 2d 682, 689–90 (D.
Md. 2004), aff’d, 120 F. App’x 465 (4th Cir. 2005) (internal
Therefore, Brown’s claims stated in Count IV shall be
G. Count V (Tortious Interference, Only Landlords)
In Count V, Brown asserts a state law claim against the
Landlords for tortious interference with her employment.
“Article 24 is Maryland’s analogue to the Fourteenth
Amendment of the United States Constitution.” Okwa v. Harper,
757 A.2d 118, 141 (Md. 2000).
claim is not asserted against HABC and is, therefore, beyond the
scope of the instant motion.
The Court shall note, however,
that this claim against the Landlords appears to be within the
supplemental pendant and ancillary jurisdiction of the Court by
virtue of its interrelationship with the federal law claim being
asserted against HABC.
See 28 U.S.C. § 1367.
H. Count VI (State Law Claims, Intentional Infliction of
HABC contends that Brown’s claims for intentional
inflection of emotional distress (“IIED”) and violation of
Article 24 of the Maryland Declaration of Rights must be
dismissed because Brown did not comply with the Local Government
Tort Claim Act’s (“LGTCA”) notice requirement, which applies to
state constitutional and tort law claims. See Rounds v.
Maryland-Nat. Capital Park & Planning Comm’n, 109 A.3d 639, 651
(Md. 2015), reconsideration denied (Mar. 27, 2015).
The LGTCA provides, in relevant part, that:
(b)(1) [A]n action for unliquidated damages may not be
brought against a local government14 or its employees
unless the notice of the claim required by this
section is given within 180 days15 after the injury.
HABC is considered “local government” under the LGTCA. Md.
Code Ann., Cts. & Jud. Proc. § 5-301(d)(15).
The current version of the LGTCA proscribes a one-year
window in which to give notice. This amendment did not take
effect until October 1, 2015, after the events in question took
place, and the amendment applies prospectively. Local Government
Tort Claims Act—Notice Requirements and Limits On Liability, ch.
(2) The notice shall be in writing and shall state the
time, place, and cause of the injury.
Md. Code Ann., Cts. & Jud. Proc. § 5-304(b)(1) (2013).
“The notice is a condition precedent to the right to
maintain an action for damages, and compliance with the notice
provision should be alleged in the complaint as a substantive
element of the cause of action.”
Lyles v. Montgomery Cty., MD,
162 F. Supp. 2d 402, 404–05 (D. Md. 2001)(internal citations
The Complaint does not allege that Brown provided HABC with
notice, nor does Brown contest dismissal of the state law claims
on this basis.
Brown has not provided good cause for why the
notice requirement should be waived.
Accordingly, Brown’s IIED claim and Article 24 claim
against HABC shall be dismissed.
For the foregoing reasons:
Defendant HABC’s Motion to Dismiss the Complaint or in
the Alternative for Summary Judgment [ECF No. 19] is
GRANTED IN PART and DENIED IN PART.
a. The Court herby dismisses all claims in Counts I,
II, IV, and VI against HABC.
131, § 2, 2015 Md. Laws (H.B. 113).
b. There remains pending the retaliation claims
against HABC in Count III and the claims against
the Landlords in Count V.
2. By August 9, Plaintiff shall arrange a telephone
conference with the Court and Defendants’ counsel to
address the scheduling of further proceedings,
including trial, of the remaining claims.
SO ORDERED, this Wednesday, July 26, 2017.
Marvin J. Garbis
United States District Judge
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