Breck v. Maryland State Police

Filing 19

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 6/5/2017. (jf3s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

SHEILA BRECK,
Plaintiff,
v.

Civil Action No. TDC-16-2075

MARYLAND STATE POLICE,
Defendant.

MEMORANDUM OPINION
Plaintiff Sergeant Sheila Breck ("Sgt. Breck") is a former employee of Defendant
Maryland State Police ("MSP"), which she is suing for gender discrimination and retaliation in
violation of Title VII of the Civil Rights Act of 1964,42 U.S.C.
the Court is the MSP's Motion to Dismiss.
Court finds no hearing necessary.

9 2000e

(2012). Pending before

Having reviewed the pleading and the briefs, the

See D. Md. Local R. 105.6. For the reasons set forth below,

the Motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
Sgt. Breck began her career with the MSP in 1991. By 2011, she was a sergeant in the
MSP's Prince Frederick Barrack. For the majority of her career, Sgt. Breck received uniformly
positive performance reviews.
evaluations of her subordinates.
Everett West.

In her capacity as a sergeant, she was required to complete
Sgt. Breck's subordinates were all men, including Trooper

In January 2011, Sgt. Breck was approached by the Barrack Commander,

Lieutenant ("Lt.") Randolph Stephens, and her immediate supervisor, First Sergeant ("First
Sgt.") David Ruel, who "pressured" her to rewrite her evaluations.

Compi. ~ 6, ECF NO.1.

Lt.

Stephens and First Sgt. Ruel told Sgt. Breck that she had been harder on her subordinates than
her male counterparts had been. Sgt. Breck refused to rewrite her evaluations.
In response to Sgt. Breck's refusal, Lt. Stephens and First Sgt. Rue! began to retaliate
against her. Sgt. Breck's requests for leave were rejected while those of male colleagues were
granted, and Sgt. Breck was punished for arriving late due to inclement weather when male
colleagues

were not disciplined

for the same infraction.

In February 2011, Sgt. Breck

complained to Lt. Stephens that she was being mistreated because of her gender and warned him
that she was considering filing a complaint with MSP's Fair Practices Office ("FPO"). After this
conversation, her supervisors'

conduct became openly abusive, including berating her

manner not used on male colleagues and other forms of "hazing and harassment."

III

a

Id. ~ 10.

This abusive atmosphere "culminated" in an incident in November 2011. Id. While Sgt.
Breck was on leave, the deadline passed for the Barrack to submit a report about Driving While
Intoxicated incidents.

When Sgt. Breck returned to duty, First Sgt. Rule informed her of the

missed deadline. Trooper West volunteered to submit the report. After the report was submitted,
however, First Sgt. Rue! cited Sgt. Breck for filing a false report because, unbeknownst to her,
Trooper West had not been on duty during the reporting period. In January 2012, Sgt. Breck was
suspended, formal disciplinary charges were instituted, and she was temporarily reassigned to the
Facilities Management Division.
In March 2012, Sgt. Breck filed a complaint with the FPO alleging gender discrimination
and harassment.

In October 2012, the FPO found her complaint groundless but did not provide

its reasons for that determination.

That same month, Sgt. Breck's transfer from the Prince

Frederick Barrack to the Facilities Management Division was made permanent.

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Meanwhile, hearings were held on Sgt. Breck's disciplinary charges in May and June of
2012.

In February 2013, Sgt. Breck was informed that the Hearing Board had found her not

guilty of four alleged infractions and guilty of one, on the basis that she bore some responsibility
for the false report because
recommended

she was Trooper

West's

supervisor.

The Hearing

Board

that Sgt. Breck lose some of her leave, that a fine be imposed, that she be

transferred, and that she be made ineligible for promotion for an unspecified period. Despite that
recommendation, that same month, the MSP Superintendent informed Sgt. Breck that, unless she
resigned, she would be terminated in May 2013.

For his part in the filing of the false report,

Trooper West was docked two days of vacation leave.
Sgt. Breck was not terminated in May 2013, nor did she resign at that point.

Instead,

over the ensuing three years, she pursued a series of challenges to the results of the February
2013 disciplinary decision. During those three years, Sgt. Breck was passed over for promotion.
Meanwhile, on April 19, 2013, Sgt. Breck filed a Charge of Discrimination

with the United

States Equal Employment Opportunity Commission ("EEOC") and the Maryland Commission
on Civil Rights. In that Charge, she asserted that she had been discriminated against on the basis
of sex, that she had been subjected to retaliation, that the discrimination was a continuing action,
and that the action had started on January 1,2011 and continued to February 14,2013.

Although

the Charge contained a few additional details about the disciplinary process and recommended
sanctions, it largely tracks the allegations she now makes in her Complaint. On March 18,2016,
the EEOC issued Sgt. Breck a right-to-sue letter. On May 1,2016, Sgt. Breck retired in order to
avoid being terminated.

As a result of her forced early retirement, she was unable to maximize

her retirement benefits, resulting in a loss of $300,000 to $400,000.

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DISCUSSION
On June 14, 2016, Sgt. Breck filed suit in this Court, alleging two causes of action, (1)
gender discrimination,

in violation of Title VII, 42 U.S.C.

violation of Title VII, 42 U.S.C.

S

2000e-3.

S

2000e-2, and (2) retaliation, in

MSP now moves to dismiss one of Sgt. Breck's

claims under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and
seeks to dismiss her remaining claims under Rule 12(b)(6) for failure to state a claim.
As to subject matter jurisdiction,

MSP argues that any constructive

discharge claim

arising from Sgt. Breck's May 2016 retirement has not been administratively exhausted because
Sgt. Breck's EEOC Charge, filed in 2013, makes no reference to that May 2016 retirement.
Under the precedent of the United States Court of Appeals for the Fourth Circuit, a failure to
exhaust administrative remedies under Title VII should be addressed by way of a motion to
dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).1 Jones v. Calvert Grp., Ltd.,
551 F.3d 297,300-01

(4th Cir. 2009). On a Rule 12(b)(1) motion, a defendant may assert either

(1) a facial challenge that the allegations as stated in the complaint are not sufficient to establish
subject matter jurisdiction, or (2) a factual challenge that the allegations establishing jurisdiction
/'

are not true. See Evans v. B.P. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Kerns v. United
States, 585 F.3d 187, 192 (4th Cir. 2009).

MSP asserts a factual challenge, arguing that Sgt.

Breck did not, in fact, exhaust her administrative remedies.

Whether failure to exhaust administrative remedies is always a subject matter jurisdiction
question has not been definitively established. The Supreme Court has noted that "[o]n the
subject-matter jurisdiction/ingredient-of-claim-for-relief
dichotomy, this Court and others have
been less than meticulous," Arbaugh v. Y & H Corp., 546 U.S. 500, 511 (2006), and has
"cautioned" against "profligate use of the term. , . 'jurisdictionaL'" Union Pac. R.R. Co. v. Bhd.
ofLocornotive Eng'rs, 558 U.S. 67, 82 (2009).
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Pursuant to Rule 12(b)(6), MSP argues that Sgt. Breck's claims are untimely because the
events about which she complains all took place more than 300 days before Sgt. Breck filed her
Charge with the EEOC.

See Edelman v. Lynchburg Call., 300 F.3d 400, 404 (4th Cir. 2002)

(holding that the question whether an administrative claim was timely filed with the EEOC is not
jurisdictional).

Alternatively, MSP argues that Sgt. Breck fails to allege sufficient facts to state a

claim for either gender discrimination or retaliation. To defeat a motion to dismiss under Federal
Rule of Civil Procedure 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. Legal conclusions or conclusory statements do not suffice. Id. 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. ofComm'rs

of Davidson Cty., 407 F.3d 266,

268 (4th Cir. 2005).
I.

Exhaustion of Administrative Remedies
In its Motion, MSP contends that to the extent Sgt. Breck is asserting that she was

constructively

discharged

when she resigned in May 2016 as a result of alleged gender

discrimination and retaliation, she has failed to exhaust those claims with the EEOC. Although
Sgt. Breck does not expressly assert a claim for constructive discharge in the Complaint, the
language of the Complaint is readily susceptible of such an interpretation,

in particular her

assertion that she was forced to retire from MSP far earlier than she planned and at the cost of
substantial

retirement

benefits.

Moreover,

in her Opposition

to the Motion,

Sgt. Breck

characterizes her claims as such. See Mem. Supp. Pl.'s Opp'n Mot. Dismiss. ("Opp'n")

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at 8,

ECF No. 15. The Court therefore construes the Complaint as alleging a claim of constructive
discharge based on gender discrimination and retaliation.
Before filing suit under Title VII, a plaintiff is required to file an administrative charge of
discrimination with the EEOC.

42 U.S.C. S 2000e-5(f)(I).

The "EEOC charge defines the

scope of the plaintiff s right to institute a civil suit." Bryant v. Bell Atlantic Md., Inc., 288 F.3d
124, 132 (4th Cir. 2002).

The EEOC Charge must contain allegations "sufficiently precise to

identify the parties, and to describe generally the actions or practices complained of." Chacko v.
Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005) (quoting 29 C.F.R. SI601.12(b) (2004)). Ifthe
claims asserted in a civil action "exceed the scope of the EEOC charge and any charges that
would naturally have arisen from an investigation thereof, they are procedurally barred."
509.

This exhaustion requirement serves two functions.

the: asserted violation.

Id. at

"First, it notifies the charged party of

Secondly, it brings the charged party before the EEOC and permits

effectuation of the Civil Rights Act's primary goal, the securing of voluntary compliance with
the law." Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 407 (4th Cir. 2013) (citation
omitted).
An employee is constructively discharged when the employer "deliberately makes [the]
employee's working conditions intolerable and thereby forces him to quit his job."

Bristow v.

Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985). A constructive discharge claim thus
accrues when an employee leaves his or her position.

Green v. Brennan, 136 S. Ct. 1769, 1777

(2016) ("[A]n employee cannot bring a constructive-discharge
discharged.").

Here, Sgt. Breck's

constructive

discharge

claim until he is constructively
claim did not accrue until her

resignation in May 2016. The EEOC Charge filed in April 2013 therefore necessarily did not
allege a constructive discharge in 2016.

Moreover, the EEOC investigation into Sgt. Breck's

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Charge closed in March 2016, three months before the alleged constructive discharge.

The

EEOC therefore could not have investigated a claim for constructive discharge as part of its
inquiries into Sgt. Breck's 2013 EEOC Charge.

See Chacko, 429 F.3d at 509.

Sgt. Breck's

present claim for constructive discharge based on gender discrimination therefore cannot proceed
because it has not been exhausted.
However, Sgt. Breck's claim of constructive discharge through retaliation may proceed.
The Fourth Circuit has held that a plaintiff raising a claim of retaliation for filing a previous
EEOC charge need not exhaust administrative remedies on that claim, but instead may raise it for
the first time in federal court. Nealon v. Stone, 958 Fold 584, 590 (4th Cir. 1992). The rationale
behind this rule stems from two principles:

first, the general rule that a Title VII lawsuit may

extend to "any kind of discrimination like or related to allegations contained in the charge and
growing out of such allegations during the pendency of the case before the Commission," and,
second, that it is impractical

and potentially

chilling to expect victims

of employment

discrimination to file a new EEOC charge for retaliation if they have already been retaliated
against for filing the first EEOC charge. Id. Construing Sgt. Breck's Complaint in the light most
favorable to her, her claim of constructive discharge through retaliation can be keyed to her filing
of an EEOC charge, so it did not need to be exhausted.
II.

Limitations Period
Under Rule 12(b)(6), MSP asserts that most, if not all, of Breck's claims are barred

because she did not timely file her EEOC Charge. Before filing suit under Title VII, a plaintiff
must first file a charge with the EEOC or a "State or local agency with the authority to grant or
seek relief' from the discriminatory practice. 42 U.S.C.

S 2000e-5(e)(l).

A charge filed with a

state or local agency must be submitted within 300 days of the unlawful employment practice.

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Id. The plaintiff cannot recover "for discrete acts of discrimination or retaliation" that occurred
outside of the 300-day limitations period. Nat 'I R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
105 (2002).
Here, Sgt. Breck filed her EEOC Charge on April 19, 2013. Sgt. Breck therefore may not
pursue claims based on discrete acts that occurred before June 23, 2012.

MSP asserts that, as a

result, the bulk of Sgt. Breck's factual allegations are not actionable, because they involve
discrete acts that took place in 2011. Sgt. Breck counters that all of her factual allegations are
actionable because together the acts amounted to "the same unlawful practice," and at least one
act of alleged discrimination fell within the 300-day period. Opp'n at 6. In particular, she argues
that she has alleged in her EEOC Charge that she was subjected to "continuing" discrimination
and that she was subjected to a "hostile" work "atmosphere."

Mot. Dismiss Ex. A (EEOC

Charge) at 3,4, ECF No. 14-3.
Sgt. Breck is correct that for a hostile work environment claim, the factual basis for the
claim may stretch back farther than 300 days "so long as an act contributing to that hostile work
environment takes place" within the 300 day period. Nat 'I R.R. Passenger Corp., 536 U.S. at
105; see also Gilliam v.

s.c.

Dep't of Juvenile Justice, 474 F.3d 134, 139--41 (4th Cir. 2007).

However, this exception to the 300-day limitations period is inapplicable for two reasons. First,
Sgt. Breck does not plead a hostile work environment claim in her Complaint.

Second, even if

the Court were to construe the Complaint as asserting a hostile work environment claim, the
allegations supporting such a claim ended more than 300 days before her EEOC Charge.
A work environment is hostile within the meaning of Title VII when it is permeated by
harassment that is so "severe or pervasive" that it creates an "abusive working environment."
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

8

Here, Sgt. Breck's allegations

about her daily work environment cover the period from January 2011 to November 2011, the
month that, as Sgt. Breck describes it, the abusive atmosphere at the Prince Frederick Barrack
"culminated" in the filing of disciplinary charges against her. CompI. ~ 10. By January 2012,
well outside the 300-day limitations period, Sgt. Breck had been transferred out of the Princ~
Frederick Barrack to another division, about which she makes no allegations of hostility or
abuse. Thus, of the allegations that fall within the 300-day period, Sgt. Breck is left only with
her challenges to MSP's internal disciplinary process. However, Sgt. Breck nowhere asserts that
those challenges themselves pervaded her daily working life, much less that they made her daily
working life hostile. The events that fall within the 300-day period, even when read in the light
most favorable to Sgt. Breck, do not evince that Sgt. Breck's "workplace was permeated with
discriminatory intimidation, ridicule, and insult."

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21

(1993). The Court must therefore reject Sgt. Breck's effort to cast her gender discrimination and
retaliation claims as forms or manifestations of a hostile work environment so as to extend the
permissible factual basis for those claims beyond the 300-day limitations period.
The Motion is therefore granted as to claims arising from the events before June 23,
2012. Notably, although events occurring prior to that date cannot form the basis of Sgt. Breck's
claims for gender discrimination and retaliation, evidence of those events may be admissible at
trial to provide context for understanding the import of later actionable conduct.

Nat'l R.R.

Passenger Corp., 536 U.S. at 113.
III.

Failure to State a Claim
MSP also seeks dismissal under Rule 12(b)(6) on the grounds that the allegations in the

Complaint are insufficient to state claims of gender discrimination or retaliation.

As a result of

the Court's ruling on the limitations period, the Court evaluates the sufficiency of only those

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claims arising on or after June 23, 2012.

On an unspecified date in June 2012, about three

months after Sgt. Breck filed an internal complaint about the events of 2011, a hearing was held
on the November 2011 disciplinary charges. The Hearing Board found Sgt. Breck not guilty of
four alleged infractions but guilty of one infraction and recommended as punishment the loss of
leave, a fine, a transfer, and temporary ineligibility for promotion. Despite that recommendation,
in February 2013, the MSP Superintendent

demanded that Sgt. Breck either resign or be

terminated, a disciplinary determination that Sgt. Breck then challenged over the next three
years, during which she was passed over for promotion.

As to the retaliation claim only, the

Court considers the additional claim that when Sgt. Breck's appeals of that determination went
nowhere, she was forced into retirement.
Based on these allegations, Sgt. Breck adequately pleads retaliation.

To state a claim for

retaliation under Title VII, the plaintiff must allege facts that, taken as true, establish that (1) the
plaintiff engaged in a protected activity; (2) the employer took an adverse employment action
against the plaintiff, and (3) "that there was a causal link between the two events."

Boyer-

Liberto v, Fontainebleau Corp., 786 F.3d 264,281 (4th Cir. 2015) (quoting EEOC v. Navy Fed.
Credit Union, 424 F.3d 397, 405-06 (4th Cir. 2005)). Employees engage in a protected activity
when they file formal discrimination complaints or "complain to their superiors" about suspected
unlawful discrimination.

Boyer-Liberto, 786 F.3d at 281 (quoting Bryant v. Aiken Reg'l Med.

Ctrs. Inc., 333 F.3d 536, 543-44 (4th Cir. 2003)).

Here, Sgt. Breck engaged in the protected

activity of filing an internal complaint with the FPO in March 2012. Shortly after, disciplinary
hearings were conducted that culminated with the MSP Superintendent threatening what can
plausibly be considered disproportionate discipline for Sgt. Breck's role in the filing of a false
report.

Shoring up that conclusion is the dramatic difference between the Hearing Board's

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recommended punishment-loss

of leave time, a fine, a temporary pause on promotion, and a

transfer to a new division-and

the punishment of termination or resignation threatened by the

MSP Superintendent.

Although the choice put to Sgt. Breck was not a formal personnel action, a

retaliation claim may be based on a less formal action that "could well dissuade a reasonable
worker from making or supporting a charge of discrimination."

Burlington N & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 57 (2006).
When Sgt. Breck appealed that determination,

and after Sgt. Breck engaged in the

additional protected activity of filing a charge with the EEOC in April 2013, her career
essentially stalled, as over the next three years she was passed over for a promotion.
Sgt. Breck's

Accepting

allegations as true, she then had no choice in 2016 but to capitulate to the

disciplinary options originally imposed in 2013: resign or be fired. Drawing all inferences in
Sgt. Breck's
discipline,

favor, this chronology

suggests that Sgt. Breck was subjected to excessive

a failure to promote, and ultimately

complaints

about gender discrimination

constructive

discharge in response to her

at the Prince Frederick Barrack and in the MSP

disciplinary process. Her retaliation claim may proceed.
Sgt. Breck's
discrimination.

allegations

are, however,

insufficient

to sustain a claim for gender

To state a claim of gender discrimination under Title VII, the plaintiff must

allege facts that, taken as true, establish: (1) the plaintiffs membership in the protected class, (2)
the plaintiffs

satisfactory job performance, (3) that the plaintiff was subjected to an adverse

employment action, and (4) that similarly-situated employees outside the protected class received
more favorable treatment.

White v. BFI Waste Svcs., Inc., 375 F.3d 288, 295 (4th Cir. 2004).

The only alleged discriminatory action within the limitations period is the disciplinary decision
by the MSP Superintendent in February 2013. Even if the threat that Sgt. Breck would be fired if

11

she did not resign could be deemed an adverse employment action, Sgt. Breck does not provide
sufficient facts to support the inference that any unevenness in the discipline meted out to her
was a result of a gender-based animus. Instead, the facts Sgt. Breck offers as evidence of gender
discrimination involve only the conduct of her colleagues at the Prince Frederick Barrack, who
did not make the decision regarding the discipline imposed.

Sgt. Breck provides no basis by

which to impute the alleged gender-based motivations of the Prince Frederick Barrack staff to
the decisionmakers in the disciplinary proceeding and subsequent appeals.
Sgt. Breck's

claim of gender discrimination

must then be supported solely by the

disparity between her punishment and that imposed on Trooper West.

However, Sgt. Breck's

allegations provide no plausible basis to conclude that she and Trooper West were similarly
situated. See Lightner v. City of Wilmington, NC., 545 F.3d 260, 265 (4th Cir. 2008) (stating
that, in discrimination cases involving uneven discipline, "[t]he similarity between comparators
and the seriousness of their respective offenses must be clearly established in order to be
meaningful");

Coleman v. Md. Court of Appeals, 626 F.3d 187, 191 (4th Cir. 2010), aff'd on

other grounds, 132 S. Ct. 1327 (2012) (affirming the district court's dismissal of a claim of race
discrimination based on unequal discipline where the Complaint contained no plausible basis for
believing that the plaintiff and his comparator were similarly situated).

Instead, her allegations

establish that she and Trooper West were in distinctly different situations by virtue of the fact
that she was his supervisor.

See Lightner, 545 F.3d at 265 (finding, where the plaintiff held a

higher position than his comparator that required him to "set an example by following the rules
himself," that the "difference in positions" made the comparison "too loose" for the plaintiffs
claims to establish a genuine issue of material fact on summary judgment).

12

Sgt. Breck therefore

fails to state a claim that she was subjected to uneven discipline as a result of gender
discrimination.

Her gender discrimination claim will be dismissed.
CONCLUSION

For the foregoing reasons, MSP's Motion to Dismiss is GRANTED IN PART and
DENIED IN PART. The Motion is granted as to Sgt. Breck's claim for gender discrimination,
which is dismissed in its entirety. The Motion is denied as to Sgt. Breck's claim for retaliation,
but that claim may proceed only as to alleged acts of retaliation occurring on or after June 23,
2012. A separate order shall issue.

Date: June 5, 2017
THEODORED.
United States Distnc

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