Morey v. Carroll County et al

Filing 26

MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 5/3/2018. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

MADELINE M. MOREY,
Plaintiff,
v.
CARROLL COUNTY,
GOVERNMENT, et.al.,
Defendant.
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Civil Case No.: ELH-17-2250

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MEMORANDUM OPINION

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In this employment discrimination case, plaintiff Madeline Morey filed suit against
defendants “Carroll County Government” and the “Carroll County Board of Commissioners”
(collectively, “Carroll County” or the “County”). ECF 1.1 In a First Amended Complaint (ECF
17), Morey alleges retaliation, in violation of several statutes: Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); 42 U.S.C. § 1981 (“§ 1981”); Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (“Title VI”); Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (“Section 504”); and the Maryland Fair
Employment Practices Act (“MFEPA”), Md. Code (2014 Repl. Vol., 2017 Supp.), § 20-601 et
seq. of the State Government Article (“S.G.”). Plaintiff seeks both compensatory and punitive
damages.

1

Plaintiff sometimes refers to the Board of Carroll County Commissioners. See, e.g.,
ECF 24-4 at 4. In Maryland, the County Commissioners are the “governing body” for a Code
County and for a Commission County. See Maryland Code (2013 Repl. Vol.), § 1-101(f) of the
Local Government Article. It would seem that the “Carroll County Government” is not a proper
defendant. However, defendants have not moved to dismiss on this basis.

Defendants filed a pre-discovery, combined motion to dismiss in part and motion for
summary judgment. ECF 21.

The motion is supported by a memorandum of law (ECF 21-1)

(collectively, the “Motion”) and several exhibits.

Plaintiff opposes the Motion (ECF 24,

“Opposition”), supported by several exhibits. Defendants have replied. ECF 25 (“Reply”).
No hearing is necessary to resolve the Motion. See Local Rule 105.6 (D. Md. 2016). For
the reasons stated below, I shall grant the Motion in part and deny it in part.
I.

Factual Background2

The County hired plaintiff on May 28, 2013, to serve as its “Director of the Department
of Citizen Services.” ECF 17, ¶ 16. Plaintiff’s responsibilities included supervising 60 to 70
employees and overseeing “Transit”; the Aging and Disabilities Bureau; the Bureau of Housing;
Children Services for Carroll County; and Coordinator with regard to the Americans with
Disabilities Act. ECF 17, ¶¶ 17-18. A department within the Bureau of Housing, known as the
Public Housing Authority, “receives federal funding from [the] U.S. Department of Housing and
Urban Development (‘HUD’) to administer the Section 8 Housing Choice voucher program.”
ECF 21-4 (Affidavit of Danielle Yates, Chief of the County’s Bureau of Housing and
Community Connections), ¶¶ 3, 4. The federal funding is known as “Housing Assistance
Payment (‘HAP’).” Id. at ¶ 4..
In September 2014, plaintiff received a complaint from an employee, Janet Boyd, who
informed plaintiff that other employees “were engag[ing] in intentional racial discrimination and
disability discrimination,” which was allegedly in violation of Title VI, Title VII, and § 504.
ECF 17, ¶¶ 19-20. Specifically, Ms. Boyd informed plaintiff that “‘people who are of another
race, in poverty or need accommodation for a disability [are] viewed as an annoyance’ and were
2

Given the posture of the case, the facts are largely derived from the First Amended
Complaint (ECF 17).
2

denied County benefits under programs receiving federal financial assistance.” Id. ¶ 21 (brackets
in ¶ 21). Thereafter, plaintiff reported the complaints to the County’s Human Resources
Department (“HR”). Id. ¶ 23.
A month later, on October 2, 2014, “a former Bureau of Housing employee,” Lena
Bauerlein, informed plaintiff that “her coworkers, [particularly Rita Zimmerman], had created a
hostile work environment in the Bureau . . . and that Ms. Bauerlein believed she had been
discriminated against based on her religious beliefs (Buddhism).” Id. ¶ 24.3 Again, plaintiff
reported these complaints to HR. Id. ¶ 25. Thereafter, on October 27, 2014, “a County housing
recipient” reported to plaintiff that County employees were discriminating against her “because
of her race and because her Daughter is a disabled person under the meaning of the Americans
with Disabilities Act [“ADA”].” Id. ¶ 26. Upon further investigation, plaintiff discovered that the
housing recipient, who is Jewish, was asked to provide additional income documentation that
“other non-Jewish [non-disabled,] housing recipients and County employees were not required to
provide[.]” Id. ¶¶ 28-29. Plaintiff also discovered that Rita Zimmerman, the Deputy Director of
Citizen Services, was ignoring the recipient’s calls. ECF 17, ¶ 28.
Subsequently, at an unspecified time, but apparently prior to July 1, 2015, plaintiff made
additional reports to HR, including: (1) Ms. Boyd had observed Bureau of Housing employees
“failing to provide accommodations to people with disabilities and denying services to housing
recipients based on [their] race”; (2) Ms. Boyd “was retaliated against for opposing
discriminatory practices”; (3) Ms. Bauerlein was terminated because “she had complained about
how staff recipients were being treated.” Id. ¶¶ 31-34.
3

As written, plaintiff has referred to Bauerlein as a “former” employee at the time she
made her complaint. But, it would seem that Bauerlein was an employee of the County at the
time of her discrimination complaint.
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On July 1, 2015, in light of plaintiff’s “excellent performance,” defendants gave plaintiff
a four-year contract extension, through June 30, 2019, along with a pay raise. Id. ¶¶ 35-36. Later
that month, female members of plaintiff’s staff complained to plaintiff that, under defendants’
Grant Contingent Employment Policy (the “Policy”), females were treated “differently” from
male employees, and “female County employees . . . earn[ed] less money than similarly situated
male County employees.” Id. ¶ 38. On July 29, 2015, upon discovering that the Policy did, in
fact, cause female employees to earn less than male employees, see id. ¶ 39, plaintiff complained
about the Policy to the County Administrator, Roberta Windham. Id. ¶ 40. The following day,
July 30, 2015, plaintiff filed a written complaint with HR regarding the disparate treatment of the
female employees. Id. ¶ 41.
Another County employee, Dorothy Miles, reported to plaintiff on August 19, 2015, that
“employees under Plaintiff’s supervision were creating a hostile work environment.” Id. ¶ 42.
Ms. Miles, who is Caucasian, is married to an African American male and has biracial children.
Id. ¶ 43. Ms. Miles told plaintiff that, as a result of her marriage, employees Zimmerman and
Loretta Pressimone, Ms. Miles’s supervisors, were discriminating against her, “had made
inappropriate racial comments,” and were treating “County constituents differently based on
race.” Id. ¶¶ 43-44. On August 25, 2015, plaintiff notified HR of Ms. Miles’s complaints, id. ¶
45, and on September 16, 2015, plaintiff directly informed Kim Frock, the HR Director. Id. ¶ 46.
Plaintiff was terminated on September 17, 2015. Id. ¶ 47. Ms. Miles was subsequently
terminated. Id. At the time of plaintiff’s termination, Windham told plaintiff that “the County
was ‘planning a re-organization.’” Id. ¶ 49. And, the County told the Maryland Department of
Labor, Licensing and Regulation, Division of Unemployment Insurance (“DLLR”), that
plaintiff’s position was “eliminated pursuant to reorganization.” Id. ¶ 50. Moreover, the County

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stated that plaintiff was terminated for “‘no-cause.’” Id. ¶ 51. As a result, the County was not
required to provide plaintiff with the opportunity to improve her work performance. Id. ¶¶ 5455. Yet, plaintiff “was the only employee affected by the ‘reorganization.’” Id. ¶ 61. Moreover,
Frock, the HR Director, asserts in her Affidavit (ECF 21-6) that plaintiff “was terminated for
reasons related to her job performance, namely her lack of accessibility and ineffective
leadership.” Id. ¶ 8.
On October 1, 2015, plaintiff filed a charge (the “Charge”) with the Equal Employment
Opportunity Commission (“EEOC”) and the Maryland Commission on Civil Rights. Id. ¶ 81.4
She also asserts substantial compliance with the Maryland Local Government Tort Claims Act
(“LGTCA”), Md. Code (2013, 2017 Supp.), §§ 5-301 et seq. of the Courts and Judicial
Proceedings Article (“C.J.”). ECF 17, ¶¶ 63-80.
II.

Legal Standards

Plaintiff alleges that defendants terminated her in retaliation for her “protected
complaints about unlawful race discrimination” (ECF 17, ¶ 86), and because she opposed the
County’s discriminatory employment practices. ECF 17, ¶¶ 87, 107-110, 115-118. The claims
are made under five statutes: Title VII, MFEPA, § 1981, Title VI, and § 504. Defendants seek
dismissal in part and/or summary judgment as to each of plaintiff’s retaliation claims. ECF 21.
In particular, defendants contend that, as to the MFEPA claim, plaintiff has failed to
comply with the notice requirement under the LGTCA, C.J. § 5-304. Further, defendants argue
that plaintiff “has failed to state a cognizable claim under Title VI” and under § 1981. ECF 21-1
at 2. In addition, defendants contend that plaintiff has failed to exhaust a portion of her Title VII
claim. And, defendants posit that plaintiff “has not alleged and/or cannot prove all of the
4

Plaintiff does not indicate whether she received a notice of right to sue.
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elements of retaliation under any statute.” ECF 21-1 at 2.5 And, defendants contend that
plaintiff’s claim for punitive damages is subject to dismissal.
A.
“Motions to dismiss for failure to exhaust administrative remedies are governed by
[Federal Rule of Civil Procedure] 12(b)(1) for lack of subject matter jurisdiction.” Clarke v.
DynCorp Int’l LLC, 962 F. Supp. 2d 781, 786 (D. Md. 2013) (quotation marks and citation
omitted). Under Rule 12(b)(1), the plaintiff bears the burden of proving, by a preponderance of
evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc.,
776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Pres. Ass’n v. The Cty. Comm’rs Of
Carroll Cty., MD, 523 F.3d 453, 459 (4th Cir. 2008). A Rule 12(b)(1) motion should be granted
“only if the material jurisdictional facts are not in dispute and the moving party is entitled to
prevail as a matter of law.” Clarke, 962 F. Supp. 2d at 786 (quotation marks and citation
omitted).
A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of
two ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are
insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “‘that the
jurisdictional allegations of the complaint [are] not true.’” Kerns v. United States, 585 F.3d 187,
192 (4th Cir. 2009) (citation omitted) (alteration in original); see also Durden v. United States,
736 F.3d 296, 300 (4th Cir. 2013). A factual challenge can assert that facts outside the four
corners of the complaint preclude the exercise of subject matter jurisdiction. Id.

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As discussed, infra, to survive a motion to dismiss, plaintiff need not prove anything.
See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510-15 (2002). But, a plaintiff must allege facts
sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007).
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In a facial challenge, “the facts alleged in the complaint are taken as true, and the motion
must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.”
Kerns, 585 F.3d at 192. In a factual challenge, on the other hand, “the district court is entitled to
decide disputed issues of fact with respect to subject matter jurisdiction.”

Id.

In that

circumstance, the court “may regard the pleadings as mere evidence on the issue and may
consider evidence outside the pleadings without converting the proceeding to one for summary
judgment.” Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United
States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009); Evans v. B.F. Perkins
Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
Notably, the court may take judicial notice of the existence and contents of EEOC
proceedings “if necessary to decide issues like exhaustion of administrative remedies[.]” Clarke,
962 F. Supp. 2d at 787. But, “it may not take judicial notice of the truth of matters outside the
challenged pleading.” Id. (emphasis in Clarke).
B.
Under Rule 12(b)(6), a defendant may test the legal sufficiency of a complaint by way of
a motion to dismiss. In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty.
Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408
(4th Cir. 2010), aff’d sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of
Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion
by a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter
of law “to state a claim upon which relief can be granted.”
Whether a complaint states a claim for relief is assessed by reference to the pleading
requirements of Fed. R. Civ. P. 8(a)(2). That rule provides that a complaint must contain a

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“short and plain statement of the claim showing that the pleader is entitled to relief.” The
purpose of the rule is to provide the defendants with “fair notice” of the claims and the
“grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts
sufficient to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see
Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions’ . . . .”); see also Willner v. Dimon, 849
F.3d 93, 112 (4th Cir. 2017). But, a plaintiff need not include “detailed factual allegations” in
order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do
not countenance dismissal of a complaint for imperfect statement of the legal theory supporting
the claim asserted.” Johnson v. City of Shelby, Miss., ___ U.S. ___, 135 S. Ct. 346, 346 (2014)
(per curiam).
Nevertheless, the rule demands more than bald accusations or mere speculation.
Twombly, 550 U.S. at 555; see Painter’s Mill Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir.
2013). If a complaint provides no more than “labels and conclusions” or “a formulaic recitation
of the elements of a cause of action,” it is insufficient. Twombly, 550 U.S. at 555. Rather, to
satisfy the minimal requirements of Rule 8(a)(2), the complaint must set forth “enough factual
matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of
those facts is improbable and . . . recovery is very remote and unlikely.” Twombly, 550 U.S. at
556 (internal quotation marks omitted).
In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual
allegations contained in the complaint” and must “draw all reasonable inferences [from those
facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d

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435, 440 (4th Cir. 2011) (citations omitted); see Semenova v. MTA, 845 F.3d 564, 567 (4th Cir.
2017); Houck v. Substitute Tr. Servs., Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert. denied, 565 U.S. 943 (2011). But, a court is
not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S.
265, 286 (1986). “A court decides whether [the pleading] standard is met by separating the legal
conclusions from the factual allegations, assuming the truth of only the factual allegations, and
then determining whether those allegations allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without a Name v. Virginia, 655 F.3d 342, 346
(4th. Cir. 2011), cert. denied, 566 U.S. 937 (2012).
Courts generally do not “‘resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses’” through a Rule 12(b)(6) motion. Edwards, 178 F.3d at 243
(quoting Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)). However, “in the
relatively rare circumstances where facts sufficient to rule on an affirmative defense are alleged
in the complaint, the defense may be reached by a motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (en banc); accord Pressley v.
Tupperware Long Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009). Because Rule
12(b)(6) “is intended [only] to test the legal adequacy of the complaint,” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993), “[t]his principle
only applies . . . if all facts necessary to the affirmative defense ‘clearly appear[ ] on the face of
the complaint.’” Goodman, 494 F.3d at 464 (quoting Forst, 4 F.3d at 250) (emphasis added
in Goodman ).
In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a
court ordinarily “may not consider any documents that are outside of the complaint, or not

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expressly incorporated therein . . . .” Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557
(4th Cir. 2013); see Bosiger, 510 F.3d 442, 450 (4th Cir. 2007). However, a court may properly
consider documents incorporated into the complaint or attached to the motion to dismiss, “‘so
long as they are integral to the complaint and authentic.’” U.S. ex rel. Oberg v. Pennsylvania
Higher Educ. Assistance Agency, 745 F.3d 131, 136 (4th Cir. 2014) (quoting Philips v. Pitt Cty.
Memorial Hosp., 572 F.3d 176, 180 (4th Cir. 2009)); see Anand v. Ocwen Loan Servicing,
LLC, 754 F.3d 195, 198 (4th Cir. 2014); Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367
F.3d 212, 234 (4th Cir. 2004), cert. denied, 543 U.S. 979 (2004).
Accordingly, when resolving a Rule 12(b)(6) motion, a court may consider certain
exhibits, without converting the motion to dismiss to one for summary judgment. Goldfarb v.
Mayor & City Council of Balt., 791 F.3d 500, 508 (4th Cir. 2015). In particular, a court may
consider documents that are “explicitly incorporated into the complaint by reference and those
attached to the complaint as exhibits . . . .” Goines, 822 F.3d at 166 (citations omitted); see also
U.S. ex rel. Oberg, 745 F.3d at 136; Anand, 754 F.3d at 198; Am. Chiropractic Ass’n, 367 F.3d at
234; Phillips v. LCI Int’l Inc., 190 F.3d 609, 618 (4th Cir. 1999).
However, “before treating the contents of an attached or incorporated document as true,
the district court should consider the nature of the document and why the plaintiff attached it.”
Goines, 822 F.3d at 167 (citing N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d
449, 455 (7th Cir. 1998)). “When the plaintiff attaches or incorporates a document upon which
his claim is based, or when the complaint otherwise shows that the plaintiff has adopted the
contents of the document, crediting the document over conflicting allegations in the complaint is
proper.” Goines, 822 F.3d at 167. Conversely, “where the plaintiff attaches or incorporates a
document for purposes other than the truthfulness of the document, it is inappropriate to treat the

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contents of that document as true.” Id.
A court may also “consider a document submitted by the movant that was not attached to
or expressly incorporated in a complaint, so long as the document was integral to the complaint
and there is no dispute about the document’s authenticity.” Goines, 822 F.3d at 166 (citations
omitted); see also Woods v. City of Greensboro, 855 F.3d 639, 642 (4th Cir. 2017), cert. denied,
138 S. Ct. 558 (2017); Kensington Volunteer Fire Dep’t. v. Montgomery Cty., 684 F.3d 462, 467
(4th Cir. 2012). To be “integral,” a document must be one “that by its ‘very existence, and not
the mere information it contains, gives rise to the legal rights asserted.’” Chesapeake Bay
Found., Inc. v. Severstal Sparrows Point, LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (citation
omitted) (emphasis in original).
C.
As noted, defendants have moved to dismiss or, in the alternative, for summary
judgment. A motion styled in the alternative, to dismiss or for summary judgment, implicates the
court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See Kensington Vol.
Fire Dept., Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011). Ordinarily, a
court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on
a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). However,
under Rule 12(b)(6), a court, in its discretion, may consider matters outside of the pleadings,
pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary
judgment under Rule 56.” Fed. R. Civ. P. 12(d). When, as here, the movant expressly captions
its motion “in the alternative,” as one for summary judgment, and submits matters outside the
pleadings for the court’s consideration, the parties are deemed to be on notice that conversion

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under Rule 12(d) may occur, and the court “does not have an obligation to notify parties of the
obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 261 (4th Cir. 1998).
A district judge has “complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in conjunction with a Rule
12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
consider it.” 5C ALAN WRIGHT & ARTHUR MILLER, ET AL., FEDERAL PRACTICE & PROCEDURE
§ 1366 (3d ed.) (hereinafter, “WRIGHT & MILLER”). This discretion “should be exercised with
great caution and attention to the parties’ procedural rights.” Id. at 149. In general, courts are
guided by whether consideration of extraneous material “is likely to facilitate the disposition of
the action,” and “whether discovery prior to the utilization of the summary judgment procedure”
is necessary. Id. at 165-67.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co., 637 F.3d at 448-49; see
Putney v. Likin, 656 F. App’x 632, 638-640 (4th Cir. 2016) (per curiam); McCray v. Maryland
Dep’t of Transp., 741 F.3d 480, 483 (4th Cir. 2014). A party “needs an ‘adequate opportunity’
to present its case and ‘demonstrate a genuine issue of material fact.’” Adams Housing, LLC v.
City of Salisbury, Maryland, 672 Fed. App’x 220, 222 (4th Cir. 2016) (citation omitted).
However, “the party opposing summary judgment ‘cannot complain that summary judgment was
granted without discovery unless that party has made an attempt to oppose the motion on the
grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain
Names, 302 F.3d 214, 244 (4th Cir. 2002) (hereinafter, “Harrods”) (quoting Evans v. Tech’s.
Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996)); see also Dave & Buster’s, Inc. v.
White Flint Mall, LLLP, 616 F. App’x 552, 561 (4th Cir. 2015).

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To raise adequately the issue that discovery is needed, the non-movant typically must file
an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for
specified reasons, [he] cannot present facts essential to justify its opposition,” without needed
discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing the affidavit
requirement of former Rule 56(f)). A non-moving party’s Rule 56(d) request for additional
discovery is properly denied “where the additional evidence sought for discovery would not have
by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag
v. Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham,
437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x 274 (4th Cir. 2008), cert. denied,
555 U.S. 885 (2008).
If a non-moving party believes that further discovery is necessary before consideration of
summary judgment, the party who fails to file a Rule 56(d) affidavit does so at his peril, because
“‘the failure to file an affidavit . . . is itself sufficient grounds to reject a claim that the
opportunity for discovery was inadequate.’” Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d
at 961); see also Dave & Buster’s, Inc., 616 F. App’x at 561. But, the non-moving party’s
failure to file a Rule 56(d) affidavit does not obligate a court to issue a summary judgment ruling
that is obviously premature. Although the Fourth Circuit has placed “‘great weight’” on the Rule
56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need
for additional discovery in a memorandum of law in opposition to a motion for summary
judgment is not an adequate substitute for [an] affidavit,’” the appellate court has “not always
insisted” on a Rule 56(d) affidavit. Harrods, 302 F.3d at 244 (quoting Evans, 80 F.3d at 961).
The failure to file an affidavit may be excused “if the nonmoving party has adequately informed
the district court that the motion is premature and that more discovery is necessary,” when the

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“nonmoving party’s objections before the district court ‘served as the functional equivalent of an
affidavit’,” and if the nonmoving party “was not lax in pursuing discovery.” Harrods, 302 F.3d
at 244-45 (quoting First Chicago Int’l v. United Exchange Co., LTD, 836 F.2d 1375, 1380-81
(D.C. Cir. 1988)).
Plaintiff filed an affidavit (ECF 24-6), but not under Fed. R. Civ. P. 56(d). Although she
challenges the summary judgment motion, she does not make clear that she is in need of
discovery. Nevertheless, granting summary judgment before discovery “can be particularly
inappropriate when a case involves complex factual questions about intent and motive.”
Harrods, 302 F.3d 248 (citations omitted).
In McCray, 741 F.3d 480, the Fourth Circuit considered whether the district court erred
when it granted summary judgment to the defense in a Title VII case, before the plaintiff had an
opportunity to conduct requested discovery. Id. at 483. The Fourth Circuit reiterated that
discovery is appropriate when “the main issue” is “one of motive” and when “most of the key
evidence lies in the control” of the party moving for summary judgment.

Id. at 484.

It

determined that the plaintiff’s Title VII claims required the plaintiff to show “that she was fired
because of discriminatory reasons,” and that such evidence was within the control of the MTA.
Id. “Absent discovery,” said the Court, the plaintiff lacked “adequate access to this evidence,
and therefore no way to shield herself from a premature summary judgment motion.” Id. It
reasoned, id. at 483: “Summary judgment before discovery forces the non-moving party into a
fencing match without a sword or mask.” The Fourth Circuit concluded that summary judgment
was premature under Rule 56(d). Id. at 481, 484.
In my view, given the posture of the case, the lack of any opportunity for discovery, and
the relevance of issues such as motive, summary judgment would be premature. Moreover, in

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the Reply (ECF 25), defendants clarify that “the majority” of their arguments “focus[] solely on
these shortcomings of plaintiff’ factual allegations and legal claims” to show that the claims “are
not legally cognizable . . . .” Id. at 1. Therefore, I shall construe the Motion solely under Rule
12(b), not Rule 56.
D.
In general, there are “two avenues” at trial by which a plaintiff may prove a violation of
Title VII and other employment discrimination statutes. Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 284 (4th Cir. 2004) (en banc) (recognized in Foster v. Univ. of
Maryland-E. Shore, 787 F.3d 243, 249 (4th Cir. 2015), as abrogated on other grounds by Univ.
of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013)); see Love–Lane v. Martin, 355 F.3d 766,
786 (4th Cir. 2004) (stating that “the McDonnell Douglas framework, developed for Title VII,
has been used to evaluate race discrimination claims under the three statutes,” i.e., Title VII, §
1981, and § 1983); see also, e.g., Lightner v. City of Wilmington, N.C., 545 F.3d 260, 263 n.*
(4th Cir. 2008) (“[T]he McDonnell Douglas framework applies to discrimination claims
under...§ 1981.”).
The plaintiff’s first avenue is to offer “‘direct or indirect’” evidence of discrimination
under “‘ordinary principles of proof.’” Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir.
1996) (citation omitted), cert. denied, 520 U.S. 1116 (1997). The plaintiff’s second avenue is to
follow the burden-shifting approach first articulated by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Young v. United Parcel Serv., Inc.,
____ U.S. ____, 135 S. Ct. 1338, 1345 (2015) (construing the Pregnancy Discrimination Act);
Guessous, 828 F.3d at 216 (discussing the three steps of the McDonnell Douglas framework).
The McDonnell Douglas proof scheme is “a procedural device, designed only to establish

15

an order of proof and production.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993)
(emphasis omitted).

Under the McDonnell Douglas approach, the “ultimate burden of

persuasion [at trial] never ‘shifts’ from the plaintiff,” who must prove intentional unlawful
discrimination. Williams v. Cerberonics, Inc., 871 F.2d 452, 456 n.2 (4th Cir. 1989) (citation
omitted). Notably, “the McDonnell Douglas test is inapplicable where the plaintiff presents
direct evidence of discrimination.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985).
If the plaintiff chooses to proceed at trial under the McDonnell Douglas approach, the
plaintiff must first establish a “prima facie case of discrimination.” Merritt v. Old Dominion
Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010); see Abilt v. Central Intelligence Agency,
848 F.3d 305, 315 (4th Cir. 2017). Although the precise formulation of the required prima facie
showing will vary in “different factual situations,” McDonnell Douglas, 411 U.S. at 802 n.13, the
plaintiff is generally required to show that the employer took adverse action against an applicant
“under circumstances which give rise to an inference of unlawful discrimination.” Texas Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
If a plaintiff establishes a prima facie case of unlawful discrimination, “a presumption of
illegal discrimination arises, and the burden of production shifts to the employer” to produce
evidence of a legitimate, non-discriminatory reason for its adverse employment action. Hoyle v.
Freightliner, LLC, 650 F.3d 321, 336 (4th Cir. 2011); see Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000); Hurst v. District of Columbia, 681 F. App’x 186, 189-90 (4th
Cir. 2017) (per curiam). “If the defendant carries this burden of production, the presumption
raised by the prima facie case is rebutted.” Burdine, 450 U.S. at 255. In that circumstance, “the
McDonnell Douglas framework—with its presumptions and burdens—is no longer relevant,”

16

and “simply drops out of the picture.” St. Mary’s Honor Ctr., 509 U.S. at 510-11. The plaintiff
must then prove, by a preponderance of evidence, “that the [employer’s] proffered reason was
not the true reason for the employment decision” and that the plaintiff “has been the victim of
intentional discrimination.” Burdine, 450 U.S. at 256; see also Reeves, 530 U.S. at 143; St.
Mary’s Honor Ctr., 509 U.S. at 516-20; Adams v. Trustees of Univ. of North CarolinaWilmington, 640 F.3d 550, 560 (4th Cir. 2011) (“[I]n demonstrating the Defendants’ decision
was pretext, [plaintiff] had to prove ‘both that the reason was false, and that discrimination was
the real reason.’”) (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995))
(emphasis in original).
Conversely, if the defendant does not submit evidence of a legitimate basis for its actions,
the factfinder may “infer discriminatory animus because experience has proved that in the
absence of any other explanation it is more likely than not that those actions were bottomed on
impermissible considerations.” Furnco Const. Corp. v. Waters, 438 U.S. 567, 579-80 (1978).
And, if the defendant fails to meet the burden of producing “evidence which, taken as true,
would permit the conclusion that there was a nondiscriminatory reason for the adverse action,”
then “the court must award judgment to the plaintiff as a matter of law.” St. Mary’s Honor Ctr.,
509 U.S. at 509 (emphasis in original). This is because a legal presumption of intentional
discrimination has been established. Id. at 510 n.3; see Burdine, 450 U.S. at 255 n.8 (“[T]he
allocation of burdens and the creation of a presumption by the establishment of a prima facie
case is intended progressively to sharpen the inquiry into the elusive factual question of
intentional discrimination.”).
As noted, these two approaches establish the common methods by which a plaintiff may
prove intentional employment discrimination at trial. See Burns, 96 F.3d at 731. At the motion

17

to dismiss stage, these approaches merely serve to inform a court’s evaluation of the
allegations. Cf. Pettis v. Nottoway Cty. Sch. Bd., 592 F. App’x 158, 160 (4th Cir. 2014) (stating
that a plaintiff asserting racial discrimination “may avoid summary judgment by proceeding
under the burden-shifting framework established in McDonnell Douglas . . . .”).
In Swierkiewicz v. Sorema, 534 U.S. 506, 510 (2002), the Supreme Court explained that
the “prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading
requirement.” The Court stated that it had “never indicated that the requirements for establishing
a prima facie case under McDonnell Douglas also apply to the pleading standard that plaintiffs
must satisfy in order to survive a motion to dismiss.” Id. at 511. Thus, the Court said: “[A]n
employment discrimination plaintiff need not plead a prima facie case of discrimination . . . .”
Id. at 515; see also McCleary-Evans v. Maryland Dep’t of Transp., State Highway Admin., 780
F.3d 582, 584 (4th Cir. 2015), cert. denied, 136 S. Ct. 1162 (2016).
As the Second Circuit has observed, the Supreme Court’s holding in Swierkiewicz is
arguably in tension with the Court’s subsequent rulings in Iqbal and Twombly. See Littlejohn v.
City of New York, 795 F.3d 297, 307 (2d Cir. 2015).

On the one hand,

“[r]eading Swierkiewicz on its face, it appears to have meant that a Title VII plaintiff is not
required to plead facts supporting even a minimal inference of discriminatory intent.” Id. at 309.
On the other hand, in Twombly, the Court said that a plaintiff must “state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 570. And, in Iqbal, the Court clarified that the
heightened pleading standard of Twombly is applicable in “‘all civil actions’ . . . .” Iqbal, 556
U.S. at 684.
In Woods, 855 F.3d at 648, the Fourth Circuit indicated that although a plaintiff “need not
plead facts sufficient to establish a prima facie case of race-based discrimination to survive a

18

motion to dismiss,” the “pleading standard established in Iqbal and Twombly applies . . . .” The
question at the motion to dismiss stage is whether the plaintiff has stated “a plausible claim for
relief under Title VII . . . .” Ciociola v. Balt. City Bd. of Sch. Commissioners, CCB-15-1451,
2016 WL 125597, at *4 (D. Md. Jan. 12, 2016). Therefore, at a minimum, plaintiff must plead
facts that make it plausible that she was subjected to retaliation as a result of engaging in
protected activity.
III.

Discussion

To state a prima facie case of retaliation under each statute, plaintiff must aver that: (1)
she engaged in protected activity; (2) the employer took an adverse action against her; and (3)
the protected activity and the adverse action were causally connected. See Boyer-Liberto v.
Fontainbleau Corp., 786 F.3d 264, 281 (4th Cir. 2015) (en banc) (Title VII and § 1981); Stennis
v. Bowie State Univ., 716 Fed. App’x 164, 166 (4th Cir. 2017 (per curiam) (Title VII); Guessous
v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016) (Title VII and § 1981); Love–
Lane, 355 F.3d at 786 (§ 1981); Easley v. Bd. of Educ. of Prince George’s Cty., No. 8:12-CV02277-AW, 2012 WL 5829122, at *2 (D. Md. Nov. 15, 2012) (§ 504); Bowman v. Baltimore
City Bd. of Sch. Commissioners, 173 F. Supp. 3d 242, 247 (D. Md. 2016) (Title VI); Crockett v.
SRA Int’l, 943 F. Supp. 2d 565, 574 (D. Md. 2013) (MFEPA). In addition, under Title VI, a
plaintiff must also prove a fourth element – that “the program or activity under which a plaintiff
was allegedly subjected to discrimination received federal financial assistance.” Bowman, 173 F.
Supp. 3d at 247.
It is undisputed that plaintiff’s termination on September 17, 2015, constitutes an adverse
employment action. In general, defendants’ arguments hinge on plaintiff’s alleged failure to
satisfy Title VII’s exhaustion requirement; her failure to show that she engaged in protected

19

activity; and the failure to show that the protected activity and the termination were causally
related.
I address each claim below, but not necessarily in the order presented by the parties.
A. Title VI
In Count III of the Amended Complaint, plaintiff asserts a claim under Title VI of the
Civil Rights Act of 1964. Defendants assert that plaintiff has filed to state a cognizable claim
because the primary purpose of the federal financial assistance received by the County in regard
to housing benefits is unrelated to employment. ECF 21-1 at 9.
Section 601 of Title VI provides that no person shall “be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance” because of the person’s race, color, or national origin. 42
U.S.C. § 2000d–7. Title VI prohibits intentional discrimination and includes a private right of
action for retaliation claims. Rogers v. Bd. of Educ. of Prince George’s Cty., 859 F. Supp. 2d
742, 747 (D. Md. 2012).
As noted, in regard to a retaliation claim under Title VI, the plaintiff must allege, inter
alia, “receipt of federal funds by the defendant, and that this funding was received for the
‘express purpose of creating jobs and maintaining existing ones.’” Bowman, 173 F. Supp. 3d at
247 (quoting Rogers, 859 F. Supp. 2d at 750). This requirement is predicated on § 604 of Title
VI, as amended, 42 U.S.C. § 2000d-3.
Section 604 applies to private litigants and provides: “Nothing contained in this
subchapter shall be construed to authorize action under this subchapter by any department or
agency with respect to any employment practice of any employer, employment agency, or labor
organization except where a primary objective of the Federal financial assistance is to provide

20

employment.” See Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 631 (1984) (stating that §
604 “limits the applicability of Title VI to ‘employment practice[s] . . . where a primary
objective of the federal financial assistance is to provide employment.’”) (Emphasis, brackets,
and ellipsis in Darrone); see also Ingram v. Morgan State Univ., 74 F.3d 1232 (4th Cir. 1996)
(per curiam) (affirming dismissal of Title VI claim where plaintiff did not allege that defendant
received federal financial assistance for the primary purpose of employment or that she was the
intended beneficiary of any such assistance); Trageser v. Libbie Rehab. Ctr. Inc., 590 F.2d 87, 89
(4th Cir. 1978) (stating that Title VI requires litigants to show that providing employment is a
primary objective of the federal aid defendants receive, or that the employment discrimination
complained of necessarily causes discrimination against the primary beneficiaries of the federal
aid); Fordyce v. Prince George’s Cty. Maryland, 43 F. Supp. 3d 537, 545 (D. Md. 2014) (“[T]o
survive a motion for summary judgment under Section 604 of Title VI, a litigant must provide
facts [demonstrating] that: (1) the employer received Federal financial assistance for the primary
purpose of providing employment, or (2) the employment discrimination was against a primary
beneficiary of the federal financial assistance.”).
Plaintiff argues that her Title VI retaliation claim is “directly authorized under the
Department of Housing’s Title VI’s implementing regulations,” namely, 24 C.F.R. 1.4(c)(2).
ECF 24 at 25. The relevant portion provides:
Where a primary objective of the Federal financial assistance is not to provide
employment, but discrimination on the ground of race, color, or national origin in
the employment practices of the recipient or other persons subject to this part 1
tends, on the ground of race, color, or national origin, to exclude individuals from
participation in, to deny them the benefits of, or to subject them to discrimination
under any program to which this part 1 applies, the provisions of this paragraph
(c) shall apply to the employment practices of the recipient or other persons
subject to this part 1 to the extent necessary to assure equality of opportunity to,
and nondiscriminatory treatment of, beneficiaries.

21

Defendants maintain that the program for which the County receives federal funding is
directed at housing, not employment. See ECF 21-4 (Yates Affidavit). Eligible County citizens
are the primary beneficiaries of the housing assistance. Id. Notably, plaintiff does not allege that
defendants’ receipt of federal funds for the housing program was for the primary purpose of
providing employment or that she was a primary beneficiary of the federal assistance. See
Fordyce, 43 F. Supp. 3d at 545. Plaintiff has not cited, nor has this Court found, any authority
demonstrating that 24 C.F.R. § 1.4(c)(2) trumps § 604 of Title VI, or any of the controlling case
law.
Title VI must be dismissed, for the reasons that follow.
First, plaintiff has failed to allege that the federal funding received by the County was for
the primary purpose of providing employment. Plaintiff merely alleges: “Defendants operate a
program or activity receiving federal financial assistance.” ECF 17, ¶ 116. To support this claim,
plaintiff alleges only that “housing recipients” were denied benefits and discriminated against
based on their race and disability. Id. ¶¶ 22, 26-30, 32, 44. Thus, the federal program in issue was
directed not at providing jobs, but at providing affordable housing. This is insufficient under
Title VI. See Mitchell v. N. Carolina Div. of Employment Sec., 76 F. Supp. 3d 620, 628
(E.D.N.C. 2014) (stating that, instead of providing employment, “the primary objective of the
federal funding that the North Carolina Division of Employment Security receives is to assist the
unemployed with unemployment benefits”), aff’d, 599 F. App’x 517 (4th Cir. 2015); Mills v.
State Highway Admin., No. PWG-13-3727, 2015 WL 72270, at *4 (D. Md. Jan. 5, 2015) (stating
that “the primary objectives of the federal funds [from the Federal Highway Administration] are
to provide roads for the public and to improve public safety, not to provide employment, which
is incidental to providing roads.”) (citation omitted); Johnson v. Cmty. Coll. of Allegheny Cty.,

22

566 F. Supp. 2d 405, 459 (W.D. Pa. 2008) (concluding that plaintiff “did not adduce sufficient
evidence for a reasonable jury to conclude that the primary purpose of the federal funding was
employment.” Rather, the evidence showed that “the primary purpose of [the] federal funding
was education . . . .”).
Second, plaintiff was not a primary beneficiary of defendants’ federal funding. Rather,
she alleges only that the intended beneficiaries, i.e., the housing recipients, endured
discrimination. ECF 17, ¶¶ 22, 26-30, 32, 44; see Proffitt v. Consolidation Coal Co., No. 772266, 1979 WL 61, at *3-4 (S.D.W. Va. June 27, 1979) (applying the limitation contained in
§ 604 of Title VI to the plaintiff’s § 504 claim and granting dismissal, in part, because “plaintiff
[was] not a member of [the] group himself” and thus not a primary beneficiary of the federal
funding); see also Simpson v. Reynolds Metals Co., 629 F.2d 1226, 1235 (7th Cir. 1980) (“[T]o
bring a private action under [Title VI], the plaintiff must be the intended beneficiary of, an
applicant for, or a participant in a federally funded program.”) (citations omitted).
Therefore, I shall dismiss the retaliation claim brought in Count III under Title VI.
B. Section 504
In Count II, plaintiff alleges retaliation in violation of § 504 of the Rehabilitation Act of
1973, as amended. Section 504 provides: “No otherwise qualified individual with a disability ...
shall, solely by reason of her or his disability, be excluded from the participation in, be denied
the benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance . . . .” 29 U.S.C. § 794(a). The Fourth Circuit has said that, “to establish a
violation of section 504, plaintiffs must prove that they have been discriminated against—that
they were excluded from the employment or benefit due to discrimination solely on the basis of

23

the disability.” Sellers v. Sch. Bd. of City of Manassas, 141 F.3d 524, 528 (4th Cir. 1998)
(citations and internal quotation marks omitted).
Plaintiff’s retaliation claim under § 504 centers on her allegations that: (1) on September
26, 2014, Ms. Boyd complained to plaintiff that individuals with a disability were “viewed as an
annoyance” and denied housing benefits, ECF 17 ¶¶ 19-23; (2) on October 27, 2014, plaintiff
received a complaint from a housing recipient who believed she was being discriminated against,
in part, because her daughter was disabled, id. ¶¶ 26-29; and (3) plaintiff complained to
defendants about retaliation against other employees who reported these discriminatory
activities. Id. ¶¶ 31-34.
I shall assume, arguendo, that plaintiff’s reports of the above incidents to HR qualified as
engaging in protected activity. Even so, plaintiff has not adequately alleged a causal connection
between such protected activity and her termination.

Ultimately, to satisfy the causation

element, a plaintiff must show that “the employer [took] the adverse employment action because
the plaintiff engaged in a protected activity.” Dowe v. Total Action Against Poverty in Roanoke
Valley, 145 F.3d 653, 657 (4th Cir. 1998) (emphasis in original).
Ordinarily, there must exist “some degree of temporal proximity to suggest a causal
connection.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501 (4th
Cir. 2005). Therefore, a “‘lengthy time lapse between the [defendant’s] becoming aware of the
protected activity and the alleged adverse ... action’” often “‘negates any inference that a causal
connection exists between the two.’” Id. (citation omitted). And, “a lapse of as little as two
months between the protected activity and an adverse employment action is ‘sufficiently long so
as to weaken significantly the inference of causation.’” Clarke, 962 F. Supp. 2d at 790 (quoting
King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003)); see Wilcoxon v. DECO Recovery

24

Mgmt., LLC, 925 F. Supp. 2d 725, 732 (D. Md. 2013) (concluding that four months between the
protected activity and alleged retaliatory conduct did not establish “temporal proximity”). In
“cases where ‘temporal proximity between protected activity and allegedly retaliatory conduct is
missing, courts may look to the intervening period for other evidence of retaliatory animus.’”
Lettieri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007) (citation omitted).
Plaintiff received complaints concerning disability discrimination as early as September
2014 (ECF 17, ¶¶ 19-20) and as late as October 2014. Id. ¶ 26. Plaintiff claims that she reported
these matters to HR, but she does not specify when she did so. ECF 17, ¶¶ 31-34. Presumably,
her complaints were close in time to the alleged occurrences. If so, her complaints to HR
regarding disability discrimination occurred approximately eleven months prior to her
termination on September 17, 2015. Id.¶ 47. That is an amount of time “sufficiently long so as
to weaken significantly the inference of causation.” Clarke, 962 F. Supp. 2d at 790.
Moreover, when “look[ing] to the intervening period” of time for other evidence of
“retaliatory animus,” the record instead reflects that on July 1, 2015, plaintiff received from
defendants a raise and a new four-year employment contract. ECF 17 ¶ 35. Thus, plaintiff has
failed to allege that, in the eleven months between her complaints of disability discrimination
and her termination, she was subject to retaliatory animus by defendants. See Wilcoxon, 925 F.
Supp. 2d at 732-33 (concluding that although the plaintiff offered evidence of retaliatory animus
in the intervening period, it was not sufficient to satisfy the causation element because there was
“nothing to suggest that she was terminated because of her complaint.”).
As such, the Section 504 claim in Count II is subject to dismissal, without prejudice to
plaintiff’s right to amend her claim within 14 days of the entry of the attached Order, adding

25

allegations of temporal proximity between the time of her complaints to HR and the termination
of her employment.
C. Section 1981
In Count I, plaintiff alleges a violation of 42 U.S.C. § 1981. Section 1981(a) provides:
“All persons within the Jurisdiction of the United States 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 . . . as is enjoyed by white citizens.” Section 1981(b) states: “For purposes of this section,
the term ‘make and enforce contracts’ includes the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of
the contractual relationship.” Id.
Like Title VII, 42 U.S.C. § 1981 prohibits, inter alia, “discrimination in employment on
the basis of race.” Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 551-52 (4th Cir.
2006); see Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459-60 (1975) (Ҥ 1981 affords a
federal remedy against discrimination in private employment on the basis of race”); Nnadozie v.
Genesis Healthcare Corp., ___ Fed. App’x ___, 2018 WL 1830935 (4th Cir. April 17, 2018), at
*4. Section 1981(b) was enacted as part of the Civil Rights Act of 1991 in order to overrule
legislatively the Supreme Court’s holding in Patterson v. McLean Credit Union, 491 U.S. 164
(1989), and to ensure that § 1981 applied not “only to the formation of a contract” but also “to
conduct by the employer after the contract relation has been established, including breach of the
terms of the contract or imposition of discriminatory working conditions.” Patterson, 491 U.S. at
176-77; see CBOCS West, Inc. v. Humphries, 553 U.S. 442, 449-51 (2008) (discussing postPatterson enactment of § 1981(b)).

26

The framework for proof of a claim of employment discrimination under § 1981 is the
same as the framework applicable to a Title VII claim. See Guessous, 828 F.3d at 217; BoyerLiberto, 786 F.3d at 281; see also Love–Lane, 355 F.3d at 786 (stating, in case involving
employment discrimination claim under Title VII, § 1981, and § 1983, that “the elements
required to establish such a case are the same under all three statutes”) (citing St. Mary’s Honor
Ctr., 509 U.S. at 506 n.1). “Procedurally, however, Section 1981 claims are not subject to the
same exhaustion and timeliness requirements as those asserted pursuant to Title VII.” Sewell v.
Strayer Univ., 956 F. Supp. 2d 658, 673 (D. Md. 2013) (citing White v. BFI Waste Servs., LLC,
375 F.3d 288, 291-92 (4th Cir. 2004)); cf. Johnson, 421 U.S. at 460 (stating that “the filing of a
Title VII charge and resort to Title VII’s administrative machinery are not prerequisites for the
institution of a § 1981 action.”).
Accordingly, a plaintiff’s claim for employment discrimination under § 1981 is not
limited to factual allegations that the plaintiff exhausted through the EEOC’s administrative
process. “The timeliness of Section 1981 claims is instead governed either by state law (as to
allegations of misconduct during the formation of an employment contract) or by the four-year
statute of limitations established by 28 U.S.C. § 1658 (as to allegations of misconduct after the
formation of the employment relationship).” Sewell, 956 F. Supp. 2d at 673.
In moving to dismiss plaintiff’s § 1981 claim, defendants argue that the complaints of
alleged discrimination fail to constitute protected activity. ECF 21-1 at 19-20. There are two
categories of protected activities: (1) “opposition,” and (2) “participation.” Equal Emp’t
Opportunity Comm’n v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005). “[P]rotected
oppositional activities may include staging informal protests and voicing one’s own opinions in
order to bring attention to an employer’s discriminatory activities as well as complain[ts] ...

27

about suspected violations.” Id. (citations and internal quotation marks omitted). Activities that
constitute “participation” may include “(1) making a charge; (2) testifying; (3) assisting; or (4)
participating in any manner in an investigation, proceeding, or hearing under Title VII.”
Laughlin v. Metro. Washington Airports Auth., 149 F.3d 253, 259 (4th Cir. 1998); see also 42
U.S.C. § 2000e-3(a).
Under Title VII and § 1981, “[a] complaint is protected as opposition activity if it is a
response to an employment practice that is, or that the plaintiff reasonably believes is, unlawfully
discriminatory.” Pettis v. Nottoway Cty. Sch. Bd., 592 F. App’x 158, 160 (4th Cir. 2014); see
also DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th Cir. 2015) (“[T]he oppositional
activity must be directed to ‘an unlawful employment practice’ under Title VII, 42 U.S.C.
§ 2000e-3(a).”). “Unlawful employment practices that an employee may oppose include
practices that ‘discriminate against an individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.’” Harmon v. Cumberland Cty. Bd. of Educ., 186 F. Supp. 3d 500, 506
(E.D.N.C. 2016) (quoting Bonds v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011)), aff’d, 669 F.
App’x 174 (4th Cir. 2016). However, Title VII “is not a general bad acts statute,” nor does it
prohibit “private employers from retaliating against an employee based on her opposition to
discriminatory practices that are outside the scope of Title VII.” Bonds, 629 F.3d 369 at 384.
In regard to § 1981, plaintiff’s alleged opposition to racial discrimination under § 1981
centers around (1) Ms. Boyd’s claim that housing recipients of “another race” were “viewed as
an annoyance” and denied benefits, ECF 17, ¶¶ 19-23, 32; (2) a County housing recipient
reported that she was subjected to racial discrimination and denied benefits, id. ¶¶ 26-31; and (3)
Ms. Miles allegedly complained in August 2015 that she was discriminated against by other

28

employees because “she is married to an African American man and has [biracial] children.” Id.
¶¶ 42-43, 45.6
Plaintiff’s first two allegations of oppositional activity only involve complaints to HR
regarding defendants’ treatment of non-employees, namely, third-party housing applicants.
Because these complaints were not in response to discriminatory employment practices, they do
not constitute protected activity. See Stennis v. Bowie State Univ., 236 F. Supp. 3d 903, 911 (D.
Md. 2017) (concluding that a professor’s opposition to alleged discrimination against
homosexual and female students did not constitute opposition to a “perceived unlawful
employment practice,” and “it was not reasonable to believe that perceived discrimination
against students—who are clearly not employees—violated [Title VII].”) (emphasis in original),
aff’d in part, vacated in part, 716 Fed. App’x 164 (4th Cir. 2017); Harmon, 186 F. Supp. 3d at
506 (stating that “an employee may oppose [] practices that discriminate against an individual
with respect to [her] compensation, terms, conditions, or privileges of employment.”) (internal
quotation marks and citation omitted); Cooper v. City of Fountain Inn, No. CIV.A. 6:071262HFFB, 2007 WL 2736531, at *2-3 (D.S.C. Sept. 17, 2007) (concluding that the plaintiff’s

6

Plaintiff also alleges that she reported defendants to HR for: (1) retaliating against other
employees who had complained of disability discrimination, ECF 17, ¶¶ 30-32; and (2)
discriminating against Ms. Bauerlein based on her religious beliefs. Id. ¶¶ 24-25. These
allegations, however, fall outside of the scope of § 1981, and will not be considered in
connection with this claim, because they do not involve discrimination based on race. See
Nnadozie v. Genesis Healthcare Corp., 2018 WL 1830935, at *4 (4th Cir. April 17, 2018) (“[A]t
the very least, a Section 1981 claim must allege race-based discrimination.”) (emphasis in
original); Woods v. City of Greensboro, 855 F.3d 639, 645 (4th Cir.) (“Section 1981 protects all
persons from racial discrimination in making and enforcing contracts.”) (citation omitted), cert.
denied sub nom. City of Greensboro, N.C. v. BNT Ad Agency, LLC, ___ U.S. ___, 138 S. Ct. 558
(2017); Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018 (4th Cir. 1999) (“A § 1981 action,
then, must be founded on purposeful, racially discriminatory actions . . . .”) (citation omitted);
Bowling v. Humanim, Inc., JKB-16-3298, 2017 WL 713862, at *2 (D. Md. Feb. 22, 2017) (“[A]
plaintiff bringing a claim . . . under § 1981 must allege that [she suffered discrimination]
because of her race[.]”) (citation omitted) (emphasis in original).
29

reporting of alleged sexual assault/harassment against her daughter did not qualify as opposition
to an “unlawful employment practice” because the daughter was not an employee of the
defendant, and further stating that “Title VII limits ‘unlawful employment practices’ to actions of
employers taken against either ‘employees’ or ‘applicants for employment.’”) (quoting 42 U.S.C.
§ 2000e-2).
Given that plaintiff’s first two allegations fail to qualify as protected activity, they do
state a claim under § 1981.
However, plaintiff states a claim with respect to her third allegation – that, on August 25,
2015, she complained to HR that Ms. Miles was suffering discrimination at the hand of other
employees because “she is married to an African American man and has [biracial] children.” See
ECF 17 ¶¶ 42-43, 45.

Defendants admit investigating the alleged discrimination and

subsequently implementing “several new policies and procedures.” Frock Aff., ECF 21-6, ¶¶ 56. On September 17, 2015, less than one month after plaintiff complained to HR, plaintiff was
terminated. ECF 17, ¶ 47.
In the light most favorable to plaintiff, her conduct qualifies as opposition to unlawful
employment practices, because other employees were discriminating against the “conditions or
privileges” of Ms. Miles’s employment.” Drawing all inferences in favor of plaintiff as the nonmoving party, plaintiff has stated a claim of discrimination, in violation of § 1981.7 See Alizadeh
v. Safeway Stores, Inc., 802 F.2d 111, 114 (5th Cir. 1986) (Ҥ 1981 provides a cause of action to
a white spouse who alleges that [s]he was discriminated against in employment because of [her]
marriage to a nonwhite.”); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888, 890 (11th
Cir.1986) (“We hold that section 1981 prohibits discrimination based upon an interracial
7

See Section D(4), infra, as to the element of causation.
30

marriage or association . . . .”); Tetro v. Elliott Popham Pontiac, Oldsmobile, Buick, & GMC
Trucks, Inc., 173 F.3d 988, 994 (6th Cir. 1999) (“A white employee who is discharged because
[her] child is biracial is discriminated against on the basis of [her] race . . . .”).
D. Title VII
1.
In Count I, plaintiff asserts a claim of retaliation under Title VII. Title VII prohibits an
employer from discriminating against “any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e–2(a)(1); see Young v. United Parcel Service, Inc., ____
U.S. ____, 135 S. Ct. 1338, 1344 (2015); DeMasters v. Carilion Clinic, et al., 796 F.3d 409, 416
(4th Cir. 2015); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 298 (4th Cir. 2015) (en
banc); Freeman v. Dal-Tile Corp., 750 F.3d 413, 420 (4th Cir. 2014). It also prohibits an
employer from retaliating against an employee because the employee filed a grievance or
complaint

regarding

an

employment

practice

that

allegedly

violated

Title

VII’s

antidiscrimination provision. See 42 U.S.C. § 2000e-3(a); DeMasters, 796 F.3d at 415. Of
relevance here, Title VII states, in part, that an employer may not discriminate against an
employee because she “has opposed any practice made an unlawful employment practice . . . , or
because [s]he has made a charge.” 42 U.S.C.A. § 2000e-3.
As to the allegations in paragraphs 19-34 of the Amended Complaint, defendants
complain that plaintiff failed to exhaust her administrative remedies. Therefore, they move to
dismiss for lack of subject matter jurisdiction. ECF 21-1 at 12.8 In particular, defendants assert

8

Defendants also contend that the retaliation claim under MFEPA is subject to the Title
VII exhaustion requirement. ECF 21-2 at 12 n.25. See Stennis, 236 F. Supp. 3d at 909-10; Allen
31

that the Amended Complaint alleges discriminatory conduct between September 26, 2014 and
October 27, 2014, which was not included in the EEOC charge. See ECF 17, ¶¶ 19-34. They
also note that, under 29 C.F.R. § 1601.12(a)(3), an EEOC Charge must include “pertinent dates.”
ECF 21-1 at 16. As to the remainder of plaintiff’s Title VII claim, defendants urge dismissal for
failure to allege protected activity or, alternatively, a failure to allege causation. See ECF 21-1 at
18 et seq.
2. Administrative Exhaustion
Under Title VII, a plaintiff must file a charge of discrimination with the EEOC, or a
comparable State agency, before filing suit in federal court. 42 U.S.C. § 2000e–5(f)(1); see Jones
v. Calvert Grp., 551 F.3d 297, 300 (4th Cir. 2009); see also Nnadozie, 2018 WL 1830935, at *7.
The charge must “describe generally the action or actions complained of,” in order to provide the
charged party with adequate notice. 29 C.F.R. § 1601.12(b); see Jones v. Southpeak Interactive
Corp. of Delaware, 777 F.3d 658, 670 (4th Cir. 2015) (“We recognize that a primary objective of
exhaustion requirements is to put parties on notice of the allegations against them.”); Balas v.
Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013). The “exhaustion requirement
ensures that the employer is put on notice of the alleged violations so that the matter can be
resolved out of court if possible.” Miles v. Dell, Inc., 429 F.3d 480, 491 (4th Cir. 2005).
The exhaustion requirement is not “simply a formality to be rushed through so that an
individual can quickly file his subsequent lawsuit.” Chacko v. Patuxent Inst., 429 F.3d 505, 510
(4th Cir. 2005). Rather, together with the agency investigation and settlement process it initiates,
the requirement “‘reflects a congressional intent to use administrative conciliation as the primary
means of handling claims, thereby encouraging quicker, less formal, and less expensive
v. Discovery Communications, LLC, PWG-15-1817, 2016 WL 5404558, at *3 (D. Md. Sept. 28,
2016).
32

resolution of disputes.’” Balas, 711 F.3d at 407 (quoting Chris v. Tenet, 221 F.3d 648, 653 (4th
Cir. 2000)). “Allowing [the EEOC] first crack at these cases respects Congress’s intent . . . .”
Sydnor v. Fairfax Cty., 681 F.3d 591, 593 (4th Cir. 2012).
An aggrieved person must file a Title VII complaint with the EEOC within 180 days of
the alleged discrimination, except in a “deferral” jurisdiction, where the period is 300 days. See
42 U.S.C. § 2000e-5(e)(1); Edelman v. Lynchburg Coll., 300 F.3d 400, 404 & n.3 (4th Cir.
2002). Maryland is a deferral state. And, the Maryland Commission on Civil Rights is the
applicable State enforcement agency. See, e.g., Dewitt v. Clean Harbors Envtl. Servs., Inc.,
RDB-16-1705, 2017 WL 3116609, at *3 (D. Md. July 21, 2017).
The exhaustion requirement of Title VII functions as a jurisdictional bar in federal court.
In Balas, 711 F.3d at 406, the Fourth Circuit said: “[F]ederal courts lack subject matter
jurisdiction over Title VII claims for which a plaintiff has failed to exhaust administrative
remedies.”

An aggrieved party who fails to comply with the applicable administrative

procedures has failed to exhaust his administrative remedies, and is generally barred from filing
suit. See, e.g., Nnadozie, 2018 WL 1830935, at *7; Miles, 429 F.3d at 491; Bryant v. Bell Atl.
Md., Inc., 288 F.3d 124, 132 (4th Cir. 2002). Failure to exhaust generally mandates dismissal.
See Lorenzo v. Rumsfeld, 456 F. Supp. 2d 731, 734 (E.D. Va. 2006) (citing Zografo v. Veterans
Admin. Med. Ctr., 779 F.2d 967, 970 (4th Cir. 1985)).
Even when a plaintiff has filed a claim with the EEOC, a court cannot consider matters
that were not properly raised during the EEOC process. To determine whether a plaintiff has
“properly alleged [a claim] before the EEOC” in a manner satisfying the exhaustion requirement,
courts “may look only to the charge filed with that agency.” Balas, 711 F.3d at 408; see also
Chacko, 429 F.3d at 506 (“This charge frames the scope of future litigation.”); Evans v. Tech.’s

33

Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996) (“The allegations contained in the
administrative charge of discrimination generally operate to limit the scope of any subsequent
judicial complaint.”). Although courts “recognize that EEOC charges often are not completed by
lawyers and as such must be construed with utmost liberality,” courts are “not at liberty to read
into administrative charges allegations they do not contain.” Balas, 711 F.3d at 408 (citations
and quotation marks omitted). Indeed, “liberal construction only stretches so far.” Nnadozie,
2018 WL 1830935, at *7. Thus, courts are constrained by the four corners of the charge and the
inference of “‘any charges that would naturally have arisen from an investigation thereof . . . .’”
Balas, 711 F.3d at 407-08 (citations omitted).
However, “[t]he touchstone for exhaustion is whether plaintiff’s administrative and
judicial claims are ‘reasonably related,’ not precisely the same . . . .” Sydnor, 681 F.3d at 595.
The Court explained in Sydnor, 681 F.3d at 594: “[A]n administrative charge of discrimination
does not strictly limit a Title VII suit which may follow. Instead, so long as a plaintiff’s claims in
her judicial complaint are reasonably related to her EEOC charge and can be expected to follow
from a reasonable administrative investigation, she may advance such claims in her subsequent
civil suit.” Accord Southpeak Interactive Corp. of Del., 777 F.3d at 669; see Calvert Grp., Ltd.,
551 F.3d at 300; Evans, 80 F.3d at 963. On the other hand, the Fourth Circuit has said that “a
plaintiff fails to exhaust [her] administrative remedies where ... [her] administrative charges
reference different time frames, actors, and discriminatory conduct than the central factual
allegations in his formal suit.” Chacko, 429 F.3d at 506 (emphasis added); see Nnadozie, 2018
WL 1830935, at *7.
The Fourth Circuit’s opinion in Jones v. Calvert Grp., 551 F.3d 297, provides guidance.
In that case, the plaintiff filed a charge with the Maryland Commission on Human Relations,

34

checking only the box for “retaliation.” Id. She stated: “‘I believe I am being forced to work in a
hostile environment and subjected to differential treatment in retaliation for filing’ [a prior]
charge.” Id.; see id. at 301. Plaintiff subsequently brought suit, alleging retaliation as well as race
and sex discrimination, in violation of Title VII. Id. at 299. She also alleged age discrimination,
in violation of the ADEA. Id. The defendant moved to dismiss under Rule 12(b)(6). Id. After
converting the motion to dismiss to a motion for summary judgment, the district judge entered
judgment in favor of the defendant, on the merits. Id. at 299-301.
The Fourth Circuit concluded that the plaintiff had failed to exhaust administrative
remedies. Id. at 299. It reasoned, id. at 301: “The...charge alleged that [plaintiff] was being
retaliated against because she had filed [a previous] charge; it did not allege that she was
discriminated against based on her age, sex, or race. Indeed, she checked only the ‘retaliation’
box on her EEOC charge and left unchecked the boxes for ‘age,’ ‘sex,’ or ‘race.’”
Belyakov v. Medical Science & Computing, 86 F. Supp. 3d 430, 440 (D. Md. 2015), is
also instructive. In Belyakov, the plaintiff applied for a job with the National Institutes of Health
through the defendant staffing firm. Id. at 432. When plaintiff did not get the job, he filed suit
against the defendant, alleging age discrimination under the ADEA, as well as national origin
discrimination and retaliation under Title VII. In granting summary judgment in favor of the
staffing agency as to the national origin claim, the district judge said: “Belyakov did not check
the box for national origin discrimination in his EEOC charge, nor did he claim national origin
discrimination or allege any facts relating to his national origin . . . in the narrative portion of his
EEOC charge.” Id. at 440. Instead, the plaintiff “asserted only claims for, and alleged facts
relating to, age discrimination in violation of the ADEA and retaliation in violation of Title
VII . . . .” Id. Therefore, the court determined that the plaintiff failed to exhaust his national

35

origin claim. Id.; see also Byington v. NBRS Fin. Bank, 903 F. Supp. 2d 342, 350 (D. Md. 2012)
(finding that the plaintiff failed to exhaust her administrative remedies as to discrimination on the
basis of age because she “did not check the box for discrimination based on age, and there is no
reference to age discrimination in the narrative portion of the document”); Talbot v. Foodservice,
Inc., 191 F. Supp. 2d 637, 640 (D. Md. 2002) (same, for disability discrimination).
3. Plaintiff’s EEOC Charge & Allegations Contained in Paragraphs 19-34
Plaintiff’s EEOC Charge of October 1, 2015, alleges that she was discriminated against
between November 25, 2014 and September 17, 2015. EEOC Charge, ECF 21-5 at 2. The form
asks the complainant to identify the type of discrimination, and plaintiff checked only the box for
retaliation. She did not allege a continuing violation.
The form also asks for the “Earliest Date(s) Discrimination Took Place.”
specified “11-25-2014.”

Id.

Plaintiff

In the area of the EEOC Charge dedicated to the

“PARTICULARS” of her claim, plaintiff stated, id. (emphasis added):
I. I began my employment . . . on May 28, 2013. My most recent position was
Director, Citizen Services/ADAA Coordinator. During the course of my
employment I have opposed issues covered by EEOC statutes, specifically, race
discrimination, equal pay issues, disability related issues and religious
discrimination which created a hostile work environment for the employees. On
September 17, 2015, as a result of my most recent complaints reported to the
employer in July through September 2015, I was advised I was discharged by
Kim Frock, Human Resources Director, Roberta Windham, County Administrator
and Commissioner Wantz.
II. The reason given for discharge was reorganization.
III. I believe I have been retaliated against in violation of Title VII . . . with
respect to discharge.
As noted, the allegations contained within Paragraphs 19-34 of plaintiff’s Amended
Complaint (ECF 17) relate to incidents that occurred between September 26, 2014 and October
27, 2014. Specifically, on or about September 26, 2014, Ms. Boyd met with plaintiff, who
36

complained of racial and disability discrimination, and stated that certain employees viewed
“people who are of another race, in poverty or need accommodation for a disability [are] viewed
as an annoyance’” and were denied benefits under programs receiving federal financial
assistance. Id. ¶¶ 19-21. Thereafter, on October 2, 2014, Ms. Bauerlein complained to plaintiff
that she was being discriminated against because of her religious beliefs (Buddhism) and, on
October 27, 2014, a County housing recipient reported to plaintiff that she was discriminated
against based on race and because her daughter was disabled. Id. ¶¶ 24, 26-30. Plaintiff, in turn,
reported each of these complaints to HR. Id. ¶¶ 23, 25, 31-34. Plaintiff alleges she was
terminated, in part, because she reported these incidents. Id. ¶¶ 84-92.
In her Charge, plaintiff did not include the specific dates and facts that are outlined in the
preceding paragraph. But, in her Opposition, plaintiff maintains that she properly exhausted her
claims because she “expressly allege[d]” in the Charge that she engaged in protected activity
prior to July 2015, such that the protected activity set forth in Paragraphs 19-34: (1) “was
included in or ‘reasonably related’ to” her retaliation charge; or (2) would have been part of a
reasonable investigation of her complaint. ECF 24 at 18-20 (citing Sydnor, Va., 681 F.3d at 594)
(“[S]o long as a plaintiff’s claims in her judicial complaint are reasonably related to her EEOC
charge and can be expected to follow from a reasonable administrative investigation, she may
advance such claims in her subsequent civil suit.”) (internal quotation marks and citations
omitted).
In the “PARTICULARS” section of the Charge, plaintiff did assert that she had engaged
in protected activity “during the course of [her] employment,” which began in May 2013. And,
she expressly stated that defendant fired her on September 17, 2015, “as a result of [her] most
recent complaints reported to the employer in July through September 2015.” Id.

37

To be sure, each of the allegations at issue occurred before November 25, 2014, the
earliest date that the EEOC Charge alleges the discrimination occurred. See Charge, ECF 21-5 at
2. According to the Charge, plaintiff claimed she was retaliated against because of her activities
between November 25, 2014 and September 17, 2015. But, plaintiff did specify that, during the
course of her employment, she opposed other discriminatory conduct.
In Nnadozie, supra, 2018 WL 1830935, the Fourth Circuit determined that one of the
plaintiffs failed to include any facts in the EEOC charge concerning discrimination on the basis
of national origin.

Therefore, the Court concluded that the Title VII claim had not been

exhausted, and the trial court properly granted summary judgment to the employer. Id. at *7. As
noted, the Court said that “liberal construction only stretches so far.” Id.
Here, in paragraphs 19-34 of ECF 17, plaintiff does not seek to introduce a claim for an
unrelated form of discrimination, such as discrimination based on age, sex, or religion. Rather,
the provisions in the paragraphs at issue are consistent with plaintiff’s assertion in the EEOC
charge that, during the course of her employment, she “opposed issues covered by EEOC
statutes, specifically, race discrimination, equal pay issues, disability related issues and religious
discrimination which created a hostile work environment . . . .” ECF 21-5 at 2.
I am satisfied that the factual allegations contained in Paragraphs 19-34 are “reasonably
related” to plaintiff’s allegations in the Charge of retaliation. However, even if Paragraphs 19-34
are “reasonably related” to plaintiff’s retaliation charge, the allegations in Paragraphs 19-23 and
26-30 do not amount to “protected activity,” because plaintiff opposed discrimination against
non-employees of the County. And, of import here, Title VII is directed to unlawful employment
practices. In other words, to the extent that plaintiff alleges that she opposed discriminatory
conduct against non-employees, the conduct is not within the ambit of Title VII.

38

In Stennis v. Bowie State Univ., 716 Fed. App’x 164 (4th Cir. 2017) (per curiam), the
Fourth Circuit considered, inter alia, the dismissal of a complaint that included a Title VII
retaliation claim brought by a professor who had complained that her students were subjected to
sex discrimination. The Fourth Circuit concluded that the professor failed to allege that she
engaged in protected activity. It said, in part, id. at 167: “‘Title VII is not a general bad acts
statute . . . and it does not prohibit private employers from retaliating against an employee based
on her opposition to discriminatory practices that are outside the scope of Title VII.’” (quoting
Bonds v. Leavitt, 629 F.3d at 384). In other words, the protected activity “must be directed to ‘an
unlawful employment practice’ under Title VII.” DeMasters, 796 F.3d at 417 (citation omitted).
Moreover, even if Paragraphs 24-25 and 31-34 constituted “protected activity,” plaintiff does not
allege causation, due to the time lapse between the protected activity and her termination, as
discussed previously. See supra Part II.
4. Plaintiff’s Remaining Title VII Allegations
Plaintiff’s allegations under Title VII include that, in July and August of 2015 (after
receiving her contract extension), she complained to HR that: (1) Defendants’ Grant Contingent
Classification Policy caused female staff to earn less money than their male counterparts, ECF
17 ¶¶ 37-41; and (2) Ms. Miles suffered discrimination from other employees because “she is
married to an African American man and has [biracial] children,” id. ¶¶ 42-43, 45. Soon after,
plaintiff was terminated. These allegations set forth a claim of retaliation under Title VII.
First, as discussed in reference to plaintiff’s § 1981 claim, her complaints to HR
regarding racial discrimination against Ms. Miles qualify as protected activity. Moreover,
plaintiff’s complaints regarding the Policy also qualify, because she could “reasonably believe”
that defendants’ Policy constituted an “unlawful employment practice,” as it purported to

39

discriminate on the basis of sex and caused female employees to earn less than their male
counterparts. See ECF 17, ¶¶ 37-41; Pettis, 592 F. App’x at 160 (Under Title VII and § 1981,
“[a] complaint is protected as opposition activity if it is a response to an employment practice
that is, or that the plaintiff reasonably believes is, unlawfully discriminatory.”). Specifically,
plaintiff alleged that under the Policy female employees were paid for 38 hours during a holiday
week, while “Facility and Roads” employees, who were all male, were paid for 40 hours during a
holiday week. Id. ¶ 39.
Next, to demonstrate a causal connection, there must be “some degree of temporal
proximity” between the protected activity and adverse employment action.

Constantine v.

Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005). Plaintiff must
also allege that the employer had knowledge of the protected activity prior to the occurrence of
the adverse action. Gibson v. Marjack Co., 718 F. Supp. 2d 649, 655 (D. Md. 2010) (citing
Causey v. Balog, 162 F.3d 795, 803-04 (4th Cir. 1998)).
Plaintiff allegedly reported the alleged discriminatory effects of the Policy directly to
Roberta Windham, County Administrator, on July 29, 2015 and, in writing, to HR on July 30,
2015. ECF 17, ¶¶ 40-41. Moreover, on August 25, 2015, plaintiff reported to HR the alleged
discrimination against Ms. Miles. Id. ¶ 45. Then, on September, 17, 2015, less than two months
after complaining about the Policy, and less than one month after the Miles complaint, plaintiff
was terminated. The decision to terminate plaintiff was made at a meeting of the County Board
of Commissioners, and in the presence of Kimberly Frock, defendants’ HR Director. Frock Aff.,
ECF 21-6 ¶¶ 7-8. Thus, defendants acquired knowledge of plaintiff’s protected activity and
terminated her within a relatively short period of time. Drawing all inferences in favor of the
non-moving party, plaintiff has adequately pleaded causation.

40

E. MFEPA
Plaintiff may bring an employment discrimination claim under MFEPA, S.G. §§ 20-601
et seq., provided that plaintiff furnished the requisite notice, as required by the Local
Government Tort Claims Act, C.J. §§ 5-301 et seq. Section 5-304 of the LGTCA provides that
“an action for unliquidated damages may not be brought against a local government or its
employees unless the notice of the claim . . . is given within [180 days] after the injury.” C.J.
§ 5-304.9 The notice must “be in writing and shall state the time, place, and cause of the injury.”
Id. Moreover, for Carroll County, the notice “shall be given in person or by certified mail . . . to
the county commissioners or county council.” Id.
Generally, “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.” Renn v. Bd. of Comm’rs of Charles Cty., Md, 352 F. Supp. 2d
599, 603 (D. Md. 2005). In Penn, the court said, id. (internal quotation marks and citations
omitted):
The purpose of the notice requirement is to protect the municipalities and counties
of the State from meretricious claimants and exaggerated claims by providing a
mechanism whereby the municipality or county would be apprised of its possible
liability at a time when it could conduct its own investigation, i.e., while the
evidence was still fresh and the recollection of the witnesses was undiminished by
time, sufficient to ascertain the character and extent of the injury and its
responsibility in connection with it.
Thus, failure to satisfy the notice requirement may be fatal to a plaintiff’s claim. See Rios
v. Montgomery Cty., 386 Md. 104, 127-28, 872 A.2d 1, 14 (2005) (stating that a claim is “fatally
flawed” if the notice requirement is not satisfied); Ross v. Prince George’s Cty., MD, DKC 119

The LGTCA was amended and now provides that, for injuries occurring after October
1, 2015, claimants must provide notice “within 1 year after the injury.” C.J. § 5-304. However,
plaintiff was terminated on September 17, 2015. Because her injury arose before October 1,
2015, she is subject to the 180 day notice requirement.
41

1984, 2012 WL 1204087, at *4 (D. Md. Apr. 10, 2012) (“Plaintiff’s Failure to Comply with the
LGTCA’s Notice Requirement is Fatal to His State Law Claims”).
Although notice is a condition precedent to maintaining a suit for damages, “strict
compliance with the notice provisions of the LGTCA is not always required; substantial
compliance may suffice.” Renn, 352 F. Supp. 2d at 603 (internal quotation marks and citations
omitted). Substantial compliance is satisfied “[w]here the purpose of the notice requirements is
fulfilled, but not necessarily in a manner technically compliant with all of the terms of the
statute.” Id. (internal quotation marks and citations omitted). It “requires some effort to provide
the requisite notice and, in fact, it must be provided, albeit not in strict compliance with the
statutory provision.” Id. (internal quotation marks omitted). In other words, “substantial
compliance is such communication that provides . . . requisite and timely notice of facts and
circumstances giving rise to the claim.” Id. at 603-04 (internal quotation marks and citations
omitted).
In the context of this case, C.J. § 5-304(2)(c)(2) requires notice to be given to the Carroll
County Board of Commissioners or the Carroll County Council. According to plaintiff, the
Board appointed the County Attorney to serve as its counsel. ECF 17, ¶ 69. In 2015, Timothy
Burke was the County Attorney, and he represented the Board. Id. ¶ 70. Plaintiff insists in her
Opposition that she substantially complied with the notice requirement because her attorney sent
a letter to Mr. Burke, the County Attorney, on October 30, 2015, titled “Request for Preservation
of Evidence.” See ECF 21-2. The letter indicated that counsel was “retained to represent the

42

interests” of plaintiff, and her counsel sought preservation of the requested evidence “in the
event that this case proceeds to litigation and would be admissible at trial. Id. at 2.10
Plaintiff also argues that she substantially complied with the LGTCA by serving
defendant with the EEOC Charge between October and December 2015. ECF 17, ¶ 66. The
Charge identified the time, place, and cause of her injury. Id. ¶ 76; ECF 24 at 22.
Defendants maintain that the EEOC Charge is insufficient because: (1) “it does not
express any intent to file suit for unliquidated damages” and; (2) it “was provided to the EEOC
and not to [defendants].” ECF 21-1 at 7-8. More specifically, defendants argue that, under
Maryland law, “an EEOC charge does not constitute notice under the LGTCA.” Id. (citing
Hansen v. City of Laurel, 420 Md. 670, 25 A.3d 122, 126 (2011); Royster v. Gahler, 154 F.
Supp. 3d 206, 224 (D. Md. 2015)).
The County became aware of plaintiff’s EEOC Charge well within the 180 days in which
plaintiff was required to provide notice. In fact, on December 15, 2015, the County provided its
Position Statement to the EEOC regarding plaintiff’s claims. ECF 24-4. The Position Statement
demonstrates that defendants hired Kimberly L. Limbrick to represent them “in connection with
[Plantiff’s] Charge of Discrimination” and that, upon an internal inquiry, defendants determined
that Plaintiff’s “termination was due solely to her own ineffective job performance.” Id. at 3.
Presented with a similar situation, a judge of this court said in Nelson v. City of Crisfield,
L-10-1816, 2010 WL 4455923, at *2 (D. Md. Nov. 5, 2010):
[T]he EEOC notice was [provided to defendant] within the 180–day
timeframe . . . ., provided the identity of the claimant, the time and place of the
event, the nature of the claim, and the Plaintiff’s intent to pursue litigation. While
[plaintiff] did not technically comply, it seems clear that the purposes of the
10

Plaintiff also alleges that her lawyer sent another notice to Burke on February 3, 2016.
ECF 17, ¶ 77. However, defendants assert that they have no record of such a letter. ECF 21-1 at
9 n.15; see also ECF 21-3 (Affidavit of Burke, ¶ 4).
43

statute were satisfied in this instance. The [defendant] had notice of the exact
nature of [plaintiff’s] claim at a time when it could conduct its own investigation.
In fact, the EEOC notice specifically advised the [defendant] to preserve its
personnel and other records. The Court therefore deems [plaintiff] in substantial
compliance with the LGTCA, and finds that her claims are not barred on this
basis.
Moreover, defendants’ reliance on Hansen and Royster is misplaced. As plaintiff notes,
the court in Hansen did not “decide whether [the plaintiff’s] conduct complied with the
[LGTCA] notice provision.” 420 Md. at 673, 25 A.3d at 124. Rather, it ruled that his failure to
“plead expressly in his complaint satisfaction of the LGTCA notice provision” doomed his
claim. Id. at 672. Moreover, although Royster determined that plaintiff’s notice to the EEOC “is
clearly not sufficient to constitute substantial compliance, as the EEOC is not associated with the
[defendant] in any way,” 154 F. Supp. 3d at 224, in that case there was no allegation that the
defendant had actually been served with the plaintiff’s EEOC charge and no evidence that the
defendant received actual notice from the EEOC within the notice period.
In contrast, in this case, the EEOC Charge provided defendants with “requisite and timely
notice of facts and circumstances giving rise to the claim,” the critical requirement to establish
substantial compliance.

Renn, 352 F. Supp. at 603-04. Therefore, plaintiff substantially

complied with the notice requirement, and may bring suit under the LGTCA, to the extent
appropriate.
IV.

Punitive Damages

Defendants moved to dismiss plaintiff’s claim for punitive damages, arguing that because
Carroll County is a local governmental entity, it “may not be liable for punitive damages.” ECF
21 at 25 (quoting C.J. § 5-303(c)(1)); see 42 U.S.C. § 1981a(b)(1) (“A complaining party may
recover punitive damages under this section against a respondent (other than a government,

44

government agency or political subdivision) . . . . ”); Barnes v. Gorman, 536 U.S. 181 (2002)
(holding that punitive damages are not available in Title VI or § 504 lawsuits).
Plaintiff failed to oppose defendants’ argument. Cf. Cox v. SNAP, Inc., 859 F.3d 304,
308 n.2 (4th Cir. 2017) (“‘If a party fails to assert a legal reason why summary judgment should
not be granted, that ground is waived and cannot be considered or raised on appeal.’”) (quoting
Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995)).
I agree with defendants. Therefore, the claim for punitive damages shall be dismissed.
V.

Conclusion

For the reasons set forth above, defendants’ Motion, construed as a motion to dismiss, is
granted in part and denied in part. An Order follows.

Dated: May 3, 2018

/s/
Ellen L. Hollander
United States District Judge

45