Melendez v. Albert Einstein High School et al

Filing 45

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 6/3/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARIA MELENDEZ

:

v.

:

Civil Action No. DKC 14-3636

:
BOARD OF EDUCATION FOR
MONTGOMERY COUNTY

:
:
MEMORANDUM OPINION

Presently

pending

and

ready

for

resolution

in

this

employment case are: (1) a motion to dismiss or for summary
judgment filed by the Board of Education for Montgomery County
(“Defendant”)
summary

(ECF

judgment

No.

31);

(2)

pursuant

to

a

motion

Fed.R.Civ.P.

to

defer

56(d)

or
filed

deny
by

Plaintiff Maria Melendez (ECF No. 36); (3) a motion for leave to
file

a

surreply

filed

by

Plaintiff

(ECF

No.

39);

and

(4)

Defendant’s motion to strike Plaintiff’s affidavit (ECF No. 41).1
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 motion for leave to file a surreply filed
by Plaintiff will be granted.

Defendant’s motion to dismiss or

for summary judgment will be granted in part and denied in part.
1

Defendant moved for an extension of time to respond to
Plaintiff’s motion to defer summary judgment.
(ECF No. 37).
Defendant has since responded to the motion, thus the request
will be denied as moot.

Plaintiff’s motion to defer or deny summary judgment pursuant to
Fed.R.Civ.P. 56(d) will be denied as moot.

Defendant’s motion

to strike Plaintiff’s Rule 56(d) affidavit also will be denied
as moot.
I.

Background
A.

Factual Background

The

following

complaint.

facts

are

in

the

she

was

transferred

(ECF No. 30 ¶ 1).2
to

Albert

Einstein

(“AEHS”) as Shift I Building Services Worker.
April

second

2010,

Tony

Hopkins

Manager for AEHS.

became

(Id. ¶ 10).

the

new

In November
High

stated

School

In approximately
Building

Services

Plaintiff asserts that three

females and three males worked under his supervision.
11-12).

amended

Plaintiff began working for Montgomery County Public

Schools on October 18, 1993.
1997,

alleged

(Id. ¶

The second amended complaint avers that “Mr. Hopkins
the

Building

Services Department at Albert Einstein High School.”

(Id. ¶

14).

his

He

distaste

for

purportedly

working

lined

up

with

all

women

three

in

female

workers

and

informed them that “he did not want three women working [at
AEHS] in the morning.”

(Id. ¶ 13).

Plaintiff asserts that in

May 2010, she informed AEHS principal James Fernandez regarding

2

All citations to paragraphs refer to the allegations
beginning on page four of the second amended complaint.
(See
ECF No. 30, at 4).
2

Mr. Hopkins’s comments, but was told that “he’s the new boss”
and “follow whatever he says.”

(Id. ¶ 16).

Plaintiff further contends that the male building service
workers

supervised

by

Mr.

Hopkins

usually

were

“tasked

with

maintaining the exterior premises,” but “[i]n order to prove
that women were inferior to men as building service workers,”
Mr.

Hopkins

inside

of

apparently

the

assigned

building

sweeping the floors.”

such

to

as

the

male

cleaning

(Id. ¶¶ 28-29).

the

workers

“tasks

bathrooms

and

The women, on the other

hand, allegedly were “assigned to grueling labor tasks outside
of the facility amidst the scorching heat.”

(Id. ¶ 30).

The

complaint further avers that during the summer of 2010, “Tony
Hopkins

intentionally

surveillance

positioned

directly

on

including the Plaintiff.”

the

security

three

cameras

female

(Id. ¶ 35).

to

service

perform
workers,

Plaintiff asserts that

the female building service workers “began to notice that they
were being followed by AEHS’ building security cameras while
they were performing their job functions.”
Plaintiff
taken

by

Plaintiff’s

Mr.

also

asserts

Hopkins,

direction,

various

such

as:

causing

it

(Id. ¶ 42).

other

actions

shoving

a

to

her

hit

allegedly

trash
and

can

in

severely

bruising her arm (id. ¶ 67); instructing Plaintiff and the two
other female building service workers to lift extremely heavy
furniture

across

school

grounds
3

in

July

2010

(id.

¶

72);

shutting

down

the

air

conditioning

in

rooms

while

Plaintiff

cleaned in August 2010 (id. ¶ 74); filling up trash bags with
“reams of toilet paper,” taking pictures of each trash bag full
of

toilet

paper,

and

then

questioning

why

“Plaintiff

hadn’t

taken out the trash for the day” (id. ¶¶ 78-79); directing Ms.
Melendez to move “extremely dangerous broken furniture out of
the cafeteria” in or around May 2011, then himself bringing the
furniture back into the cafeteria and “in a rage yell[ing] in
her face for not performing the task” (id. ¶ 86).
Plaintiff also asserts that despite her complaints to the
school principal and the union regarding these acts, nothing was
done to remedy the situation.

Plaintiff asserts that, at the

end of May 2011, Mr. Hopkins recommended that she be placed on a
“Performance
evaluation.

Improvement
(Id. ¶ 92).

Plan,”

as

part

of

her

annual

Plaintiff contends that never before

had she received such a “negative performance evaluation” and
prior to Mr. Hopkins’s tenure was praised for her exceptional
job performance.

(Id. ¶¶ 93-96).

Finally, Plaintiff recounts

an incident when she brought a water bottle to work, which she
believes had been tampered with.

She states:

123. Ms. Melendez poured some of the
water on her hand and instantly felt
something irregular and slippery.
She
placed the bottle by her nose and another
substance that she knew was not just water.

4

124. After Plaintiff discovered that
her water bottle had been tampered with, she
immediately
threw
out
the
bottle
and
reported the incident to the police.
125. The police did not follow up with
an investigation because Ms. Melendez had no
evidence of the tampered bottle.
Plaintiff alleges that in or around July 2011, “after the water
bottle incident and out of absolute fear [for] her life, [she]
immediately left Albert Einstein High School.”

(Id. ¶ 126).

Plaintiff asserts that she sought treatment for severe emotional
distress in July 2011 “caused by the extreme discrimination,
disparate treatment and hostile work environment conditions at
Albert Einstein High School.”
B.

(Id. ¶ 127).

Procedural Background

Plaintiff filed a pro se complaint in the Circuit Court for
Montgomery County, Maryland on August 19, 2014 naming Albert
Einstein High School as a defendant.
subsequently
naming

retained

Montgomery

County

additional defendant.
of

removal

on

jurisdiction.

counsel

and

filed

Public

(ECF No. 11).

November

17,

(ECF No. 1).

(ECF No. 2).

2014,

an

Schools

amended
(“MCPS”)

Plaintiff
complaint
as

an

Defendants filed a notice
citing

federal

question

On November 21, 2014, Defendants

moved to dismiss Plaintiff’s first amended complaint, asserting
that neither defendant is a legal entity with the capacity to
sue or be sued.

Plaintiff filed a response arguing that she is

entitled to amend her complaint pursuant to Fed.R.Civ.P. 15(c)
5

in order to correct any harmless mistake and name the Board of
Education

for

Montgomery

Concomitantly,

Plaintiff

complaint.

The

court

County
moved

issued

as
to

an

a

party

amend

order

to

on

action.

first

her

this

amended

December

11,

2014

granting Plaintiff’s motion for leave to amend the complaint and
denying as moot the motion to dismiss.

(ECF No. 29).

Plaintiff

was directed to file a second amended complaint to substitute
the Board of Education for Montgomery County as a defendant.
Plaintiff subsequently filed a second amended complaint.
(ECF

No.

30).

discrimination

The
(count

second
I);

amended

retaliation

complaint
(count

asserts:

II);

sex

disparate

treatment (count III); and hostile work environment (count IV)
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§
2000e, et seq.

The complaint also labels as separate counts:

adverse employment action (count V);3 violation of Maryland’s
Fair Employment Practices Act (count VI); violation of Section 5
of

Equal

Employment

Opportunity,

Montgomery

County

Personnel

Regulations (count VII); wrongful termination in violation of
public policy (count VIII); negligence (count IX); negligent and
wanton hiring, retention and supervision (count X); vicarious

3

Plaintiff labels Count V of the second amended complaint
as “adverse employment action under Title VII.” (ECF No. 30, at
26). An “adverse employment action” is not a separate cause of
action under the statute. It appears that at least some of the
allegations in Count V are asserted in support of the other
causes of action contained in the second amended complaint.
6

liability (count XI); intrusion upon Plaintiff’s seclusion or
solitude (count XII); and invasion of privacy (count XIII).
Defendant

moved

December 29, 2014.

to

dismiss

(ECF No. 31).

or

for

summary

judgment

on

Plaintiff opposed the motion

(ECF No. 32), and Defendant replied (ECF No. 33).

Plaintiff

subsequently filed two supplements to her opposition, which are
identical.

(ECF Nos. 34 & 35).

Then, on February 3, 2015,

Plaintiff filed a motion requesting that the court defer or deny
summary judgment pursuant to Fed.R.Civ.P. 56(d) and requested
time to conduct discovery.

(ECF No. 36).

Plaintiff submitted

an affidavit as an exhibit to her motion.

(ECF No. 36-1).

Defendant opposed this motion and moved to strike the affidavit.
(ECF No. 41).

Plaintiff filed a response.

(ECF No. 43).

Finally, Plaintiff moved for leave to file a surreply in
connection with Defendant’s motion to dismiss or for summary
judgment.

(ECF No. 39).

Defendant opposed the motion (ECF No.

42), and Plaintiff replied (ECF No. 44).
II.

Analysis
A.

Motion for Leave to File a Surreply

After Defendant’s motion to dismiss or for summary judgment
was fully briefed, Plaintiff moved for leave to file a surreply
and attached a proposed surreply to her motion.

(ECF No. 39).

Local Rule 105.2.a states: “[u]nless otherwise ordered by the
Court, surreply memoranda are not permitted to be filed.”
7

The

court may permit a surreply when a party would not otherwise
have an opportunity to respond to arguments raised for the first
time in the opposing party’s reply.

See Khoury v. Meserve, 268

F.Supp.2d 600, 605 (D.Md. 2003).
Plaintiff argues that Defendant submitted new exhibits with
its

reply

memorandum,

which

Defendant

itself

concedes

were

obtained via a FOIA request on January 20, 2015, subsequent to
the filing of Defendant’s dispositive motion.
at 3).

(See ECF No. 33,

Much of the parties’ dispute concerns the purported

withdrawal by Plaintiff of her EEOC charge and whether she did
or did not inform the EEOC that she wished to close her EEOC
case.

The exhibits included for the first time with Defendant’s

reply memorandum purport to show that Ms. Melendez did in fact
communicate to several EEOC employees her intention to close the
case.

Plaintiff asserts that her surreply should be accepted

because

she

did

not
in

have

an

opportunity

arguments

made

Defendant’s

reply

exhibits.

to

which

respond

rely

on

to

the

the

new

(See ECF No. 39, at 3-6).

Plaintiff’s surreply will be accepted, but with a caveat
that any new arguments raised by her that could have been raised
in the opposition will not be considered.

As Defendant argues,

Plaintiff herself raises new arguments in the surreply which
could

have

been

raised

in

her

opposition

and

which

do

not

respond to any new argument from Defendant raised for the first
8

time in its reply.

(ECF No. 42, at 2).

Specifically, Plaintiff

asserts that Defendant did not object to the reopening of the
EEOC case until after the EEOC completed its investigation and
settlement discussions proved futile; Plaintiff argues in the
surreply that judicial estoppel, equitable estoppel, laches, and
waiver bar Defendant from objecting to the reopening of the case
in this litigation.
No.

42,

at

2

(See ECF No. 39-1, at 9-12; see also ECF

(“[T]hese

are

arguments

which

could

have,

and

should have, been raised in Plaintiff’s original [opposition]
because Plaintiff has quite obviously always been aware of the
Defendant’s participation in the EEOC investigation after the
EEOC improperly reopened Plaintiff’s charge.”)).

Because these

arguments could have been but were not raised in Plaintiff’s
opposition, they will not be considered.
arguments

from

Plaintiff

raised

for

the

Moreover, any new
first

time

in

the

surreply pertaining to the state law claims also will not be
considered for the same reason.
B.

Defendant’s Motion to Dismiss or for Summary Judgment

1.

Standard of Review

Both parties rely on materials outside the four corners of
the

complaint,

thus

summary judgment.

the

motion

will

be

treated

as

one

for

A motion for summary judgment will be granted

only if there exists no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.
9

See Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986).

Once a properly supported motion for summary judgment

is filed, the nonmoving party is required to make a sufficient
showing on an essential element of that party’s claim as to
which

that

party

summary judgment.

would

have

the

burden

of

proof

to

avoid

Celotex, 477 U.S. at 322–23.

Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material

fact,

and

the

moving

party

is

plainly

judgment in its favor as a matter of law.

In

entitled

to

Anderson v.

Liberty Lobby, Inc., 477 U.S. at 249 (1986), the Supreme Court
explained that, in considering a motion for summary judgment,
the “judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”

A dispute about a material fact

is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Id. at 248.

Thus,

“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
10

favorable to the party opposing the motion.”

Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence

in

The mere existence of a “scintilla” of

support

of

the

non-moving

party's

case

is

sufficient to preclude an order granting summary judgment.

not
See

Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
2.

Analysis

Defendant

argues

that

the

federal

claims

should

be

dismissed because Plaintiff failed to exhaust her administrative
remedies and the state law claims are barred by the applicable
statute of limitations.
a.
On

(ECF No. 31).

Administrative Exhaustion
January

Commission

11,

(“EEOC”)

2012,

the

forwarded

to
11

Equal
the

Employment
Board

of

Opportunity
Education

of

Montgomery County (“MCPS”) a notice of charge of discrimination
brought by Plaintiff, which alleged discrimination on the basis
of race, sex, and national origin.
No.

531-2012-00599).

charge

of

charge

number,

The

discrimination
this

EEOC
from

time

(ECF No. 31-3, EEOC Charge

subsequently
Plaintiff

asserting

sex

received

under

the

another

same

discrimination

EEOC
and

retaliation, which it also forwarded to MCPS on February 21,
2012.

(ECF No. 31-4).

On April 6, 2012, the EEOC forwarded to

MCPS a notification letter stating:
This is to inform you that the charge cited
above has been withdrawn at the request of
the Charging Party.
The Commission has approved this withdrawal
and this terminates any further processing
of this matter.
Such withdrawal does not
affect the processing of any other charge,
including but not limited to, a Commissioner
Charge, or a charge, the allegations of
which are like or related to the individual
allegations settled.
(ECF No. 31-5) (emphasis added).

Almost one year later, on

March 15, 2013, the EEOC sent to Plaintiff and the MCPS a notice
of reopening:
Based on additional information obtained, a
decision has been made to rescind the
withdrawal notices recently issued with
regard to the above-referenced charge of
discrimination.
Pursuant to the Equal Employment Opportunity
Commission’s Rules and Regulations, I hereby
give notice of my intent to reopen and
continue the investigation.
This is to
12

notify the parties that the withdrawal
issued in the cited charge has been revoked.
A
U.S.
Equal
Employment
Opportunity
Commission representative will soon contact
the
parties
concerning
further
investigation.
(ECF No. 31-6).

The letter was signed by Rosemarie Rhodes,

Director with the Baltimore Field Office at the EEOC.

On May

20, 2014, the Department of Justice issued a right-to-sue letter
to Plaintiff.

(ECF No. 31-7).

Defendant argues that the first five counts of the second
amended complaint alleging violations of Title VII should be
dismissed on failure to exhaust grounds based on timeliness.
Specifically, Defendant contends:
For the purpose of this Motion, the issue is
not whether Plaintiff timely filed with the
EEOC, or whether Plaintiff filed her civil
suit within 90 days of receipt of the rightto-sue notice.
Defendant’s untimeliness
argument hinges on the fact that Plaintiff
withdrew her discrimination charge with the
EEOC, that Plaintiff failed to re-file her
charge of discrimination within the 300-day
window from the last date of alleged
discrimination, and that the EEOC lacked the
authority
to
unilaterally
reopen
the
withdrawn charge that led to the right-tosue letter issued in 2014. [] [B]ecause the
EEOC lacked the authority to reopen the
charges, the right-to-sue notice issued on
March 13, 2014,[4] is a legal nullity.
(ECF No. 31-1, at 8).
4

The notice regarding reopening of the case was issued on
March 13, 2013, but the right to sue letter was issued on May
20, 2014.
13

Title

VII

requires

a

plaintiff

to

file

within a prescribed limitations period.
5(e)(1).

an

EEOC

charge

42 U.S.C. § 2000e-

In deferral states such as Maryland, that limitations

period is 300 days from the date of the allegedly discriminatory
act.5

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.

42

U.S.C.

§

2000e-5(f).

“Courts

strictly adhere to these time limits and rarely 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).
In her opposition, Plaintiff denies that she ever withdrew
or authorized anyone to withdraw her discrimination charge with
the EEOC.

(ECF No. 32, at 2).

Plaintiff submits an affidavit

from Rosemarie Rhodes, Director of the Baltimore Field Office
with the EEOC, who states, in relevant part:
C. According to the records maintained
by the Baltimore Field Office, in or about
April 2012, an EEOC Call Center employee
noted that based on a telephone conversation
with Maria Melendez, she wished to withdraw
EEOC Charge 531-2012-00599. Upon receipt of
5

A “deferral state” is one that has its own state or local
agency with authority to grant or seek relief from employment
discrimination or to institute criminal proceedings on behalf of
the alleged victim.
42 U.S.C. § 2000e-5(e)(1).
The Maryland
Commission on Civil Rights (“MCCR”), formerly known as the
Maryland Commission on Human Rights, is the applicable state
enforcement agency.
Prelich v. Med. Resources, Inc., 813
F.Supp.2d 654, 661-62 (D.Md. 2011).
14

that information, Gerald Kiel, then Director
of
the
Baltimore
Field
Office
advised
Montgomery
County
Public
Schools’
HR
Compliance representative of the withdrawal
and the Baltimore Field Office discontinued
any further processing of the charge.
D. In or about February-March 2013, I
was contacted by Maria Melendez regarding
the status of two charges of discrimination,
including EEOC Charge 531-2012-00599.
When
I informed her that both charges had been
withdrawn at her request, she denied that
she had made any such request.
E. At that juncture, I reviewed the
file and determined that there had been a
misunderstanding of Ms. Melendez’s intent
when she was calling the EEOC Call Center to
inquire on the status of her charges and the
reasons for the delays in the processing of
her charges.
Other than the note from the
EEOC Call Center employee, there was no
other indication or documentation in the
file
that
Ms.
Melendez
requested
a
withdrawal of charge.
(ECF No. 32-1, at 1-2) (emphasis added).

Plaintiff also filed a

supplement, albeit without explanation, showing the following
email

from

Pamela

Lichtenberg

to

Judy

Cassell

and

Tolentino, EEO investigators:
Charge was closed with a Y2 04/06/12.
I
rec[eived] a voice mail message from WFO
employee, Trent McCrath, who spoke with Ms.
Melendez today. She claims she did not know
her[] charge was closed and that she did not
authorize a withdrawal.
She thought her
charge was in “back-log.”
Maria you have
several notes in IMS about speaking with her
and Judy you have one, too.
(ECF No. 34) (emphasis added).

15

Maria

Defendant relies on the district court’s decision in Lewis
v. Norfolk Southern Corp., 271 F.2d 807 (E.D.Va. 2003), for the
proposition that the EEOC does not have authority to reconsider
a withdrawal of an EEOC charge and reopen the case.

Unlike

here, it was uncontested in Lewis that plaintiff withdrew his
charge after he filed it with the EEOC.

Almost seven months

after

more

plaintiff

following

the

unilaterally

withdrew
alleged

informed

the

his

charge

and

discriminatory
plaintiff

it

than

acts,
was

300

“the

reconsidering

days
EEOC
the

charge and revoking its approval of the withdrawal request.”
Lewis, 271 F.Supp.2d at 814.

The court reasoned that “[t]here

is nothing authorizing reconsideration of a withdrawn charge,
covered under 29 C.F.R. § 1601.10, once the EEOC has accepted
the

withdrawal

(emphasis added).

and

terminated

proceedings.”

Id.

29 C.F.R. § 1601.10 states:

A charge filed by or on behalf of a person
claiming to be aggrieved may be withdrawn
only by the person claiming to be aggrieved
and only with the consent of the Commission.
The Commission hereby delegates authority to
District Directors, Field Directors, Area
Directors, Local Directors, the Director of
the Office of Field Programs and the
Director of Field Management Programs, or
their designees, to grant consent to a
request to withdraw a charge, other than a
Commissioner charge, where the withdrawal of
the charge will not defeat the purposes of
title VII, the ADA, or GINA.
(emphasis added).

16

at

815

Here, Plaintiff disputes that she ever withdrew the charge
and

submits

an

affidavit

from

Ms.

Rhodes

stating

that

the

withdrawal was based on a misunderstanding of Ms. Melendez’s
intent.

See, e.g. Hale v. Anton Paar USA, Inc., Civ. Action No.

3:07CV435,

2008

WL

170460,

at

*3

(E.D.Va.

Jan.

18,

2008)

(“Without commenting on the merits of the court’s holding in
Lewis,

this

case

is

withdraw his charge.
lacked

authority

to

distinguishable

from

Ms.

that

Hale

did

not

Further, assuming arguendo that the EEOC
reconsider

the

should not be imputed to Hale.”).
affidavit

in

Rhodes

does

charge,

the

EEOC’s

error

Defendant argues that the

not

comply

with

Fed.R.Civ.P.

56(c)(4) because she “did not participate in the April 2012
telephone call, had no personal knowledge of the contents of
that

telephone

Plaintiff’s

call

alleged

and

is

intent

not

competent

at

that

(or

to

testify

any)

accordingly, her affidavit should be stricken.”

as

point,

to
and

(ECF No. 33, at

3).
Under Fed.R.Civ.P. 56(c)(4), affidavits used to support or
oppose a motion for summary judgment must: be made on personal
knowledge; set out facts that would be admissible in evidence;
and show that the affiant is competent to testify on the matters
stated.

Defendant misconstrues the affidavit.

Ms. Rhodes’s

affidavit does not state that she participated in the April 2012
telephone call or that Ms. Melendez did not intend to withdraw
17

her EEO charge; instead, Ms. Rhodes states in her affidavit that
she

reviewed

the

records

maintained

by

the

Baltimore

Field

Office which recount the purported conversation that led to the
discontinuance of the EEO complaint, and that subsequently she
herself spoke with Ms. Melendez, who denied that she requested
to withdraw the EEO charge.

Ms. Rhodes has personal knowledge

of her conversation with Ms. Melendez in February or March 2013
and the records she reviewed in determining that the case should
be reopened.

Accordingly, the affidavit need not be stricken.

Defendant next argues that the affidavit lacks credibility
considering the records Defendant obtained from the EEOC through
a

FOIA

request

in

January

2015.

Specifically,

Defendant

believes that “[s]everal documents produced by the EEOC directly
rebut the contentions made in Ms. Rhodes’ affidavit.”

(Id.).

Defendant cites notes from Ms. Melendez’s EEOC file that it
believes show that Plaintiff did withdraw her charge.

(See ECF

No. 33-2, note from Judy Cassell dated April 6, 2012 (“I spoke
with Ms. Melendez, and she confirmed that she wants to close
EEOC cases; DOL has accepted her claims.”)).

Defendant also

cites a letter, dated April 6, 2012, to Ms. Melendez from Gerald
S. Kiel, then Director of the EEOC’s Baltimore Office, stating
in relevant part: “This is to acknowledge your recent request to
withdraw the above referenced charge of discrimination. . . .
Your request is hereby granted.”
18

(ECF No. 33-3).

Plaintiff

apparently did not respond to this letter until she contacted
the EEOC in February or March 2013.

Defendant argues:

To the extent Ms. Rhode[s]’s affidavit seeks
to assign some type of misunderstanding to
an EEOC call center employee, she fails to
mention the additional conversation between
Plaintiff and Ms. Cassell, or the fact that
Plaintiff took no action for more than a
year after receiving the letter confirming
the withdrawal of her charge.
These facts
directly rebut that there was any alleged
misunderstanding. These facts also make Ms.
Rhodes’ affirmations rather dubious.
(ECF No. 33, at 5).

The court cannot weigh evidence and make

credibility determinations on summary judgment, however.
e.g.,

Edell

&

Associates,

P.C.

v.

Law

Offices

of

See,

Peter

G.

Angelos, 264 F.3d 424, 435 (4th Cir. 2001) (noting that the court
“may not make credibility determinations or weigh the evidence”
on summary judgment).

Moreover, all inferences must be drawn in

the light most favorable to Plaintiff as the non-moving party.6

6

Defendant
further
argues
that
even
if
the
EEOC
miscommunicated
with
Plaintiff
and
she
relied
on
this
miscommunication, “there are no facts to support that Plaintiff
diligently pursued her charge of discrimination by making any
calls or responding to the EEOC’s letter until nearly February
or March 2013, when Plaintiff’s case had been closed for almost
a year.” (ECF No. 33, at 10). Defendant attaches as an exhibit
to its reply brief a letter to Plaintiff, dated April 6, 2012,
acknowledging her “recent request to withdraw the above
referenced charge of discrimination.”
(ECF No. 33-3).
As
explained above, there is a dispute regarding whether the
withdrawal resulted from a misunderstanding on the EEOC’s part.
Moreover, as Plaintiff argues, Defendant apparently participated
in the EEO investigation following the reopening of the case for
nearly a year, without objecting to the reopening.
Plaintiff
contends that “at no time, before or during the sweeping
19

Defendant also cites Walton v. Guidant Sales Corp., 417
F.Supp.2d 719 (D.Md. 2006), in arguing against equitable tolling
in cases where the EEOC takes no action to mislead a plaintiff.
(See ECF No. 33, at 9-10).

That case is inapposite, however,

because Judge Davis denied a pre-discovery motion for summary
judgment:
Guidant filed a pre-discovery motion for
summary judgment asserting that Walton had
failed
properly
to
exhaust
his
administrative remedies, i.e., he failed to
file a timely charge of discrimination.
I
denied the pre-discovery motion without
prejudice,
concluding
that
Walton
had
generated a “genuine dispute of material
fact as to the question of exhaustion of
administrative process” and that Walton had
“amassed
significantly
probative
circumstantial and direct evidence that he
did
timely
satisfy
the
exhaustion
requirement, but that the EEOC process broke
down.”
Letter Order dated September 27,
2005.
Walton, 417 F.Supp.2d at 720.
Moreover,
Jones

Lang

the

LaSalle

analysis

recently

Americas,

Inc.,

undertaken

in

Hansen

---F.Supp.3d----,

1927530 (D.Conn. Apr. 28, 2015), applies here.

2015

v.
WL

In that case,

the EEOC made an administrative error that led it to conclude
that plaintiff’s claim had been withdrawn.

Defendant in Hansen

investigation conducted by the EEOC, did the Defendant ever
object to an investigation or ask Ms. Rhodes to reevaluate her
decision to reconsider the withdrawn charge. []
Instead, the
Defendant fully participated in the EEOC investigation that took
well over a year to finalize.” (ECF No. 39-1, at 8).
20

argued that the EEOC had no authority under its own regulations
to reconsider a case closure.

The court rejected defendant’s

reasoning:
Without disputing that the EEOC had no
lawful authority to deem plaintiff’s claim
to be withdrawn, defendant contends that
[the] EEOC had no authority under its own
regulations to re-consider this wrongful
action. This argument has no merit, because
“[i]t is widely accepted that an agency may,
on
its
own
initiative,
reconsider
its
interim
or
even
its
final
decisions,
regardless of whether the applicable statute
and agency regulations expressly provide for
such review.” Dun & Bradstreet Corp. Found.
v. U.S. Postal Serv., 946 F.2d 189, 193 (2d
Cir. 1991).
In view of the fact that the
EEOC plainly had no authority to deem the
claim withdrawn in the first place, it would
border on the bizarre to conclude that the
EEOC was powerless to correct its error.
Id. at *2 (emphasis added).
Based on the foregoing, the motion for summary judgment
will be denied as to counts I through V.7

7

Plaintiff also separately filed a motion to defer or deny
summary judgment to allow for discovery pursuant to Fed.R.Civ.P.
56(d). (See ECF No. 36). Plaintiff’s counsel submitted a Rule
56(d) affidavit from Ms. Melendez.
The affidavit does not
address Defendant’s motion to dismiss or for summary judgment as
it relates to the state law counts, focusing exclusively on the
need for discovery concerning the administrative exhaustion
issue. Because the case will proceed to the discovery phase on
the federal claims for the reasons stated, Plaintiff’s request
will be denied as moot.
Consequently, Defendant’s motion to
strike the Rule 56(d) affidavit, (ECF No. 41), also will be
denied as moot.
21

b.

State Law Claims

Defendant argues that the statute of limitations has run on
Plaintiff’s state law claims.8
Count VI of the second amended complaint alleges violations
of Maryland’s Fair Employment Practices Act (“MFEPA”).
“is the state law analogue of Title VII.”

MFEPA

Alexander v. Marriott

Int’l, Inc., RWT-09-02402, 2011 WL 1231029, at *6 (D.Md. Mar.
29, 2011).

MFEPA permits a litigant to bring a civil action if:

(1) she files a timely administrative charge; (2) at least 180
days have elapsed since the filing of the administrative charge;
and (3) the civil action is filed within two years after the
alleged unlawful employment practice occurred.
State Gov’t § 20-1013(a).

Md. Code. Ann.,

Here, the second amended complaint

avers that “[i]n or around July 2011, after the water bottle
incident

and

out

of

absolute

fear

of

her

immediately left Albert Einstein High School.”
126).
to

life,

Plaintiff

(ECF No. 30 ¶

Defendant attaches a notice of resignation to its motion

dismiss

or

for

summary

judgment

showing

that

Plaintiff

resigned on July 19, 2011, citing “home responsibilities” as a
reason

for

resignation.

(ECF

8

No.

31-2).

The

purported

Defendant also argues that counts six and seven of the
second amended complaint are barred for the same reasons as the
federal claims on failure to exhaust grounds.
As explained
above, summary judgment will not be granted on failure to
exhaust
grounds
considering
the
dispute
surrounding
the
withdrawal of the EEO charge.
22

constructive

discharge

discriminatory

act

in

alleged

July
in

2011

the

is

second

the

most

amended

recent

complaint.

Plaintiff did not file her complaint in the Circuit Court for
Montgomery County until August 19, 2014, however, approximately
three years later.
Plaintiff

(See ECF No. 2).

broadly

asserts

that

“[i]f

the

EEOC

did

not

erroneously withdraw the Plaintiff’s charge, it is presumed that
a proper investigation would have been completed and thus the
Plaintiff, [] would have been able to properly assert Counts 6
and 7 within the applicable statute of limitations.”
32, at 9).

(ECF No.

Plaintiff provides no explanation, however, for why

she needed to wait for any EEOC action before pursuing her state
law claims and her argument is unavailing.

Judge Hollander

recently rejected a similar argument as Plaintiff lodges here in
McCleary-Evans v. Maryland Dept. of Transp., Civ. Action No.
ELH-12-1550, 2015 WL 1285325, at *22-23 (D.Md. Mar. 20, 2015):
McCleary-Evans argues in her Opposition
that “the statute’s two-year limitations
provision
has
no
application”
because
plaintiff’s claims “are subject to the
administrative
requirement
otherwise
applicable to Title VII and the related
administrative exhaustion requirements of .
. . the ADEA and the ADA.” [] Although it
is true that plaintiff’s MFEPA claims are
subject
to
an
administrative
filing
requirement, S.G. § 20-1013(a)(1), this
requirement
is
in
addition
to
the
requirement that any “civil action” be filed
“within 2 years after the alleged unlawful

23

employment practice occurred.”
1013(a)(3).

S.G. § 20-

As quoted above, the statute provides
three requirements, joined by the word
“and,” that a complainant must satisfy in
order to pursue a civil action. Under well
settled
principles
of
statutory
construction, the use of the word “and”
between
these
three
requirements
unambiguously commands that a complainant
meet all three requirements, not just any
one of them.
(emphasis added).

As Defendant argues, Plaintiff was required

to file a timely MFEPA claim irrespective of any action by the
EEOC.

Accordingly, the MFEPA claim is time-barred.
In count VII of the second amended complaint, Plaintiff

asserts

violations

of

“Section

5

of

Equal

Employment

Opportunity, Montgomery County Personnel Regulations.”
30,

at

28).

The

Montgomery

County

Personnel

(ECF No.

Regulations

generally apply to “employees of the County government.”
Personnel Regs. § 2-2.9

Md.

Md. Code Ann., Educ. § 3-104 states that

“[e]ach county board is a body politic and corporate by the name
of the Board of Education of ... County” and “[m]ay sue and be
sued.”

Id. §§ 3-104(a) & (b)(2).

Plaintiff erroneously asserts

in

opposition

is

her

that

“[t]here

[]

no

dispute

that

Ms.

Melendez was an employee of Montgomery County Government and
therefore Count 7 cannot be dismissed.”
9

(ECF No. 32, at 10).

The Montgomery County Personnel Regulations are available
on the County’s website: http://www.montgomerycountymd.gov/ohr/
labor/regulation.html (last visited May 18, 2015).
24

Plaintiff was employed by the Board of Education of Montgomery
County, which is not the same as an employee of the County
government.

Plaintiff requests that if the Court were inclined

to dismiss the Section 5 claim, that she be permitted to amend
the complaint to “assert a claim pursuant [to] Title 20 of the
State Government Article.”

(Id.).

For the reasons explained

above, however, any claim pursuant to Title 20 is time-barred.
Accordingly, summary judgment will be granted as to Count VII
too.
The following state claims remain in the second amended
complaint:

wrongful

termination;

negligence;

negligent

and

wanton hiring; vicarious liability; intrusion upon Plaintiff’s
seclusion

or

solitude;

and

invasion

of

privacy

(counts

VIII

through XIII).

The three-year statute of limitations applies to

these claims.

See Md. Code Ann., Cts. & Jud. Proc. § 5-101 (“A

civil action at law shall be filed within three years from the
date it accrues unless another provision of the Code provides a
different

period

commenced.”).
VIII

through

misleading

of

time

within

which

an

action

shall

be

Plaintiff asserts in her oppositions that counts
XIII

error

are

not

resulted

time-barred
in

almost

because
a

year

“[t]he
delay

EEOC’s

severely

prejudicing the Plaintiff’s ability to bring forth her state
claims immediately after her resignation.

Such a harmful error

should equitably toll the statute of limitations for her state
25

claims.”

(ECF No. 32, at 11).

A similar argument was rejected

by the United States Court of Appeals for the Fourth Circuit in
McNeal v. Montgomery County, Md., 307 F.App’x 766, 771-72(4th
Cir. Jan. 20, 2009):
McNeal does not contest that the three
year period is applicable, but argues that
the Statute of Limitations for the state law
claims should be equitably tolled during the
time
in
which
he
was
exhausting
administrative procedures as to his Title
VII claims, which arose from the same set of
circumstances. This Court in Shofer v. Hack
Co., 970 F.2d 1316 (4th Cir. 1992) held that
“[t]he rule in Maryland concerning equitable
tolling of statutes of limitations ‘can be
fairly termed one of strict construction.’”
Id. at 1320 (quoting Walko Corp. v. Burger
Chef Sys., Inc., 281 Md. 207 (1977)).
The
district court correctly held that the
filing of McNeal’s claim with the Office of
Human Rights “does not toll the statute of
limitations
for
claims
that
‘although
related, and although directed to most of
the same ends, are separate, distinct, and
independent.’” McNeal v. Montgomery County,
No. MJG-04-2984, slip op. at 10 (D.Md. Mar.
15, 2008) (unpublished) (quoting Johnson v.
Ry. Express Agency, Inc., 421 U.S. 454, 461
(1975)).
McNeal’s claims for constructive
discharge,
tortious
interference
with
contract
and
intentional
infliction
of
emotional distress, although arising from
the
same
set
of
circumstances,
are
completely independent from his Title VII
claims.
Thus the time for filing a lawsuit
as to these causes of action was not tolled
while
McNeal
pursued
his
Title
VII
administrative
remedies.
McNeal
was
required to file suit within three years of
January 2001, which he failed to do.
(emphasis added).

26

None of the state law claims in counts VIII through XIII
hinged on any action taken by the EEOC.

Plaintiff’s additional

argument that “Defendant was already aware and [on] notice[] of
the charge of discrimination,” (ECF No. 32, at 12), has nothing
to do with the requirement that Plaintiff timely assert in a
proper forum any related state law claims.

See, e.g., Wimbush

v. Kaiser Foundation Health Plan of the Mid Atlantic States,
Inc., Civ. Action No. TDC-14-0525, 2015 WL 2090654, at *8 (D.Md.
May 4, 2015) (“[A]ny time Wimbush spent pursuing administrative
remedies for her Title VII claims does not toll the statute of
limitations for her related but separate claims.”); Johnson v.
Ry. Express Agency, Inc., 421 U.S. 454, 462-66 (1975) (holding
that

Title

VII

claims

did

not

toll

the

governing

state

law

statute of limitations applicable to a separate claim under 42
U.S.C. § 1981).
In her surreply memorandum, Plaintiff challenges the July
19, 2011 resignation date.
attached
judgment,

to

its

opening

however,

a

(ECF No. 39-1, at 13).
motion

“Notice

of

to

dismiss

Termination

or
of

Defendant

for

summary

Employment

[Form],” which reflects that Maria Melendez resigned on July 19,
2011, and that the resignation became effective on August 2,
2011.

(ECF No. 31-2).

Plaintiff argues for the first time in

her reply brief in support of her surreply:

27

This exhibit alone creates a genuine dispute
because it is contradictory and misleading
in two different directions. First, Exhibit
No. 1 states July 19, 2011 as Plaintiff’s
“last day of work” and August 2, 2011 as
“resignation effective date.”
The Court
should remember that July 19, 2011 is the
date that the Defendant continuously affirms
as the true date Plaintiff resigned from
AEHS.
However, as the exhibit portrays,
this cannot be confirmed.
(ECF No. 44, at 5).
The statute of limitations is an affirmative defense that
ordinarily must be pleaded and proven by the party asserting it.
See Newell v. Richards, 323 Md. 717, 725 (1991) (“As a general
rule, the party raising a statute of limitations defense has the
burden of proving that the cause of action accrued prior to the
statutory time limit for filing the suit.”).

When the parties

rely solely on the pleadings, the defense will only prevail if
it categorically appears on the face of the pleadings that the
statute

of

limitations

Greensboro,

801

has

F.Supp.2d

run.
429,

See
445

Alexander

(M.D.N.C.

v.
2011)

City

of

(“[A]n

affirmative defense . . . may only be reached at the [motion for
judgment
deciding

on

the

the

pleadings.”).
plead

facts

pleadings]

issue

stage

clearly

if

the

appear

on

facts
the

necessary
face

of

to
the

Although Plaintiff was under no obligation to
in

the

complaint

to

show

the

timeliness

of

her

claims, and, on a motion to dismiss, her claims would not be
dismissed unless the facts alleged in the complaint conclusively
28

showed that the statute of limitations has run, the result on
summary judgment is different.

As explained above, Plaintiff

could have but did not challenge the resignation notice until
her

surreply

opening

despite

motion

that

the

fact

that

Plaintiff

barring her state law claims.

Defendant

resigned

in

argued

July

in

2011,

its
thus

In any event, whether Plaintiff

is considered to have resigned on July 19, 2014 or August 2,
2011 is immaterial given the fact that she did not bring her
complaint until August 19, 2014, more than three years later.
Plaintiff has not alleged any further acts of discrimination
beyond July 2011, when she believes she was forced to resign.
Based on the foregoing, judgment will be entered on Counts
VI through XIII of the second amended complaint because these
claims are time-barred.
III. Conclusion
For the foregoing reasons, the motion to dismiss or for
summary judgment filed by Defendant will be granted in part and
denied in part.
will be granted.

Plaintiff’s motion for leave to file a surreply
Plaintiff’s motion to defer or deny summary

judgment pursuant to Fed.R.Civ.P. 56(d) will be denied as moot.
Defendant’s motion to strike Plaintiff’s Rule 56(d) affidavit
also will be denied as moot.

A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
29