Mason v. Montgomery County Police Dep't

Filing 13

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 12/13/2013. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

RAFAEL S. MASON,
Plaintiff,
v.

Civil Action No. 8:13-cv-01077-AW

MONTGOMERY COUNTY POLICE DEP’T
et al.,
Defendants.

MEMORANDUM OPINION
Pending before the Court is Defendant’s Motion to Dismiss. The Court has reviewed the
record and deems a hearing unnecessary. For the following reasons, the Court GRANTS
Defendant’s Motion to Dismiss.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is employed as a police officer at the Montgomery County Police Department,

Division of Security Services (the Department). Plaintiff has sued both the Department and
Montgomery County, Maryland. The Court dismisses Plaintiff’s claims against the Department
per se because it not a suable entity. See, e.g., LaPier v. Prince George’s County, Md., Civil
Action No. 10–CV–2851 AW, 2011 WL 4501372, at *3 (D. Md. Sep. 27, 2011) (citing cases).
Plaintiff started working for the Department in 1995. Plaintiff is an African-American
male. Plaintiff alleges that he filed a complaint of racial discrimination against the Department in
2008. Doc. No. 1 ¶ 62. However, Plaintiff provides no allegations surrounding this incident. See
id.
1 

Plaintiff was transferred to the Rockville facility in the spring of 2011. Apparently,
Plaintiff was a “Security Officer II” (SO II) at this time. Plaintiff alleges that his white
supervisors started to harass him upon his transfer to the Rockville facility. Plaintiff sets forth the
following allegations to support this assertion: (1) his request to attend a one-day training class
was denied even though a lower-ranked white coworker was allowed to attend; (2) a white
manager spread false rumors about Plaintiff; and (3) “Mr. Gordy” did not grant his request for a
different post assignment even though two white coworkers hardly had to work this assignment.
In September 2011, Plaintiff filed an EEOC charge of discrimination. Plaintiff hurt
himself on the job in November 2011. At an unspecified time thereafter, Gordy did not properly
submit information for Plaintiff’s workers’ compensation claim.
In August 2012, Officer Gerharz, a lower-ranked white officer, sent “sensitive
information across the Department’s intranet to harass and humiliate” Plaintiff. Doc. No. 1 ¶ 24.
Sometime thereafter, Plaintiff complained about Gerharz to internal affairs. The complaint was
assigned to Gordy. Allegedly, Gordy failed to appropriately investigate Plaintiff’s complaint and
Gerharz was not disciplined for his conduct. Sometime later, Gordy charged Plaintiff with
conduct unbecoming of an officer for allegedly threatening Gerharz. As a result, Plaintiff was
demoted to Security Officer I (SO I) and suspended for 160 hours with his pay to be docked
accordingly.
In December 2012, Plaintiff was placed on administrative leave with pay pending an
internal investigation. Plaintiff adds that he must be at home during his normal tour of duty and
is not able to earn overtime pay.
Based on these allegations, Plaintiff filed a Complaint in this Court on April 11, 2013.
Doc. No. 1. Plaintiff asserts claims for racial discrimination, retaliation, and hostile work

2 

environment under Title VII, the Maryland Fair Employment Practices Act (MFEPA), and the
Fifth and Fourteenth Amendments.1 On August 12, 2013, the County filed a Motion to Dismiss.
Doc. No. 7. The County generally argues that Plaintiff has failed to state facially plausible
claims. Plaintiff filed a Response on October 10, 2013. Doc. No. 11. Although Plaintiff argues
that he has asserted facially plausible claims, he alternatively requests leave to amend his
Complaint. The County has replied and the matter is ripe for review.
II.

STANDARD OF REVIEW
The purpose of a 12(b)(6) motion to dismiss is to test the sufficiency of the plaintiff’s

complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). In two recent
cases, the U.S. Supreme Court has clarified the standard applicable to Rule 12(b)(6) motions.
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).
These cases make clear that Rule 8 “requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief.” Twombly, 550 U.S. at 556 n.3 (quoting Fed. R. Civ. P. 8(a)(2)). This
showing must consist of at least “enough facts to state a claim to relief that is plausible on its
face.” Id. at 570.
In deciding a motion to dismiss, the court should first review the complaint to determine
which pleadings are entitled to the assumption of truth. See Iqbal, 129 S. Ct. at 1949–50. “When
there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id. at 1950. In so doing,
the court 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). The Court

1
Plaintiff also asserts a claim for “equitable relief.” Doc. No. 1 at 23. However, this purported claim is
indistinguishable from his discrimination claims and merely reflects a request for equitable relief upon
prevailing on these other claims. Therefore, this claim is not properly pleaded. Likewise, the “equitable
relief” claim rises and falls with the discrimination claims, all of which lack merit. Accordingly, the Court
dismisses this purported claim.

3 

need not, however, accept unsupported legal allegations, Revene v. Charles County
Commissioners, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual
allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations
devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847
(4th Cir. 1979).
III.

LEGAL ANALYSIS

A.

Title VII
1.

Racial Discrimination

Plaintiff appears to assert a racial discrimination claim based on his demotion. To
establish a prima facie case of discriminatory demotion, Plaintiff must show: (1) he is a member
of a protected class; (2) he suffered a demotion; (3) at the time of the demotion, he was
performing at a level that met the County’s legitimate job expectations; and (4) the position was
filled by a similarly qualified applicant outside the protected class. Ploplis v. Panos Hotel Grp.,
LLC, 84 F. App’x 359, 360 (4th Cir. 2004) (citing Brinkley v. Harbour Recreation Club, 180
F.3d 598, 607 (4th Cir. 1999)). As to element (4), however, there is no categorical requirement
that the plaintiff plead that the position was filled by a similarly qualified applicant outside the
protected class. See, e.g., Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978); Miles v.
Dell, Inc., 429 F.3d 480, 486–87 & n.3 (4th Cir. 2005); Bryant v. Aiken Reg’l Med. Ctrs., Inc.,
333 F.3d 536, 545 (4th Cir. 2003). In appropriate cases, courts may find that the plaintiff has
stated a prima facie case despite failing to identify a similarly situated comparator where the
plaintiff’s allegations support an inference of discrimination. See Miles, 429 F.3d at 487–88.
In this case, Plaintiff has failed to plead a facially plausible discriminatory demotion
claim. There is no dispute that Plaintiff, as a black male, is a member of a protected class or that

4 

Plaintiff suffered a demotion. Furthermore, the Court will assume, without deciding, that
Plaintiff has adequately alleged that he was performing at a satisfactory level when the County
demoted him. However, Plaintiff has not adequately alleged circumstances surrounding his
demotion that give rise to a plausible inference of discrimination. Plaintiff has not alleged that
white officers were not demoted despite engaging in comparable conduct. Plaintiff alleges that a
white coworker was allowed to attend a one-day training class even though Plaintiff was not.
However, the County presumably has other officers, both white and nonwhite, and Plaintiff does
not allege whether these officers were allowed to attend the one-day training. Nor does Plaintiff
allege who would not let him attend the training class. Assuming it was a white superior, the
nexus between this allegation and the allegations surrounding his demotion is unclear. Plaintiff
also alleges that a white manager spread false rumors about him. But Plaintiff does not allege
that this person was involved in his demotion or that he/she failed to spread false rumors about
white officers who engaged in comparable conduct. Plaintiff also alleges discrimination in his
post assignments. However, although Plaintiff suggests that he was the only SO II assigned to
certain posts, he acknowledges that white officers worked these assignments at times. See Doc.
No. 1 ¶ 18. Nor is the nexus between this allegation and Plaintiff’s demotion apparent.
Plaintiff might argue that not being allowed to attend the one-day training and receiving
certain post assignments constitute discriminatory actions in their own right. However, as to
being denied one day of training, Plaintiff would still have to satisfactorily plead that he “was not
provided training under circumstances giving rise to an inference of discrimination.” Thompson
v. Potomac Elec. Power Co., 312 F.3d 645, 650 (4th Cir. 2002) (citation omitted). Here, one
cannot plausibly so infer because of the dearth of allegations regarding the race of the officers
who were and were not allowed to attend the class. Nor has Plaintiff pleaded any information

5 

about the content of the one-day training and, thus, one could not plausibly infer that not
attending it adversely affected “the terms, conditions, or benefits of [his] employment.” Chika v.
Planning Research Corp., 179 F. Supp. 2d 575, 585 (D. Md. 2002) (citation and internal
quotation marks omitted). Plaintiff’s allegations regarding discrimination in his post assignment
is not actionable, per se, for similar reasons. Although Plaintiff suggests that two white officers
did not receive the post assignment as much as he did, he has provided no information regarding
the race of the other officers who were or were not required to work this assignment.
Furthermore, Plaintiff acknowledges that the two white officers he identified worked the
assignment at times, which undercuts the inference that he was singled out because of his race.
And because Plaintiff alleges no information regarding the content the post assignment (duties,
hours, danger level, etc.), one could not plausibly infer that this assignment “was an adverse
employment action.” See Hawkins v. Leggett, --- F. Supp. 2d ----, Civil Action No. 12–cv–00623
AW, 2013 WL 3218964, at *11 (D. Md. June 24, 2013).
The remaining allegations in the Complaint are devoid of any suggestion of
impermissible racial animus. In a nutshell, Plaintiff alleges that he complained formally about
discrimination; that Gordy did not properly handle his workers’ compensation claim; that
Plaintiff had problems with Gerharz; and that he was placed on administrative leave in
connection with his conflict with Gerharz. Although Gordy and Gerharz are inferably white, the
mere fact that Plaintiff had problems with them is insufficient to sustain a plausible inference of
discrimination. At best, these allegations suggest that Plaintiff was dissatisfied with aspects of
his job and had a hard time getting along with certain people. See Hawkins, 2013 WL 3218964,
at *7 (citing cases); Crockett v. SRA Int’l, --- F. Supp. 2d ----, Civil Action No. 8:13–cv–00261–

6 

AW, 2013 WL 1856447, at *8 (D. Md. May 1, 2013) (citing cases). Accordingly, the Court
dismisses Plaintiff’s Title VII racial discrimination claim.
2.

Retaliation

To establish a prima facie case of retaliation, Plaintiff must show that he engaged in
protected activity, that the County took adverse action against him, and that a causal relationship
existed between the protected activity and the adverse employment activity.” Price v. Thompson,
380 F.3d 209, 212 (4th Cir. 2004) (citation omitted).
“An employee may satisfy the first element by showing that she opposed a practice that
Title VII prohibits.” Tasciyan v. Med. Numerics, 820 F. Supp. 2d 664, 675 (2011) (citing Davis
v. Dimensions Health Corp., 639 F. Supp. 2d 610, 616–17 (D. Md. 2009)). “One court has
defined opposition as ‘utilizing informal grievance procedures as well as staging informal
protests and voicing one’s opinions in order to bring attention to an employer’s discriminatory
activities.’” Id. (quoting Davis, 639 F. Supp. 2d at 617). “For such activity to constitute
opposition, the plaintiff must have a reasonable and good faith belief that the conduct that she
opposes constitutes unlawful discrimination under Title VII.” Id. (citing Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 271 (2001)). “Opposition almost always arises when an employee
communicates to her employer her reasonable belief that the employer has engaged in
discrimination.” Id. (citing Crawford v. Metro. Gov’t of Nash. & Davidson Cnty., Tenn., 555
U.S. 271, 276 (2009)). Alternatively, “it is unlawful ‘for an employer to discriminate against any
of his employees . . . because [the employee] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [Title VII].’”
Breeden, 532 U.S. at 269 (alteration in original) (quoting 42 U.S.C. § 2000e–3(a)).

7 

For an act to be adverse within the meaning of Title VII’s antiretaliation provision, the
plaintiff “must show that a reasonable employee would have found the challenged action
materially adverse, which . . . means 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) (citation and internal quotation marks omitted). This standard is objective
and, to a significant extent, depends on the facts and circumstances of each case. See id. at 68–
69.
Element three of the prima facie case for retaliation relates to causation. Generally,
plaintiffs demonstrate that the alleged opposition caused the at-issue adverse action through two
evidentiary routes. First, plaintiffs may show that the adverse act bears sufficient temporal
proximity to the protected activity. See, e.g., Breeden, 532 U.S. at 273–74. Second, as this Court
has consistently held, “plaintiffs may state a prima facie case of causation by relying on evidence
other than, or in addition to, temporal proximity where such evidence is probative of causation.”
Jenkins v. Gaylord Entm’t Co., 840 F. Supp. 2d 873, 881 (D. Md. 2012) (citing cases); see also
Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (holding that “other relevant evidence
may be used to establish causation” where temporal proximity is missing.).
In this case, Plaintiff has failed to state a facially plausible retaliation claim. Plaintiff
alleges that he first complained about discrimination in 2008. However, the allegedly harassing
acts that Plaintiff complains about started no earlier than the spring of 2011, when Plaintiff was
transferred to the Rockville facility. This time lag—approximately three years—is insufficient to
support a plausible inference that the 2008 complaint caused the post-spring 2011 conduct.
Furthermore, it is unclear whether the 2008 complaint was a formal charge of discrimination. If
it was not, Plaintiff’s allegations would have to support a plausible inference that Plaintiff had a

8 

reasonable belief that he was being discriminated against when he lodged said complaint.
Plaintiff’s pertinent allegations, to the extent there are any, create no such inference.
Plaintiff’s next complaint of discrimination does not come until September 2011, and
inferably constitutes a formal charge of discrimination. After this time, Plaintiff alleges that he
incurred the following actions: (1) Gordy improperly handled his workers’ compensation claim;
(2) Gerharz disseminated sensitive information about him via the Department’s intranet in
August 2012; (3) Gordy improperly investigated Plaintiff’s complaint about Gerharz; (4)
Plaintiff was placed on paid leave in December 2012 pending an internal affairs investigation;
and (5) Plaintiff was demoted to SO I in December 2012.
One could not plausibly infer that actions (1)-(4) are materially adverse. Allegations (1)(2) are too vague to support a plausible inference that the identified conduct would dissuade a
reasonable person from complaining about discrimination. Furthermore, allegation (2) is entitled
to no weight because Gerharz is not Plaintiff’s supervisor. One must question whether allegation
(3) is entitled to the assumption of truth because, read as a whole, Plaintiff’s allegations are
amenable to the inference that the Department investigated the conflict between Gerharz and
Plaintiff. Cf. Iqbal, 556 U.S. at 680 (indicating that the first step in reviewing complaints under
Rule 12(b)(6) is to identify the allegations entitled to the assumption of truth). Even assuming
Gordy did not investigate Plaintiff’s complaint about Gerharz, an employer’s failure to
investigate a complaint of discrimination is generally not considered a materially adverse action.
See Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 640–41 (10th Cir. 2010); Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 721 (2d Cir. 2010). Likewise, as to allegation
(4), placing an employee on paid administrative leave with full benefits is typically not
considered a materially adverse action. See Stewart v. Miss. Transp. Comm’n, 586 F.3d 321, 332

9 

(5th Cir. 2009); Nichols v. S. Ill. Univ.-Edwardsville, 510 F.3d 772, 787 (7th Cir. 2007) (citing
cases); Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 594 (6th Cir. 2007) (citation
omitted); Grice v. Baltimore County, Md., Civil No. JFM 07–1701, 2008 WL 4849322, at *8 (D.
Md. Nov. 5, 2008) (citing cases); but see Hawkins, 2013 WL 3218964, at *8 (citing Blakes v.
City of Hyattsville, 909 F. Supp. 2d 431, 441–42 (D. Md. 2012)). Plaintiff would argue that
requiring him to stay at home during his normal shift and precluding him from earning overtime
distinguish this case from the typical case where an employee takes paid leave. However, the
allegation regarding not being able to leave the house is vague. Moreover, although Plaintiff
suggests that he cannot earn overtime, Plaintiff does not allege that he was entitled to work
overtime or that he customarily earned it. Accordingly, one could not plausibly infer that action
(4) is materially adverse.
Although one could plausibly infer that action (5), the demotion, is materially adverse,
Plaintiff’s allegations do not sustain a plausible inference that the September 2011 complaint is
causally related to his December 2012 demotion. The 15-month time gap that spans the
complaint and the demotion does not suggest causation at all. See Breeden, 532 U.S. at 274
(“Action taken . . . 20 months later suggests, by itself, no causality at all.”). Nor are any of the
allegations otherwise probative of causation. Accordingly, the Court dismisses Plaintiff’s
retaliation claim.
3.

Hostile Work Environment

The Court dismisses Plaintiff’s hostile work environment claim summarily. To make out
a hostile work environment claim based on race, a plaintiff must show that the offending conduct
(1) was unwelcome, (2) was because of his race, (3) was sufficiently severe or pervasive to alter
the conditions of his employment and create an abusive working environment, and (4) was

10 

imputable to his employer. See Hoyle v. Freightliner, LLC, 650 F.3d 321, 331 (4th Cir. 2011)
(citation omitted). For the reasons stated above, Plaintiff’s allegations fail to create a plausible
inference that Defendant took the challenged actions on account of Plaintiff’s race. Nor is there
any suggestion that the conduct was sufficiently severe or pervasive to create an abusive working
environment. As stated, Plaintiff’s allegations do no more than to suggest that he was unhappy
with aspects his job and had a hard time getting along with certain people. Accordingly, the
Court dismisses Plaintiff’s hostile work environment claim.
B.

MFEPA
Plaintiff’s MFEPA claims are judged under the same standards as Title VII. See, e.g.,

Hawkins, 2013 WL 3218964, at *17 (citation omitted). Therefore, as the Court has dismissed all
of Plaintiff’s Title VII claims, it dismisses his duplicative MFEPA claims.
C.

Fifth/Fourteenth Amendments
Plaintiff also asserts an equal protection claim under 42 U.S.C. § 1983. Such claims are

generally evaluated under the same standards as Title VII as well. See, e.g., Hawkins, 2013 WL
3218964, at *14–15. Therefore, the Court dismisses Plaintiff’s duplicative constitutional claims.
These claims also fail as a matter of law because Plaintiff asserted them against the County—not
a state actor in his individual capacity—and has failed to plead that “the execution of a policy or
custom of the municipality caused the [alleged] violation[s].” Id. at *15 (citation and internal
quotation marks omitted).
D.

Request to Amend Complaint
The Court grants Plaintiff’s request to amend the Complaint. This Court has traditionally

given parties an opportunity to cure defective pleadings. Although this effort may ultimately
prove futile, Plaintiff deserves an opportunity to address the pleading deficiencies outlined

11 

above. Accordingly, in view of the upcoming holiday season, the Court gives Plaintiff until
January 13, 2014 to file an Amended Complaint. The Court cautions Plaintiff that the failure to
state facially plausible claims a second time around may result in the dismissal of his claims with
prejudice.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss. A

separate Order memorializing the rulings herein follows.
December 13, 2013
Date

/s/
Alexander Williams, Jr.
United States District Judge

12