Wallace v. Calvert County Public Schools

Filing 17

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 5/31/2017. (c/m 05/31/2017 jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
TEBA LESHAWN WALLACE,
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Plaintiff,
*
v.

Civil Action No. PX 16-3242
*

BOARD OF EDUCATION
OF CALVERT COUNTY, et al.,
*
Defendants.
******
MEMORANDUM OPINION
Pending in this employment discrimination case is Defendants’ motion to dismiss or in
the alternative motion summary judgment (ECF No. 8). The issues are fully briefed and the
Court now rules pursuant to Local Rule 105.6 because no hearing is necessary. For the reasons
stated below, Defendants’ motion is granted.
I.

BACKGROUND

Plaintiff, a substitute bus driver, was employed through two transportation contract
companies—Reid’s School Bus Services (“Reid”) and Alvin Freeland (“Freeland”) (collectively,
“Contractors”)—to provide transportation services to the Calvert County Public Schools. Under
the contracts, the Contractors provide the school system buses and drivers to transport its
students to and from school. ECF No. 8-4 at 2; see also Exhibit B, ECF No. 8-4 at 15–62. The
Contractors supervise the bus drivers, retain hiring and firing authority, and are responsible for
monitoring and disciplining the drivers. The Contractors also pay the drivers and process all
income tax, social security, workers’ compensation, and other financial paperwork related to the
drivers’ employment. Id. Contractors are likewise responsible for ensuring the drivers undergo

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the state-required mandatory training pursuant to COMAR 13A.06.07.09, and are in compliance
with all safety standards.
Plaintiff alleges that while she was a substitute driver assigned to a Calvert County school
district bus route, parents of white students harassed Plaintiff about her performance. The school
would routinely investigate these complaints to include pulling the camera footage from the bus
and questioning Plaintiff about her interactions. As a result, Plaintiff needed to take time off
work “because [she] was under so much stress and anxiety.” ECF No. 1 at 2. Plaintiff then
claims to have “made threats to get a lawyer to remove me from the bus,” ECF No. 1 at 8, which
prompted her supervisors to switch her bus route and replace her with a white driver. As a
consequence of this alleged discrimination, Plaintiff is claiming back pay, vacation pay, and
compensation for pain and suffering.
After exhausting administrative remedies on her race-based and retaliation claims,
Wallace filed her complaint in this Court against the Defendant Board of Education (the
“Board”) as well as Defendants Edward Cassidy, Chuck Baker and Anthony Navarro. ECF No.
1. Wallace also properly served defendants and moved to proceed in forma pauperis. ECF Nos.
1, 5. On November 25, 2016, Defendants moved to dismiss the Complaint in its entirety, or
alternatively for summary judgment in its favor. Plaintiff has failed to respond, and the deadlines
for doing so have long passed. Plaintiff has also failed to heed this Court’s repeated advisement
in accordance with Roseboro v. Garrison, 528 F.2d. 309 (4th Cir. 1975) to respond or risk the
Court ruling in the face of Plaintiff’s silence. ECF Nos. 12, 15. Accordingly, the Court has
determined that Defendants’ Motion is ripe for resolution and for the following reasons will be
granted.

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II.

STANDARD OF REVIEW

Before the Court treats a motion to dismiss as a motion for summary judgment, “[a]ll
parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion.” Fed. R. Civ. P. 12(d). The non-moving party may object to the court construing the
motion as one for summary judgment by attesting, via affidavit or declaration, to the need to take
additional discovery before resolving the motion. Fed. R. Civ. P. 56(d); see Celotex Corp. v.
Catrett, 477 U.S. 317, 326 (1986). Here, Defendants styled their motion as one to “Dismiss, or in
the Alternative, for Summary Judgment” and attached exhibits for court consideration, which
gave Plaintiff reasonable notice and opportunity to respond the propriety of summary judgment.
See Laughlin v. Metropolitan Wash. Airports Auth., 149 F.3d 253, 260–61 (4th Cir. 1998).
Plaintiff has not opposed Defendants’ motion or submitted an affidavit attesting to the need for
additional discovery. Thus, the Court will treat this motion as one for summary judgment and
consider the additional documentary evidence submitted by Defendants.  
A court may enter summary judgment only if there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th
Cir. 2008). Conversely, summary judgment is inappropriate if any material fact at issue “may
reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th
Cir. 2001).

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III.
A.

ANALYSIS

Dismissal of Defendants Cassidy, Baker and Navarro

As an initial matter, Defendants rightfully point out that claims against the individual
defendants Cassidy, Baker and Navarro cannot be sustained as a matter of law because Title VII
does not provide for suits against individual supervisors. See Lissau v. S. Food Serv., Inc., 159
F.3d 177, 181 (4th Cir. 1998). Title VII provides that “it shall be an unlawful employment
practice for an employer” to engage in race based discrimination. 42 U.S.C. § 2000e-2(a). Title
VII further defines “employer” as “a person engaged in an industry affecting commerce who has
fifteen or more employees and “any agent of such person.” Id. Although the statute itself does
not define “agent,” the United States Court of Appeals for the Fourth Circuit has reasoned that
“the linkage between the size of the employer and the amount of available relief clearly indicates
a congressional intent to limit plaintiffs’ remedies to suits against employers.” Lissau, 159 F.3d
at 181. Consequently, the Fourth Circuit has joined numerous other Circuits in holding that
“supervisors are not liable in their individual capacities for Title VII violations.” Id. Cassidy,
Baker and Navarro, therefore, must be dismissed as a matter of law.
B. Title VII Discrimination Claims against the Board
The Board, as the remaining Defendant, primarily argues that it cannot be held liable
because the Contractors and not the Board were Plaintiff’s employers. Defendants are correct.
More than one entity may be considered for Title VII purposes as an “employer” if the entities
“jointly” employ the Plaintiff and each exercises significant control over Plaintiff. See Butler v.
Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 414 (4th Cir. 2015). More specifically, where
“one employer while contracting in good faith with an otherwise independent company, has
retained for itself sufficient control of the terms and conditions of employment of the employees

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who are employed by the other employer,” both employers may be held liable for discrimination
under Title VII. Id. (internal quotations omitted).
In assessing whether an employer exerts control sufficient to assume liability under Title
VII, the United States Court of Appeals for the Fourth Circuit has adopted what is known as the
“hybrid test.” Id. The Court articulated a non-exhaustive list of factors for consideration:
(1) authority to hire and fire the individual; (2) day-to-day
supervision of the individual, including employee discipline; (3)
whether the putative employer furnishes the equipment used and
the place of work; (4) possession of and responsibility over the
individual’s employment records; (5) the length of time during
which the individual has worked for the putative employer; (6)
whether the putative employer provides the individual with formal
or informal training; (7) whether the individual’s duties are akin to
a regular employees duties; (8) whether the individual is assigned
solely to the putative employer and (9) whether the individual and
putative employer intended to enter into an employment
relationship.

Id. at 414.
Although no single factor is dispositive, the Fourth Circuit acknowledged that the first
three factors are the most important in determining whether the putative employer maintained
control sufficient to trigger Title VII liability. See id.; see also Wright v. Mountain View Lawn
Care, 2016 WL 1060341, at *4 (Mar. 11, 2016).
In this case, when considering the evidence in the light most favorable to Wallace, nearly
every factor cuts against treating the Board as Wallace’s employer for Title VII purposes. First
with regard to the authority to hire and fire Wallace, the Board plays a limited role in setting
qualification standards for substitute bus drivers like Plaintiff as set forth in COMAR
13A.06.07.07. Otherwise, the Contractors maintain exclusive hiring and firing authority, mete
out all discipline, and determine the bus routes to which Plaintiff is assigned. See Cassidy

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Affidavit, ECF No. 8-4, at 2–4; Exhibit A, ECF No. 8-4 at 8–14; and Exhibit D, ECF No. 8-4 at
69–91. Indeed, Defendants’ own “contractor’s bulletin” expressly states that “school bus
contractors are the employers of the school bus drivers in Calvert County, and must “assert their
right and responsibility to monitor and discipline their drivers rather than referring drivers to
Student Transportation.” ECF No. 8-4 at 71. By contrast, no evidence exists that the Board plays
a role in the hiring and firing of bus drivers. The first factor, therefore, weighs against
considering the Board as Plaintiff’s employer.
As to the second factor, the day-to-day supervision of Plaintiff while performing her job
as a bus driver, the Contractors assign Plaintiff to her bus routes, maintain all responsibility for
monitoring her performance, and discipline her when necessary. See ECF No. 8-4 at 15. The
only evidence arguably suggesting that the Board supervised Plaintiff is a single letter from
Director of Transportation, Edward Cassidy, advising Plaintiff that cell phone use while driving
is unsafe and offering suggestions for improved interactions with parents. See ECF No. 8-4 at 93.
But even this letter is devoid of any evidence that the Board disciplined Plaintiff or monitored
her activities on a daily basis. Thus, even construing this letter in the light most favorable to
Plaintiff, this factor too weighs against considering the Board as Plaintiff’s employer.
The third factor also weighs against the Board being considered a joint employer. The
Contractor provides the equipment—the bus itself—and places the onus on the Contractor to
keep the bus in good mechanical condition at all times. ECF 8-4 at 2, 16. That the Board
provides vehicle safety standards lends some support of Board participation. But the evidence
construed in Plaintiff’s favor still reflects that the Contractors bear the ultimate responsibility for
maintaining the equipment, and so this factor also cuts against the Board as Plaintiff’s employer.

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The fourth factor also counsels against viewing the Board as an employer. The evidence
unequivocally demonstrates that the Contractors maintained Plaintiff’s employment records,
payroll, insurance and taxes. See Wright, 2016 WL 1060341 at *5 (construing similar documents
to determine the question of joint control). Further, Plaintiff is paid directly by Contractors and
not the Board. See ECF No. 8-4 at 2–3. No evidence points to the Board maintaining any
employment records as to Plaintiff.
The fifth factor—the length of time the Plaintiff has been employed in connection with
the Board—does not advance the analysis. This is so because Plaintiff has driven a bus as a
substitute driver for several years, but always has been formally employed through one or more
of the Contractors. This arrangement on its face provides little assistance in demonstrating
whether the Board exerted any supervisory control over Plaintiff. Wright, 2016 WL 1060341 at
*5.
As to the provision of formal and informal training, the Board candidly admits that it
provides training to assure that the drivers comply with Maryland regulations. ECF No. 8-1 at
18. Defendants also note, however, that this training is mandated statewide and is not specific to
the Board. Id. Moreover, the Contractors are responsible for certifying that the driver is eligible
to attend the training, and coordinates the provision of such training. Id. Accordingly, while this
factor points to the Board’s limited involvement in providing training, it is the Contractors’
obligation to ensure the Plaintiff has met the requirements. In this regard, factor six does not
weigh in favor of the Board as an employer of Plaintiff.
The seventh factor looks to whether Plaintiff performs the same job functions as other
Board employees. Here, the Board does not employ any school bus/vehicle drivers. ECF No. 8-4
at 1. Logically, therefore, Plaintiff’s job duties do not overlap at all with those employed by the

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Board who otherwise educate Calvert County students. This factor, therefore, weighs against
construing the Board as Plaintiff’s employer.
The eighth factor, whether Plaintiff is assigned solely to the putative employer, is of
minimal value here. Although the evidence demonstrates that Plaintiff may work for more than
one bus contractor, no evidence demonstrates that she was assigned to drive for a school district
other than Calvert County. That said, this factor does not shed much light in this context on the
Board’s control over Plaintiff or lack thereof, and so will be accorded little weight.
The ninth and final factor also underscores that the Board cannot be considered Plaintiff’s
employer. Here the contracts between the Board and the contractors unequivocally demonstrate
that the Board intended for school vehicle/bus drivers to not be its employees. ECF No. 8-4 at 1–
3. Likewise the school contractor bulletin and Board policies and procedures underscore the
same basic intent to treat the drivers as agents of the contractor and not school employees. See
Exhibit A, ECF No. 8-4 at 8–14; Exhibit B, ECF No. 8-4 at 15–62; Exhibit D, ECF No. 8-4 at
69–92. Accordingly, this factor also counsels against treating the Board as Plaintiff’s employer.
Overall, the evidence when construed in the light most favorable to Plaintiff demonstrates
that the Board exerted little if any control over Plaintiff’s employment. Under the Butler hybrid
test, therefore, no rational trier of fact could find the Board to be Plaintiff’s employer under Title
VII. Plaintiff’s discrimination claims against the Board, therefore, must fail.
C.

Retaliation Claims against the Board

Plaintiff’s retaliation claims also fail as a matter of law. To establish her retaliation claim,
Plaintiff must demonstrate that (1) she engaged in activity protected under Title VII; (2) that the
employer took adverse employment action against her; and (3) a causal connection existed
between the protected activity and the adverse employment action. See Coleman v. Maryland

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Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). Plaintiff cannot demonstrate the second
element of her claim. Although Plaintiff alleges she was transferred to another bus route, she has
not alleged (nor does the evidence reflect) that mere transfer of a route is an adverse employment
action. In fact, Plaintiff’s employment record reveals that she worked more days in the year of
her transfer than the previous two years. She also has retained the same job as a substitute bus
driver for the same Contractors without any claimed change in employment status. Accordingly,
Plaintiff’s retaliation claim must fail as well.
D.

Disability Claims against the Board

Finally, Plaintiff cannot sustain her disability discrimination claim for failure to exhaust
her administrative remedies. The Americans with Disabilities Act, like Title VII, requires that
Plaintiff exhaust administrative remedies “by filing a charge with the EEOC before pursuing suit
in federal court.” Sydnor v. Fairfax City, Va., 681 F.3d 591, 591 (4th Cir. 2012). See also Lewis
v. MV Transp., Inc., 2012 WL 4518541, at *3 (D. Md. Sept. 28, 2012) (“Under the ADA, the
exhaustion requirements and filing procedures are identical to those applicable to claims under
Title VII.”).
“Failure by the employee to exhaust administrative remedies . . . deprives the federal
courts of subject matter jurisdiction over the claim.” Kim v. Potter, No. DKC 09-2973, 2010 WL
2253656, at *4 (D. Md. June 2, 2010), aff’d, 416 F. App’x 297 (4th Cir. 2011); accord Jones v.
Calvert Group, Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing Davis v. North Carolina Dep’t of
Corr., 48 F.3d 134, 138–40 (4th Cir. 1995)); Melendez v. Sebelius, 611 F. App’x 762, 764 (4th
Cir. 2015). Importantly, the scope of the plaintiff’s federal causes of action is circumscribed by
the contents of the formal administrative complaint as identified and investigated by the EEOC
or its County counterpart. Calvert Group, Ltd., 551 F.3d at 300 (internal quotation marks

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omitted). Where a complainant alleges a basis for discrimination for the first time in federal
court, the claim cannot proceed for failure to exhaust. See Bryant v. Bell Atl. Md., Inc., 288 F.3d
124, 132–33 (4th Cir. 2002) (plaintiff failed to exhaust claim for sex discrimination because
EEOC charge alleged only racial discrimination); Calvert Grp., Ltd., 551 F.3d at 301 (plaintiff
failed to exhaust claim for race, age, or sex discrimination because EEOC charge only alleges
retaliation). Generally, “a plaintiff has failed to exhaust administrative remedies where a charge
of discrimination references ‘different time frames, actors, and discriminatory conduct’ than the
allegations found in a complaint.” Wright v. Kent Cty. Dep’t of Soc. Servs., No. ELH-12-3593,
2014 WL 301026, at *11 (D. Md. Jan. 24, 2014) (quoting Chacko v. Patuxent Inst., 429 F.3d
505, 506 (4th Cir. 2005)).
Although Plaintiff checked a pre-printed box on the form accompanying her Complaint to
indicate that she is pursuing a disability discrimination claim, nowhere on the EEO
documentation does she appear to preserve this claim. Accordingly, there is no evidence before
the Court that the Plaintiff properly pled and therefore exhausted a disability based
discrimination claim with the EEOC. Alternatively, even if Plaintiff had exhausted her
administrative remedies, she has not pleaded any facts in the instant complaint to sustain this
claim. Consequently, Plaintiff’s disability discrimination claim must fail.
IV.

CONCLUSION

For the above stated reasons, suit cannot proceed as a matter of law against the individual
defendants. Further, none of Plaintiff’s claims survive challenge from the Board. Defendants’
Motion is therefore GRANTED. A separate order will follow.

5/31/2017
Date

/S/
Paula Xinis
United States District Judge
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