Pugh v. Board of Education Montgomery County, MD
MEMORANDUM OPINION (c/m to Plaintiff 4/12/17 sat). Signed by Judge Deborah K. Chasanow on 4/12/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ADRIAN D. PUGH
Civil Action No. DKC 16-3816
BOARD OF EDUCATION MONTGOMERY
employment discrimination case is the motion to dismiss filed by
(ECF No. 5).
The issues have been briefed, and
the court now rules, no hearing being deemed necessary.
For the following reasons, the motion to dismiss
will be granted.
This is the second employment discrimination case Plaintiff
works or worked for Defendant as a paraeducator, or teacher’s
On September 27, 2013, Plaintiff, proceeding pro se,
sued Defendant and the Equal Employment Opportunity Commission
Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable
“provisional teacher” based on her race, in violation of Title
VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title
Complaint, Pugh v. Montgomery Cty. Bd. of Educ., No. DKC
13-2862 (D.Md. Sept. 27, 2013), ECF No. 1.
The court dismissed
Plaintiff’s Title VII and denial of due process claims against
Pugh v. EEOC, No. DKC 13-2862, 2014 WL 2964415, at
*4-5 (D.Md. June 30, 2014).
Following discovery, the court
Montgomery Cty. Bd. of Educ. (Pugh I), No. DKC 13-2862, 2016 WL
560793 (D.Md. Feb. 12, 2016), aff’d per curiam, 667 F.App’x 398
(4th Cir. 2016) (mem.), cert. denied, No. 16-6580, 2017 WL 737856
(U.S. Feb. 27, 2017) (mem.).
The United States Court of Appeals
for the Fourth Circuit affirmed in an unpublished opinion and
the United States Supreme Court denied certiorari.
pending, Plaintiff, proceeding pro se, filed the instant action
employment practices in violation of Title VII.
(ECF No. 1, at
The parties have used the term “provisional teacher” to
refer to teachers who obtain a Conditional Degree Certificate
(“CDC”), a temporary two-year provisional status for otherwise
uncertified teachers who are pursuing their professional
Because Plaintiff was not certified as a
teacher, she had attempted to obtain a CDC from Defendant.
Plaintiff’s complaint attached two documents, a memorandum
in support and a purported copy of a letter sent to the EEOC,
dated April 8, 2015.
(Id. at 6).
Plaintiff alleges that Pugh I “was unfairly dismissed at
the District Court and Circuit Court levels.”
(ECF No. 1-1, at
She also alleges that her “due process rights have been
egregiously denied by EEOC” and that the “EEOC continues to
Plaintiff alleges that she “learned of new incidents of racially
disparate treatment by the defendant” while her previous case
candidates equal opportunity.”
(Id. at 2).
The “new incidents” to which Plaintiff alludes appear to be
those detailed in the letter addressed to the EEOC that was
Plaintiff’s complaint also states that the Fourteenth
Amendment to the United States Constitution is at issue in this
case (see ECF No. 1, at 4), but Plaintiff does not allege that
Defendant violated the Fourteenth Amendment.
The complaint and Plaintiff’s opposition to Defendant’s
motion to dismiss discuss her allegations against the EEOC at
length. In her opposition, for example, she argues that “[t]his
new case is being brought to court because plaintiff [has] not
received due process in EEOC – as EEOC unfairly dismissed this
case without an investigation[.]”
(ECF No. 9-1, at 1).
EEOC has not, however, been named as a defendant in this action.
(See ECF No. 1).
attached to the complaint.5
(ECF No. 1-2).
employment practices: the hiring of Plaintiff’s former coworker
Lisa Moran as a provisional teacher in special education; the
resignation of Plaintiff’s former coworker Monique Williams, who
had accepted a position as a provisional teacher with Prince
George’s County Public Schools; and the publication of “news
reports” regarding Defendant’s initiatives to increase teacher
diversity, which Plaintiff describes as “proof after-the-fact
that [her] first EEOC claim of racial discrimination/disparate
treatment by [Defendant] . . . was true.”
(Id. at 1-3).
On February 6, 2017, Defendant moved to dismiss for failure
to state a claim.
(ECF No. 5).
Plaintiff was provided with a
Roseboro notice (ECF No. 6), which advised her of the pendency
of the motion to dismiss and her entitlement to respond within
seventeen days from the date of the letter.
Garrison, 528 F.2d 309, 310 (4th Cir. 1975).
See Roseboro v.
the motion (ECF No. 9), and Defendant replied (ECF No. 10).
It is unclear whether Plaintiff attached this letter in
order to incorporate its allegations of discrimination against
Defendant or in connection with the complaint’s allegations
against the EEOC.
As the letter to the EEOC is the only
discrimination, and given the liberal construction afforded pro
se litigants, the court will consider the letter’s allegations
to be incorporated in the complaint.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
need only satisfy the standard of Rule 8(a)(2), which requires a
“short and plain statement of the claim showing that the pleader
‘showing,’ rather than a blanket assertion, of entitlement to
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3
That showing must consist of more than “a formulaic
assertion[s] devoid of further factual enhancement.”
v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted).
(1994), and all factual allegations must be construed in the
Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir.
1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993)).
In evaluating the complaint, unsupported legal
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
couched as factual allegations are insufficient, Iqbal, 556 U.S.
at 678, as are conclusory factual allegations devoid of any
reference to actual events, United Black Firefighters v. Hirst,
Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009).
Pro se pleadings are liberally construed and held to a less
stringent standard than pleadings drafted by lawyers.
v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)); Haines v. Kerner, 404 U.S. 519, 520
Liberal construction means that the court will read the
possible to do so from the facts available; it does not mean
that the court should rewrite the complaint to include claims
Barnett v. Hargett, 174 F.3d 1128, 1132 (10th
That is, even when pro se litigants are involved,
the court cannot ignore a clear failure to allege facts that
support a viable claim.
Weller v. Dep’t of Soc. Servs., 901
F.2d 387, 391 (4th Cir. 1990); Forquer v. Schlee, No. RDB–12–969,
2012 WL 6087491, at *3 (D.Md. Dec. 4, 2012) (“[E]ven a pro se
complaint must be dismissed if it does not allege a plausible
In her memorandum in support of the complaint, Plaintiff
plainly states that “this case is being filed subsequent to
another original complaint filed in this court by me (pro se)
disparate treatment in employment/hiring practices[.]”
1-1, at 1).
Defendant argues that Plaintiff’s claim is barred
by res judicata.
(ECF No. 5-1, at 7-10).
“Under the doctrine of res judicata, ‘a final judgment on
the merits bars further claims by parties or their privies based
on the same cause of action.’”
Andrews v. Daw, 201 F.3d 521,
524 (4th Cir. 2000) (quoting Montana v. United States, 440 U.S.
147, 153 (1979)).
“The doctrine of res judicata contemplates,
at a minimum, that courts not be required to adjudicate, nor
defendants to address, successive actions arising out of the
same transaction and asserting breach of the same duty.”
v. JP Morgan Chase Bank, N.A., No. DKC 12-3072, 2013 WL 4495797,
at *4 (D.Md. Aug. 20, 2013) (citing Nilsen v. City of Moss
Point, Miss., 701 F.2d 556, 563 (5th Cir. 1983)).
A court may
consider the affirmative defense of res judicata and documents
from the underlying case on a motion to dismiss if the defense
clearly appears on the face of the complaint.
Andrews, 201 F.3d
judicata may be raised under Rule 12(b)(6) ‘only if it clearly
motion to dismiss on the ground of res judicata, a court may
take judicial notice of facts from a prior judicial proceeding
fact[.]” (citation omitted) (quoting Richmond, Fredericksburg &
Potomac R.R. Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993))).
For a prior judgment to bar an action on the basis of
judicata, (1) the parties in the two actions must be either
identical or in privity; (2) the claim in the second action must
be based upon the same cause of action involved in the earlier
proceeding; and (3) the prior judgment must be final, on the
merits, and rendered by a court of competent jurisdiction in
accordance with due process.
See id. at 524; accord Ohio Valley
Envt’l Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir.
2009); Grausz v. Englander, 321 F.3d 467, 472 (4th Cir. 2003).6
It is undisputed that this court’s opinion granting summary
judgment to Defendant in Pugh I was a final judgment on the
merits and that the parties in the two suits are identical.
Much of Plaintiff’s complaint merely expresses her disagreement
with the disposition of her first suit.
(See, e.g., ECF No. 1case
dismissed . . . . In this District Court, I believe that – with
the 2013 case – I proved a more solid case than the defendant
did; and that this Court did not give the leeway/consideration
that I should have received as pro se. . . . It is not fair that
Federal rules of res judicata apply here because
Plaintiff’s first suit against Defendant was brought in federal
court. See Andrews, 201 F.3d at 524.
the defendant can publicly admit that their hiring practices are
racially discriminatory, and yet they prevail in a solid case
against them proving the same thing that they have admitted
Moreover, Plaintiff herself characterizes this action
(Id. at 1).
There is no question that any attempt to relitigate
Pugh I is barred by res judicata.
Plaintiff also refers to “new incidents” of discrimination,
Plaintiff argues that she should be permitted to raise
these incidents in a new action because they occurred while the
prior case was pending but before judgment was entered against
her (ECF No. 9-1, at 1-2), while Defendant argues that they are
part of the same cause of action as in Pugh I and could have
been brought in the earlier case (ECF No. 5-1, at 8).
In finding that the second suit involves the
same cause of action, the court need not
find that the plaintiff in the second suit
is proceeding on the same legal theory he or
his privies advanced in the first suit. See
[Aliff v. Joy Mfg. Co., 914 F.2d 39, 43 (4th
As long as the second suit
“arises out of the same transaction or
series of transactions as the claim resolved
by the prior judgment,” the first suit will
have preclusive effect.
Ohio Valley, 556 F.3d at 210; see also Laurel Sand & Gravel,
articulated claims based on the same [transactional] nucleus of
facts may still be subject to a res judicata finding if the
(alteration in original) (emphasis added) (quoting Tahoe Sierra
Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d
1064, 1078 (9th Cir. 2003))); Leftridge v. Matthews, No. ELH-113499, 2012 WL 1377060, at *4 (D.Md. Apr. 18, 2012).
The Title VII claims in Pugh I related to two allegations
of discrimination: the failure to hire Plaintiff for a special
education teacher opening in November 2008, and the failure to
hire Plaintiff or grant her a CDC throughout 2009.
WL 560793, at *5.
Pugh I, 2016
Plaintiff filed a charge of discrimination
with the EEOC concerning the 2009 application in 2010, and filed
Pugh I in 2013 following the EEOC’s dismissal of the charge.
Id. at *3.
The court rejected Plaintiff’s allegation that these
incidents were part of “on-going discrimination,” finding that
Plaintiff was asserting discriminatory failure to hire based on
discriminatory events which occurred during the 2014-2015 school
economy for Plaintiff to have amended her complaint in Pugh I to
include these incidents, as Defendant suggests should have been
done, they were not clearly part of the same event or series of
failure to hire based on a discrete act in 2014, the claim is
not barred by res judicata.7
(ECF No. 5-1, at 10-12).
requires a plaintiff to file an EEOC charge within a prescribed
42 U.S.C. § 2000e–5(e)(1).
states such as Maryland, that limitations period is 300 days
from the date of the allegedly discriminatory act.
2016 WL 560793, at *4.
See Pugh I,
Title VII also requires a plaintiff to
bring a discrimination claim within 90 days from the date of
receipt of the right-to-sue letter.
42 U.S.C. § 2000e–5(f).
“Courts strictly adhere to these time limits and rarely allow
equitable tolling of limitations periods.”
Khoury v. Meserve,
268 F.Supp.2d 600, 606 (D.Md. 2003), aff’d, 85 F.App’x 960 (4th
The complaint appears to assert that Plaintiff filed her
charge with the EEOC on April 15, 2015.
(See ECF No. 1-2).
Defendant attaches to its motion to dismiss an EEOC charge form,
Plaintiff also argues, however, that she “still has the
legal right to continue to pursue” her case because the court’s
opinion in Pugh I “did not address and/or did not focus on the
on-going discrimination” claim in that case.
(ECF No. 9-1, at
1-2). The court held that the continuing violation doctrine did
not apply in Pugh I.
2016 WL 560793, at *5.
Any claim here
based on that theory is barred by res judicata.
purportedly signed by Plaintiff and dated July 10, 2015.
occurred before September 13, 2014, rather than June 19, 2014.
(ECF No. 5-1, at 11).
Because the allegations of the complaint
must be taken as true on a motion to dismiss and because a
charge may be recorded on an official EEOC charge form after it
has been filed, the court will consider April 15, 2015, to be
the date of Plaintiff’s EEOC filing for the purposes of this
The complaint does not include specific dates, but
Plaintiff alleges that Ms. Moran was hired at the beginning of
the 2014-2015 school year and that Ms. Williams left Defendant’s
employ at some point during that school year.
(ECF No. 1-2, at
plaintiffs, these incidents appear to have occurred after June
Plaintiff has sufficiently alleged that the alleged
discrimination took place within the 300 day statutory period.
Failure to State a Claim
Defendant also argues that Plaintiff fails to state a claim
purports to state a Title VII claim, Plaintiff “was required to
created by that statute” – that is, that Defendant “‘fail[ed] or
refus[ed] to hire’ her ‘because of [her] race . . . [or] sex.’”
McCleary-Evans v. Md. Dep’t of Transp., State Highway Admin.,
(quoting 42 U.S.C. § 2000e–2(a)(1)).8
involve her and cannot be the basis for a Title VII claim.
Williams is not a party to this action, and her alleged decision
irrelevant to Plaintiff’s claim of employment discrimination.9
discussed efforts to increase teacher diversity is also not a
discriminatory action against Plaintiff.
Defendant argues that the complaint should be measured
against the McDonnell Douglas evidentiary standard, but “the
ordinary rules for assessing the sufficiency of a complaint
apply” here; “an employment discrimination plaintiff need not
plead a prima facie case of discrimination . . . to survive [a]
motion to dismiss.”
McCleary-Evans, 780 F.3d at 584-85
(alterations in original) (quoting Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 511, 515 (2002)).
Plaintiff alleges in her complaint that she “know[s] Ms.
Williams would have preferred to teach provisionally with
[Defendant],” but admits that she does not know the “specifics
about Ms. Williams’ efforts to get hired by [Defendant].” (ECF
No. 1-2, at 2).
Plaintiff styled her complaint as a class
action, but she essentially concedes that the complaint’s class
action allegations are insufficient.
(See ECF No. 9-1, at 2).
Moreover, an individual is not permitted to bring a class action
complaint unless she is represented by counsel.
Circuit has consistently held that “this circuit does not
certify a class where a pro se litigant will act as
representative of that class.”
Fowler v. Lee, 18 F.App’x 164,
165 (4th Cir. 2001) (citing Oxendine v. Williams, 509 F.2d 1405,
1407 (4th Cir. 1975)).
The final incident alleged in the complaint is Defendant’s
hiring of Ms. Moran, a white woman, as a provisional teacher,
for the 2014-2015 school year.10
Plaintiff alleges that she
“could have been hired to teach in the same position that Ms.
discriminate against [her] because of [her] race,” and that she
“was denied jobs as a teacher because of [her] race (AfricanAmerican)[.]”
(ECF No. 1-2, at 2-3).
She states, “I know that
if I were White, [Defendant] would have already hired me to
teach a long time ago.”
(Id. at 3).
failed to hire her because of her race.
Plaintiff makes broad,
conclusory allegations that she was not hired because of her
See McCleary–Evans, 780 F.3d at 585–86 (affirming
dismissal of a failure to hire claim where plaintiff merely
alleged that defendant did not hire her because its decision
Defendant argues that Ms. Moran was not hired as a
provisional teacher and attaches her professional eligibility
certificate to its motion to dismiss.
(ECF No. 5-3).
Ordinarily, a court cannot consider matters outside the
pleadings or resolve factual disputes when ruling on a Rule
12(b)(6) motion. See Bosiger v. U.S. Airways, 510 F.3d 442, 450
(4th Cir. 2007).
The court does not agree with Defendant that
this document is integral to the complaint, and will exclude it
from consideration rather than convert this motion to one for
makers were biased and had predetermined that they would select
white candidates to fill the positions).
Moreover, Plaintiff has failed to allege that she applied
for any open position for which she was qualified; indeed, she
failed to allege that she applied for any position at all during
the 300 day statutory period.
Plaintiff explains in her letter
to the EEOC that, “due to [her] active lawsuit against them,”
she believes Defendant knew she was “still interested in being
hired by them to teach provisionally, and that each time they
hire a White provisional teacher . . . then that new hire counts
as a new incident of disparate treatment, racial discrimination
in the hiring process against [her.]”
(Id. at 2).
Plaintiff argues that her time in court with
the defendant on the prior charge is/was her
“open application” for any relevant teaching
position that was available during that
The fact that plaintiff has been in
litigation with the defendant from the
initial filing of the prior complaint with
EEOC in March 2010, up to today, means that
the plaintiff is interested in filling a
teaching position with the defendant since
plaintiff is actively seeking judgment in
(ECF No. 9-1, at 2-3).11
A pending employment discrimination
lawsuit is not an “open application” for employment.
to allege that she applied for a position with Defendant or
attempted to obtain a CDC for a specific position during the
relevant time period, Plaintiff has not pleaded sufficient facts
to state a claim for failure to hire.
Defendant could not have
discriminated against Plaintiff by hiring a different candidate
for a position to which Plaintiff did not apply.
fails to state a plausible claim for relief, and accordingly,
Defendant’s motion to dismiss will be granted.
The current complaint is ambiguous, to say the least, and
does not state a plausible employment discrimination claim.
discussed above, Plaintiff cannot state a new claim regarding
the specific events at issue in her prior case or on the theory
that Defendant’s failure to hire her as a provisional teacher
constitutes “on-going discrimination.”
Those claims have been
Although Plaintiff does not contend that she applied for
the position Ms. Moran was hired to or identify any other
specific application made during the relevant time period, she
does state generally in her opposition to the motion that she
has “periodically searched the defendant’s jobs database, and
applied for positions, even up through and beyond September
(ECF No. 9-1, at 2).
“[I]t is axiomatic that the
complaint may not be amended by the briefs in opposition to a
motion to dismiss.”
Mylan Labs., Inc. v. Akzo, N.V., 770
F.Supp. 1053, 1068 (D.Md. 1991) (quoting Car Carriers, Inc. v.
Ford Motor Co., 745 F.2d 1101 (7th Cir. 1984)); see Zachair Ltd.
v. Driggs, 965 F.Supp. 741, 748 n.4 (D.Md. 1997) (stating that
the plaintiff “is bound by the allegations contained in its
complaint and cannot, through the use of motion briefs, amend
the complaint”), aff’d, 141 F.3d 1162 (4th Cir. 1998).
resolved against her.
She also cannot bring a class action
complaint must allege facts that plausibly support a Title VII
claim of discrimination without relying on the proceedings in
If Plaintiff can allege in good faith that, after June
19, 2014, she was qualified for the position to which Ms. Moran
was hired; applied for or was prevented from applying for that
position; and was not hired to that position because of her
race, and if she still wishes to proceed on a Title VII claim
against Defendant for failure to hire her as a Special Education
teacher at Bethesda-Chevy Chase High School for the 2014-2015
school year, she may file an amended complaint within twenty-one
For the foregoing reasons, the motion to dismiss filed by
Defendant will be granted.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
Although the court does not consider Defendant’s evidence
regarding Ms. Moran’s professional certification here, it
appears that Plaintiff may now be satisfied that Ms. Moran was
hired as a certified teacher and is not a comparator. (See ECF
No. 9-1, at 2).
If Plaintiff concedes that Ms. Moran was
certified, it may be impossible for Plaintiff to state a claim
as to that particular position, and Plaintiff may choose not to
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