Bishop v. Calvert County Public Schools
Filing
17
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/5/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
DWIGHT BISHOP, JR.
:
v.
:
Civil Action No. DKC 11-1100
:
BOARD OF EDUCATION OF CALVERT
COUNTY
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
employment discrimination case is a motion to dismiss filed by
Defendant,
Board”).
the
Board
of
(ECF No. 14).1
Education
of
Calvert
County
(“the
The issues are fully briefed and the
court now rules pursuant to Local Rule 105.6, no hearing being
deemed
necessary.
For
the
reasons
that
follow,
Defendant’s
motion will be granted.
I.
Background
A.
Factual Background
The following facts are alleged in the complaint.
2).
(ECF No.
Plaintiff Dwight Bishop, an African-American, was hired by
the Board in 1996 as an In-School Suspension Assistant.
In
2008, he was promoted to Assistant Supervisor of Warehouse and
Transportation.
1
He is currently employed in that capacity.
The complaint incorrectly identifies the Board as “Calvert
County Public Schools.”
Shortly after his promotion, Plaintiff “began noticing a
pattern of discrimination against black employees[.]”
9).
(Id. at ¶
In November 2008, he observed that the employees working in
the warehouse, who were predominantly African-American, were not
provided
with
custodial
services
while
departments received those services.
other
buildings
and
Plaintiff complained to
Deborah Pulley, Executive Director of School Operations, about
this
alleged
McCourt,
disparate
Chief
Budget
treatment.
and
Ms.
Finance
complaint, but she failed to do so.
lodged
further
complaints
with
Pulley
Officer,
to
asked
address
Tammy
the
It was only after Plaintiff
Ms.
Pulley
that
custodial
services were provided to warehouse employees.
In July 2009, two supervisors required Plaintiff to “turn
in a weekly schedule showing his location at all times.”
(Id.
at ¶ 17).
Plaintiff observed that “white employees who split
their
between
time
two
departments
requirement imposed on them.”
.
.
.
had
no
[]
such
(Id.).
Plaintiff received a work evaluation in September 2009 that
was less favorable than prior evaluations.
He met with his
direct supervisor, Edward Cassidy, to discuss the evaluation,
but Mr. Cassidy did not offer a meaningful explanation for the
lower scores.
score
for
supervisor
When Plaintiff asked why he received a lower
“Communication
refused
to
and
Interpersonal
discuss
2
the
Relations,”
evaluation
further
the
and
stripped Plaintiff of one of his duties without explanation.
(Id. at ¶ 11).
Although Mr. Cassidy told Plaintiff that he
“doesn’t give 5’s” – apparently, the highest evaluation score –
Plaintiff later learned that a Caucasian employee, Kevin Hook,
“received ‘5’s’ on his evaluation.”
(Id. at ¶ 13).
According
to Plaintiff, Mr. Cassidy “was using a different rating system
for him than he was using for white employees[.]”
On
October
6,
2009,
Mr.
Cassidy
(Id.).
initially
denied
Plaintiff’s request for bereavement leave following the death of
his aunt, advising him, “[t]here is no bereavement leave for
step-aunts.”
later
granted,
lengthy
(Id. at ¶ 14).
but
only
explanation
Pulley on an email.”
Plaintiff’s leave request was
after
about
he
his
engaged
family
(Id.).
Mr.
tree”
Cassidy
and
“in
“copied
a
Ms.
Plaintiff asserts that when a
white employee requested bereavement leave, Mr. Cassidy did not
question the employee’s relationship with the deceased.
The complaint recites several other examples of racially
discriminatory treatment by Mr. Cassidy without specifying when
the events occurred.
On one occasion, “Mr. Cassidy questioned
[Plaintiff] about how he could afford a nice car,” but “never
questioned white employees as to how they could afford their
cars[.]”
(Id. at ¶ 15).
On another occasion, Mr. Cassidy
interfered with an order that a new laptop computer be provided
to Plaintiff, directing him to use a spare computer instead.
3
At
around the same time, however, “Mr. Cassidy did not interfere
with the purchase of [a] white employee’s desktop [computer].”
(Id. at ¶ 16).
Plaintiff
submitted
a
written
complaint
of
race
discrimination to the director of the human resources department
on October 21, 2009.
Ms. Pulley subsequently advised Plaintiff
that the Board’s investigation determined “the issue was not
discrimination,
but
miscommunication.”
(Id.
at
¶
19).
Plaintiff learned from Assistant Superintendent Jeff Walker that
“Mr. Cassidy’s behavior had ‘improved’ during the course of the
investigation and that the improved behavior would result in
more fair evaluations in the future.”
(Id.).
Thereafter, according to Plaintiff, his supervisors “began
engaging
in
(Id.
¶
at
retaliatory
20).
Ms.
behavior”
Pulley
related
refused
to
to
speak
his
complaint.
to
Plaintiff,
ignoring and walking past him when he attempted to address her.
When another employee witnessed this conduct, the employee asked
Plaintiff, “What did you do to her?”
(Id.).
Plaintiff asserts
that the “retaliation escalated on February 24, 2010,” when Ms.
McCourt issued him an unwarranted verbal reprimand, purportedly
for “not reporting to the proper work location” and “filling out
[a] . . . [t]ime [f]orm at work,” rather than off-the-clock.
(Id. at ¶ 21).
According to Plaintiff, “white employees, such
4
as Mr. Hook and Mr. Cassidy, have filled out these forms at work
without any reprimand.”
B.
(Id.).
Procedural Background
Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) on June 25, 2010, and
a
right
to
sue
letter
was
issued
on
March
3,
2011.
Soon
thereafter, he commenced this action in the Circuit Court for
Calvert
County,
Maryland,
by
filing
a
complaint
alleging
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title
VII”),
and
Title
20
of
the
State
Government
Article
of
the
Annotated Code of Maryland, Md. Code Ann., State Gov’t §§ 20601, et seq. (“Title 20”).
alleges
negligent
(ECF No. 2).
supervision
and
The complaint also
retention
and
intentional
infliction of emotional distress under Maryland law.
The Board timely removed to this court on April 27, 2011
(ECF No. 1), and, on May 3, filed the instant motion to dismiss.
(ECF No. 14).
II.
Standard of Review
The
purpose
of
a
motion
to
dismiss
pursuant
12(b)(6) is to test the sufficiency of the complaint.
to
Rule
Presley
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
At
this
stage,
the
court
must
consider
all
well-pleaded
allegations in a complaint as true, Albright v. Oliver, 510 U.S.
5
266, 268 (1994), and must construe all factual allegations in
the
light
most
favorable
to
the
plaintiff,
see
Harrison
v.
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, the court need
not accept unsupported legal allegations.
Revene v. Charles
County Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
agree
with
legal
conclusions
couched
as
factual
Nor must it
allegations,
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009), or conclusory
factual allegations devoid of any reference to actual events,
United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir.
1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th
Cir. 2009).
III. Analysis
A.
Timeliness of the Administrative Complaint
The Board moves to dismiss portions of count one and all of
count two, alleging racial discrimination under Title VII and
Title 20, for lack of subject matter jurisdiction, arguing that
Plaintiff’s administrative complaint was not filed in a timely
manner.
Because “a failure to exhaust administrative remedies
based on untimely filings is not an issue of subject matter
jurisdiction,” dismissal under Rule 12(b)(1) would be improper.
Brown v. McKesson Bioservices Corp., Civ. No. DKC 05-0730, 2006
WL 616021, at *3 (D.Md. Mar. 10, 2006); see also Zipes v. Trans
6
World Airlines, Inc., 455 U.S. 385, 393 (1982) (the requirement
that a plaintiff timely exhaust administrative remedies is “a
requirement that, like a statute of limitations, is subject to
waiver, estoppel, and equitable tolling”).
12(b)(6)
motions
may
properly
raise
Nevertheless, “Rule
statute
of
limitations
defenses where the defense is apparent from the face of the
complaint.”
Douglass v. NTI-TSS, Inc., 632 F.Supp.2d 486, 491
(D.Md. 2009).
Here, the untimeliness defense is apparent from
the face of Plaintiff’s complaint and the court will consider
Defendant’s argument under Rule 12(b)(6).
“Timeliness requirements for an action alleging employment
discrimination are to be strictly enforced.”
Hopkins
Hosp.,
79
F.Supp.2d
587,
597
Tangires v. Johns
(D.Md.
2000)
(citing
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984)).
In the usual case, Title VII claimants must file a charge of
discrimination with the EEOC within 180 days of the alleged
discriminatory practice.
See Jones v. Calvert Group, Ltd., 551
F.3d 297, 300 (4th Cir. 2009).
days
in
a
deferral
state,
This period is extended to 300
i.e.,
one
in
which
“state
law
proscribes the alleged employment practice and the charge has
initially been filed with a state deferral agency.”
Tinsley v.
First Union Nat’l Bank, 155 F.3d 435, 439 (4th Cir. 1998) (citing
42 U.S.C. § 2000e-5(e)(1)).
Maryland is a deferral state and
its deferral agency, the Maryland Commission on Human Relations
7
(“MCHR”), has a work sharing agreement with the EEOC whereby a
claim filed with one agency is deemed as filed with both.
Valderrama
v.
Honeywell
Tech.
658, 662 n.4 (D.Md. 2007).
Solutions,
Inc.,
473
See
F.Supp.2d
Thus, in Maryland, the time for
filing a charge of discrimination under Title VII is 300 days.
Complainants
brought
under
must
also
Maryland
exhaust
state
law
discrimination
prior
to
filing
claims
suit.
In
Maryland, “[a]ny person claiming to be aggrieved by an alleged
discriminatory act may file a complaint with the [MCHR].”
Code Ann., State Gov’t § 20-1004(a).
Md.
Pursuant to § 20-1004(c),
such a complaint must be “filed within 6 months after the date
on
which
complaint
commission
the
alleged
filed
within
complied[.]”
with
6
discriminatory
a
federal
months
.
.
act
or
.
occurred”
local
shall
be
human
deemed
and
“[a]
relations
to
have
The requirements for filing a civil action in
state court are set forth in § 20-1013(a), which provides, in
relevant part, that the complainant must have “initially filed a
timely
administrative
charge
or
a
complaint
under
federal,
State, or local law alleging an unlawful employment practice by
the respondent[.]”
The parties dispute how the state law provisions should be
interpreted.
According to the Board, § 20-1004(c) requires that
an administrative complaint be filed with the EEOC, MCHR, or a
local agency within six months of the alleged discrimination
8
and, because Plaintiff does not allege that any discriminatory
acts occurred within six months prior to the date he filed his
EEOC complaint, count two should be dismissed in its entirety.2
Plaintiff argues that his administrative complaint was timely
under federal law – i.e., it was filed within 300 days of the
alleged discrimination – thus, he has satisfied the requirement
for bringing a civil action under § 20-1013(a).
Title 20 of the State Government Article was created in
2009 as a result of the recodification of Article 49B.
As
relevant here, § 20-1004(c) of the State Government Article and
former Article 49B, § 9A, are identical; thus, courts rely on
judicial interpretations of the earlier statute in construing
the latter.
F.Supp.2d
Appeals
former
See Ferdinand-Davenport v. Children’s Guild, 742
772,
of
778
n.3
Maryland
Article
(D.Md.
2010).
discussed
49B,
§
9A,
the
in
The
Court
timeliness
Broadcast
of
Special
requirement
Equities,
Inc.
of
v.
Montgomery County, 123 Md.App. 363, vacated on other grounds,
360 Md. 438 (1998).
In that case, the court considered an
argument that a local ordinance requiring that complaints be
filed
within
one
year
of
the
2
alleged
discriminatory
act
The complaint recites that “a contractor’s black employee”
was the victim of disparate treatment in “early 2011” (ECF No. 2
¶ 18), but that alleged event occurred after the EEOC complaint
was filed and does not appear to be relevant to Plaintiff’s
disparate treatment claim. Thus, it will not be considered.
9
impermissibly conflicted with Article 49B, § 9A, which provided
only six months.
The court “perceive[d] no conflict” between
the two provisions, explaining:
To be sure, a complaint made under State law
must be filed with a federal or local
commission within six months, in accordance
with the last sentence of Art. 49, § 9A.
The
last
sentence
indicates
the
Legislature’s
recognition
that
filing
deadlines under local or federal law may
differ from State law. Although filing with
a local human relations commission after six
months would preclude a complainant from
later
seeking
a
State
Human
Relations
Commission investigation, this does not
preclude a local commission from pursuing a
discrimination claim.
Broadcast
Equities,
Inc.,
123
Md.App.
at
394-95.
As
this
passage illustrates, the predecessor to § 20-1004(c) addressed
the time for triggering an investigation of a claim by MCHR.
See McNutt v. Duke Precision Dental & Orthodontic Labs., Inc.,
698 F.2d 676, 678 (4th Cir. 1983) (“The Court of Appeals of
Maryland
has
Maryland’s
observed
Human
that
Relations
the
filing
Commission
of
a
‘merely
complaint
triggers
with
the
investigative process.’”) (quoting Banach v. State Commission on
Human Relations, 277 Md. 502, 513 (1976)).
Indeed, Article 49B
did not provide a private right of action until October 1, 2007,
when § 11B took effect.
See Ragland v. A.W. Industries, Inc.,
Civil Action No. DKC 2008-1817, 2009 WL 2507426, at *11 (D.Md.
Aug. 13, 2009).
In 2009, Art. 49B, § 11B, was repealed and
10
replaced by the substantively similar Md. Code Ann., State Gov’t
§ 20-1013(a), which now requires, inter alia, the filing of “a
timely
administrative
charge
or
a
complaint
under
federal,
State, or local law alleging an unlawful employment practice by
the respondent” prior to filing a civil suit.
Thus, under § 20-
1004(c), a complainant may initiate an investigation by MCHR by
filing a complaint with a federal, state, or local enforcement
agency
within
six
months.
He
exhausts
his
administrative
remedies for purposes of commencing a civil action, however, by
filing an administrative complaint within the time allotted by
“federal,
State,
or
local
law,”
pursuant
to
§
20-1013(a).
Because the time for filing under federal law is 300 days in
Maryland, Plaintiff had the same amount of time to exhaust his
state law claims.
The complaint recites that Plaintiff “filed a charge of
discrimination against [the Board] with the [EEOC] on or about
June 25, 2010, complaining of the acts of discrimination and
retaliation alleged herein.”
(ECF No. 2 ¶ 2).
The alleged acts
of discrimination occurred between November 2008 (id. at ¶ 9)
and October 2009 (id. at ¶ 14), but Plaintiff’s EEOC complaint
was timely only for acts alleged to have occurred on or after
August 30, 2009, i.e., within 300 days of its filing.
The
discriminatory acts occurring during that time frame that are
both
alleged
in
Plaintiff’s
complaint
11
and
pressed
in
his
memorandum opposing the instant motion are those related to the
September
2009
performance
verbal reprimand.
evaluation
and
the
February
2010
Accordingly, the court will limit its review
to those specific claims.
B.
Title VII
1.
Disparate Treatment
In count one of his complaint, Plaintiff alleges racial
discrimination
in
treatment theory.
an
‘employer
violation
of
Title
VII
under
a
disparate
“In general, disparate treatment occurs when
simply
treats
some
people
less
favorably
than
others’ because of a certain characteristic, such as race[.]”
Jensen v. Solvay Chemicals, Inc., 625 F.3d 641, 660 (10th Cir.
2010) (quoting Int’l Bhd. of Teamsters v. United States, 431
U.S. 324, 335 n.15 (1977)).
a
lower-than-normal
Plaintiff asserts that he received
performance
evaluation
because
his
supervisor, Mr. Cassidy, “us[ed] a different rating system for
him than he was using for white employees.”
(ECF No. 2 ¶ 13).
He further contends that he was verbally reprimanded for filling
out a time card during work hours, although white employees were
not reprimanded for the same conduct.
(Id. at ¶ 21).
The Board
argues that this claim must be dismissed because Plaintiff has
failed to allege that he suffered an adverse employment action.
(ECF No. 14-1, at 8).
12
Title
VII
prohibits
an
employer
from
“discriminat[ing]
against any individual with respect to his compensation, terms,
conditions,
or
privileges
individual’s race.”
prima
facie
case
of
employment,
because
42 U.S.C. § 2000e-2(a).
of
disparate
treatment
of
such
To establish a
based
on
race,
an
employee must show that: (1) he is a member of a protected
class, (2) his job performance was satisfactory, (3) he suffered
an adverse employment action, and (4) he was treated differently
from similarly situated employees outside his protected class.
See Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir.
2010).
An adverse employment action within the scope of Title
VII
“a
is
discriminatory
act
that
‘adversely
affect[s]
the
terms, conditions, or benefits of the plaintiff’s employment.’”
Holland v. Washington Homes, Inc., 487 F.3d 208, 219 (4th Cir.
2007) (quoting James v. Booz-Allen & Hamilton, Inc., 368 F.3d
371, 375 (4th Cir. 2004)).
Where, as here, the employee is not
discharged, such actions typically take the form of a decrease
in
compensation,
promotion.
demotion,
or
loss
of
an
opportunity
for
See James, 368 F.3d at 376.
Courts have recognized that a reprimand may constitute an
adverse employment action where there is evidence that it led to
further disciplinary action, such as termination.
See Newman v.
Giant Food, Inc., 187 F.Supp.2d 524, 528-29 (D.Md. 2002) (“Such
discipline,
without
evidence
that
13
the
warning
could
lead
to
further
disciplinary
constitute
an
action,
adverse
such
employment
as
termination,
action”);
does
Lewis
v.
not
Forest
Pharms., Inc., 217 F.Supp.2d 638, 648 (D.Md. 2002) (“if evidence
shows that a reprimand not only bruises an employee’s ego or
reputation,
but
also
works
a
real,
rather
than
speculative,
employment injury, the reprimand becomes [an adverse] employment
action”).
and
of
Similarly, a poor performance evaluation does not, in
itself,
constitute
an
adverse
employment
action;
“[r]ather, it is a mediate step, which, if relied upon for a
true adverse employment action (e.g., discharge, demotion, etc.)
becomes relevant evidence.”
314,
330
(D.Md.
2003)
Jeffers v. Thompson, 264 F.Supp.2d
(quoting
Settle
v.
Baltimore
Co.,
34
F.Supp.2d 969, 1010 (D.Md. 1999) (internal marks omitted)); see
also Nye v. Roberts, 145 Fed.Appx. 1, 6 (4th Cir. 2005) (per
curiam)
(where
the
employer
uses
a
progressive
form
of
discipline and a downgraded performance evaluation “thrust [the
plaintiff]
further
along
the
discipline
track
and
closer
to
termination,” a jury could find that the plaintiff suffered a
material change to his or her employment status).
Assuming,
disciplinary
arguendo,
system,
that
the
Plaintiff
Board
uses
nevertheless
a
fails
progressive
to
allege
facts supporting an inference that the performance evaluation or
reprimand at issue affected the “terms, conditions, or benefits
of [his] employment,” Honor v. Booz-Allen & Hamilton, Inc., 383
14
F.3d 180, 188 (4th Cir. 2005), or “thrust [Plaintiff] further
along the discipline track and closer to termination,” Nye, 145
Fed.Appx. at 6.
He has not, for example, alleged any denial of
promotion, demotion, loss of pay, or similar action that would
materially
alter
remains
employed
occupied
since
his
by
employment
Defendant
2008
and
in
appears
status.
the
to
Indeed,
same
enjoy
Plaintiff
position
the
he
same
has
terms,
conditions, and benefits of employment as he did prior to the
alleged discrimination.
Consequently, he has not alleged an
adverse employment action and the first count of his complaint
cannot be sustained.
2.
Retaliation
In count three, Plaintiff alleges that the Board retaliated
against him in violation of Title VII when, in response to his
filing of an internal complaint with the Board’s human resources
department, Ms. Pulley “simply ignored him and walked past him”
when Plaintiff attempted to address her (ECF No. 2 ¶ 20), and
Ms. McCourt verbally reprimanded him for “not reporting to the
proper work location” and “filling out [a] . . . [t]ime [f]orm
at
work”
(id.
at
¶
21).
Defendant
contends
that
Plaintiff
cannot establish a prima facie case under these facts.
Title
VII
makes
it
unlawful
for
“an
employer
to
discriminate against any of [its] employees . . . because he has
opposed
any
practice
made
an
15
unlawful
practice
by
this
subchapter,
or
because
he
has
made
a
charge,
testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”
2000e-3(a).
42 U.S.C. §
Protected activity of an employee, therefore, can
take the form of either opposing a practice prohibited under
Title
VII
charge,
(pursuant
to
testifying,
the
opposition
assisting,
or
clause)
or
making
a
in
an
participating
investigation, proceeding, or hearing under Title VII (pursuant
to the participation clause).
To allege a prima facie case of
retaliation, a plaintiff must show that: (1) he engaged in a
protected
activity,
(2)
his
employer
acted
adversely
against
him, and (3) the protected activity was causally connected to
the adverse action.
v.
Abbott
Labs.,
See Holland, 487 F.3d at 218 (citing Beall
130
F.3d
614,
619
(4th
Cir.
1997)).
The
plaintiff’s burden in this regard is “not onerous”; it requires
only
that
evidence.
he
prove
each
element
by
a
preponderance
of
the
See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981).
The protected activity cited by Plaintiff is his lodging of
an
informal
complaint,
presumably
regarding
Mr.
Cassidy’s
alleged disparate treatment, with the Board’s human relations
department on October 21, 2009.
This activity is protected
under the opposition clause of § 2000e-3(a).
Index
Journal
Co.,
647
F.2d
441,
16
448
(4th
See Armstrong v.
Cir.
1981)
(“The
opposition clause has been held to encompass informal protests,
such as voicing complaints to employers or using an employer’s
grievance procedures.”).
Thus, Plaintiff has alleged that he
engaged in a protected activity and the first element of the
prima facie analysis is satisfied.
Plaintiff
fails,
however,
to
allege
sufficiently
the
second element of retaliation, i.e., that he suffered an adverse
employment action.
In the retaliation context, an employment
action is considered adverse if, from an objective perspective,
“it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.”
Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (citing Rochon v.
Gonzales, 438 F.3d 1211, 1219 (2006)) (internal marks omitted).
Nevertheless, “[a]n employee’s decision to report discriminatory
behavior cannot immunize that employee from those petty slights
or minor annoyances that often take place at work and that all
employees experience.”
Here,
Plaintiff
adversely under the
Burlington, 548 U.S. at 68.
is
unable
Burlington
to
show
that
standard.
Defendant
acted
The fact that Ms.
Pulley may have “ignored [Plaintiff] and walked past him” after
he made the internal complaint is precisely the kind of “petty
slight”
or
Burlington
“minor
annoyance”
emphasized
does
that
not
the
Supreme
constitute
Court
in
retaliation.
Moreover, there is no indication that the verbal reprimand would
17
have discouraged a reasonable employee from making or supporting
a charge of discrimination.
nothing
to
dissuade
Indeed, it appears to have done
Plaintiff
from
subsequently
filing
his
complaint with the EEOC and, as noted previously, he does not
claim that the reprimand has altered the terms and conditions of
his employment in any way.
Nor has Plaintiff alleged a sufficient nexus between his
internal complaint and the verbal reprimand.
While he asserts
that the reprimand was issued “days after [his] complaints of
discrimination” (ECF No. 2 ¶ 21), the salient fact he omits is
the
number
of
“days”
involved
–
over
four
months’
worth.
Plaintiff filed his grievance with human resources on October
21, 2009 (id. at ¶ 19), and was reprimanded on February 24, 2010
(id. at ¶ 21).
“The cases that accept mere temporal proximity
between an employer’s knowledge of protected activity and an
adverse employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal
proximity must be ‘very close.’”
Clark Co. School Dist. v.
Breeden, 532 U.S. 268, 273 (2001) (per curiam) (quoting O’Neal
v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001)).
There is no bright-line rule regarding what constitutes a “very
close” period of time in this context, but the Fourth Circuit
has
held
that
a
lapse
of
three
to
four
months
between
the
protected activity and the alleged retaliation “is too long to
18
establish
a
causal
connection
by
temporal
proximity
alone.”
Pascual v. Lowe’s Home Centers, Inc., 193 Fed.Appx. 229, 233 (4th
Cir. 2006) (per curiam); cf. Brockman v. Snow, 217 Fed.Appx.
201, 207 (4th Cir. 2007) (three months “is sufficiently proximate
to satisfy the requirement”).
Here, even assuming that the
verbal reprimand could constitute an adverse employment action,
the fact that it was issued four months after Plaintiff lodged
his complaint with the human resources department, by itself, is
insufficient to support a claim that the events are causally
linked.
Accordingly,
Plaintiff’s
retaliation
claim
must
be
dismissed.
C.
State Law Claims
Pursuant to 28 U.S.C. § 1367(c), the court has discretion
to
retain
or
dismiss
nonfederal
claims
where,
as
federal basis of the action is no longer applicable.
here,
the
District
courts in the Fourth Circuit “enjoy wide latitude in determining
whether or not to retain jurisdiction over state claims when all
federal claims have been extinguished.”
F.3d 106, 110 (4th Cir. 1995).
Shanaghan v. Cahill, 58
In deciding whether to exercise
discretion, courts consider factors such as the “convenience and
fairness to the parties, the existence of any underlying issues
of
federal
economy.”
policy,
comity,
and
considerations
of
judicial
Id. (citing Carnegie-Melon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1998)).
Ultimately, supplemental jurisdiction “is
19
a doctrine of flexibility, designed to allow courts to deal with
cases involving pendent claims in the manner that most sensibly
accommodates a range of concerns and values.”
Id. (quoting
Carnegie-Melon Univ., 484 U.S. at 350).
Considering that the state law claims are closely related
to Plaintiff’s Title VII claims, and may be easily dispensed
with,
the
court
will
exercise
supplemental
jurisdiction
to
address the remaining claims alleging violations of Title 20,
intentional
infliction
of
emotional
distress,
discrimination
and
and
negligent
supervision and retention.
1.
Title 20
Plaintiff
alleges
retaliation
in
violation of Title 20 of the State Government Article of the
Annotated Code of Maryland in the second and fourth counts of
his complaint.
Maryland courts routinely look to Title VII
cases to determine the scope of liability under Title 20.
See,
e.g., State Comm’n on Human Relations v. Kaydon Ring & Seal,
Inc.,
149
Md.App.
666,
695-96
(2003)
(applying
Title
VII
standards in Article 49B discriminatory case); Chappel v. S.
Maryland Hosp., Inc., 320 Md. 483, 494 (1990) (reading state
anti-retaliation provision “in harmony” with federal provision).
Although there may be some instances in which interpretations of
the analogous state and federal provisions vary, none of those
instances appear to be applicable here.
20
See Haas v. Lockheed
Martin Corp., 396 Md. 469, 482 n.10 (2007) (citing examples of
divergent
rule
constructions).
Indeed,
while
Plaintiff
recognizes in his motion papers that there may be circumstances
in which the Title VII analysis does not apply to claims under
Title 20 (ECF No. 15, at 9 n.7), he does not assert that this
case presents such a circumstance and he addresses the federal
and state claims in the same section, citing federal case law
exclusively.
Thus, Plaintiff’s Title 20 claims fail for the
same reasons as those brought pursuant to Title VII.
2.
Intentional Infliction of Emotional Distress
Count four of Plaintiff’s complaint alleges that the Board
“had knowledge” of the discriminatory actions of Mr. Cassidy and
Ms. Pulley and that “its sanctioning and involvement in the[se]
actions
severe
.
.
mental
.
was
and
intentional
emotional
and
inflicted
distress.”
(ECF
upon
No.
plaintiff
2
¶
41).
Defendant contends that this claim cannot be sustained because,
under Maryland law, county boards of education cannot be liable
for the intentional torts of their employees.
Maryland courts have recognized that a county school board
may not be held liable for intentional torts under a respondeat
superior theory because such torts are never considered within
the scope of an individual’s employment.
See James v. Frederick
Co. Pub. Schools, 441 F.Supp.2d 755, 760-61 (D.Md. 2006); see
also Hunter v. Bd. of Ed. of Montgomery Co., 292 Md. 481, 491
21
n.8 (1982).
In Hunter, the Court of Appeals of Maryland noted
that although individual employees may be liable for intentional
torts, such liability does not extend to a school board because
an
intentional
tortious
action
constitutes
an
abandonment
of
employment and is not “done in furtherance of the beneficent
purposes of the educational system.”
n.8.
Hunter, 292 Md. at 491
Because Plaintiff cannot hold a county board of education
liable
for
intentional
torts,
his
cause
of
action
for
intentional infliction of emotional distress cannot prevail.
Even if that were not the case, Plaintiff has nevertheless
failed to state a claim for relief.
To recover for intentional
infliction of emotional distress under Maryland law, a plaintiff
must show that: (1) the defendant’s conduct was intentional or
reckless; (2) the conduct was extreme and outrageous; (3) there
is a causal connection between the wrongful conduct and the
emotional distress; and (4) the emotional distress is severe.
See Lasater v. Guttmann, 194 Md.App. 431, 448 (2010) (citing
Harris v. Jones, 281 Md. 560, 566 (1977)).
All four elements
must be established and liability for the tort should be imposed
sparingly, as “its balm [is] reserved for those wounds that are
truly severe and incapable of healing themselves.”
Caldor, Inc.
v. Bowden, 330 Md. 632, 642 (1993) (quoting Figueiredo-Torres v.
Nickel, 321 Md. 642, 653 (1991)).
22
Assuming, arguendo, that Plaintiff satisfies the first two
elements, his complaint does not contain particularized facts
suggesting that he has suffered any emotional distress related
to Defendant’s alleged conduct, much less that such distress was
sufficiently severe.
To state a claim of intentional infliction
of emotional distress, a plaintiff must allege that he suffered
“a
severely
conduct.”
be
“so
endure
disabling
emotional
response
Harris, 281 Md. at 570.
severe
it,”
that
id.
no
at
reasonable
571,
and
it
to
the
defendant’s
The level of distress must
man
should
must
have
be
expected
“disrupted
to
[the
plaintiff’s] ability to function on a daily basis,” Bryant v.
Better Bus. Bureau of Greater Md., 923 F.Supp. 720, 750 (D.Md.
1996).
he
Plaintiff has failed to allege any facts suggesting that
suffered
a
severely
Defendant’s conduct.
opposition
papers,
disabling
emotional
response
to
Although he attaches a declaration to his
asserting
that
he
“suffer[s]
from
panic
attacks, anxiety, crying, loss of sleep, loss of appetite, as
well
as
feelings
of
being
distraught
and
frustrated
due
to
actions of the Board” (ECF No. 15-2 ¶ 2), the court’s inquiry in
the context of a Rule 12(b)(6) motion is generally “limited to
the complaint and the documents attached thereto or incorporated
by reference.”
Tech. Patents, LLC v. Deutsche Telekom AG, 573
F.Supp.2d 903, 920 (D.Md. 2008).
consider
the
declaration,
however,
23
Even if the court were to
Plaintiff
still
does
not
claim that the Board’s conduct impaired his daily functioning in
any respect.
(D.Md.
See, e.g., Takacs v. Fiore, 473 F.Supp.2d 647, 652
2007)
(plaintiff
alleged
to
have
suffered
“severe
depression, anxiety, sleeplessness, headaches and [being] sick
to
her
stomach”
failed
to
state
a
claim
for
intentional
infliction of emotional distress absent any allegation “that she
has been unable to function on a daily basis”).
Plaintiff’s
respondeat
superior
theory
were
Thus, even if
viable,
he
has
failed to state a cause of action for intentional infliction of
emotional distress.
3.
Negligent Supervision and Retention
Plaintiff alleges in the fifth count of his complaint that
the Board failed to exercise reasonable care in “supervising and
retaining
employees,”
complaints.”
despite
(ECF No. 2 ¶ 36).
“numerous
warnings
and
Defendant argues that this
claim must be dismissed because the alleged discriminatory and
retaliatory
conduct
of
the
employees
does
not
constitute
a
violation of Maryland common law.
In
Maryland,
a
plaintiff
may
not
maintain
a
negligent
supervision and retention claim when the underlying conduct is
not
actionable
under
Maryland
common
law.
See
Bryant,
923
F.Supp. at 751 (citing Hays v. Patton-Tully Transp. Co., 844
F.Supp.
1221,
1223
(W.D.Tenn.
1993)).
Maryland
courts
have
repeatedly held that “Title VII may not form the predicate for
24
claims
of
negligent
retention
and
supervision”
because
such
claims are “preempted by the Maryland Worker’s Compensation Act
[“MWCA”], Md. Code Ann., Labor & Employ. Art, § 9-501 et seq.”
Demby v. Preston Trucking Co., Inc., 961 F.Supp. 873, 881-82
(1997); see also Bryant, 923 F.Supp. at 751.
Indeed, the MWCA
“provides the exclusive remedy for employee injuries arising out
of and in the course of employment.”
Hart v. Harbor Court
Assocs., 46 F.Supp.2d 441, 444 n.4 (D.Md. 1997).
Plaintiff relies on Ruffin Hotel Corp. of Md. v. Gasper,
418 Md. 594 (2011), in support of his argument that negligent
supervision and retention claims based on Title VII and Title 20
are not preempted per se.
the
Ruffin
court
former Article
supervision
49B
and
(ECF No. 15, at 17).
held,
did
in
not
part,
preempt
retention
claim.
It is true that
that
the
Title
VII
plaintiff’s
The
rationale
and
negligent
for
that
holding, however, was that, although the plaintiff’s allegations
were
founded
in
statutorily
prohibited
sexual
harassment,
an
entirely independent cause of action existed under common law
assault and battery that predated the relevant sexual harassment
statutes.
plaintiff
proscribed
Ruffin, 418 Md. at 615-16.
may
bring
behavior
negligence
if
an
claims
independent
Thus, under Ruffin, a
based
cause
on
of
statutorily
action
under
common law would have existed prior to enactment of the statute.
25
Here,
Plaintiff’s
claims
are
founded
on
racial
discrimination, which is statutorily proscribed by Title VII and
Title
20.
Unlike
the
sexual
harassment
claims
examined
in
Ruffin, racial discrimination does not have a common law tort
corollary.
See Braxton v. Domino’s Pizza LLC, Civ. No. RDB 06-
1191, 2006 WL 3780894, at *5 (D.Md. Dec. 21, 2006) (“there is no
common
law
tort
for
discrimination
on
the
basis
of
race”)
(citing Montrose Christian School Corp. v. Walsh, 363 Md. 565,
582-83 (2001)).
Further, Plaintiff’s claim in this regard may
not be predicated on his intentional infliction of emotional
distress claim because, as discussed previously, he has failed
to state a claim as to that cause of action.
Accordingly, the
fifth count of his complaint must be dismissed.
IV.
Conclusion
For the foregoing reasons, Defendant’s motion to dismiss
will be granted.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
26
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