Pugh v. Board of Education Montgomery County, MD
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
Civil Action No. DKC 16-3816
BOARD OF EDUCATION MONTGOMERY
employment discrimination case are a motion to dismiss filed by
(“Defendant”) (ECF No. 18), and motions for summary judgment, to
(“Plaintiff”) (ECF Nos. 21; 29; 30).
Local Rule 105.6.
The issues have been fully
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.
A more complete recitation of Plaintiff’s allegations can
Defendant’s motion to dismiss Plaintiff’s initial complaint (ECF
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
(ECF No. 11, at 14).
As the court explained:
allegations that she was not hired because
of her race, but she has alleged no facts in
support of those conclusions. . . .
allege that she applied for any open
indeed, she failed to allege that she
applied for any position at all during the
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
[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.
fails to state a plausible claim for relief,
dismiss will be granted.
A CDC is a temporary two-year provisional status for
professional certification. (ECF No. 11, at 2 n.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
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
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.
(Id. at 17).
Complaint” (ECF No. 13), and a motion for reconsideration of the
dismissal of her class action request (ECF No. 14).
On May 5,
dismissed the “amended complaint” without prejudice.
The court explained that Plaintiff’s filing was not in
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
largely consists of conclusory statements
without further factual enhancement.
(Id. at 4).
Plaintiff was “provided one final opportunity to
fourteen (14) days.”
(Id. at 3).
Plaintiff filed her second amended complaint on May 22.
(ECF No. 17).
Defendant filed the pending motion to dismiss on
opposition on June 23 (ECF No. 21), and Defendant replied (ECF
Without leave of court, Plaintiff filed a surreply on
(ECF No. 27).
Plaintiff also filed a separate motion
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
Plaintiff’s motions to strike and for sanctions (ECF No. 31),
and Plaintiff replied (ECF No. 32).
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
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.”
“Rule 8(a)(2) still requires a ‘showing,’ rather than
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
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
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, 193 (4th Cir. 2009).
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).
Pro se pleadings are construed liberally 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
complaint on the grounds that she has not stated a viable Title
Defendant’s failure to hire her or grant her a CDC in 2008 and
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
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
special education because of her race in 2008 and 2009.
Nos. 17, at 3, 6-10, 16; 17-19; 17-21; 20, at 2).
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.
The court granted summary judgment in Defendant’s favor
on Plaintiff’s Title VII claim related to Defendant’s alleged
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.).
qualifications for a CDC.
Pugh I, at *6.
The record in
Most glaringly, Plaintiff did not
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.
“showing that [P]laintiff is allowed up to two years to complete
requirements,” “prove[s] that [P]laintiff is now eligible for
rejection email in September 2009.”
(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
Defendant could not have discriminated against Plaintiff
by hiring a different candidate for a position for which she was
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.
DEBORAH K. CHASANOW
United States District Judge
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