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)

C'

II

IN TilE UNITED STATES DISTRICT COURT
FOR TilE ("STRICT OF MARYLANI)
Southern

Division

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.,

I

r

("

ALEXANDRA BYNUM,

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Case No.: G.III-I(,-2067

Plaintiff,

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v.
*
LAURA L. MAIHIN,
STATE'S ATTOI{NEY
FOR CALVERT COUNTY, MARYLAND

*

Defendant.

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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

..to 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 ..to 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

»(

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