Pugh v. Board of Education Montgomery County, MD
Filing
33
MEMORANDUM OPINION (c/m to Plaintiff 12/6/17 sat). Signed by Judge Deborah K. Chasanow on 12/6/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
ADRIAN D. PUGH
:
v.
:
Civil Action No. DKC 16-3816
:
BOARD OF EDUCATION MONTGOMERY
COUNTY, MARYLAND
:
MEMORANDUM OPINION
Presently
pending
and
ready
for
resolution
in
this
employment discrimination case are a motion to dismiss filed by
Defendant
Board
of
Education,
Montgomery
County,
Maryland
(“Defendant”) (ECF No. 18), and motions for summary judgment, to
strike,
and
for
sanctions
filed
by
(“Plaintiff”) (ECF Nos. 21; 29; 30).
briefed,
and
necessary.
the
court
now
Local Rule 105.6.
rules,
Plaintiff
Adrian
Pugh
The issues have been fully
no
hearing
being
deemed
For the following reasons, the
motion to dismiss will be granted, and the motions for summary
judgment, to strike, and for sanctions will be denied as moot.
I.
Background
A more complete recitation of Plaintiff’s allegations can
be
found
in
the
court’s
prior
memorandum
opinion
granting
Defendant’s motion to dismiss Plaintiff’s initial complaint (ECF
No. 11).
Defendant’s prior motion to dismiss for failure to
state a claim was granted because Plaintiff had not alleged
sufficiently that Defendant failed to hire her because of her
race.
(ECF No. 11, at 14).
As the court explained:
Plaintiff
makes
broad,
conclusory
allegations that she was not hired because
of her race, but she has alleged no facts in
support of those conclusions. . . .
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.]” ([ECF
No. 1-2] at 2). . . . A pending employment
discrimination lawsuit is not an “open
application” for employment.
By failing to
allege that she applied for a position with
Defendant
or
attempted
to
obtain
a
[1]
[Conditional Degree Certificate (“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.
The complaint
fails to state a plausible claim for relief,
and
accordingly,
Defendant’s
motion
to
dismiss will be granted.
1
A CDC is a temporary two-year provisional status for
otherwise
uncertified
teachers
who
are
pursuing
their
professional certification. (ECF No. 11, at 2 n.2).
2
(ECF No. 11, at 14-16).
Plaintiff was instructed that, “if she
still wishe[d] 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,”
and if she could “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,” then she would be permitted to file an amended complaint
within twenty-one days.
On
May
3,
(Id. at 17).
Plaintiff
filed
a
document
titled
“Amended
Complaint” (ECF No. 13), and a motion for reconsideration of the
dismissal of her class action request (ECF No. 14).
the
court
denied
Plaintiff’s
motion
for
On May 5,
reconsideration
dismissed the “amended complaint” without prejudice.
15-1).
the
and
(ECF No.
The court explained that Plaintiff’s filing was not in
form
of
a
complaint
against Defendant.
and
did
not
plead
new
allegations
As the court noted:
[T]he “amended complaint” is devoid of
details establishing that she was qualified
for the position or that she was not hired
to the position because of her race.
Plaintiff has not included specific dates or
any
particularized
context
for
her
allegations.
The
“amended
complaint”
largely consists of conclusory statements
without further factual enhancement.
3
(Id. at 4).
file
an
Plaintiff was “provided one final opportunity to
amended
complaint
fourteen (14) days.”
in
proper
form
within
the
next
(Id. at 3).
Plaintiff filed her second amended complaint on May 22.
(ECF No. 17).
Defendant filed the pending motion to dismiss on
June
No.
5
(ECF
18),
Plaintiff
submitted
a
response
in
opposition on June 23 (ECF No. 21), and Defendant replied (ECF
No. 25).
Without leave of court, Plaintiff filed a surreply on
July 31.
(ECF No. 27).
for
summary
judgment
Plaintiff also filed a separate motion
(ECF
No.
21),
Defendant
submitted
a
response in opposition on July 19 (ECF No. 26), and Plaintiff
replied on July 31 (ECF No. 28).
On August 18, Plaintiff filed
a motion to strike (ECF No. 29), and a motion for sanctions (ECF
No.
30).
Defendant
submitted
a
response
in
opposition
to
Plaintiff’s motions to strike and for sanctions (ECF No. 31),
and Plaintiff replied (ECF No. 32).
II.
Standard of Review
The purpose of a motion to dismiss under Rule 12(b)(6) is
to test the sufficiency of the complaint.
Charlottesville,
464
F.3d
480,
483
(4th
Presley v. City of
Cir.
2006).
A
plaintiff’s complaint need only satisfy the standard of Rule
8(a), which requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
8(a)(2).
Fed.R.Civ.P.
“Rule 8(a)(2) still requires a ‘showing,’ rather than
4
a blanket assertion, of entitlement to relief.”
v. Twombly, 550 U.S. 544, 555 n.3 (2007).
Bell Atl. Corp.
That showing must
consist of more than “a formulaic recitation of the elements of
a cause of action” or “naked assertion[s] devoid of further
factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citations omitted).
At this stage, all well-pleaded allegations in a complaint
must be considered as true, Albright v. Oliver, 510 U.S. 266,
268 (1994), and all factual allegations must be construed in the
light
most
favorable
to
the
plaintiff,
see
Harrison
v.
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
allegations
not
need
be
accepted.
Revene
Comm’rs, 882 F.2d 870, 873 (4th Cir. 1989).
v.
Charles
Cty.
Legal conclusions
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,
604
F.2d
844,
847
(4th
Cir.
1979);
see
also
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009).
Francis
v.
Ultimately, a
complaint must “‘permit[ ] the court to infer more than the mere
possibility of misconduct’ based upon ‘its judicial experience
and common sense.’”
Coleman v. Md. Court of Appeals, 626 F.3d
187, 190 (4th Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
5
Pro se pleadings are construed liberally and held to a less
stringent standard than pleadings drafted by lawyers.
Erickson
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
(1972).
Liberal construction means that the court will read the
pleadings
to
state
a
valid
claim
to
the
extent
that
it
is
possible to do so from the facts available; it does not mean
that the court should rewrite the complaint to include claims
never presented.
Cir. 1999).
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
claim
for
relief.”
(citation
and
internal
quotation
marks
omitted)).
III. Analysis
Defendant
moves
to
dismiss
Plaintiff’s
second
amended
complaint on the grounds that she has not stated a viable Title
VII
claim
and
her
claims
of
alleged
discrimination
for
Defendant’s failure to hire her or grant her a CDC in 2008 and
2009
are
barred
by
res
judicata.
6
(ECF
No.
18-1,
at
8).
Defendant is correct and Plaintiff’s second amended complaint
will be dismissed with prejudice.
To state a claim for discriminatory failure to hire based
on race, Plaintiff must plead that: (1) she is a member of a
protected class; (2) the employer had an open position for which
she applied (or was prevented from applying for); (3) she was
qualified for the position; and (4) she was rejected for the
position
under
circumstances
unlawful discrimination.
giving
rise
to
an
inference
of
Brown v. McLean, 159 F.3d 898, 902 (4th
Cir. 1998) (citations omitted); see Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 n.6. (1981).
Plaintiff argues that she was prevented from applying to
the position as a Special Education teacher at Bethesda-Chevy
Chase
High
Defendant
School
improperly
for
the
denied
2014-2015
her
request
school
year
for
CDC
a
because
to
teach
special education because of her race in 2008 and 2009.
(ECF
Nos. 17, at 3, 6-10, 16; 17-19; 17-21; 20, at 2).
Plaintiff
does not allege that she later requested a CDC from Defendant
and states that since Defendant’s rejections were based on her
“lack of education and experience,” and “[her] education and
experience situation had not changed,” it was reasonable for her
to expect that any further CDC requests would be denied.
at 8).
(Id.
The court granted summary judgment in Defendant’s favor
on Plaintiff’s Title VII claim related to Defendant’s alleged
7
failure to hire Plaintiff or grant her a CDC in 2008 and 2009 in
Pugh v. Montgomery Cty. Bd. of Educ. (Pugh I), No. DKC 13-2862,
2016 WL 560793, at *5 (D.Md. Feb. 12, 2016), aff’d per curiam,
667 F.App’x 398 (4th Cir. 2016) (mem.), cert. denied, No. 166580, 2017 WL 737856 (U.S. Feb. 27, 2017) (mem.).
Pugh
I
showed
that
Plaintiff
qualifications for a CDC.
obtain
three
Pugh I, at *6.
references
“did
not
meet
The record in
Defendant’s
Most glaringly, Plaintiff did not
with
ratings
of
‘highly
effective.’”
As previously held, “[t]here is no question that
any attempt to relitigate Pugh I is barred by res judicata.”
(ECF No. 11, at 9).
Therefore, Plaintiff was not prevented from
applying for the position because of her race.
Plaintiff
states
that
an
attachment
of
her
current
CDC
“showing that [P]laintiff is allowed up to two years to complete
requirements,” “prove[s] that [P]laintiff is now eligible for
CDC
for
the
state
eligible
for
CDC
at
of
Maryland,
the
time
of
rejection email in September 2009.”
but
the
also,
[P]laintiff
[D]efendant’s
was
written
(ECF Nos. 17, at 7; 17-20).
Plaintiff’s CDC is valid from 2016 through 2018 and Plaintiff
still has not alleged that she met the qualifications for a
special
year.
education
teacher
position
for
the
2014-2015
school
Defendant could not have discriminated against Plaintiff
by hiring a different candidate for a position for which she was
not qualified.
8
IV.
Conclusion
Plaintiff’s
plausible
Thus,
second
claim
for
Defendant’s
Plaintiff’s
prejudice.
second
amended
relief
motion
amended
Plaintiff’s
complaint
despite
to
repeated
dismiss
complaint
motion
for
fails
will
will
summary
be
be
to
state
a
opportunities.
granted,
dismissed
judgment
and
with
will
be
denied as moot, and accordingly, Plaintiff’s motion to strike
Defendant’s affidavit attached to its opposition to her motion
for summary judgment and Plaintiff’s motion to impose sanctions
against Defendant for submitting the affidavit are also moot.
separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
9
A
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