Pugh v. Equal Employment Opportunities Commission et al

Filing 27

MEMORANDUM OPINION (c/m to Plaintiff 6/30/14 sat). Signed by Chief Judge Deborah K. Chasanow on 6/30/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ADRIAN D. PUGH
:
v.

:

Civil Action No. DKC 13-2862

:
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, et al.

:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case are the motions to dismiss filed
by Defendant Montgomery County Public Schools (“MCPS”) (ECF No.
5),

and

Defendant

Equal

(“EEOC”) (ECF No. 14).

Employment

Opportunity

Commission

The issues have been fully briefed, and

the court now rules, no hearing being deemed necessary.

Local

Rule 105.6.

For the following reasons, the EEOC’s motion will

be granted.

MCPS’s motion will be construed as a motion to

quash service and will be granted.
I.

Background
The following facts are set forth in the complaint.

No. 1).

(ECF

Plaintiff, proceeding pro se, is an African-American

female working as a paraeducator with MCPS.

She alleges that

she is eligible to teach provisionally in the state of Maryland
as part of the Alternative Teacher Certification Process.

As

part of the process to obtain a standard teaching certificate,

she

must

entirely

complete
clear,

it

a

“teaching

appears

experience.”

that

teaching

provisionally

satisfy the “teaching experience” requirement.
teach provisionally in November 2008.

Although

not
would

She applied to

MCPS denied hiring her as

a provisional teacher even though she has more education and
experience
teachers

than

that

most

MCPS

of

hires

the
on

non-African-American
a

consistent

provisional

basis.

Plaintiff

contends that MCPS has offered no valid reasons for not hiring
her.

Attached to her complaint is the partial complaint of

noncompliance she submitted to EEOC headquarters and the United
States Department of Justice alleging that the Baltimore EEOC
office failed to comply with EEOC policy.
this

partial

complaint

provides

allegations against Defendants.

a

Plaintiff states that

good

overview

of

her

In this partial complaint, she

alleges that the EEOC did not investigate adequately her claims,
including overlooking evidence, failing to permit Plaintiff to
rebut MCPS’s reasons for not hiring Plaintiff, and failing to
interview important witnesses.
Plaintiff states that the events concerning MCPS took place
between November 2008 and September 2009.

The events concerning

the EEOC took place between March 2010 and the present.

She

filed charges with the EEOC on March 3, 2010 and received her
right-to-sue letter on July 1, 2013.

2

On

September

27,

2013,

Plaintiff

filed

her

complaint

alleging that MCPS discriminated against her on the basis of
race in violation of Title VII of the Civil Rights Act of 1964.
(ECF No. 1).

Her claims against the EEOC are for violations of

the Due Process Clause of the Fifth Amendment to the United
States Constitution and Title VII.

On January 9, 2014, MCPS

filed a motion to dismiss for lack of personal jurisdiction or
insufficient process and service of process.

If the case is not

dismissed, MCPS requests a more definite statement.
5).
lack

(ECF No.

On January 30, 2014, the EEOC filed a motion to dismiss for
of

subject-matter

jurisdiction

failure to state a claim.

or,

(ECF No. 14).

in

the

alternative,

Following the filing

of each motion, in accordance with Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975), the clerk of the court mailed a letter
to Plaintiff notifying her that a dispositive motion had been
filed and that she was entitled to file opposition material or
risk

entry

of

judgment

against

her.

(ECF

Nos.

6

and

15).

Plaintiff opposed MCPS’s motion on January 23, 2014 (ECF No.
13), and the EEOC’s motion on February 19, 2014 (ECF No. 20).
MCPS replied on February 6, 2014, and the EEOC did likewise on
March 6, 2014 (ECF No. 22).

3

II.

Analysis
A.

MCPS’s Motion to Dismiss

MCPS first argues that the complaint should be dismissed
because MCPS is not a proper legal entity.

It submits that

under Maryland law, educational matters are under the control of
each county’s board of education which has the capacity to sue
and be sued in its own right.

Md. Code Ann. Educ. § 3-103.

Montgomery County has a board of education.

Id. §§ 3-901 - 903.

There is no legal authority authorizing MCPS to sue or be sued
in its own name.

MCPS argues that because it cannot be sued,

Plaintiff’s complaint should be dismissed.

Notably, the cases

MCPS cites in support of its argument recognized that the wrong
defendant

was

named,

yet

the

court

treated

the

suit

as

if

brought against the proper defendant and considered the merits
of the claims, Adams v. Calvert Cnty. Pub. Sch., 201 F.Supp.2d
516, 520 n.3 (D.Md. 2002), or instructed the plaintiff to file
an

amended

complaint

naming

the

correct

defendant,

James

v.

Federick Cnty. Pub. Sch., 441 F.Supp.2d 755, 758 (D.Md. 2006).
Dismissing a complaint because of a pleading technicality is
inappropriate, especially here, where Plaintiff is pro se and
courts are instructed to analyze claims under a liberal review.
See Young v. United States, No. RDB 08-3349, 2009 WL 2170068, at
*3

n.5

(D.Md.

defendant

in

July
pro

se

20,

2009)

Title

VII
4

(court
claim

substitutes
(citing

in

proper

Marshburn

v.

Postmaster Gen. of the United States, 678 F.Supp. 1182, 1184
(D.Md. 1988))).
instructed

to

To correct Plaintiff’s error, the clerk will be
change

the

name

of

the

Defendant

MCPS

to

“Montgomery County Board of Education.”
MCPS
service

next
of

challenges

argues

process

are

service,

establishing

the

that

Plaintiff’s

attempted

insufficient.

“the

plaintiff

validity

of

When

bears

service

process
the

the

pursuant

and

defense

burden

of

Rule

4.”

to

O’Meara v. Waters, 464 F.Supp.2d 474, 476 (D.Md. 2006); see also
Fed.R.Civ.P. 4(l)(1).

“Generally, when service of process gives

the defendant actual notice of the pending action, the courts
may construe Rule 4 liberally to effectuate service and uphold
the

jurisdiction

of

the

court.”

Id.

(citing

Karlsson

v.

Rabinowitz, 318 F.2d 666, 668 (4th Cir. 1963); Armco, Inc. v.
Penrod-Stauffer Bldg. Sys., Inc., 733 F.2d 1087, 1089 (4th Cir.
1984)).

The “plain requirements for the means of effecting

service of process,” however, “may not be ignored.”

Armco, 733

F.2d at 1089.
Fed.R.Civ.P. 4(j)(2) states that a local government agency
must be served by delivering a copy of the summons and of the
complaint to its chief executive officer or serving a copy in
the manner prescribed by state law.
permits

service

on

a

local

Md. Rules, Rule 2-124(l)

government

agency

to

be

done

by

serving the designated resident agent or, if no resident agent
5

exists or if a good faith effort to serve the resident agent has
failed, service may be made by serving the chief executive or
presiding officer or, if none, by serving any member of the
governing body.
Here,

the

record

reflects

that

service

was

purportedly

effected by certified mail on December 20, 2013 upon “Montgomery
County Public Schools, Attorney Eric Brousaides, Esq., Carney,
Kelehan, Bresler, Bennett & Scherr, LLP, 10715 Charter Drive,
Ste. 200, Columbia, MD 21044.”

(ECF No. 11).

MCPS provides an

affidavit from Mr. Brousaides in which he states that he is not
authorized to accept service process for either MCPS or the
Montgomery County Board of Education.

(ECF No. 5-2).

MCPS

seeks dismissal of the complaint or, if that is found to be
excessive, to quash service as to MCPS.
Plaintiff states that she attempted to follow diligently
Rule 4.

She listed Mr. Brousasides because that he was the only

attorney that she knew was connected with MCPS.
because

he

defended

Plaintiff’s claims.

MCPS

during

the

EEOC’s

She knew of him
investigation

of

While acknowledging Plaintiff’s good faith

attempt, it is apparent that Plaintiff’s purported service of
process upon MCPS was insufficient under Rule 4(j).
Insufficient

service

necessitate dismissal.

of

process,

however,

does

not

Where “the first service of process is

ineffective, a motion to dismiss should not be granted, but
6

rather the Court should treat the motion in the alternative, as
one to quash the service of process and the case should be
retained on the docket pending effective service.”

Vorhees v.

Fischer & Krecke, 697 F.2d 574, 576 (4th Cir. 1983) (quoting
Bailey v. Boliermakers Local 667 of Int’l Bhd. of Boilermakers,
480

F.Supp.

274,

prejudice

to

prospect

that

the

278

(N.D.W.Va.

defendant

service

may

1979)).

and

“there

yet

be

Where
exists

obtained,”

there
a

is

no

reasonable

dismissal

is

inappropriate, and courts have generally allowed the plaintiff
another opportunity to effect service.
969 F.2d 25, 30 (3d Cir. 1992).

See Umbenhauer v. Woog,

In the interest of justice,

Plaintiff will be provided another opportunity to effect service
of process upon the Montgomery County Board of Education.

See

Haines v. Kerner, 404 U.S. 519, 520 (1972).
Finally, MCPS submits that to the extent the court permits
this action to proceed, it requests a more definite statement
under Fed.R.Civ.P 12(e).

Rule 12(e) provides, in relevant part:

A party may move for a more definite
statement
of
a
pleading
to
which
a
responsive pleading is allowed but which is
so vague or ambiguous that the party cannot
reasonably prepare a response.
The motion
must be made before filing a responsive
pleading and must point out the defects
complained of and the details desired.

7

As the United States District Court for the Eastern District of
Virginia explained in Frederick v. Koziol, 727 F.Supp. 1019,
1020-21 (E.D.Va. 1990):
Such a motion is not a substitute for the
discovery process, and where the information
sought by the movant is available or
properly
sought
through
discovery,
the
motion should be denied. [Famolare, Inc. v.
Edison Bros. Stores, Inc., 525 F.Supp. 940,
949 (E.D.Cal. 1981)]; Wheeler v. United
States Postal Service, 120 F.R.D. 487, 488
(M.D.Pa. 1987).
The motion for more
definite statement is “designed to strike at
unintelligibility rather than simple want of
detail,” and the motion will be granted only
when the complaint is so vague and ambiguous
that the defendant cannot frame a responsive
pleading.
Scarbrough v. R-Way Furniture
Co., 105 F.R.D. 90, 91 (E.D.Wis. 1985); see
Wilson v. United States, 585 F.Supp. 202,
205 (M.D.Pa. 1984); In re Arthur Treacher’s
Franchisee
Litig.,
92
F.R.D.
398,
406
(E.D.Pa. 1981).
The decision of whether to grant a motion for a more definite
statement is committed to the discretion of the district court.
See Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998).
Plaintiff’s complaint is not “so vague and ambiguous” that
MCPS cannot reasonably be expected to prepare a response.

As to

MCPS, the complaint alleges that MCPS did not hire her as a
provisional

teacher

despite

her

qualifications.

that this decision was motivated by her race.

She

alleges

MCPS’s argues

that Plaintiff has failed to establish any factual evidence that
would support her claim for failure to hire based on race, such

8

as comparators or why she concludes that race was the reason she
was not hired.

But a “motion for more definite statement is

designed to strike at unintelligibility rather than simple want
of detail.”

Frederick, 727 F.Supp. at 1021.

The fact that MCPS

has identified the traditional elements of a disparate treatment
claim

is

itself

unintelligible

as

Arguments

a

that

evidence

that

much

devoid

as

complaint

is

the

complaint

of

lacking

is

sufficient
in

detail

not

detail.
might

be

persuasive in a motion to dismiss under Rule 12(b)(6), but not
in a motion for a more definite statement.

See Seneca One Fin.,

Inc. v. Structured Asset Funding, LLC, No. DKC 10-1704, 2010 WL
4449444, at *3-4 (D.Md. Nov. 4, 2010) (finding that defendant’s
contention

that

complaint

lacks

sufficient

detail

concerning

precise terms of alleged contract is not appropriate for a more
definite statement, but instead better suited for a 12(b)(6)
motion); Streeter v. SSOE Sys., No. WMN-09-CV-01022, 2009 WL
3211019, at *10 (D.Md. Sept. 29, 2009) (explaining that a motion
for

more

definite

statement

focuses

on

whether

enough information to frame an adequate answer).

a

party

has

The request

for a more definite statement will be denied.
B.

EEOC’s motion to dismiss

Plaintiff

alleges

that

the

EEOC

failed

properly

investigate her claim of discrimination against MCPS.

to

In her

complaint, she only lists a violation of Title VII, but in her
9

Civil Cover Sheet, she describes the cause of action as denial
of due process by the EEOC in violation of the Fifth Amendment
to the United States Constitution.

The EEOC argues that Title

VII does not confer jurisdiction over the EEOC in its capacity
as an enforcement agency.

While the United States Court of

Appeals for the Fourth Circuit has not addressed this question,
every circuit court to have done so has concluded that “Congress
has not authorized, either expressly or impliedly, a cause of
action against the EEOC for the EEOC’s alleged negligence or
other

malfeasance

charge.”

in

processing

an

employment

discrimination

Smith v. Casellas, 119 F.3d 33, 34 (D.C. Cir. 1997)

(citing to decisions from the United States Courts of Appeals
for

the

First,

Second,

Fifth,

Seventh,

Ninth,

and

Tenth

Circuits); see also Irwin v. Miami-Dade Cnty. Pub. Sch., 398
F.App’x 503, 506 (11th Cir. 2010); Ponton v. AFSCME, 395 F.App’x
867, 872 (3d Cir. 2010); Haddad v. EEOC, 111 F.App’x 413, 415
(6th

Cir.

1337691,

2004);
at

*1

Holsey

(D.Md.

v.

Mar.

Kiel,
29,

No.

2013)

GLR-12-2271,
(“Defendants

2013

WL

correctly

assert that Title VII of the Civil Rights Act of 1964 does not
confer upon this Court jurisdiction over suits against the EEOC
when the plaintiff alleges discrimination by third parties.”).
Plaintiff’s

claim

that

the

EEOC’s

violated the Fifth Amendment also fails.

actions

or

omissions

While this court has

jurisdiction to hear such a claim, due process does not furnish
10

a

basis

for

1337691,

Plaintiff’s

at

*2.

In

allegations.

reviewing

See

similar

Holsey,

cases,

2013

courts

WL

have

asserted that “an agency’s less than useful attempts to bestow a
benefit provided by Congress” does not rise to a violation of
due process under the Fifth or Fourteenth Amendments.

Francis-

Sobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir. 1979); see also
Quinones v. N.Y. City Comm’n on Human Rights, 201 F.3d 432, 1999
WL 1295355, at *1 (2d Cir. Dec. 22, 1999) (unpublished table
decision)

(finding

no

basis

to

disturb

the

district

court’s

conclusion that the “plaintiff could not state a claim against
the EEOC for denial of due process because the EEOC’s actions
were

not

adjudicative

and

did

not

ultimately

affect

her

rights”); Milhous v. EEOC, 145 F.3d 1332, 1998 WL 152784 (6th
Cir.

Mar.

24,

1998)

(unpublished

table

decision)

(same).

Because a plaintiff dissatisfied with the EEOC’s decision or
methodology

can

discrimination

obtain

claims

by

essentially
a

U.S.

de

novo

District

review

Court,

a

of

her

plaintiff

whose claim the EEOC denied or treated improperly still has a
vital federal remedy.

See Georator Corp. v. EEOC, 592 F.2d 765,

768-69 (4th Cir. 1979) (“When the preliminary determination is
without

legal

effect

in

and

of

itself,

due

process

will

be

satisfied if there is an opportunity to be heard before any
final order of the agency becomes effective.”).

“The proper

course for a private plaintiff whose claim the EEOC mishandled
11

is to bring a lawsuit against the plaintiff’s employer on the
merits, not one against the EEOC.”
337, 342 (7th Cir. 2000).

Jordan v. Summers, 205 F.3d

Plaintiff’s claims against the EEOC

will be dismissed.
III. Conclusion
For

the

foregoing

reasons,

MCPS’s

motion

to

dismiss,

construed as a motion to quash service, will be granted.
EEOC’s motion to dismiss will be granted.

A separate order will

follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

12

The