Ross v. Maryland State Police Licensing Division
Filing
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MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 3/23/2016. (c/m 03/23/2016 bus, Deputy Clerk)
UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
DANIEL HUBERT ROSS,
Plaintiff,
v.
Civil Action No. TDC-15-1402
MARYLAND STATE POLICE LICENSING
DIVISION,
Defendant.
MEMORANDUM OPINION
Plaintiff Daniel Hubert Ross, who is self-represented, filed suit alleging discrimination on
the basis of age, sex, and disability by Defendant Maryland State Police Licensing Division (the
“Division”). Pending before the Court are the Division’s Motion to Dismiss and Ross’s Motion
for Leave to Amend the Complaint. The Motions are fully briefed and ripe for disposition. No
hearing is necessary to resolve the issues. See D. Md. Local R. 105.6. For the reasons set forth
below, the Motion to Dismiss is GRANTED, and the Motion to Amend the Complaint is
DENIED WITHOUT PREJUDICE.
BACKGROUND
The following facts are presented in the light most favorable to Ross, the nonmoving
party:
I.
Security Guard License Application
In 1969, Ross was convicted of first-degree murder in North Carolina. Fourteen years
later, the United States Court of Appeals for the Fourth Circuit overturned his conviction in Ross
v. Reed, 704 F.2d 705 (4th Cir. 1983), a decision affirmed by the Supreme Court of the United
States in Reed v. Ross, 468 U.S. 1 (1984). After the State of North Carolina decided not to retry
Ross, the United States District Court for the Eastern District of North Carolina issued a writ of
habeas corpus declaring Ross’s conviction null and void.
In 2005, Ross began working for the United States Environmental Protection Agency and
passed a background investigation in 2009. In 2011, Ross was not permitted to purchase a
firearm because of the 1969 murder conviction and a 1965 arrest for “Assault on Female.” Ross
v. Fed. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 903 F. Supp. 2d 333, 337 (D. Md.
2012). Ross sued the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives and
the Federal Bureau of Investigation and secured the right to obtain a firearm. Id. at 342.
On October 22, 2013, Allied Barton Security Services (“Allied Barton”) hired Ross as a
security guard. To work as a security guard in Maryland, an individual must obtain a license
from the Division. Md. Code Ann., Bus. Occ. & Prof. § 19-401(a) (2010). The applicant may
work as a security guard while the Division reviews the application. Id. § 19-401(b). One of the
criteria assessed by the Division is whether the applicant is “of good moral character and
reputation.” Id. § 19-402(a)(3). Conviction of the applicant for a felony or “a misdemeanor that
is directly related to the fitness and qualification of the applicant” is a permissible basis for
denial.
Id. § 19-408(4).
The Division may also refuse to issue a license if the applicant
“fraudulently or deceptively . . . attempts to obtain certification as a security guard.” Id. § 19408(2).
On October 23, 2013, the day after Ross was hired, Allied Barton submitted Ross’s
application for a security guard license to the Division. Although Ross claims that neither he nor
Allied Barton intentionally included any false information on the application, the application did
not disclose Ross’s prior arrests or his now overturned murder conviction. The Division denied
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Ross’s application after receiving the results of a criminal record check. On January 31, 2014,
Allied Barton informed Ross that the Division had rejected his application and that he would be
terminated on February 22, 2014 unless the Division reversed its decision.
Ross asked the Division to reconsider. On January 29, 2014, Ross met with Trooper First
Class Pouncy of the Division to discuss his application. He informed TFC Pouncy that the 1969
conviction had been set aside. He explained that his position at Allied Barton did not provide
him with access to confidential information. Ross also told TFC Pouncy that he suffered from
several conditions that impaired his vision. But the Division did not reverse its decision or
permit any amendment to his application. On February 22, 2014, Allied Barton terminated Ross.
Ross is an African American man who, at the time of his application to the Division, was
67 years old. After applying, Ross learned that the Division had granted security guard licenses
to two of Ross’s co-workers—one man and one woman—who had “multiple convictions for
theft and larceny.” Compl. ¶ 19. Both co-workers are African American and under 40 years of
age. Neither has a disability. Ross claims that the Division discriminated against him by
denying his application but granting licenses to two individuals with criminal histories that Ross
claims render them less fit than him for service as a security guard.
II.
Procedural History
On May 15, 2015, Ross filed a Complaint in this Court, alleging discrimination on the
basis of age, sex, and disability and seeking $1,000,000 in damages. On July 24, 2015, the
Division filed a Motion to Dismiss. On August 17, 2015, Ross filed an Opposition to the
Motion. On August 28, 2015, the Division submitted a Reply to the Opposition. On November
18, 2015, Ross filed a Motion for Leave to Amend the Complaint. The Division did not submit a
response to Ross’s Motion.
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DISCUSSION
The Division argues that the Complaint should be dismissed for failure to state a claim
because Ross has not pleaded sufficient facts to demonstrate the Division’s liability for
discrimination and because the Eleventh Amendment to the United States Constitution
immunizes the Division from Ross’s claims.
I.
Legal Standard
To defeat a motion to dismiss under Rule 12(b)(6), the complaint must allege enough
facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is
plausible when the facts pleaded allow “the Court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Although courts should construe pleadings
of self-represented litigants liberally, Erickson v. Pardus, 551 U.S. 89, 94 (2007), legal
conclusions or conclusory statements do not suffice, Iqbal, 556 U.S. at 678. The Court must
examine the complaint as a whole, consider the factual allegations in the complaint as true, and
construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver,
510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 268 (4th
Cir. 2005).
II.
Age and Sex Discrimination
Ross claims that the Division violated the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621 et seq. (2012), by denying his application for a security guard
license because of his age. Ross also alleges sex discrimination, though the Complaint does not
specify a cause of action. The Court construes this allegation as a claim under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. (2012).
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The Division argues that it cannot be held liable for age or sex discrimination because it
was not Ross’s employer. The ADEA and Title VII both bar discrimination by an “employer,”
“employment agency,” or “labor organization.” 29 U.S.C. § 623; 42 U.S.C. § 2000e-2. Courts
have interpreted these categories broadly to cover a variety of employment relationships. See
EEOC v. Seafarers Int’l Union, 394 F.3d 197, 202-04 (4th Cir. 2005). For instance, an entity
that controls the plaintiff’s access to employment can be held liable for age or sex discrimination
under some circumstances. See Sibley Mem’l Hosp. v. Wilson, 488 F.2d 1338, 1341-42 (D.C.
Cir. 1973) (holding that a male duty nurse could sue a hospital under Title VII when the hospital,
which did not employ him, refused to refer him for employment by female patients). But the
definition of “employer” does not extend to state licensing agencies. See, e.g., Woodard v. Va.
Bd. of Bar Examiners, 598 F.2d 1345, 1346 (4th Cir. 1979) (per curiam) (“The Board of Bar
Examiners is neither an ‘employer,’ an ‘employment agency,’ nor a ‘labor organization’ within
the meaning of [Title VII].”); Camacho v. Puerto Rico Ports Auth., 369 F.3d 570, 577 (1st Cir.
2004) (holding that a Port Authority that revoked the plaintiff’s license to be a harbor pilot was
the equivalent of a state licensing and regulatory agency and is not an employer under the
ADEA); George v. New Jersey Bd. of Veterinary Med. Examiners, 794 F.2d 113, 114 (3d Cir.
1986) (holding that Title VII “is not applicable to the licensing functions of a public agency
exercised under the police powers of a state”); Haddock v. Bd. of Dental Examiners of Cal., 777
F.2d 462, 463 (9th Cir. 1985) (holding that the Board of Dental Examiners was not an employer
under Title VII of applicants for a dental license); Darks v. City of Cincinnati, 745 F.2d 1040,
1041-42 (6th Cir. 1984) (holding that a city that provided licenses to operate dance halls was not
an “employer” under Title VII of individuals who were denied licenses).
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The Division is a state licensing agency. It did not hire or fire Ross, and it was not his
employer. Consequently, neither the ADEA nor Title VII provides Ross with a cause of action
against the Division. His claims for age and sex discrimination therefore must be dismissed.
See, e.g., Woodard, 598 F.2d at 1346.
III.
Americans with Disabilities Act
Ross also claims that the Division violated the Americans with Disabilities Act (“ADA”),
42 U.S.C. §§ 12101 et seq. (2012), when it allegedly rejected his application because of his
vision disability. Under Title II of the ADA, “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by any such
entity.” 42 U.S.C. § 12132. A regulation implementing this provision states:
A public entity may not administer a licensing or certification program in a
manner that subjects qualified individuals with disabilities to discrimination on
the basis of disability, nor may a public entity establish requirements for the
programs or activities of licensees or certified entities that subject qualified
individuals with disabilities to discrimination on the basis of disability.
28 C.F.R. § 35.130(b)(6) (2015).
To establish a violation of Title II of the ADA, a complaint must allege that the plaintiff
(1) has a disability, (2) is “otherwise qualified to receive the benefits of a public service,
program, or activity,” and (3) “was excluded from participation in or denied the benefits of such
service, program, or activity, or otherwise discriminated against, on the basis of her disability.”
Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005).
The Division does not dispute that Ross has a “disability” or that it is a “public entity” within the
meaning of the ADA. See 42 U.S.C. § 12102(1) (defining “disability”); id. § 12131(1) (defining
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“public entity”); see also Clark v. Va. Bd. of Bar Examiners, 880 F. Supp. 430, 442 (E.D. Va.
1995) (noting that Title II applies to state licensing boards).
The Division, however, argues that Ross has not alleged facts demonstrating that the
Division denied Ross’s application because of his disability. A plaintiff alleging discrimination
on the basis of disability under Title II must show that “his or her disability played a motivating
role” in the denial of benefits. 1 Baird ex rel. Baird v. Rose, 192 F.3d 462, 470 (4th Cir. 1999).
Ross alleges that the Division awarded licenses to two of Ross’s co-workers, who, like Ross, had
criminal records, but, unlike Ross, did not have a disability. Ross does not claim, however, to
have disclosed his disability in his security guard license application. Instead, he asserts that he
first informed the Division of his disability during his meeting with TFC Pouncy after the
Division had already denied his application. Where the Division denied Ross’s application
before it ever learned of his disability, the fact that the Division did not reconsider its decision
upon learning of Ross’s disability does not support an inference that the denial was because of
the disability. Ross has thus failed to state a claim for discrimination under the ADA.
IV.
Motion for Leave to Amend
Ross also filed a Motion for Leave to Amend the Complaint seeking to assert claims
under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The Motion
does not attach a proposed amended complaint and so fails to comply with the requirements of
Local Rule 103.6. Consequently, the Motion is denied.
1
It is possible that a more stringent standard of causation applies in the wake of Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167 (2009). See Bolmer v. Oliveira, 594 F.3d 134, 148-49 (2d Cir.
2010) (noting that Gross may require Title II plaintiffs to show that disability was a but-for cause
of the public entity’s decision). The Court need not decide which standard of causation applies
because Ross fails to state a claim under even the more forgiving “motivating factor”
standard of causation.
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However, where Ross has not yet amended his Complaint, and no Answer has yet to be
filed, the Court will permit Ross to submit a revised Motion that complies with Local Rule 103.6
and asserts claims that are not futile. See Fed. R. Civ. P. 15(a)(2); Johnson v. Oroweat Foods
Co., 785 F.2d 503, 510 (4th Cir. 1986) (noting that leave to amend should be denied as futile
“when the proposed amendment is clearly insufficient or frivolous on its face”). As discussed
above, there is no basis to assert a claim under the ADEA, Title VII, or the ADA, so those claims
are dismissed with prejudice and may not appear in any amended complaint.
The Court cannot determine at this time whether Ross could assert a plausible claim
under the Due Process or Equal Protection Clauses. At least one federal court has held that a
statute automatically barring convicted felons from receiving security guard licenses violates the
Equal Protection Clause. Smith v. Fussenich, 440 F. Supp. 1077, 1078, 1081-82 (D. Conn.
1977). Here, Maryland law authorizes, but does not require, the Division to deny security guard
licenses to applicants with prior felony convictions, Md. Code Ann., Bus. Occ. & Prof. § 19408(4), and it is not clear whether the Division denied Ross’s application because of his nowvacated felony conviction or because of his failure to disclose his prior criminal history. Under
these circumstances, the Court does not find at this early stage that an equal protection or due
process claim would be futile, so it will permit a Motion seeking leave to file an amended
complaint asserting such claims.
The Court notes, however, that the Division, a state agency, is not a “person” within the
meaning of 42 U.S.C. § 1983 and cannot be sued under that statute. Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989. Consequently, Ross’s Motion to Amend will be denied as futile if
the proposed amended complaint does not seek to change the named party to a state official in
his individual capacity, or in his official capacity if the only relief sought is prospective
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injunctive relief to remedy an ongoing violation of federal law. See Fed. R. Civ. P. 15(c)(1)(C)
(referencing amendments that change the party against whom the claim is asserted); Hafer v.
Melo, 502 U.S. 21, 31 (1991); Will, 491 U.S. at 71 n.10.
CONCLUSION
For the foregoing reasons, the Motion to Dismiss is GRANTED. The Motion to Amend
the Complaint is DENIED WITHOUT PREJUDICE. A separate Order shall issue.
Date: March 23, 2016
/s/
THEODORE D. CHUANG
United States District Judge
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