Young v. Housing Authority Of Baltimore City

Filing 29

MEMORANDUM AND ORDER granting in part and denying in part as set forth Defendant Housing Authority of Baltimore City's 20 Renewed Motion to Dismiss as Amended or in that alternative for Summary Judgment; granting in part and denying in part as set forth Defendant Wade Johnson's 23 Motion to Dismiss for Failure to State a Claim and/or for Summary Judgment; granting Plaintiff's 21 Request for Discovery; setting deadline Plaintiff shall arrange a conference regarding further proceedings inthe case. Signed by Judge Marvin J. Garbis on 11/13/2017. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NADINE LEE YOUNG

*

Plaintiff,

*

vs.

* CIVIL ACTION NO. MJG-17-713

HOUSING AUTHORITY OF
BALTIMORE CITY, ET AL.

*
*

Defendants
*

*

*

*

*

*

*

*

*

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT
The Court has before it Defendant Housing Authority of
Baltimore City’s Renewed Motion to Dismiss Complaint As Amended
or In the Alternative For Summary Judgment [ECF No. 20],
Defendant, Wade Johnson’s, Motion to Dismiss for Failure to
State A Claim and/or for Summary Judgment [ECF No. 23], and the
materials submitted relating thereto.

The Court finds that a

hearing is not necessary.

I.

BACKGROUND
A.

Asserted Claims

Plaintiff Nadine Lee Young (“Plaintiff” or “Young”), an
employee of Defendant Housing Authority of Baltimore City
(“HABC”) was, during a portion of her employment, supervised by
Defendant Wade Johnson (“Johnson”).
1

Young alleges that she was sexually harassed by Johnson
during her employment.

She asserts claims against both

Defendants for alleged violations of Title VII of the Civil
Rights Act, the Maryland Fair Employment Practices Act, the Due
Process Clause of the U.S. Constitution and the Maryland
Constitution, and the Equal Protection Clause of the U.S.
Constitution and Maryland Constitution.

She alleges that HABC

negligently hired, trained, retained, and supervised Johnson,
and that HABC is liable under a theory of negligent entrustment.
She also asserts an assault claim against Johnson.

B. Facts As Alleged by Young1
Young has been employed by HABC since 2003 as a maintenance
worker.

Amended Complaint (“AC”) ¶ 12, ECF No. 11-4.

In 2012, Young went to the Duncanwood facility of HABC to
receive some equipment for work and met Defendant Johnson.

At

the time, Johnson called her “Miss Dimples” in a “very
suggestive” manner.

AC ¶ 13; Aff. Young ¶ 4, ECF No. 11-2.

In or about October 2015, Young worked at the Gilmor Homes
facility of HABC.

Johnson was “occasionally” at Gilmor Homes,

and Young alleges that his sexual harassment “became worse” in

1

Defendants do not agree with many of Young’s factual
allegations.
2

the following months.

AC ¶ 15.

He became more “aggressive,”

and every time he saw her he “took the opportunity to make
sexually suggestive or lewd comments or propositions to [her].”
Aff. Young ¶ 6, ECF No. 11-2.
In early 2016, Johnson officially became Young’s supervisor
at Gilmor Homes, and his sexual harassment became “a daily
problem.”

AC ¶ 17.

Starting at the end of 2015, Johnson “would

repeatedly come to Ms. Young’s desk and whisper lewd comments
into her ear and ask to take her on dates.”
Aff. Young ¶ 9, ECF No. 11-2.

Id. ¶ 17.

See also

He would “‘talk with his hands’”

in such a manner that he would place his hands on Ms. Young
while making such comments.
11-2.

AC ¶ 17, Aff. Young ¶ 12, ECF No.

Frequently, he would “invade Ms. Young’s personal space”

by coming into her small file room while she was working.
18.

See also Aff. Young ¶ 11, ECF No. 11-2.

AC ¶

During one of

these times, Johnson “reach[ed] over her body with his arms on
either side of her” when showing her something on the computer.
AC ¶ 19, Aff. Young ¶ 13, ECF No. 11-2.

Young feared that

Johnson would “one day inappropriately touch her in a sexual
manner.”

AC ¶ 20.

See also Aff. Young ¶ 19, ECF No. 11-2.

On a date allegedly near his birthday, Johnson offered to
take Young and another employee on a cruise, stating that he

3

“could make wonders happen on that cruise.”

Id. ¶ 21.

See also

Aff. Young ¶ 15, ECF No. 11-2.
Sometimes—no specific time was alleged—Johnson would ask
Young if she was “ready,” which she understood to mean “ready
for a sexual encounter with him.”
¶ 7, ECF No. 11-2.
another employee.

AC ¶ 22.

See also Aff. Young

This occurred on one occasion in front of
Aff. Young ¶ 17, ECF No. 11-2.

On or about February 2016, Johnson told Young that “I would
love to taste that.”

AC ¶ 23.

Later that month, Young took

time off work for surgery, and upon her return on April 28,
2016, Johnson told her that she would be working at the Perkins
Project (another HABC facility) instead of Gilmor Homes.
24.

Id. ¶

He gave her his phone number and asked her to call him,

which Young “understood to mean that she should contact him for
a date or sexual encounter.”

Id.2

Young alleges that Johnson frequently engaged in this type
of activity and may have been the subject of complaints from
other HABC employees in the past.

AC ¶¶ 14, 16, 26, 29, 35.

See also Aff. Dawson, ECF No. 11-3, Aff. Young ¶ 16, ECF No. 112.

2

Young alleges that Johnson had a “previous history of

The April 28, 2016 date does not appear in the Amended
Complaint. Rather, Young filed an additional affidavit stating
that this last interaction she had with Defendant Johnson was on
April 28, 2016. Supp. Aff. Young ¶ 4, ECF No. 21-1.
4

workplace sexual harassment,” was “fired from a previous job in
the public schools for sexual harassment,” and “had pending
sexual harassment cases at the Health Department.”

AC ¶ 33.

Young alleges that, at some unspecified time “early on” in
her interactions with Johnson, she contacted her Union
representatives regarding the sexual harassment.
Young ¶ 21, ECF No. 11-2.

Id. ¶ 25, Aff.

She also spoke to her supervisor,

Vernelle Gibson, in May 2016 regarding Johnson’s behavior.
Following this discussion, a hearing was held and Johnson was
terminated from his HABC employment.

AC ¶ 28.

Following

Johnson’s termination, Young returned to work at Gilmor Homes.
Id. ¶ 39.
Young filed her EEOC Charge of Discrimination on December
8, 2016.

Def.’s Mot. Ex. 2A at 70, ECF No. 20-7.

The EEOC

issued a Dismissal and Notice of Rights letter on December 16,
2016.

AC ¶ 30.

Young filed the Complaint in the instant case

on March 15, 2017.

ECF No. 1.

On May 18, 2017, she filed the

Amended Complaint (“AC”) [ECF No. 11], asserting ten causes of
action:
Title

Count
I

Civil Rights Act Hostile Environment Sexual Harassment

II

Civil Rights Act Quid Pro Quo Sexual Harassment

5

III

Civil Rights Act Due Process Claim

IV

Civil Rights Act Equal Protection Claim

V
VI

Sexual Harassment Under Maryland Fair Employment
Practices Act Code § 20-606: Hostile Work Environment
and Quid Pro Quo
Maryland Constitution Article 24 Due Process Claim

VII

Maryland Constitution Article 24 Equal Protection Claim

VIII

Negligent Hiring, Training, Retention & Supervision

IX

Negligent Entrustment

X

Assault

II.

LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT
Both Defendants have filed motions to dismiss, or in the

alternative, motions for summary judgment.

Both sides have also

submitted materials in addition to the Amended Complaint
regarding these motions.

The Court has not excluded these

materials from consideration.
When “matters outside the pleading are presented to and not
excluded by the court, the [12(b)(6)] motion shall be treated as
one for summary judgment and disposed of as provided in Rule
56.”

Laughlin v. Metro. Washington Airports Auth., 149 F.3d

253, 260–61 (4th Cir. 1998); Fed. R. Civ. P. 12(d).

6

Because the Court has relied on supplemental affidavits and
documents filed outside of the pleadings, it will treat the
pending motions as motions for summary judgment.
A motion for summary judgment shall be granted if the
pleadings and supporting documents “show[] 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).
The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement:

[t]he

Court may look at the evidence presented in regard to a motion
for summary judgment through the non-movant’s rose-colored
glasses, but must view it realistically.

After so doing, the

essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.

See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).

Thus,

in order to defeat a motion for summary judgment, “the party
opposing the motion must present evidence of specific facts from
which the finder of fact could reasonably find for him or her.”

7

Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md. 1999)
(emphasis added).
When evaluating a motion for summary judgment, the Court
must bear in mind that the “[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole,
which are designed ‘to secure the just, speedy and inexpensive
determination of every action.’”

Celotex, 477 U.S. at 327

(quoting Fed. R. Civ. P. 1).

III.

DISCUSSION
A. Sexual Harassment: Title VII and the Maryland Fair
Employment Practices Act
In Counts I, II and V, Plaintiff asserts claims for sexual

harassment under Title VII and the Maryland Fair Employment
Practices Act (“FEPA”).

She contends that Defendant Johnson

subjected her to, and Defendant HABC allowed, quid pro quo
sexual harassment and a hostile work environment.3
In response, Defendants argue that Young (1) failed to
timely exhaust her administrative remedies, (2) failed to plead
a claim for sexual harassment upon which relief can be granted,
3

Plaintiff may assert Title VII claims against Defendant HABC
but not Defendant Johnson. Lewis v. Baltimore City Bd. of Sch.
Commissioners, 187 F. Supp. 3d 588, 594 (D. Md. 2016)
(“Individuals cannot be held liable under Title VII.”).
8

and (3) that HABC is protected from liability by an affirmative
defense that it exercised reasonable care to prevent and
promptly correct any sexually harassing behavior.

i. Exhaustion of Administrative Remedies
Defendants bring several procedural challenges to
Plaintiff’s claims, arguing that Plaintiff did not file her EEOC
charge on time, that Plaintiff’s EEOC Charge does not cover the
actions now alleged in the Amended Complaint, that Plaintiff’s
claims are barred by the statute of limitations under FEPA, and
that Plaintiff did not give proper Local Government Tort Claims
Act (“LGTCA”) notice for some of the claims.
1. Timing of EEOC Charge
To exhaust her administrative remedies before filing a
Title VII action, Young must first properly “bring[] a charge
with the EEOC.”

Smith v. First Union Nat. Bank, 202 F.3d 234,

247 (4th Cir. 2000).

Defendant argues that Young’s EEOC Charge

was not timely filed.
Plaintiff filed her EEOC Charge against Defendant Johnson
on December 8, 2016.

Def.’s Mot. Ex. 2A at 70, ECF No. 20-7.

Defendants contend that any alleged sexual harassment incident
occurred more than 300 days prior thereto, i.e., before February
9

12, 2016.

If so, the Charge would be outside of the 300 day

time limit for EEOC filing and would be time barred.4
In the Amended Complaint, Plaintiff alleges that in
February 2016, Wade Johnson stated to her “I would love to taste
that.”

AC ¶ 23.

This is consistent with her EEOC Charge, which

alleges that she was “subjected to sexual harassment by [her]
Supervisor Wade Johnson” “in or about February 2016.”

Def.’s

Mot. Ex. 2A at 70, ECF No. 20-7.
Because Young has not specified the exact date in February
2016 of the alleged incident, the record does not show whether
the EEOC Charge was, or was not, filed within 300 days of the
alleged statement.

Hence, on the current record, the Court can

only conclude that based on Young’s allegations it is possible
that the December 8, 2016 EEOC filing was timely, but recognizes
the existence of a factual issue regarding the date.5

4

Generally, the time limit for filing EEOC Charges is 180 days.
42 U.S.C. § 2000e–5(e)(1). However, this period is extended to
300 days in a deferral state. See Valderrama v. Honeywell Tech.
Sols., Inc., 473 F. Supp. 2d 658, 662 (D. Md. 2007), aff'd, 267
F. App'x 256 (4th Cir. 2008). Maryland is one of these deferral
states; therefore, the 300 day limit applies to Maryland
plaintiffs. See also Prelich v. Med. Res., Inc., 813 F. Supp.
2d 654, 661–62 (D. Md. 2011).
5

Plaintiff has also alleged an April 2016 incident in which
Defendant Johnson flirtatiously gave Plaintiff his phone number
and asked her to use it. Supp. Aff. Young ¶¶ 4-6, ECF No. 21-1.
However, this incident was not specified in the EEOC Charge and
may not be used to prove that the Charge was timely filed.
10

Hence, the Court will assume for present purposes that the
EEOC Charge was timely filed.

If the alleged February 2016

incident is within 300 days of Plaintiff’s EEOC Charge, Young’s
claim that the incident was part of a continuing violation
including other alleged incidents presents a plausible claim
that evidence of the alleged related sexual harassment incidents
could be considered in connection with her hostile work
environment claim.

See Gilliam v. S.C. Dep’t of Juvenile

Justice, 474 F.3d 134, 140 (4th Cir. 2007) (Under the continuing
violation doctrine, “a hostile work environment claim ‘may
appropriately extend ... to acts that occurred before the
relevant limitations period [if] the hostile work environment
continued within the limitations period as well.’”).
On the current state of the record, Defendants are not
entitled to summary judgment dismissing Young’s sexual
harassment claims on this basis.

2. Content of EEOC Charge
Defendants argue that the Amended Complaint asserts claims
that were not included in the EEOC Charge.

Specifically, the

EEOC Charge states that Johnson said he wanted to “[t]aste this”
and would “rock [her] world” if Young went on a cruise with him,
Def.’s Mot. Ex. 2A at 70, ECF No. 20-7, while her Amended
11

Complaint contains additional allegations of comments and
actions that Johnson took to sexually harass her.
The Court finds Plaintiff’s EEOC Charge is broad enough to
encompass the more specific allegations that were made in her
Amended Complaint.

In her EEOC Charge, she states that “I was

subjected to sexual harassment by my Supervisor Wade Johnson.”
Def.’s Mot. Ex. 2A at 70, ECF No. 20-7.

She listed two specific

incidents as examples, but in context her sexual harassment
charge is not reasonably limited to the two specifically stated
examples.

See Sydnor v. Fairfax Cty., Va., 681 F.3d 591, 594

(4th Cir. 2012) (explaining that the exhaustion requirement
should not become a “tripwire for hapless plaintiffs” and
understanding that the EEOC charges are initiated by laypersons,
not lawyers).

3. Statute of Limitations under FEPA
Defendants argue that any claim under Maryland’s FEPA
statute is time-barred because it must have been filed within
six months of the date on which the alleged discriminatory act
occurred.
The FEPA statute provides several different routes for
dispute resolution.

A plaintiff seeking to file a complaint

with the Maryland Commission on Human Relations (“MCHR”) has six
12

months from the alleged discriminatory act to do so.

See Md.

Code Ann., State Gov’t § 20-1004; Md. Code Regs. 14.03.01.03.
However, a plaintiff electing to bring a civil action has
possible relief from the six month rule under Md. Code Ann.,
State Gov’t § 20-1013, which states:
[A] complainant may bring a civil action
against the respondent alleging an unlawful
employment practice, if:
(1) the complainant initially filed a timely
administrative charge or a complaint under
federal, State, or local law alleging an
unlawful employment practice by the
respondent;
(2) at least 180 days have elapsed since the
filing of the administrative charge or
complaint; and
(3) the civil action is filed within 2 years
after the alleged unlawful employment
practice occurred.
Md. Code Ann., State Gov’t § 20-1013.
This provision effectively provides a two-year statute of
limitations for FEPA civil actions.

See Templeton v. First

Tennessee Bank, N.A., No. CIV. WDQ-09-3280, 2013 WL 3873180, at
*7 (D. Md. July 24, 2013) (finding a Title 20 retaliation claim
not time-barred because it was filed within two years after the
alleged discrimination occurred); Howerton v. Bd. of Educ. of
Prince George's Cty., No. CIV.A. TDC-14-0242, 2015 WL 4994536,
at *7 (D. Md. Aug. 19, 2015) (“Maryland law applies a two-year
13

statute of limitations for employment discrimination actions,”
citing Md. Code Ann., State Gov’t § 20–1013(a)(3)); Davenport v.
Maryland, 38 F. Supp. 3d 679, 691 (D. Md. 2014) (“Section 20 –
1013 of the State Government Article of the Maryland Code
requires that a civil action alleging ‘an unlawful employment
practice’ be filed ‘within 2 years after the alleged unlawful
employment practice occurred’”).
In the context of the present discussion, the Court assumes
that Young timely filed her EEOC Charge so that she has “filed a
timely administrative charge” “under federal . . . law alleging
an unlawful employment practice by the respondent.”
Ann., State Gov’t § 20-1013.

Md. Code

She commenced her action within

two years of the alleged sexual harassment incidents.
Her EEOC Charge was filed on December 8, 2016, and she was
required to wait until June 6, 2017 to file her civil action.
She filed the Complaint on March 15, 2017, and an amended
Complaint on May 17, 2017, both of which were filed too early,
i.e., within 180 days of the alleged torts.

However, the

requisite 180 days have passed as of the time of this Memorandum
& Order.

The Court finds that, in the context of the instant

14

case, no purpose would be served by dismissing the Complaint and
Amended Complaint and requiring refiling.6

4. LGTCA Notice
Under Maryland’s LGTCA, “an action for unliquidated damages
may not be brought against a local government or its employees
unless the notice of the claim required by this section is given
within 1 year after the injury.”

Md. Code Ann., Cts. & Jud.

Proc. § 5-304.
Defendants contend that Plaintiff’s state law claims are
barred because they did not provide the required pre-filing
notice to HABC.7

Plaintiffs argue that the Complaint itself is

the notice and seem to imply that the date of the Amended
Complaint is the actual start of the action.

Pl.’s Opp. at 28,

ECF No. 21.

6

Moreover, the 180 day waiting period created by the Maryland
statute is properly viewed in light of the analogous 180 day
waiting period for federal actions. Courts in this jurisdiction
have held that the 180 day waiting period provides “prompt
access to the courts in discrimination disputes, a purpose that
is so important that the administrative process will be given
only a finite time to deal along with a given dispute.” Sillah
v. Burwell, 244 F. Supp. 3d 499, 515–16 (D. Md. 2017). In other
words, the 180 day waiting period was meant to give the relevant
agency an opportunity to act. Here, the EEOC has already issued
a Notice of Rights letter, so that purpose is already served.
7

HABC constitutes a “local government” under the LGTCA.
Code Ann., Cts. & Jud. Proc. § 5-301(d)(15).
15

Md.

“It is a longstanding principle of Maryland jurisprudence
that the LGTCA notice provision is a condition precedent to
maintaining an action directly against a local government or its
employees.”

Hansen v. City of Laurel, 420 Md. 670, 682 (2011).

Moreover, this notice requirement must be pled in the Complaint
or Amended Complaint.

Id. “If a plaintiff omits this step, he

or she is subject to a motion to dismiss, for instance, based on
a failure to state a claim upon which relief can be granted.”
Id.
Plaintiff did not plead compliance with the notice
requirement in her Complaint or Amended Complaint.

Her

attempted characterization of the Complaint as the notice is not
successful.

The statute explicitly requires notice prior to the

institution of a civil action.
However, the statute also provides that “unless the
defendant can affirmatively show that its defense has been
prejudiced by lack of required notice, upon motion and for good
cause shown the court may entertain the suit even though the
required notice was not given.”

Md. Code Ann., Cts. & Jud.

Proc. § 5-304(d) (emphasis added).
The Court cannot now excuse the required pre-filing notice
and must now dismiss the claims requiring LGTCA notice as to
HABC, recognizing that they may be reinstated should Young
16

prevail on a motion pursuant to § 5-304(d).

See Rounds v.

Maryland-Nat. Capital Park & Planning Comm’n, 441 Md. 621, 645
(2015), reconsideration denied (Mar. 27, 2015) (“Where a
plaintiff fails to comply with the notice requirement, it is the
plaintiff's burden to demonstrate ‘good cause.’”).
Accordingly, the Court shall dismiss−as to HABC−Young’s
state law claims requiring LGTCA notice.8

This is without

prejudice to Young’s ability to seek reinstatement of some of
those claims pursuant to a § 5-304(d) motion.

The Court will

also address the substantive defenses to the LGTCA claims
asserted by Defendants.

ii. Quid Pro Quo Liability
Plaintiff has alleged quid pro quo liability under Counts
II (Title VII) and V (Maryland FEPA).9

Showing quid pro quo

liability requires the plaintiff to prove five elements, that:

8

This includes Plaintiff’s Counts V through IX as asserted
against HABC. The “LGTCA notice requirement applies to both
state constitutional and non-constitutional tort claims for
unliquidated damages.” Rounds, 441 Md. at 636.
9

Maryland’s FEPA “is the state law analogue of Title VII,” and
has been interpreted according to the same principles. McCray
v. Maryland Dep’t of Transp., No. CIV.A. ELH-11-3732, 2014 WL
4660793, at *14 (D. Md. Sept. 16, 2014); Nam v. 2012 Inc., No.
CV DKC 15-1931, 2016 WL 107198, at *4.
17

1.
The employee belongs to a protected
group.
2.
The employee was subject to unwelcome
sexual harassment.
3.
The harassment complained of was based
upon sex.
4.
The employee’s reaction to the
harassment affected tangible aspects of the
employee's compensation, terms, conditions,
or privileges of employment . . . .
5.
The employer . . . knew or should have
known of the harassment and took no
effective remedial action.
Okoli v. City of Baltimore, 648 F.3d 216, 222 (4th Cir. 2011)
(internal citations omitted) (emphasis in original).

On Element

4, “[t]he acceptance or rejection of the harassment must be an
express or implied condition to the receipt of a job benefit or
cause of a tangible job detriment to create liability,” and “the
employee must prove that she was deprived of a job benefit which
she was otherwise qualified to receive because of the employer's
use of a prohibited criterion in making the employment
decision.”

Id.

The Amended Complaint does not include allegations
sufficient to present a plausible claim that the fourth element
of the tort can be established.

There are no allegations

presenting a plausible claim that any reaction Young had towards
Johnson’s advances affected “tangible aspects” of her
18

employment, or that any job benefit or job detriment depended on
her acceptance or rejection of the harassment.
Accordingly, Plaintiff’s sexual harassment claims under
quid pro quo liability, if reinstated, would be dismissed.

iii. Hostile Work Environment Liability
To establish a hostile work environment sexual harassment
claim, a plaintiff must prove that:
(1)

the subject conduct was unwelcome;

(2)

it was based on the sex of the
plaintiff;

(3)

it was sufficiently severe or pervasive
to alter the plaintiff's conditions of
employment and to create an abusive
work environment; and

(4)

it was imputable on some factual basis
to the employer.

Spicer v. Com. of Va., Dep't of Corr., 66 F.3d 705, 710 (4th
Cir. 1995).
In assessing whether a work environment is objectively
hostile, it is necessary to consider “‘all the circumstances,’
including ‘the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.’”
19

Anderson v.

G.D.C., Inc., 281 F.3d 452, 459 (4th Cir. 2002).

Moreover,

“[o]n the fourth element for establishing employer liability,
[the Fourth Circuit has] repeatedly held that an employer cannot
be held liable for isolated remarks of its employees unless the
employer ‘knew or should have known of the harassment, and
took no effectual action to correct the situation.’”

Spicer, 66

F.3d at 710.
Young’s hostile work environment claim turns on the last
two elements:

whether the harassment was “sufficiently severe

or pervasive” as to alter Young’s conditions of employment, and
whether the harassment was imputable to HABC.
Young makes some generalized allegations of sexual
harassment occurring on a daily basis or being a “daily
problem.”

AC ¶ 17.

She also makes allegations of specific

incidents of sexual harassment, such as comments made by Johnson
about how he “could make wonders happen” on a hypothetical
cruise he wanted to take her on, about whether Young was “ready”
for him, and a statement about how he “would love to taste
that.”

AC ¶¶ 21-23.

These statements are of a sexual nature

and the allegations present a plausible claim that they rise to
the level of “sufficiently severe or pervasive” to warrant
liability.

Beyond an allegation that Johnson would “talk with

his hands” and “place his hands on Ms. Young” when making such
20

comments, she has not alleged any inappropriate physical
contact.

AC ¶ 17, Aff. Young ¶ 12, ECF No. 11-2.

She does,

however, allege that she had a fear that inappropriate physical
contact could happen due to these frequent comments and
advances.

AC ¶ 20 (alleging Young feared that Mr. Johnson would

“one day inappropriately touch her in a sexual manner.”).

When

considering all the circumstances, it is possible that a jury
could find that the alleged incidents, in conjunction with
Young’s broader allegations of “daily” harassment, could be
found to meet the “sufficiently severe or pervasive” standard.
To be held liable, HABC had to “know” or “should have
known” of the harassment and take “no effectual action to
correct the situation.”

Spicer, 66 F.3d at 710.

Here, Young

suggests that because Johnson’s comments and actions were well
known around the office, HABC as an entity must have known of
his actions as well.

AC ¶¶ 33-34.

She also states that she

reported this behavior to her union representative.

AC ¶¶ 25-

28.
On the other hand, an affidavit filed on behalf of HABC by
Anna L. Armstrong states that “the first complaint regarding
Wade Johnson HABC received was by Latanya Dawson on Thursday,
June 9, 2016.”

Aff. Armstrong ¶ 5, ECF No. 20-6.

When Dawson

made that complaint, Johnson was relocated and terminated
21

shortly thereafter.
conflict.

The parties’ factual accounts are in

The question of what, if anything, HABC knew about

the harassment is a question properly left for the jury.
Accordingly, Plaintiff’s sexual harassment claims under
hostile work environment liability would not be resolved on a
summary judgment motion.

iv. Affirmative Defense
“[A] defending employer may raise an affirmative defense
to liability or damages” on a sexual harassment and hostile work
environment claim.
775, 777–78 (1998).

Faragher v. City of Boca Raton, 524 U.S.
The defense requires the employer to prove:

(a) that the employer exercised reasonable
care to prevent and correct promptly any
sexually harassing behavior, and
(b) that the plaintiff employee unreasonably
failed to take advantage of any preventive
or corrective opportunities provided by the
employer or to avoid harm otherwise.
Id.

As to the first element, HABC argues that it had

promulgated three separate policies on sexual harassment (i.e.,
a Code of Conduct, a Sexual Harassment Policy, and an Employment
Related Investigations Policy).
20-3.

Aff. Jan Goslee at ¶ 4, ECF No.

The Code of Conduct was provided to both Young and

Johnson.

Def.’s Mot. Exs. 2A and 2D, ECF Nos. 20-7 and 20-10.
22

Moreover, HABC argues, its response upon learning of Johnson’s
harassing behavior was swift.

An affidavit filed by Anna L.

Armstrong states that “the first complaint regarding Wade
Johnson HABC received was by Latanya Dawson on Thursday, June 9,
2016.”

Aff. Armstrong ¶ 6, ECF No. 20-6.

Five days later,

HABC’s Human Resources initiated its investigations into
Johnson’s actions, and within two weeks Johnson was transferred
to a different facility and subsequently terminated.
7-8.

Id. at ¶¶

Plaintiff argues that the mere existence of sexual

harassment policies does not meet the employer’s burden under
this first element.
As to the second element, Defendant argues that Young never
used the provided anonymous hotline for reporting sexual
harassment and “never brought her concerns to the attention of
the Human Resources Director, Internal Audits and Investigations
Unit, General Counsel, Chief Financial officer, Controller, HABC
Manager, or the employee’s Supervisor or Division Director.”
Def.’s Mot. at 19, ECF No. 20-2.

Young argues that her actions

in not reporting were reasonable because she “was afraid of
retaliation.”

Pl.’s Opp. at 17, ECF No. 21.

She also alleges

in her Complaint that she spoke to her union representative and
her supervisor about the sexual harassment.
No. 11-4.
23

AC ¶¶ 25-28, ECF

The Court finds that HABC has adequately alleged its
affirmative defense at this stage of the litigation.

It is true

that a single policy may not be determinative of an employer’s
reasonable action:
We recognize that an employer can meet its
burden as to the first element without such
a policy, and that mere promulgation of such
a policy may well fail to satisfy the
employer’s burden. The employer must act
reasonably, and thus any policy adopted by
the employer must be both reasonably
designed and reasonably effectual.
Brown v. Perry, 184 F.3d 388, 396 (4th Cir. 1999) (internal
citations omitted).

Here, HABC had promulgated three separate

policies addressing sexual harassment, and Young and Johnson
were each aware of at least one of them.

Yet it is debatable

whether the policies themselves were reasonably designed or
reasonably effectual.

HABC has also submitted an affidavit that

the first time it was on notice of Johnson’s behavior was on
June 9, 2016, and it argues it took reasonably rapid actions to
remove Johnson to a different facility.
No. 20-6.

Aff. Armstrong ¶ 6, ECF

There is a dispute as to what HABC knew of Johnson’s

actions before June 9, 2016.
A dispute of material fact also exists as to the second
element of HABC’s affirmative defense.

Plaintiff alleges in her

Complaint that she spoke to her union representative and her
24

supervisor about the sexual harassment but at the same time
states that she was afraid of reporting the actions.
28, ECF No. 11-4; Pl.’s Opp. at 17, ECF No. 21.

AC ¶¶ 25-

However, Young

was well aware of HABC’s policies and had “filed at least four
prior charges with the Baltimore Community Relations Commission”
during her employment with HABC.
20-6.

Aff. Armstrong ¶ 4, ECF No.

Yet, she did not file her EEOC Charge until months later

and did not use the anonymous Inspector General hotline that was
provided for this purpose.

Def.’s Mot. Ex. 1A at 15, ECF No.

20-4.
There are questions of fact requiring resolution to
determine whether HABC’s policies were reasonably effective and
whether Young reasonably took steps to avail herself of any
employer protections.

HABC’s affirmative defense is pending.

B. Due Process
Young alleges Due Process violations under the U.S.
Constitution and the Maryland Constitution.

Specifically, the

Amended Complaint alleges a substantive due process violation
based on Plaintiff’s “right to be secure in her person in the
workplace,”10 AC ¶¶ 69-70, which Plaintiff understands to be a

10

Although the Plaintiff makes the conclusory statement that
“[t]here are no adequate procedural safeguards in place to
25

right to “bodily integrity,” Pl.’s Opp. at 23, ECF No. 21.
However, the cases supporting a due process right to
“bodily integrity” cited by Plaintiff involved actual sexual
assault or physical harm.

See, e.g., Doe v. Taylor Indep. Sch.

Dist., 15 F.3d 443 (5th Cir. 1994) (finding a violation of
substantive due process when schoolchild was sexually molested
by her teacher); Stoneking v. Bradford Area Sch. Dist., 882 F.2d
720, 727 (3d Cir. 1989) (noting a student’s right to be free
from sexual assaults by his or her teachers); Williams v.
Wilzack, 319 Md. 485, 510 (1990) (finding a violation of
procedural due process protections when a mentally competent
adult involuntarily admitted to a psychiatric institution was
forcibly administered antipsychotic medication).

See also

Washington v. Glucksberg, 521 U.S. 702, 778 (1997) (discussing
the liberty interest in bodily integrity in the context of
decisions regarding termination of artificial life support).
Here, the Plaintiff at most alleges that Johnson would
“‘talk with his hands’” in such a manner that he would place his
hands on Ms. Young while making harassing comments.
Aff. Young ¶ 12, ECF No. 11-2.

AC ¶ 17,

Plaintiff alleges that one time,

Johnson “reach[ed] over her body with his arms on either side of

prevent [the alleged] abuse,” the Amended Complaint does not
allege a lack of procedural due process. AC ¶ 70.
26

her” when showing her something on the computer.
Young ¶ 13, ECF No. 11-2.

AC ¶ 19, Aff.

These facts simply do not allege a

due process violation of bodily integrity.

Accordingly,

Defendants are entitled to summary judgment on Plaintiff’s
constitutional due process claims.

C. Equal Protection
Plaintiff alleges in Counts IV and VII that Defendants
violated her right to equal protection under both the U.S.
Constitution and the Maryland Constitution.

“Although

the Maryland Constitution contains no equal protection clause,
‘the concept of equal protection is embodied in the due process
requirement of Article 24’ of the Maryland Declaration of
Rights.”

Blue v. Arrington, 221 Md. App. 308, 315 (2015).

The Fourth Circuit has explained that “intentional sexual
harassment of employees by persons acting under color of state
law violates the Fourteenth Amendment [equal protection clause]
and is actionable under § 1983.”
524, 529 (4th Cir. 1994).

Beardsley v. Webb, 30 F.3d

Courts may apply Title VII standards

to this type of equal protection claim.

Id.

See also Riley v.

Buckner, 1 F. App’x 130, 133 (4th Cir. 2001) (“Our precedent
applies the standards developed for hostile work environment
27

claims under Title VII to claims for sexual harassment under
section 1983.”).
Plaintiff alleges a violation of her right to equal
protection.

She alleges she was “singled out for harassment” by

the defendants on the basis of her sex and that there is no
rational, legitimate, or compelling state interest in the
harassment.

AC ¶¶ 72-75.

The Court will treat this claim as asserting a Section 1983
violation of the equal protection clause and has determined that
there is a genuine dispute of material fact as to Defendant
HABC’s potential hostile work environment liability.
Accordingly, Plaintiff’s equal protection claims against HABC
and Johnson remain pending.11

D. Assault
In Maryland, assault is defined as an “attempt to cause a
harmful or offensive contact with another or to cause an
apprehension of such contact.”

Miles v. DaVita Rx, LLC, 962 F.

Supp. 2d 825, 834 (D. Md. 2013).
11

Although Defendant Johnson may not be liable in his personal
capacity under Title VII, he may be personally liable under a
Section 1983 claim alleging a violation of equal protection.
See Beardsley v. Webb, 30 F.3d at 526-27 (noting that Title VII
is not the sole remedy for sexual harassment and upholding
district court’s decision not to dismiss similar claims against
supervisor).
28

“An action for assault, libel, or slander shall be filed
within one year from the date it accrues.”
& Jud. Proc. § 5-105.

Md. Code Ann., Cts.

The Complaint was filed on March 15,

2017, and contained no assault claim.

See ECF No. 1.

Rather,

the assault claim was added in the Amended Complaint on May 18,
2017.

ECF No. 11.

Even assuming that the claim relates back to

the original Complaint, Young’s assault claim is barred if it
occurred before March 16, 2016.
In the Amended Complaint, Plaintiff alleges that the
combination of the “constant sexually inappropriate commentary”
and the “occasional unwanted touching and invasion of
Plaintiff’s personal space” placed Young in apprehension that
Johnson would “at any time” touch her in a sexually
inappropriate manner.

AC ¶ 100.

A complaint is required to allege more than generalized
statements about “constant” or “occasional” actions that give
rise to a claim for assault.

It 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).
The Amended Complaint only states that Young took medical
leave in February 2016 and upon her return was transferred to a
different facility, away from Johnson.
29

Young’s supplemental

affidavit states that the last interaction she had with Johnson
was on April 28, 2016, regarding her facility transfer.

On this

date, Johnson “took [her] into his office and shut the door,”
“informed [her] that [she] was being transferred to a different
site,” and “flirtatiously gave [her] his personal cell phone
number and asked [her] to use it.”

Supp. Aff. Young ¶¶ 4-6, ECF

No. 21-1.
The allegations regarding the April 2016 interaction do not
assert a plausible claim for assault, which is defined under
Maryland law as an “attempt to cause a harmful or offensive
contact with another or to cause an apprehension of such
contact.”

Miles, 962 F. Supp. 2d at 834.

There is no

allegation that there was any attempt by Johnson to cause a
harmful or offensive contact with Young on that date.

Giving

her a phone number, even flirtatiously, is not enough to state a
claim for relief on assault.

Young does not, for example,

allege that Johnson moved towards her or tried to touch her when
giving her his phone number.
Beyond the April 2016 interaction, there are no alleged
interactions that could be said to plausibly assert an assault
claim that would fall within the limitations period.
Accordingly, Defendant Johnson shall be granted summary
judgment on Plaintiff’s assault claim.
30

E. Negligent Hiring, Training, Retention, and Supervision
“[A]n employer owes a duty to its employees to use
‘reasonable care and caution in the selection of competent
fellow servants, and in the retention in his service of none but
those who are.’”
supplied).

Jones v. State, 425 Md. 1, 18 (2012) (emphasis

If that duty is breached, “the employer is liable to

the injured employee ‘not for the mere negligent act or omission
of the incompetent or careless servant, but for his own
negligence in not discharging his own duty towards the injured
servant.’”

Id.

Like any negligence action, the tort of

negligent selection, training, or retention requires the
plaintiff to prove that “(1) the defendant owed a duty to the
plaintiff; (2) the defendant breached that duty; (3) the
plaintiff suffered actual injury; and (4) the injury proximately
resulted from the defendant’s breach.”

Id.

“The nature and extent of the employer’s duty of reasonable
inquiry varies based upon the facts of each case.”

Fid. First

Home Mortg. Co. v. Williams, 208 Md. App. 180, 198 (2012).

When

evaluating whether there was a breach of this duty, notice to
the employer is a relevant consideration.

Id. at 200 (affirming

the award of compensatory damages when employer was “on notice”
the employee was willing to forge documents and had forged
31

documents, and retaining him nonetheless).
When evaluating whether an act or omission was the
proximate cause for an injury, the Court must examine whether
there was (1) causation in fact and (2) a legally cognizable
cause.

Pittway Corp. v. Collins, 409 Md. 218, 243 (2009).

The

second part of this analysis “requires us to consider whether
the actual harm to a litigant falls within a general field of
danger that the actor should have anticipated or expected.”

Id.

at 245.
Regarding negligent hiring, Defendant argues that when
Johnson applied to work for HABC in 2010, “he indicated he had
never been fired or asked to resign by his prior employers,” and
that Plaintiff has not alleged that HABC should have known
otherwise.

Def.’s Mot at 25, ECF No. 20.

Moreover, Defendant

argues that the 2010 hiring is too remote to give rise to an
injury occurring in 2015 and 2016.

Finally, the Defendant

argues that any negligent hiring claim is barred by the 3-year
statute of limitations.
The Court does not find that there was a duty to conduct an
investigation of Johnson’s prior employment history when his job
application states that he was “laid off” and not fired from a
previous job.

Moreover, even if there were such a duty, any

action that HABC did not take in 2010 is not the factual or
32

proximate cause of the alleged injuries in 2015 and 2016.

It is

not foreseeable from the facts in the record that a failure to
investigate Johnson’s prior employment history from 2009–for
which HABC was not on notice–would cause injury to Plaintiff
nearly 7 years later.
Regarding negligent supervision, training and retention,
Defendant argues that there is no underlying tort claim at
common law that could give rise to a negligence claim in this
context.

See, e.g., Bryant v. Better Bus. Bureau of Greater

Maryland, Inc., 923 F. Supp. 720, 751 (D. Md. 1996) (refusing to
impose liability based on a negligent selection, supervision,
and retention theory under Title VII and ADA claims because
these are not Maryland common law causes of action); Braxton v.
Domino’s Pizza LLC, No. CIV.A. RDB 06-1191, 2006 WL 3780894, at
*6 (D. Md. Dec. 21, 2006) (denying a negligent supervision claim
that was predicated upon a race discrimination claim under 42
U.S.C. § 1981); Hart v. Harbor Court Assocs., 46 F. Supp. 2d
441, 444 (D. Md. 1999) (noting that this Court has “repeatedly
held” that “‘Title VII may not form the predicate for claims of
negligent retention and supervision.”).

Because the assault

claim is dismissed and there are no more common law causes of
action in this case, these negligence claims must also fail.
Accordingly, Defendants shall be granted summary judgment
33

on Plaintiff’s negligence hiring, training, supervision, and
retention claims.

F. Negligent Entrustment
Maryland adopts the Second Restatement of Torts, which
states that:
One who supplies directly or through a third
person a chattel for the use of another whom
the supplier knows or has reason to know to
be likely because of his youth,
inexperience, or otherwise, to use it in a
manner involving unreasonable risk of
physical harm to himself and others whom the
supplier should expect to share in or be
endangered by its use, is subject to
liability for physical harm resulting to
them.
Restatement (Second) of Torts § 390 (1965), Broadwater v.
Dorsey, 344 Md. 548, 554 (1997).

The most common example of

negligent entrustment occurs “when the owner of an automobile
loans a car to a third person who the owner knows, or should
know, was likely to use the car in a manner involving an
unreasonable risk of physical harm to others,” and that third
person causes an accident and injures another.

Warr v. JMGM

Grp., LLC, 433 Md. 170, 224–25 (2013).
Plaintiff alleges that Defendant HABC was negligent for
entrusting supervisors like Johnson with keys to the Plaintiff’s
office, when they “knew or should have known” that Johnson could
34

not be trusted with such access or authority.

AC ¶¶ 94-95.

The

alleged injury was the ability to access and approach Plaintiff
to “make lewd comments in her ear and proposition her in her
place of employment.”

Id. at 97.

Even assuming that a key could be a “chattel,” the tort of
negligent entrustment exists to address physical harm.

See

Restatement (Second) of Torts § 390; Broadwater, 344 Md. at 554,
Warr, 433 Md. at 224–25.

Here, the only alleged harm occurred

when Johnson approached Plaintiff, made lewd comments, and
propositioned her.

Plaintiff has not alleged physical harm from

the HABC’s entrustment of keys to Johnson.
Accordingly, Defendants’ shall be granted summary judgment
on Plaintiff’s negligent entrustment claims.

G. Punitive Damages
Plaintiff has asked for punitive damages, but Defendants
argue that they have not acted with ill motive or intent or with
reckless or callous indifference to Young’s federally protected
rights and that local governments in Maryland cannot be liable
for punitive damages.
To recover punitive damages, the plaintiff must show that
“respondent engaged in a discriminatory practice or
discriminatory practices with malice or with reckless
35

indifference to the federally protected rights of an aggrieved
individual.”

Harris v. L & L Wings, Inc., 132 F.3d 978, 982

(4th Cir. 1997) (emphasis in original).
The Court finds that there are genuine issues of material
fact that prevent summary judgment on Young’s punitive damages
claims against Defendant Johnson.

HABC is correct in asserting

that it cannot be held liable for punitive damages so that
summary judgment shall be granted on Young’s punitive damage
claims against HABC.

See Md. Code Ann., Cts. & Jud. Proc. § 5-

303 (“A local government may not be liable for punitive
damages.”); 42 U.S.C.A. § 1981a (“A complaining party may
recover punitive damages under this section against a respondent
(other than a government, government agency or political
subdivision) . . . .”) (emphasis added).

However, the punitive

damages claims remain pending against Johnson.

IV.

AFFIDAVIT FOR DISCOVERY
Young has filed an affidavit stating that she has taken

every step available to determine “the exact nature of the
employment relationship between Defendant Johnson and Plaintiff”
and “Defendant Johnson’s disciplinary history with previous
employers.”
No. 21-4.

Aff. Stating Pl.’s Need for Discovery ¶¶ 4-5, ECF

She now seeks discovery on these matters.
36

These matters are at least relevant to claims that remain
pending, and Plaintiff shall be able to obtain the requested
discovery in the course of pretrial proceedings.

However, the

discovery is not necessary to the resolution of the pending
motion.

Accordingly, the Court shall grant Young’s request for

discovery to be conducted as part of factual discovery in the
case.

V.

CONCLUSION
For the foregoing reasons:
1. Defendant Housing Authority of Baltimore City’s
Renewed Motion to Dismiss Complaint As Amended or In
the Alternative for Summary Judgment [ECF No. 20] is
GRANTED IN PART AND DENIED IN PART.
2. Defendant Wade Johnson’s Motion to Dismiss for Failure
to State a Claim and/or for Summary Judgment [ECF No.
23] is GRANTED IN PART AND DENIED IN PART.
3. All of Plaintiff’s claims under Counts II and V (quid
pro quo), Counts III and VI (due process), Count X
(assault), Count VIII (negligent hiring, training,
retention, and supervision), and Count IX (negligent
entrustment) are dismissed.
4. Plaintiff’s Title VII claim in Count I remains pending
against Defendant HABC only.
5. Plaintiff’s hostile work environment claim in Count V
is dismissed without prejudice to the right of
Plaintiff to seek reinstatement of the claim as to
Defendant HABC pursuant to Md. Code Ann., Cts. & Jud.
Proc. § 5-304(d).
6. Plaintiff’s equal protection claim in Count IV remains
37

pending against both Defendants.
7. Plaintiff’s equal protection claim in Count VII
remains pending against Defendant Johnson only. This
claim against Defendant HABC is dismissed without
prejudice to the right of Plaintiff to seek
reinstatement of the claim as to Defendant HABC
pursuant to Md. Code Ann., Cts. & Jud. Proc. § 5304(d).
8. Defendant HABC’S affirmative defense remains
available.
9.

Plaintiff’s Request for Discovery [ECF No. 21-4] is
GRANTED and the discovery may be taken as part of her
normal discovery rights.

10.
Plaintiff shall arrange a conference to be held
by November 29, 2017 regarding further proceedings in
the case.
SO ORDERED, this Monday, November 13, 2017.

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

38