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