Pugh v. Equal Employment Opportunities Commission et al

Filing 42

MEMORANDUM OPINION (c/m to Plaintiff 5/28/15 sat). Signed by Judge Deborah K. Chasanow on 5/28/2015. (sat, Chambers)

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

:

Civil Action No. DKC 13-2862

:
MONTGOMERY COUNTY BOARD OF
EDUCATION

:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case is a motion to dismiss filed by
Defendant Montgomery County Board of Education (ECF No. 36).
The

issues

have

been

briefed,

hearing being deemed necessary.

and

the

court

now

rules,

Local Rule 105.6.

no

For the

following reasons, the motion to dismiss will be denied.
I.

Background
On September 27, 2013, Plaintiff Adrian Pugh, proceeding

pro

se,

Schools

filed

a

(“MCPS”)

(“EEOC”).

(ECF

complaint
and
No.

Equal
1).

against

Montgomery

Employment
The

County

Opportunity

complaint

Public

Commission

asserts

racial

discrimination against MCPS for failing to hire her in November
2008 in violation of Title VII of the Civil Rights Act of 1964.
(Id. ¶ 4).

Plaintiff alleges in her complaint, in relevant

part:
1. I am eligible to teach provisionally for
the state of Maryland as part of the

Alternative Teacher Certification Process;
but
I
have
to
be
hired
to
teach
provisionally by a local school system in
order to complete the “teaching experience”
portion of the process for gaining a
standard certificate to teach for the state
of Maryland. 2. MCPS denied hiring me, even
though I have more education and experience
than
most
of
the
non-African
American
provisional teachers that they hire on a
consistent basis.
3. MCPS has offered no
valid reasons for the disparate treatment in
my situation; and the small number of
African-American provisional teachers that
they report to have hired, does not meet a
level
of
statistical
significance
to
preclude
liability
for
racial
discrimination.
(Id. ¶ 6).
Plaintiff

The complaint also asserts that the EEOC denied

“due

process

in

the

dismissal of [her] complaint.”
to

her

complaint

a

partial

handling,
(Id. ¶ 4).

complaint

of

investigation,

and

Plaintiff attached
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.

(ECF

No.

1-1).

In

this

partial

complaint, Plaintiff asserted that the EEOC did not investigate
adequately her claims, including overlooking evidence, failing
to permit Plaintiff to rebut MCPS’s reasons for not hiring her,
and failing to interview important witnesses.
Plaintiff filed charges with the EEOC on March 3, 2010 and
received her right-to-sue letter on July 1, 2013.
10).

(ECF No. 1 ¶

After Plaintiff filed her complaint in this court, MCPS

2

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

The EEOC also

moved to dismiss for lack of subject matter jurisdiction or, in
the alternative, failure to state a claim.

The court issued a

memorandum opinion and order on June 30, 2014 dismissing the
claims against the EEOC, changing the name of Defendant in the
case

caption

providing

to

Montgomery

Plaintiff

another

County

Board

opportunity

to

of

Education,

effect

and

service

process upon the Montgomery County Board of Education.1

of

(ECF

Nos. 27 & 28).
After Plaintiff effected service of process upon the Board
of Education for Montgomery County, the only remaining Defendant
moved

to

dismiss

on

September

Plaintiff was provided with a

30,

2014.

Roseboro

(ECF

No.

36).

notice (ECF No. 37),

which advised her of the pendency of the motion to dismiss and
her entitlement to respond within seventeen (17) days from the
date of the letter.

Roseboro v. Garrison, 528 F.2d 309, 310

(4th Cir.1975) (holding pro se plaintiffs should be advised of
their right to file responsive material to a motion for summary
judgment).

Plaintiff

opposed

the

motion

(ECF

No.

38).

Defendant did not file a reply.

1

The court denied the motion insofar as it sought a more
definite statement. (ECF No. 27, at 8-9).
3

II.

Standard of Review
The arguments raised by Defendant in its motion to dismiss

– lack of subject matter jurisdiction and failure to state a
claim – implicate different standards of review.
failure

by

the

plaintiff

to

exhaust

First, “a

administrative

remedies

concerning a Title VII claim deprives the federal courts of
subject matter jurisdiction over the claim.”

Jones v. Calvert

Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009).

A motion to

dismiss for lack of subject matter jurisdiction is governed by
Federal Rule of Civil Procedure 12(b)(1).

Generally, “questions

of subject matter jurisdiction must be decided ‘first, because
they concern the court’s very power to hear the case.’”

Owens-

Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999)
(quoting 2 James Wm. Moore, et al., Moore’s Federal Practice §
12.30[1] (3d ed. 1998)).

The plaintiff always bears the burden

of proving that subject matter jurisdiction properly exists in
federal court.

See Evans v. B.F. Perkins Co., a Div. of Standex

Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999).

In considering a

Rule 12(b)(1) motion, the court “may consider evidence outside
the pleadings” to help determine whether it has jurisdiction
over the case before it.

Richmond, Fredericksburg & Potomac

R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see
also Evans, 166 F.3d at 647.

The court should grant such a

motion “only if the material jurisdictional facts are not in
4

dispute and the moving party is entitled to prevail as a matter
of law.”

Richmond, 945 F.2d at 768.

The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,

464

F.3d

480,

483

(4th

Presley v. City of
Cir.

2006).

A

plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).

Fed.R.Civ.P.

“Rule 8(a)(2) still requires a ‘showing,’ rather than

a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 556 n.3 (2007).

Bell Atl. Corp.

That showing must

consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed 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, unsupported legal

allegations

not

need

be

accepted.

Revene

Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
5

v.

Charles

Cnty.

Legal conclusions

couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
604

F.2d

844,

(4th

847

Cir.

1979);

see

also

Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).

Francis

v.

“[W]here the

well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged,
but it has not ‘show[n] . . . that the pleader is entitled to
relief.’”
8(a)(2)).

Iqbal,

556

U.S.

at

679

(quoting

Fed.R.Civ.P.

Thus, “[d]etermining whether a complaint states a

plausible claim for relief will . . . be a context-specific task
that

requires

the

reviewing

experience and common sense.”

court

to

draw

on

its

judicial

Id.

The recent analysis undertaken by the United States Court
of Appeals for the Fourth Circuit in explaining the standard of
review on a motion to dismiss in the context of a Title VII
claim is instructive:
Federal Rule of Civil Procedure 8(a)(2)
“requires only a short and plain statement
of the claim showing that the pleader is
entitled to relief, in order to give the
defendant fair notice of what the . . .
claim is and the grounds upon which it
rests.”
Twombly, 550 U.S. at 555 (internal
quotation marks and citation omitted).
But
this rule for pleading “requires more than
labels and conclusion, and a formulaic
recitation of the elements of a cause of
action will not do.”
Id.
Instead, a
complaint
must
contain
“[f]actual
6

allegations [sufficient] to raise a right to
relief above the speculative level.”
Id.;
see also Iqbal, 556 U.S. at 678 (holding
that
a
complaint
“tender[ing]
‘naked
assertion[s]’ devoid of ‘further factual
enhancement’” does not “suffice” (quoting
Twombly, 550 U.S. at 557)).
The Supreme
Court has accordingly held that Rule 8(a)(2)
requires that “a complaint . . . contain[]
sufficient factual matter, accepted as true,
to ‘state a claim to relief that is
plausible on its face’” in the sense that
the complaint’s factual allegations must
allow a “court to draw the reasonable
inference that the defendant is liable for
misconduct alleged.” Iqbal, 556 U.S. at 678
(emphasis added).
McCleary-Evans

v.

Maryland

Dept.

of

Transp.,

State

Highway

Admin., 780 F.3d 582, 585 (4th Cir. 2015).
III. Analysis
A.

Administrative Exhaustion

Defendant
administrative

argues

that

remedies.

Plaintiff
(ECF

No.

failed

36-1,

at

to
5).

exhaust

her

Title

VII

requires a plaintiff to file an EEOC charge within a prescribed
limitations period.

42 U.S.C. § 2000e-5(e)(1).

In deferral

states such as Maryland, that limitations period is 300 days
from the date of the allegedly discriminatory act.

Id.

Title

VII also requires a plaintiff to bring a discrimination claim
within 90 days from the date of receipt of the right-to-sue
letter.
these

42 U.S.C. § 2000e-5(f).
time

limits

and

rarely

7

“Courts strictly adhere to
allow

equitable

tolling

of

limitations periods.”

Khoury v. Meserve, 268 F.Supp.2d 600, 606

(D.Md. 2003), aff’d, 85 F.App’x 960 (4th Cir. 2004).
The complaint asserts that she filed her charge with the
EEOC on March 3, 2010.
asserts

that

(ECF No. 1 ¶ 9).

Plaintiff

applied

to

Although the complaint

teach

provisionally

in

November 2008 and was refused a job at that time, (ECF No. 1 ¶
4) – more than 300 days before she filed an EEOC charge Plaintiff also alleges broadly that the discrimination occurred
from November 2008 through September 2009 (id. ¶ 8).

In her

opposition, Plaintiff includes a timeline of her communications
with

“human

resources/defendant,”

which

reflects

application was denied on September 30, 2009.
3-4).

that

her

(ECF No. 38-1, at

Plaintiff also attaches as an exhibit to her opposition

email correspondence, dated September 30, 2009, from Susan Mark,
Associate Superintendent, stating:
This e-mail is a follow-up to our
meeting and correspondence regarding your
request for conditional certification.
I
have reviewed all your documentation and I
also contacted the additional references
that you provided me. At this time, I will
not
support
granting
you
conditional
certification to be considered for special
education positions in Montgomery County
Public Schools (MCPS).
I know that you have worked hard to
complete your coursework to become a special
education teacher, however, I believe that
the
student
teaching
experience
or
an
experience as a long-term substitute teacher
is critical to becoming a teacher in MPCS.
8

I suggest you consider applying to one of
our partnership programs which will allow
you to have a student intern experience.
(ECF No. 38-5, at 16).

It appears that on September 30, 2009,

Plaintiff

finally

was

notified

of

her

non-selection

for

the

provisional teaching position for which she applied in November
2008,

thus

the

final

event

putting

Plaintiff

on

notice

and

giving rise to the cause of action took place within the 300 day
statutory period.
B.

Failure to State a Claim

Defendant also argues that Plaintiff fails to state a claim
for failure to hire based on race.

To state a claim for race

discrimination based on a failure to hire, Plaintiff must allege
that:

“(i)

[she]

belongs

to

a

protected

class,

(ii)

[she]

applied and was qualified for a job for which the employer was
seeking applicants, (iii) despite [her] qualifications, [she]
was

rejected,

and

(iv)

after

[her]

rejection,

the

position

remained open and the employer continued to seek applicants from
persons of [her] qualifications.”

E.E.O.C. v. Sears Roebuck &

Co., 243 F.3d 846, 851 (4th Cir. 2001).

“What is critical with

respect to the fourth element is that the plaintiff demonstrate
[s]he was not hired [] “under circumstances which give rise to
an inference of unlawful discrimination.”

Id. (quoting Texas

Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).

9

Defendant argues that “there are no tangible allegations
[in the complaint] that race played a part in her non-selection
for the position beyond her personal opinion and speculation.”
(ECF No. 36-1, at 6).

Plaintiff asserts in the complaint that

“MCPS unfairly denied [her] to teach provisionally even though
[she is] eligible and they hire many non-African Americans to
teach provisionally” and that MCPS “denied hiring [her], even
though [she has] more education and experience than most of the
non-African-American provisional teachers that they hire on a
consistent basis.”

(ECF No. 1 ¶¶ 4, 6).

Plaintiff includes

additional factual support in her opposition to the motion to
dismiss.

Based on what the court can surmise from the complaint

and opposition materials, the crux of Plaintiff’s failure to
hire claim is that Defendant did not place her on an eligibility
list to be considered to teach provisionally and that other less
or equally qualified applicants were placed on the eligibility
list and/or selected for provisional teaching positions.
No.

38-1,

at

7-8).

Plaintiff

explains

her

(ECF

qualifications,

stating that she obtained a master’s degree in Education and
completed additional coursework for provisional teaching.
at 7).
on

the

(Id.

Plaintiff essentially contends that she was not placed
conditional

certification

list

despite

her

qualifications, that the provisional teaching positions to which
she sought to apply (Special Education and Spanish) remained
10

open,

and

that

MCPS

continued

to

accept

similarly or less qualified applicants.

applications

from

Specifically, Plaintiff

asserts:
There are currently 3 relevant special
education teaching positions (not counting
the “Applicant Pool” for special education
teachers), and 1 relevant Spanish teaching
position that are listed as available/open
in the vacancy database.
The date-stamp on
the page is October 17, 2014.
This
establishes prima facie criteria #4 because
while the defendant continues to deny me a
teaching position, they continue to seek
applicants for positions that I am qualified
to fill (under the alternative certification
process for the state of Maryland), giving
rise
to
inference
of
unlawful
discrimination.
(Id. at 8).
believes

Moreover, Plaintiff identifies comparators who she

were

less

qualified

and

did

not

have

teaching

experience, yet they were selected to teach provisionally.
at 9-10).
was

(Id.

Plaintiff also asserts that during the time that she

denied

conditional

certification

to

teach,

there

was

“a

critical shortage of teachers in both subject areas that [she
is] seeking certification.”

(Id. at 9; see also ECF No. 38-11).

Defendant has not responded to the assertions in the opposition.
Based on the foregoing, Plaintiff provides enough specific
factual

allegations

discrimination
plausible.”

claim

at

the

“across

pleading
the

line

stage
from

to

nudge

conceivable

her
to

Iqbal, 556 U.S. at 680; cf. McCleary-Evans, 780

F.3d at 585-86

(affirming dismissal of a failure to hire claim
11

where plaintiff merely alleged that defendant did not hire her
because its decision makers were biased and had predetermined
that they would select white candidates to fill the positions).
Defendant’s motion to dismiss will be denied.
IV.

Conclusion
For the foregoing reasons, the motion to dismiss filed by

Defendant will be denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

12