Bynum v. Board of Commissioners of Calvert County et al

Filing 29

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/27/2016. (aos, Deputy Clerk)

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C' II IN TilE UNITED STATES DISTRICT COURT FOR TilE ("STRICT OF MARYLANI) Southern Division . * ., I r (" ALEXANDRA BYNUM, * Case No.: G.III-I(,-2067 Plaintiff, * v. * LAURA L. MAIHIN, STATE'S ATTOI{NEY FOR CALVERT COUNTY, MARYLAND * Defendant. * * * * * * * * * * * * * * MEMORANDUM OPINION This is a disparate l(lrIner employer. County. I(Jr treatment case brought by Plaintiff Alexandra Laura L. Martin. in her otlicial purported violations Bynum against her capacity as State's Atlorney I(Jr Calvert of Title VII of the Civil Rights Act of 1964 ("Tille VJr"). 42 LJ.S.c. ~ 2000e el seq and the Maryland Fair Employmenl Practices Act ("FEPA"). Ann .. State Gov't ~ 20-601 el seq. Now pending bel(lre the Court are Defendant's Dismiss. ECF No. 16. and Plaintiff's or alternatively. Motion to Defer Ruling on Defendant's lo convert the Motion to Dismiss into a Motion I(lr Summary permit the parties to engage in discovery. Motion to Motion to Dismiss. Judgmenl lOCI' No. 21. A hearing was held on December See Loc. R. 105.6 (D. Md.). For the I(lilowing reasons. Defendant's and Plaintifrs Md. Code Motion to Defer Ruling on Defendant's and 5. 2016. Motion to Dismiss is granted Motion to Dismiss is denied. I. HACKGROUND' Alexandra employment 13 Bynum, a white female married to an AIi'iean American man, began her with the Office of the State's Attorney for Calvert County in June 2007. Eel' No. 'i'i 3, 10. Ms. Bynum was employed as an Assistant Statc's Attorney ("ASA") and describes her role as that of a line prosecutor Martin's pcrsonal staff. Id. County since 2006. /d 'i ','i 9.10. who did not engage in policymaking or IlJrln part of Ms. Ms. Martin has served as the State's Attorncy Il)r Calvert 4. In that role. Ms. Martin maintained, directed and opcrated the Office of the Statc's Attorncy. /d On August 8. 2014, I'laintilTwas advised that her husband, Terris L. Bynum, had sexual assault charges filed against him hy a white woman./d. ~ 10. On August 13, 2014,l'laintiffwas told hy State's Attorney Laura Martin and Deputy State's Attorney Fran Longwell to resign or be discharged. /d. 'i II. At all times prior to that conversation, successful perllmner:' PlaintilTalleges /d '1 9. Mr. I'lainti ff was "at Icast a fully Bynum was never eonvictcd of any scxual assault charges. thaI. under similar eireumstanccs, other employees whose I~lmily memhcrs are not AIi'ican Amcrican have not heen asked to resign or be discharged. Specifically, PlaintilTpoints to two other Assistant State's Attorncys, system during Defcndant's tenure./d /d 'i 12. Lisa Ridge and Tammy Laffcrty, who wcre not asked to resign, despite their hushand or close relativc's the criminal.iustice 2 interactions ~ 12. .1 According to PlaintilI with Lisa , For the purposes of<.it:ciding this l\.1otioll to Dismiss. all facts arc taken from the Amended Complaint and assumed ~o be truc.::.ul1l~ssspecifically noted otherwise. - The COlllpl:Jinl notes Ihut alter an investigation by a special prosecutor. Mr. Bynum was exonerated orthe sexual assault charges. It!. ~ 10. It is unclear when the investigation concluded. ~ While noting that their husbands arc not African-Americans. the Amended Complaint docs not specify the race of Ms. Ridge or 1\'15.Lafferty or \vhethcr their marriages are interracial. Although Plaintifrs Opposition 10 Defendant's Motion to Dismiss further specificd that ncither Ms. Ridge or Ms. Lafferty were in an interracial relationship, plaintitY"cannot. through the use of motion brief", amend the complaint."1.adwir Ltd r. Driggs, 965 f'. Supp. 741. Ridge's husband. "not guilty:' Michael Charles Ridge. had multiple traflic citations dismissed and allegations \\'ere made in court. but never investigated. known illegal drug supplier. the l~lCI that criminal !d I'laintiffalso drug-related substances. other than marijuana" !d ~ 14. Similarly. victim witness advocate. II. during Defendant's tenure as State's Attorney. in 2008: was convicted lei. of Ji'audulently in 2009. Tammy Lafferty's of driving under the inlluence.!d violence. had knowledge brother. Jefli'ey Alan Mills. had several charges county in 20 10: and in 20 II. was convicted was convicted domestic 13. Ms. Bynum also alleges that Delendant alleges that Lisa Ridge's pled guilty 10 "possession dangerous '1 that Mr. Ridge was a of baltery charges against Mr. Ridge were placed on the stet docket in 1992. ICiony olknses neighboring !d or entered as '116. I'laintilTalso for lei. ~ 144 Mr. Mills of criminal offenses obtaining husband. in a controlled Gerald Lafferty. notes that Nora Bowen. a was not asked to resign even though her son-in-law was prosecuted for '1 18. STANDARD OF REVI EW Federal Rule of Civil Procedure 12(b)(6) provides .. tails to state a claim upon which relief can be granted:' purpose "is to test the suflicieney of a complaint lacts. the merits of a claim. or the applicability for the dismissal of a complaint Fed. R. Civ. P. 12(b)(6). This rule's and not to resolve contests surrounding of defenses:' R. Civ. 1'. 8. /Jell Allalllic Corp. \'. T\j'{)lIIh~l'. 550 U.S. 544 (2007). and Ashcrofi complaint the Presley \'. Cil)' o{Chor/Ol/es\'il/e. 464 F.3d 480. 483 (4th Cir. 20(6). To that end. the Court bears in mind the requirements U.S. 662 (2009). when considering if it of Fed. \'. 1'lhal.556 a motion to dismiss pursuant to Rule 12(b)(6). Specifically. must contain "a short and plain statement of the claim showing that the pleader is 74811.4 (D.Md.1997); soe also ,/"/III.WIIII'. Se"rek. I""., No, eIV,A, EI.f!- 13-03798.2014 WI. 1464378. at '2 (D, Md, Apr, 14.2014), I At the hearing. counsel for Plaintiff prolTercd that rv1s. Ridge was a senior drug prosecutor at the time and staled that PlaintilTwould amend her complaint to allege that fact ifgivcl1 the opportunity. , .> a entitled to rei ice ..[tjhreadhare statements. plaintiff Fed. R. Civ. p, &(a)(2). and must state "a plausihle claim fi.lf reliee recitals of the elemellls of a cause of action. supported do not suflice:' 1,,11(//.556 U.S, at 678-79. "A claim has facial plausihility is liahle tlH' the misconduct In an employment t[lets estahlishing ,t/cDollllel/ e '17/y.. No, discrimination a primaj'lcie 09-2453. ease such as this. "pleadings case of discrimination DOllg/as Corp, \'. Green standard' to plead a primajilcie 20 I 0 WL 3369 I 69. at need not 'eontain under the framework * 3 (D, speeilic set jlll"th' in ',I' Md, Aug,23. 20 I0 (quoting ')Il'ierkiell"ic= \', "would essentially under which a plainti ff without direct evidence create a 'heightened of discrimination case even though she might uncover direct evidence discrimination that the 411 U,S. 792 (1973 ):' iVes/more/a11l/I', I'rillce George Id (quoting ')\I"ierkie\ric::, 534 U,S, at 511-12), employment inference when the Id. at 663. alleged:' Sorell/({, NA,. 534 U,S. 506 (2002)), Such a requirement pleading hy mere conclusory pleads t[lctual content that allows the court to draw the reasonahle defendant as would need during discovery:' If this were the case. a plaintiff claiming would have .,.to plead more I[lets than [slhe may ultimately prove to succeed on the merits if direct evidence of discrimination need to Id. (quoting is discol'ered:" ')Il'ierkie\l"ic::. 534 U.S, at 512), The Fourth Circuit "has not. however. ofa plaintitTto de Nemollrs F,3d 193.213 allege taets suflieient interpreted to state all the clements (4th Cir. 2(02) ("/TJhe Supreme Court's holding in .)\rierkie\ric:: that a plaintiff sct tl)rth l[lets suflicient clement of his claim," (internal citation omitted)), claim does not need to establish Corll .. 309 \', Sorema did to allegc each Thus, whilc a plaintitTpleading a primaj'lcie the burden of her e1aim:' Bass \'. EI. DII/'Oll/ & Co .. 324 1'.3d 761. 765 (4th Cir. 2003) (citing Dicksoll \', Microso!; not alter the hasic pleading requirement discrimination ')\I"iakiell'ic= as removing ease under McDolllleli a DOllg/as to survive a motion to dismiss. Sll'ierkiell'ic=. 534 U.S. at 51 D. she must still plead lilcts suflicient state each elcmcnt of the asscrtcd elaim. See Hass. 324 F.3d at 765 ("Whilc a plaintiffis charged with plcading complaint. facts sufficicnt a plaintiffis to prove hcr casco as an cvidcntiary to not maller. in her rcquircd to allege filcts that support a elaim lilr relicf.") (emphasis in original). III. ()ISCUSSION Title VII makes it illcgallilr rcspect to his compensation. individual's race an employer terms. conditions. 42 U.S.c. of: (i) the individual's or privileges ~ 2DDOe-2(a). Similarly. Title VII. makes it illegal to "discharge. respect to the individual's discriminate or othcrwise compcnsation. against any individual of cmploymcnt. tcrms. conditions. state analogue to against any individual or privilegcs of employmcnt racc ..... Md. Code Ann .. State Gov't ~ 20-606(a)(1 )(i). Defendant two rcasons why I'laintilTs elaims under thesc statutes should bc dismisscd: I'laintilTwas and. thus. not an cmployec Plaintiffis because of such FEPA. the Maryland discriminate a policymaker covcrcd by Title VII. I'laintitThas with with bccausc raiscs (I) that as an ASA. covcred by Title VII: and (2) cvcn if failed to sunicicntly allcgc the elemcnts ofhcr claim. A. The I'olieymaker In its definition protcctions Exception under Title VII/FEI'A orthc lilr individuals of any State by thc qualificd officer's pcrsonal stalf who arc "electcd Title VII creatcs an cxception thlll1 its to public onicc in any Statc or political subdivision votcrs thcrcof. or any pcrson choscn by such officer to bc on such or an appointee respect to thc exercisc ofthc Similarly. tcrm "cmploycc." on thc policy making Icvel or an immediate constitutional or legal powers of the officc'" 42 U.S.c. FEPA docs not apply to ..... (ii) an individual 5 adviser with ~ lOOOe(\). choscn by an elcctcd oflicer to be on the oflicer's personal staff: (iii) an appointee on the policy making level: or (iv) an immediate adviser with respect to the exercise of the constitutional Md. Code Ann .. State Gov't ~ 20-601(e)(2). Defendant or legal powers of an elected office'" contends that Ms. Bynum cannot bring a claim under Title VII or FE!' A because. as an ASA. she was an "appointee level." and thus falls outside the protection of those statutes. ECF No. 16-1 at 5-6. By contrast. Ms. Bynum argues that as a line prosecutor. she did not serve in a policymaking No. 20 at 1 I. Much of the case law relevant to this determination analyzing a similar policymakcr on the policy making cxception position. ECF has grown out of cases to the First Amendment's prohibition against patronage dismissals. "The First Amendment cmployers. including government protection elected oflicials. cmployees Civ. No. JFM-15-3760. 2016 WL 3057990 against patronage policymaking dismissals. explicitly. whether an employee of a patronage courts consider perlllnllance'" political beliefs .... Bor=illeri Similar to the exception privy to conlidential in!llnllation. in Title VII. this occupies a policymaking position. whether "there is a rational connection (Sept. in the context between shared SlolI \'. 11(/\l'IJrl17. 16 F.2d 134. 142 (4th Cir. 1990). Adopting 9 decisionmaking on goals or their implementation Urod\'. does not apply to persons "occupying test issued by the First Circuit. the Fourth Circuit in SlolI considered involve[ d] government \'. i\Ioshy. Roherls. 730 F.3d 368. 374 (4th Cir. 2013). as amended 23. 2013). To determine idcology andjob government non-con!idential at *3 (D. Md. May 31. 2016) (quoting J concurring)). positions."IJ/al1l/\'. dismissal. dismissals ... prohibits from firing 'non-policymaking. ... upon the sole ground ol'[theirJ Bul'11s. 427 U.S. 347. 375 (Stewart. prohibition against patronage ... a whether ..the position on issues where there is room Il)r political disagreement land] whether Ithe position a communicator. 6 I resembles a policymaker. a or some other ortice holder whose function is such that party affiliation is an cqually appropriatc requirement." Sto/l. 916 F.2d at 142 (quoting Fuei1les ", Torres (Ja=tamhide, 807 F.2d 236. 241-42 (I st Cir. 1986)), Following .Iimenc body oflaw. the court in Hor=illeri held that the position of an ASA was a policymaking because it was "a position for which political affiliation was an appropriate this position requirement." Hor=illeri. 2016 WL 3057990 at *5. Thus. the newly elected State's Attorney was determined to be within her rights to terminate an ASA who had supported her opponent ensure decisivc and laithliil implemcntation of her policies:' in Hor=illeri in thc context ofPlaintifrs Id. Defcndant urges this Court to follow the ruling Title VII and FEI'A claims. The Fourth Circuit has yet to opine on whether the policy-maker should be interpreted prohibition against patronage dismissals. results. ('ompare exempting in the same manner as the policy-maker exception in Titlc VII exception to the First Amendment Other Circuits have addressed the issue with dil'fering \', Carler. 74 F,3d 138. 144 (7th Cir. 1996) ("the reasons lor Americanos the office li'om the patronage ban apply with equal force to the requirements of the ADEA land Title VIlI")) (internal citation omitted) (alteration in original) with !Jlltler \', New fork State Department dismissals of'LlI\1'. 211 F.3d 739. 746-47 (2d, Cir. 2000) ("We consider patronage to be an appropriate restraint on First Amendment between shared ideology and job perlimnance the language of the statute and congressional While Delendant Herring. rights when there is a connection .. , Our Title VII analysis. by contrast. draws on intent."). relies on Hor::illeri. Plaintiff dirccts the Court's attention to Reardon \', No, 3:16-CV-34. 2016 WL 3181138 (E.D. Va. June 3. 2(16), There. the court addressed whether a Virginia Assistant Attorney General ("AAG") could allege a violation of the Equal Pay Act ("lOPA"). The defendant argued that the plainti ITwas excmpt from thc lOP A because she was "appointed by [an elected] officeholder 7 to serve on a polieymaking level." !d at *4. The court looked to the legislative history and case law interpreting language regarding the polieymaking exemption was identiealto Title VI L whose the determinative language under the EI' 1\. < Looking first at the legislative history, the court concluded that .., it] could not be e1earer: Congress intended that the exeeption be very narrowly construed, and that the exception should apply only to offieials 'at the highest levels' of their respective departments'" that there was a eircuit spilt. the court examined the dil"ICrent approaches It/. at *6," Noting taken by the Seventh. Second, and Eighth Circuits to determine whether or not an individual serves "on the leveL" Ill. at *7-*8. ultimately adopting the approach taken by the Eighth Circuit policymaking in GreglJlY t'. A.lhcrofi. "the 'policymaking 898 F.2d 598 (8th Cir.1990). The Eighth Circuit's approach found that level" inquiry turns on the extent to which the plaintiff's position is 'entrusted with extensive decision making authority and discretionary l". A.lhcrofi, powerl']"" It/. at *7 (quoting c;reglJl)' 898 F.2d 598, 603 (8th Cir.1990). a/I'd, 50 I U.S. 452, (1991 ยป( holding that judges are exempt from coverage of the ADE1\ because they are appointees on the policymaking That determination is made by looking at "(1) whether the [appointee] than solely administrative appointing powers, (2) whether the [appointee] authority, and (3) whether thc lappointeel 3181138, at *8 (quoting non-exhaustive 5 "To bring a claill1l1l1dcr the EPA. a plaintifflllllst has discretionary, level). rather serves at the pleasure of the formulates policy'" Reardoll, 2016 WI. list of t~lctorS referenced in Grego/y, 898 F,2d at 6(4). be all "employee" as that term is defined by the Fair Labor Standards Act ("FI.SA ")." Rear""" \'. "erring. NO.3: t6-CV-34, 2016 WI. 31 Kt13K. at '4 (E.D. Va. June 3, 2016), Specifically. the House-Senate Conference COlllmittee. which developed the tinallanguagc found ill Title VII. stated that the amendment exempted only "appointees of(electedl otlicials on the highest policymaking levels such as cabinet members Of other imlllediate advisors of such elected ollicials ... This exemption is intended to be construed very narrowlv and is in no way intended to establish all overall narrowing of the expamkd coverage of Statl' and local governmental employees as sct forth in section 701(a) and (b) above:' /?eart/ol1. 2016 WL 3181138. at *6 (cmphasis and alterations in original). h 8 Applying thc Eighth Circuit tcst to thc dutics of an AAG. thc court in Reardol/ limnd that thc ..tasks of invcstigating crimcs. prosecuting issues. answering questions legislation. from citizens and law enliJrcement making recommendations original). The court lilrther concluded though somewhat expansivcly description. decisionmaking that "it is reasonahle dcscrihcd in thc Complaint. powers involving the formulation Notahly. here. the PlaintilThas there is no hasis to conclude that Plaintiffs tn infer that Reardon's position. is that of a line attorney with little. if of policy:' Id. 7 Without further position involved more than that understood. an individual line role would likely he less expansive than that which was deserihed in the complaint Although the language of the policymaker and the language of the exception goal of assuring thc implcmentation hy the clectorate:' this Court agrees with its reasoning. exception to the prohihition of patronage in Title VII are similar. the context and purposes are no\. In the context of patronage dismissals. sanctioncd Id at *13 (emphasis in authority'" alleged that she is a "Iine prosecutor:' in Reardol/.s Thus Reardol/ is instructive and. additionally. dismissals agencies. reviewing pending or implementation descrihed hy the court in Reardol/. Indeed. as commonly prosecutor's agencies on legal to the Attorney General. and drafting opinions do not ~ lorce plead that an AAG ... has 'extensive any. discretionary cases. advising administrative the exception serves ..the important government of policies of r a ] new administration. policies presumahly Wal/d. 730 F.3d at 374- 75 (internal citation omitted). Indeed. --e1ectcd orticials. in working to achieve their policy goals. are likcly to prefer individuals similar political and ideological outlooks:' with Reardol/. 2016 WL 3181138 at*1 0 (internal citation "7 The court ill Reardon ultimately determined thai because the allegations in the complaint lead to an inference that a "complex hierarchy exists within the GAG." that even if the plnintifTherselfdid nol formulatc policy. it was possible that powers inherent in her position might satisfy the Eighth Circuit standard and. thus. allowed discovery 011 the issue. lei. at *13. No such indication of a complex hierarchy has been made here. 1I If this case were to proceed into discovery. this issue could renninly be revisited at the ~lImm<lry judgment stage if discovery rcvcnled thnt Plaintiffs position did involve the formulation of policy. 9 omitted). "By contrast. the legislative history of the amendment exception to Title VII ... makes abundantly exception to be very narrowly construed:' thai added the polieymaking clear that Congress intended the polieymaking !d. at *11. Such a distinction between patronage dismissals and Title VII is sensible. While there may exist a logical connection for an elected official to have employees official's committed to the implementation policy and the ability to terminate employees level between the need of an elected who express a contrary view: there is no such logic that would permit elected officials to subject employees to conduct thai violates Title VII without providing those employees The wording and legislative recourse to its protections. history of Title VII makes it clear that was not Congress' polieymaking intent for individuals not in the highest levels. Thus. this case is distinguishable li'OIn Bor::illeri. which ".Kused solcly on an alleged patronage dismissal and not what this Court concludes Title VII. Ilere. as in Rcardoll. while the responsibilities is a narrower polieymaker exception in inherent in the position of an ASA serving as a line prosecutor do include some usc of discretion. with no indication of supervisory authority or the ability to make policy Ii.)r other members of the ofliee ... that is not the sort of decision-making power or discretion that is envisioned by the 'employee' exception" in Title VII. Rcardoll. 2016 WI. 3181 138. at *13. Therefore. the Court Iinds that I'laintilTqualilies employee. rather than an appointee on a policy-making as an level. under Title VII and FEI'A. B. I>isparate Treatment onethcless. the Court will grant Defendant's Motion to Dismiss because I'laintitT fails to plead I[lets sufficient to state the second and fi1Urlh elements of her asserted disparate treatment claim. Absent direct evidence. in order to state a prima/ileic claim of discrimination under Tille VII. a plaintilTmust plausibly allege: ..( I) membership 10 in a protected class: (2) satisl~lctory job pcrformancc: (3) an advcrsc cmploymcnt action: and (4) di f1ercnt trcatment Irom similarly situatcd employccs outsidc thc protcctcd class:' Colell/an \'. Aid CO/lrl o(Appeals. 626 F.3d 187. 190 (4th Cir. 20 I0). Discriminatory dischargc based on panicipation in an intcrracial relationship is a cognizablc claim of discrimination. Collin v. Reclors & Visilors ol Unit'. o( Virginia. No. 96-1078: 1998 U.S. App. Lcxis 21267. at *4 (4th Cir. 1998) ("it is gcncrally acccptcd that thc spouscs of mcmbcrs of protccted partics may bc able to make out a prima 1~lcic casc of discriminatory dischargc") (pcr curiam): see also A /I/rey \'. ,1/lI1:l'!allll. iv. No. G LR-14C 3064. 2016 WL 362502. at *3 (I). Md. Jan. 29. 2(16). In rcgards to thc second c1cmcnt. satisfactory job perl(lfInancc. Plaintiffmcrcly allcgcs that"at all times prior to August 13.2014. I'laintilTwas atlcast a lully succcssful pcrformcr:' ECF No. 13 ~ 9. Evcn undcr thc more libcral plcading standards of 7\roll/h~l'.550 U.S. 544 (2007) and I"hal. 556 U.S. 662 (2009). a conclusory statcmcnt of this kind is not sullicicnt to statc a claim 1(lrdisparate trcatment. See Kilmehali \'. Slrayer Univ. Corl'" NO.2: 14CV203. 2014 WL 7(,92396. at *8 (E.D. Va. Oct. 21. 2(14) (1'laintiIrs refercnccs to his 'record of succcss' and 'superior perl(JrInance' would havc bccn insufficient without detailed factual inl(JrInation rcgarding perl(JrInancc): see also Mason I'. Mon/goll/el)' Oy.. No. I'WG-13-1 077. 2015 WL 3891808. at *5 (D. Md. Junc 23. 2(15) (holding that Plaintiff failed to allegc sullicicnt I~lctsto show that "hc was pcrlorming I his 1job duties at a levcl that met I his I cmploycr's legitimate expcctations at thc time ofthc advcrse cmployment action."). Turning to thc l(llll'1hclemcnt. I'laintilThas 11lilcdto show that she was subjcct to differcnt trcatmcnt Ii'om similarly situated employccs outside thc protectcd class. Although courts do not always requirc comparator cvidcnce. a plaintilf like Ms. Bynum. who bases her allcgations entircly upon a comparison to othcr cmployccs "must dcmonstratc that the II comparator was 'similarly Sallyers \'. United Parcel Sen' .. 946 in all relevant respects:' 432. 442 (D. Md. 2(13) a{rtf. J 3-1777. 20 J 4 WL 2809027 F.Supp.2d "Such a showing Iwere situated' I subject to thc same standards differentiating employer's would ineludc cvidcncc or mitigating and ... circumstances engaged 'dealt with thc same supervisor. in the same conduct without such that would distinguish thcir conduct or thc of them far it. ... lIaYlI'Iwd \'. Locke. 387 F. App'X 355.359 treatmcnt 2(10) (quoting that thc cmployees (4th Cir. June 23. 2(14). (4th Cir. MitchellI'. Toledo IIlJ.\pital. 964 F.2d 577. 583 (6th Cir. 1992)): see alsa Humphries \'. C80CS W. IlIc.. 474 F.3d 387. 405 (7th Cir. 20(7) ("ITJhe purposc of the similarly situatcd requiremcnt performancc histories. is to eliminate or decision making pcrsonnel I Jcrc. Ms. Bynum identifies mitigating circumstances confounding distinguishing Ms. Ridge. I'laintiffalleges were "laJllcgations such as diffCi"ing roles. ") a{rtf. 553 U.S. 442 (2008). .... a number of potential comparators their situations Lisa Ridge and Tammy Lafrcrty who. likc I'laintifI Regarding variablcs. but each has different or li'OI11Ms. Bynum's. servcd as Assistant (I) that her husband had "multiple I'lainti ff identilics State's Attorneys. traftic citations". made in court that Mr. Ridge was a known drug supplier" and criminal battery charges were placed on the "stet" docket in 1992 and (2) Ms. Ridgc's thcre brother was changcd with drug-related similarity ICiony olfenses. to the arrest of Ms. Bynum's are, by any reasonable "allegations" ECF No. 13 ~'j 3- J 4. Nonc of these bare any 1 husband for scxual assault. First. multiplc tramc citations mcasure. a much Icss scrious olknse arc not the equi"'licnt than sexual assault: second. of an arrest: and. third. the alleged placcment on thc stct dockct of battery chargcs took place prior to Ms. Martin's tenure as Statc's Attorney. allegations bctwcen husband and wife and a brother-sister in\"Olving Ms. Ridge's relationship. brothcr. the relationship particularly in a casc whcre thc core allcgation 12 Regarding is based on allcged discrimination allegations for being in an interracial marriage. are clearly too distinguishable to make involving Ms. Ridge's brother rclevant. Similarly. the lact that Ms. Lafferty's husband was convicted of driving under the inlluence. id ,; 16. is not similar enough to a sexual assault arrest to make Ms. Lafferty a uscful comparator. Finally. I'laintilTpoints to Nora Bowen but this comparator is also not similarly situated. As an initial matter. Ms. Bowen was a Victim Witness Advocate and not an Assistant State's Attorney like Plaintiff. Second. as with Ms. Ridge's brother. the prosecution son-in-law for domestic violence is not a useful comparison in a case alleging discrimination Accordingly. prejudice." of Ms. Bo\ven's to an arrest of Ms. Bynum's husband based on interracial marriage. Id'; J 6. the Court will dismiss Ms. Bynum's disparate treatment claim with Plainti 1'1' also raises an identical state law claim under FEP A. which other judges in this district have held to be interpreted consistently with Title VII. See Finkle \'. !lOIl'lIrd el)' .. Ald. 12 F. Supp. 3d 7XO. 784 (D. Md. 2014) ("FEPA is the state law analogue of Title VII and its interpretation is guided by federal cases interpreting Title VII"). Thus. Illr the same reasons that Ms. Bynum's Title VII claim Illils. her state law claim regarding the same conduct also Jails. At the Illotion"s hearing. the Court asked Plaintiffs counsel to proffer 11lCtsthat would be added to a Second Amended Complaint. In posing the question. the Court also noted that Plaintirrhad previously amended her 'J Compl3int in response to Defendant's original Motion to Dismiss. Counsel responded by noting tiltH Plaintiff would add that Ms. Ridge '\'as a senior drug prosecutor when her brother was alleged to have committed drug offenses and that all of the listed comparators were supervised by the sallle Deputy State's Attorney. Neither fact would change th~ outcome as the alleged comparators \\'oliid still be too distinguishable to serve as comparators for the reasons discussed. "IDjismissa! with prejudice is proper if there is no set oftacts the plaintiff could present to support his claim," ,11"dden \'. Ed".",.dS. C"hll. LLC. NO.I'WG-14-395. 2014 WI. 7188823. at *2 (I). Md. Dec. 16.2(14) (citation omitted). Plaintiff additionally makes a request for discovery prior to the Court's decision on this motion. But a Plaintiff cannot make conclusory or otherwise insufficient allegations and still he given the keys to the doors of discovery in hopes of uncovering new or stronger allegations. Ashen!!/l'. Iqhal, 556 U.S. 662. 678-79 (2009) r-I Notice pleading} marks a notable and generous departure from the hyper-technical. code-pleading regime of a prior era. but it docs not unlock the doors of discovery for a plaintifTanned with nothing morc than conclusions.") Thus. Plaintitrs Motion to Defer Ruling is denied and the dismissal is with prejudice. IV. CONCLUSION For the reasons stated above, the Court will grant Defendant's Motion to Dismiss, ECF No. 16, and deny Plaintiffs Motion to Defer Ruling on Defendant's Motion to Dismiss, or alternatively. to convert the Motion to Dismiss into a Motion for Summary Judgment and pernlit the parties to engage in discovery. ECF No. 21. A separate order follows. H#- Dated: DecemberJ.12016 6EORCiE:C HAZEL United States District Judge 14

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