MEMORANDUM OPINION
Kristy Lynn Murphy-Taylor and her husband, Donald Taylor, plaintiffs, have sued five defendants, alleging employment discrimination on the basis of sex, under Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §§ 2000e et seq., as well as violations of the federal and Maryland state constitutions and tort claims under Maryland common law.
On the basis of these allegations, plaintiffs assert nine counts: a claim of violation of the federal constitutional right to due process, along with claims of failure to train and supervise, pursuant to 42 U.S.C. § 1983 (Count I); deprivation of constitutional rights and privileges, also under § 1983 (Count II); conspiracy to deprive Ms. Murphy-Taylor of the equal protection of the law, again under § 1983 (Count III); violation of Title VII (Count IV); civil conspiracy under Maryland law (Count V); abusive discharge under Maryland law (Count VI); violation of Article 24 of the Maryland Declaration of Rights (Count VII); negligence (Count VIII); and loss of consortium (Count IX).
After plaintiffs filed suit, the United States moved to intervene as a plaintiff, pursuant to 42 U.S.C. § 2000e-5(f)(l), in order to assert Title VTI claims against the State, the County, and Sheriff Hofmann in his official capacity. See ECF 36.
Three motions to dismiss are now pending. Specifically, before the United States intervened, the County had filed a motion to dismiss plaintiffs’ claims against it (“County Motion”) (ECF 24). In conjunction with the intervention of the United States, I advised the parties that I would consider the County Motion as direсted to the United States’ complaint as well as plaintiffs’ complaint, and permitted further briefing of the motion. See ECF 38. Sheriff Hofmann, Major Williams, and the State (collectively, the “State Defendants”) have filed two motions: one to dismiss plaintiffs’ complaint (“State-Plaintiffs Motion”) (ECF 43), and the other to dismiss the United States’ complaint (“State-US Motion”) (ECF 59).
In the course of the briefing of the pending motions, plaintiffs conceded that “all claims against the Office of the Sheriff of Queen Anne’s County should be dismissed because this entity is not legally distinct from the State of Maryland itself.” ECF 48 at 1. Therefore, they voluntarily dismissed their claims against the Sheriffs Office. See ECF 53 & 54. And, plaintiffs did not oppose dismissal of their State law claims against the County. See ECF 28 at 1 n. I.
The motions have been fully briefed,
Factual Background
Ms. Murphy-Taylor was hired as a deputy sheriff by the Queen Anne’s County Sheriffs Office in 1999.
Shortly after Ms. Murphy-Taylor’s initial assignment to the CID in June 2005, Captain Benton made several remarks to her that were derogatory to women. For example, on one occasion, in regard to the first search warrant that Ms. Murphy-Taylor had served, Captain Benton remarked to her that it was “ ‘the first search warrant a female has ever written and probably will be the last.’ ” Id. ¶ 17. In or around September 2005, Ms. Murphy-Taylor complained to the Queen Anne’s County Human Resources Department (“HRD”) about Captain Benton’s remarks. Representatives of the HRD told her that nothing could be done about the comments because Captain Benton served in an appointed position. See id. ¶ 18.
Beginning in November 2006, Hofmann repeatedly attempted to touch Ms. Murphy-Taylor’s breasts, either in the CID offices or in Sheriffs Office vehicles. Id. ¶ 19. In or around June 2007, Hofmann sexually assaulted Ms. Murphy-Taylor in a hotel room while they were attending an off-site training course as part of their job duties. Id. ¶ 20. In or around August 2007, Ms. Murphy-Taylor complained to the Sheriff about the sexual assault at the training course as well as numerous other sexual assaults committed by Hofmann. Id. ¶ 21. However, the Sheriff did not investigate Ms. Murphy-Taylor’s complaint or take any corrective action to prevent further assaults, and Hofmann continued to work closely with Ms. Murphy-Taylor and to sexually harass her. Id. ¶¶ 22-23. Hofmann was subsequently promoted by the Sheriff. Id. ¶ 22.
On or about August 25, 2009, Ms. Murphy-Taylor and Hofmann were riding together in the same Sheriffs Office vehicle, on official business, returning from a court hearing in Cecil County, Maryland. See id. ¶ 23; Amended Complaint ¶ 16. Hofmann was driving the vehicle and Ms. Murphy-Taylor was in the front passenger seat. Amended Complaint ¶ 17. While Hofmann was operating the vehicle, he reached over with his right hand and forcefully put it down the front of Ms. Murphy-Taylor’s pants, touching her vaginal area. Id. He also put his right hand inside Ms. Murphy-Taylor’s blouse and touched her right breast. Id. ¶ 18. Ms. Murphy-Taylor told Hofmann to stop and tried to push his hand away, but he overpowered her, continued to touch her right breast, and attempted to touch her left breast. Id. ¶¶ 19, 20. Ms. Murphy-Taylor again told Hofmann to stop and that she was not feeling well. Id. ¶ 21.
On several occasions in November 2009, Lieutenant Patrick and Detective Stouffer made derogatory and sexually explicit comments about Ms. Murphy-Taylor and another female detective, insinuating that Ms. Murphy-Taylor and the other detective had sex at an off-site training that they both attended. See U.S. Complaint ¶¶ 24-26. On or about November 18, 2009, Ms. Murphy-Taylor met with then-Captain Williams
While Ms. Murphy-Taylor’s complaints were investigated, she continued to work closely with and was supervised by Hofmann, Lieutenant Patrick, and Detective Stouffer. Id. ¶ 31. On April 8, 2010, Ms. Murphy-Taylor complained to Major Williams about continued contact with Hofmann during the investigation, despite her request not to have contact with him. Id. ¶ 33. No action was taken in response to this complaint. Id. Then, in December 2009, Detective Stouffer was promoted to corporal. Id. ¶ 29.
The Sheriff and Sheriffs Office management substantiated Ms. Murphy-Taylor’s complaints against Hofmann, Lieutenant Patrick, and Corporal Stouffer. Id. ¶ 32, 33. Nevertheless, the Sheriffs Office retained them in their positions and continued to allow them to supervise Ms. Murphy-Taylor. Id. ¶ 33. In addition, between December 2009 and July 2010, Ms. Murphy-Taylor “was subjectеd to numerous other acts of reprisal by the Sheriff and management officials with the Sheriffs Office.” Id. ¶ 34. For example, she was singled out to receive an undesirable assignment in severe weather; faced disparate treatment in working conditions, such as having a “no personal items at work” policy enforced against her that was not enforced against other CID officers; received a negative performance evaluation on July 20, 2010; and received unjustified criticism of her investigative report writing. Id. She was also subjected to rumors by the Sheriff and senior management in the Sheriffs Office that she had filed sexual harassment complaints against Hofmann because Hofmann had broken off a consensual affair with her and she was a “jilted lover,” id., notwithstanding that the Sheriff and his management had substantiated Ms. Murphy-Taylor’s sexual harassment complaints against Hofmann. Id.
On or about February 15, 2010, Ms. Murphy-Taylor filed a charge of discrimination with the EEOC, which was assigned Charge No. 531-2010-00776C. See Feb. 2010 Charge of Discrimination, Ex. 3 to County-Plaintiffs Reply (ECF 37-1).
On May 25, 2010, Ms. Murphy-Taylor and Mr. Taylor were married. See State-Plaintiffs Motion at 21.
On or about August 25, 2010, Hofmann was arrested and charged with second-degree assault and a fourth-degree sexual offense, in a case styled State of Maryland v. John Dennis Hofmann, No. 07-K-10-001955, in the Circuit Court for Cecil County, in connection with his assault of Ms. Murphy-Taylor a year earlier, in August 2009, and other incidents in which he had assaulted Ms. Murphy-Taylor. Amended Complaint ¶ 23. On May 12, 2011, Mr. Hofmann pleaded guilty to second-degree assault in that proceeding. US Complaint ¶ 36; see also Tr. of Plea Hrg. of May 12, 2011, Ex. 3 to State-US Opposition (ECF 64-3).
One day later, on May 13, 2011, Ms. Murphy-Taylor received a letter from the Sheriffs Office informing her that her employment was terminated, ostensibly because she had exhausted her leave time.
During a workers’ compensation hearing for Ms. Murphy-Taylor on August 3, 2011, the Sheriff offered Ms. Murphy-Taylor the option to return to work at the Sheriffs Office. However, this offer entailed returning to work in a demoted position and under Hofmann’s supervision, without a guarantee of no contact with Hofmann. See U.S. Complaint ¶ 39; Amended Complaint ¶ 29. Ms. Murphy-Taylor declined the offer. Amended Complaint ¶ 29.
Despite Hofmann’s guilty plea to the second-degree assault of Ms. Murphy-Taylor, the Sheriff retained him in a supervisory position. US Complaint ¶ 40. In or
On or about April 3, 2012, Ms. Murphy-Taylor filed with the EEOC a supplemental charge of discrimination so as to amend Charge No. 531-2020-00776C to assert additional allegations of retaliation. See April 2012 Supplemental Charge of Discrimination, Ex. 4 to County-Plaintiffs Reply (ECF 37-2).
Plaintiffs filed their original complaint in this Court on August 23, 2012. See ECF 1. On December 10, 2012, the EEOC issued a Right-to-Sue Letter to Ms. Murphy-Taylor. See Right-to-Sue Letter, Ex. 2 to County Motion (ECF 24-4). Plaintiffs filed their Amended Complaint two days later, on December 12, 2012. The only substantive change between the Amended Complaint and the original Complaint was the addition of the County as a named defendant.
Additional facts will be included in the Discussion.
Discussion
A. Standard of Review
The defendants’ motions are premised in part on Fed.R.Civ.P. 12(b)(6), which governs dismissal for failure to state a claim, and in part on Fed.R.Civ.P. 12(b)(1), which pertains to dismissal for lack of subject matter jurisdiction.
A Rule 12(b)(6) motion constitutes an assertion by the defendant that, even if the facts alleged by the plaintiff are true, the complaint fails as a matter of law “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Whеther a complaint states a claim for relief is assessed by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). It provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the rule is to provide the defendant with “fair notice” of the claim and the “grounds” for entitlement to relief. Bell Atl. Corp. v. Twombly,
A plaintiff need not include “detailed factual allegations” in order to satisfy Rule 8(a)(2). Id. at 555,
Both Twombly,
In reviewing a Rule 12(b)(6) motion, a court “‘must accept as true all of the factual allegations contained in the complaint,’ ” and must “ ‘draw all reasonable inferences [from those facts] in favor of the plaintiff.’ ” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
“A court decides whether [the Rule 12(b)(6) ] standard is met by separating the legal conclusions from the factual allegations, assuming the truth of only the factual allegations, and then determining whether those allegations allow the court to reasonably infer” that the plaintiff is entitled to the legal remedy he or she seeks. A Society Without A Name v. Virginia, 655.F-3d 342, 346 (4th Cir.2011), cert. denied, — U.S.—,
A motion pursuant to Rule 12(b)(6) typically “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses,” Edwards v. City of Goldsboro,
The jurisdictional issues that must be resolved under Fed.R.Civ.P. 12(b)(1) are those concerning whether plaintiffs adequately exhausted their Title VII claims with the EEOC before filing suit. Fourth Circuit precedent indicates that failure to exhaust administrative remedies under Title VII should be addressed by way of a motion to dismiss for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1). See Balas v. Huntington Ingalls Indus., Inc.,
A test of subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of tyro ways”: either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting “ ‘that the jurisdictional allegations of the complaint [are] not true,’ ” or that other facts, outside the four corners of the complaint, preclude the exercise of' subject matter jurisdiction. Kerns v. United States,
In a factual challenge to subject matter jurisdiction, “the plaintiff bears the burden of proving” that subject matter jurisdiction is satisfied “by a preponderance of the evidence.” United States ex rel. Vuyyuru v. Jadhav,
B. Title VII: Administrative Exhaustion and Timeliness
Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of sex, among other illegitimate considerations. Under Title VII, a “person aggrieved” by an alleged unlawful
In a deferral jurisdiction, the limitations period is 300 days; otherwise, the period is 180 days. See 42 U.S.C. § 2000e-5(e)(l); see also Prelich,
Once a charge is filed with the EEOC in a deferral jurisdiction, as in this case, the EEOC must refer the charge to the state or local enforcement agency in the jurisdiction, and ordinarily must “afford [the state or local agency] a reasonable time, but not less than sixty days ... to act under ... State or local law to remedy the practice alleged.” 42 U.S.C. § 2000e-5(d). Thereafter, the EEOC must notify the employer against whom the charge has been filed of the pendency of the charge and must investigate the charge to determine whether there is reasonable cause to believe that unlawful discrimination has occurred. See 42 U.S.C. § 2000e-5(b). If the EEOC makes a finding of reasonable cause, it must “endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” Id. The federal government (acting through the EEOC or, in a case such as this involving a respondent that is a “government, governmental agency, or political subdivision,” through the Justice Department) may initiate litigation if conciliation is unsuccessful. See 42 U.S.C. § 2000e-5(f)(l). On the other hand, if the EEOC does not find reasonable cause, it must dismiss the charge. See 42 U.S.C. § 2000e-5(b).
As the Fourth Circuit explained in Sydnor v. Fairfax County,
Rather than “a formality to be rushed through,” [the] exhaustion requirement is “an integral part of the Title VII enforcement scheme.” For one thing, requiring a party to file a charge with the EEOC “ensures that the employer is put on notice of the alleged violations,” thereby giving it a chance to address the alleged discrimination prior to litigation. This means that injured parties can often obtain relief far earlier than they would be able to in the courts, where “the ponderous pace of formal litigation” can force “victims of discrimination ... to wait while injustice persists.” For another, the requirement places the resolution of employment discrimination disputes initially in the hands of the EEOC. Allowing this agency the first*714 crack at these cases respects Congress’s intent “to use administrative conciliation as the primary means of handling claims, thereby encouraging quicker, less formal, and less expensive resolution of disputes.”
If the EEOC dismisses a charge of discrimination or if the federal government has neither filed suit against the respondent nor achieved a conciliation agreement within 180 days after either (1) the charge is filed or (2) the sixty day reference period in a deferral jurisdiction expires, whichever is later, the EEOC must give notice to the complainant of the complainant’s right to file suit. See 42 U.S.C. § 2000e-5(f)(1)- This notice is commonly called a “right-to-sue letter.” See, e.g., Laber v. Harvey,
In this case, plaintiffs alleged in their complaint that Ms. Murphy-Taylor filed her charge of discrimination on February 15, 2010, and that “[tjhis suit is proper because it has been more than 180 days and the EEOC has not yet issued a decision.” Amended Complaint ¶ 14. As noted, plaintiffs filed their original complaint on August 23, 2012. It is undisputed that the EEOC did not issue a right-to-sue letter to Ms. Murphy-Taylor until December 10, 2012.
The County and the State Defendants argue that the Court lacks jurisdiction over plaintiffs’ Title VII claims because plaintiffs filed suit before a right-to-sue letter was issued.
As indicated, after a claim of discrimination is filed in regard to a Title VII matter, the EEOC is directed to issue a right-to-sue letter in a deferral jurisdiction within, at the latest, 180 days plus the sixty-day deferral period (ie., 240 days), if the EEOC does not earlier dismiss the claim for lack of probable cause, achieve a conciliation agreement, or initiate litigation. Beсause well over 240 days (indeed, 920 days) elapsed between February 15, 2010, when Ms. Murphy-Taylor filed her claim of discrimination, and August 25, 2012, when plaintiffs filed suit, she reasons that she was entitled to receive a right-to-sue letter and therefore was entitled to sue, despite the fact that an actual right-to-sue letter had not yet been issued.
Governing Fourth Circuit law forecloses defendants’ position. In Perdue v. Roy Stone Transfer Corp.,
Section 2000e — 5(f)(1) requires EEOC to issue a “right to sue” notice if, within 180 days after a charge is brought, the Commission has neither filed suit in its own name nor achieved a private settlement. Thus, a charging party is entitled to such notice if the appropriate conditions exist. The Commission’s failure actually to issue the notice cannot defeat the complainant’s statutory right to sue in the district court, for ‘(a) Title VII complainant is not charged with the commission’s failure to perform its statutory duties’.... Nothing in [Supreme Court case law] precludes this rule, which is simply an application of the maxim that equity regards as done that which ought to have been done.
Perdue,
To be sure, some subsequent decisions have, in passing, described receipt of a right-to-sue letter as a prerequisite to suit. See, e.g., Puryear v. County of Roanoke,
The State Defendants next contend that the claims of retaliatory termination and retaliatory constructive discharge asserted both by plaintiffs, as a component of their Title VII count, and by the United States, in Counts III and IV of its complaint, were not administratively exhausted with the EEOC. The State Defendants’ argument is that the retaliation claims were not asserted in Ms. Murphy-Taylor’s original Charge of Discrimination, filed on February 15, 2010.
“The scope of the plaintiffs right to file a federal lawsuit [under Title VII] is determined by the ... contents” of the charges filed by the plaintiff with the EEOC or corresponding state agency during the process of exhaustion. Jones, supra,
Of course, there is a good reason that these retaliation claims were not asserted in the February 2010 charge: the facts giving rise to the retaliation claims had not yet come to pass. As to the retaliatory termination claims, plaintiffs employment was not terminated until May 2011, over a year after the original Charge of Discrimination was filed. As to constructive discharge, in order “[t]o establish constructive discharge, a plaintiff must be able to show that [her] former employer ‘deliberately made an employee’s working conditions intolerable, and thereby forced [her] to quit.’ ” James v. Booz-Allen & Hamilton, Inc.,
The State Defendants acknowledge that Ms. Murphy-Taylor asserted her retaliation claims in her supplemental charge of discrimination, filed with the EEOC on April 3, 2012. However, they argue that the supplemental charge was untimely because it was filed more than 300 days after the termination of Ms. Murphy-Taylor. Accordingly, the State Defendants reason that the claims are time-barred.
The State Defendants rely on National Railroad Passenger Corp. v. Morgan,
Second, even if Ms. Murphy-Taylor had not filed the supplemental charge, binding circuit precedent indicates that her original charge would have been sufficient, for exhaustion purposes, as to claims of subsequent retaliatory termination and constructive discharge. In Jones, supra,
In Jones, the plaintiff filed an EEOC charge claiming that, in retaliation for filing an earlier EEOC charge that had been resolved by conciliation, she was being “ ‘forced to work in a hostile environment and subjected to differential treatment’ ” by her employer. Id. at 299 (quoting charge). The EEOC issued the plaintiff a right-to-sue letter. Id. Between the date that the right-tо-sue letter was issued and the date that the plaintiff sued in federal court, she was fired by her employer. Id. In the federal suit that followed, plaintiff alleged that her employer had discharged her in further retaliation for her EEOC charges. Id. Despite the fact that the retaliatory discharge claim had not been asserted and, indeed, could not have been asserted in the plaintiffs EEOC charge, the Fourth Circuit held that the retaliatory
So too here. In her original charge of discrimination, Ms. Murphy-Taylor marked the box indicating that she was complaining of retaliation for engaging in protected activity, and also checked the box for discrimination on the basis of sex. See Feb. 2010 Charge of Discrimination at 1. Moreover, in Paragraph 13 of the charge, she alleged an act of “[c]ontinuing [r]etaliation” with respect to her complaints to Sheriffs Office management regarding her sexual harassment and assault by other officers. Specifically, she asserted that she was singled out to receive an assignment of road patrol under snowy conditions, an assignment that “[n]o one else from a specialized division” received. Id. ¶ 13. As in Jones, defendants’ subsequent alleged further retaliation against Ms. Murphy-Taylor by terminating or constructively discharging her was the “predictable culmination” of the earlier alleged course of discriminatory and retaliatory conduct. Jones,
Jones is an example of the general principle that an EEOC charge “ ‘does not strictly limit a ... suit which may follow; rather, the scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination.’ ” Miles v. Dell, Inc.,
As a final challenge to plaintiffs’ administrative exhaustion of their claims, the County asserts that it was not named as a respondent in plaintiffs’ claim of discrimination and that there is no “substantial identity” between it and the Sheriff so as to support the filing of a civil action against a defendant not named in the plaintiffs EEOC charge. See County Motion at 19-22. Thus, the County maintains that plaintiffs did not administratively exhaust their claims with respect to the County, even if they did so with respect to other defendants.
This argument is dead on arrival, because plaintiffs’ original charge of discrimination in February 2010 clearly named “Queen Anne’s County, John P. Borders, Jr., County Manager” as a respondent to the charge, in addition to the “Queen Anne’s Co. Office of the Sheriff.” See Feb. 2010 Charge of Discrimination at 2. After plaintiffs pointed this out in their opposition to the County Motion, the County’s only rejoinder was to state, in reply, that “[c]onspicuous in its absence ... is any mention of the fact that when [Ms. Mur
Having addressed defendants’ arguments concerning the prerequisites to suit under Title VII, I turn to their arguments concerning the sufficiency of the complaints to state substantive claims for relief.
C. Title VII: State Defendants’ Liability
At the outset, the State Defendants correctly assert that the Individual Defendants are not subject to suit under Title VII in their individual capacities. See Lissau v. Southern Food Serv., Inc.,
Aside from their challenge to any individual-capacity claims, the State
First, the State Defendants argue that Counts III and IV do not plausibly plead causation. Under Title VII’s prohibition of retaliation, it is “an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a). In order to state a claim of retaliation under Title VII, “plaintiffs must allege (1) that they engaged in protected conduct, (2) that they suffered an adverse action, and (3) that a causal link exists between the protected conduct and the adverse action.” A Society Without A Name, supra,
With respect to the causation element, ordinarily there must be “some degree of temporal proximity to suggest a causal connection.” Constantine v. Rectors & Visitors of George Mason Univ.,
According to the State Defendants, the United States has failed to allege facts that plausibly suggest causation. As the State Defendants see it, “the latest action by Ms. Murphy-Taylor that could be construed as a protected activity is her April 8, 2010, complaint to Major Williams about continued contact with Dennis Hofmann,” which was “more than 11 months before the alleged retaliatory discharge.” State-US Motion at 7. Furthermore, “[i]f the protected activity in question is her filing of a charge of discrimination on February 15, 2010, then there is an even longer gap — 15 months — between her discharge and the protected activity.” Id. However, the State Defendants suggest that, because a “plaintiff cannot prove causation without showing that the decisionmaker actually had knowledge of the protected activity at the time the decisionmaker decided to take the adverse action,” Mezu v. Morgan State Univ.,
In my view, the United States has plausibly alleged a causal nexus between Ms. Murphy-Taylor’s protected complaints regarding sexual harassment and assault and both her alleged constructive discharge (when Ms. Murphy-Taylor went on medical leave in July 2010) and her actual termination (in May 2011). As to the constructive discharge claim, Ms. Murphy-Taylor engaged in a series of protected activities in the first half of 2010, including the filing of her charge of discrimination in February, and her complaint to Major Williams regarding continued contact with Hofmann in April. She alleges a host of retaliatory actions taken against her throughout this time period, culminating in a negative performance review on July 20, 2010, only two days before she went on medical leave.
As to plaintiff’s actual termination, the plausible inference of causation is stronger still. Ms. Murphy-Taylor was fired one
Moreover, I disagree with the State Defendants’ contention that the complaint does not permit the inference that the Sheriff knew of Ms. Murphy-Taylor’s protected activities after August 2007. Indeed, the opposite inference is far more readily drawn; it is hard to conceive that the Sheriff did not know of Ms. Murphy-Taylor’s subsequent protected complaints, given that she made them to members of his senior staff; that her EEOC charges were directed to the Office of the Sheriff; and that many of Ms. Murphy-Taylor’s complaints, and the most serious of them, concerned Hofmann, the Sheriffs own brother, and resulted in Hofmann’s criminal conviction. Especially in the context of a motion to dismiss, when all plausible inferences from the well-pleaded facts must be drawn in plaintiffs’ favor, there is no basis to conclude that the United States failed adequately to plead causation.
The State Defendants’ other two challenges pertain specifically to the United States’ claim of constructive discharge. The State Defendants argue that constructive discharge does not constitute an independent cause of action under Title VII, and that a constructive discharge claim is not viable if Ms. Murphy-Taylor was actually discharged.
“A constructive discharge involves both an employee’s decision to leave and precipitating conduct....” Pa. State Police v. Suders,
With regard to tolerability, courts look objectively at the working conditions. Matvia v. Bald Head Island Mgmt., Inc.,
If this case involved two counts based on exactly the same facts as each other, one labeled “retaliatory discharge” and the other labeled “retaliatory constructive discharge,” as was essentially the case in Reed, I might well agree with defendants that one of the two was redundant, and that a single count could serve as the vehicle for both theories of liability. See Reed,
Even if plaintiff had titled both Count III and Count IV as claims of “retaliatory discharge” under Title VII, both state separate, non-redundant claims for relief because the two counts rely on separate factual foundations. In this regard, White v. Honeywell, Inc.,
We arе not prepared to say that “quit” is the magic word in a constructive discharge instruction. A person who has suffered a forced unpaid medical leave of absence, from which she is unable to return and which resulted from objectively intolerable working conditions, is in no better position than one who was forced to quit as a result of objectively intolerable conditions. In either case, the employer has, through objectively intolerable conditions, forced the employee out of active service. We believe it is sufficient for a plaintiff to prove that an employer deliberately rendered working conditions intolerable and thus forced the employee to permanently “leave” the employment; the employee need not prove that she technically “quit” in every case.
Viewed in the light cast by White, the allegation that Ms. Murphy-Taylor
In sum, I reject the State Defendants’ challenges to the Title VII claims lodged by the United States.
D. Title VII: County Liability
The County disputes the viability of both plaintiffs’ and the United States’ Title VII claims against it on another substantive basis: the County contends that it was not Ms. Murphy-Taylor’s “employer” within the meaning of Title VII, and so it cannot be held liable for employment discrimination and employment-related retaliation against her.
“Identification of an ‘employer’ under Title VII is a question of federal law.” Carver v. Sheriff of LaSalle County,
Title VII defines an “employer” to include “a person engaged in an industry affecting commerce who has fifteen or more employees.” 42 U.S.C. § 2000e(b). Title VII’s statutory definition of a “person” includes, inter alia, “governments, governmental agencies, [and] political subdivisions.” Id. § 2000e(a). Circularly, the term “employee” is defined, with exceptions not relevant here, as “an individual employed by an employer.” Id. § 2000e(f). The statute leaves undefined the core concept of employment — what it means to “employ” someone. In light of this Congressional silence, the Supreme Court has prescribed a “uniform and predictable standard ... established as a matter of federal law,” Ellerth,
Plaintiffs and the United States contend that the Sheriff, the State, and the County were all “employers” of Ms. Murphy-Taylor, under a judicially-recognized “joint employer” doctrine, by which two or more separate entities may be considered employers of the same employee. The Fourth Circuit has recognized and applied a joint employer doctrine in other statutory contexts. See, e.g., Schultz v. Capital Int’l Sec., Inc.,
Nevertheless, the Fourth Circuit has applied a similar “integrated employer” doctrine, by which, under certain circumstances, a parent company and its subsidiary can be considered a single employer for purposes of Title VII liability. See Hukill v. Auto Care, Inc.,
Although there are various formulations of the test for joint employer or integrated employer status, the formulations all are directed at “analyzing the amount of control the alleged joint employer had over employees.” Moldenhauer v. Tazewell-Pekin Consol. Commc’ns Ctr.,
Albeit not in the context of a joint employer analysis, the Fourth Circuit has
In this case, the parties do not dispute the viability of the joint employer doctrine, as a matter of law. However, the County vigorously disputes whether it was Ms. Murphy-Taylor’s joint employer. Under Maryland’s Constitution, county sheriffs are independently elected constitutional officers. See MD. Const., Art. 4, § 44. As a matter of Maryland State law, it is well settled that, as a general rule, county sheriffs and their deputies are “officials and/or employees of the State of Maryland,” rather than their county. Rucker v. Harford, County,
However, the Maryland Court of Appeals has stated that, “for some purposes and in some contexts, a sheriff may ... be treated as a local government employee,” such as for issues involving “local funding of sheriffs offices” or a sheriffs entitlement to local government employee benefits. Rucker,
The County insists, nevertheless, that it cannot be considered Ms. Murphy’s joint employer as a matter of law. It relies upon decisions of this court that have held that a county was not liable for the conduct of sheriffs or their deputies under various civil rights statutes. See, e.g., Strickland v. Carroll County, Civ. No. ELH-11-622,
Plaintiffs and the United States argue that whether an entity is a plaintiffs “employer” for purposes of Title VII is a fact-bound question that is not appropriate for resolution as a pure matter of law, before discovery. The case law supports their position. Courts performing a joint employer analysis have stated that “the precise contours of an employment relationship can only be established by a careful factual inquiry.” Graves,
The degree of control exercised by thе County over employees of the Sheriffs Department is a factual issue that is not fully described by the applicable statutes and ordinances.
Accordingly, I will deny the County’s request for dismissal of the Title VII claims against it on the basis that it was not Ms. Murphy-Taylor’s “employer,”
E. § 1983 and Article 24:
Sheriff Hofmann and Major Williams
Plaintiffs assert claims against Sheriff Hofmann and Major Williams under 42 U.S.C. § 1988 and Article 24 of the Maryland Declaration of Rights.
Section 1988 establishes a cause of action against any “person” who, acting under color of state law, “subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” of the United States. It “ ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ” Albright v. Oliver,
Article 24 is Maryland’s constitutional analog to the Due Process Clause of the Fourteenth Amendment, and ordinarily is interpreted in pari materia with its federal counterpart. See, e.g., Doe v. Dept. of Pub. Safety and Corr. Servs.,
Courts have long recognized that “the fundamental requisite of due process of law is [notice and] the opportunity to be heard.” Grannis v. Ordean,
1. Deprivation of Property Interest in Continued Employment
In their first due process claim, plaintiffs argue that Ms. Murphy-Taylor had a property interest in continued employment with the Sheriff’s Office, of which she was deprived without due process of law when she was terminated “without just cause and without a pre-termination hearing as required by LEOBR.” Amended Complaint ¶ 37.
Whether a public employee has “a property interest in his employment is determined by reference to state law.” Carroll v. City of Westminster,
The State Defendants assert that plaintiffs’ claim is barred by Elliott v. Kupferman,
In response, plaintiffs do not quarrel with the assertion that LEOBR did not give Ms. Murphy-Taylor a property right in continued employment. However, they contend that Elliott is distinguishable because the officer in that case based his claim solely on LEOBR; the Elliott Court observed that he did not “allege any direct statutory or contractual entitlement to continued employment, as would be the case, for example, if [the officer] had been employed for a specific term of years or could be discharged only for specific cause.” Id. at 521,
The State Defendants protest that plaintiffs’ theory under C.J. § 2 — 309(s)(l)(iii)(2) was “never raised in a pleading,” State-Plaintiffs Reply at 3 n. 2, and was asserted for the first time in plaintiffs’ opposition to the State Defendants’ motion. The State Defendants are incorrect. In the relevant portion of their complaint, plaintiffs clearly alleged that Ms. Murphy-Taylor “was an appointed deputy sheriff pursuant to Md. Code, Courts & Judicial Proceedings § 2-309(s) whose reappointment could not be denied without just cause.” Amended Complaint ¶ 36. The State Defendants offer no other argument against plaintiffs’ claim, except to assert baldly, without
The Court’s research has not uncovered case law discussing the import of C.J. § 2-309(s)(l)(iii)(2) or comparable provisions (the subsections of C.J. § 2-309 concerning sheriffs’ deputies in several other counties contain similar provisions). In the absence of authority or analysis offered by the State Defendants, I conclude that they have not met their burden, as the moving parties, to demonstrate that plaintiffs have failed to state a claim upon which relief can be granted.
2. Deprivation of Liberty Interest in Reputation
Plaintiffs’ second due process claim is that “the liberty interest that [Ms. Murphy-Taylor] held in her good name, reputation, honor and integrity was violated without due process when Sheriff Hofmann, Major Williams, and Mr. Hofmann publicized untruths concerning her professional character and ensured that she could never be hired in a law enforcement capacity within the State of Mаryland.” Amended Complaint ¶ 47.
“[I]njury to reputation by itself [is] not a ‘liberty’ interest protected under the [Due Process Clause].” Siegert v. Gilley,
The State Defendants challenge this claim on the basis of the plausibility pleading standard announced in Iqbal and Twombly. According to the State Defendants, plaintiffs’ pleading provides no “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
Plaintiffs’ complaint alleges that the Individual Defendants made “spoken and written comments to other law enforcement agencies within the State of Maryland” that “adversely affected [Ms. Murphy-Taylor’s] reputation,” Amended Complaint ¶ 127, and that “following her termination, Sheriff Hoffman [sic] and Major Williams made repeated derogatory and offensive statements about Ms. Murphy-Taylor’s personal and professional character to members of Maryland’s law enforcement community in an effort to ensure that she would not be hired elsewhere.” Id. ¶ 28. However, plaintiffs have not provided any factual specifics regarding the content of these statements, to whom they were made, and when. In response to the State Defendants’ argument, plaintiff cites a particular statement that was recounted in Ms. Murphy-Taylor’s original charge of discrimination to the EEOC, which was attached to her complaint. However, the statement on which plaintiffs rely (an occasion in November 2009 on which Detective Stouffer insinuated that Ms. Murphy-Taylor had sexual relations with another female deputy) far predated her termination and was not made by any of the Individual Defendants. See State-Plaintiffs Opposition at 14-15.
In sum, plaintiffs have not articulated any specific allegations whatsoever with respect to the alleged communications to other law enforcement agencies in the wake of Ms. Murphy-Taylor’s termination. I agree with the State Defendants that plaintiffs’ conclusory pleading is insufficient to satisfy the Iqbal and Twombly standard. Plaintiffs’ “complaint has alleged — but it has not ‘show[n]’ — ‘that the pleader is entitled to relief.’” Iqbal,
Accordingly, plaintiffs’ claims in this regard will be dismissed, without prejudice. If plaintiffs are in possession of factual information that would permit them to craft an amended complaint restating this claim with sufficient specificity, or if they later acquire such information through discovery, they may move pursuant to Fed. R.Civ.P. 15 for leave to file an amended complaint.
3. Deprivation of Liberty Interest by Termination for Exercise of Right of Free Speech
Plaintiffs’ third due process claim is that “the liberty interest associated with Mrs. Murphy-Taylor’s employment was further violated because she was terminated in retribution for the exercise of her right to free speech, protected by the First Amendment of the United States Constitution,” Amended Complaint ¶48, and “by Art. 40 of the Maryland Declaration of Rights.” Id. ¶ 150. Article 40 of the Declaration of Rights is Maryland’s constitutional counterpart to the provisions for freedom of speech and freedom of the press contained in the First Amendment. The Maryland Court of Appeals has held that courts ordinarily “need not consider Article 40 and the First Amendment separately as Article 40 is read generally in pari materia with the First Amendment.” Nefedro v. Montgomery County,
The right of free speech, as guaranteed by the First Amendment, “includes not only the affirmative right to speak, but also the right to be free from retaliation by a public official for the exercise of that right.” Suarez Corp. Indus, v. McGrow,
A public employer contravenes a public employee’s First Amendment rights when it discharges or “refuses to rehire [the] employee,” or when it makes decisions relating to “promotion, transfer, recall, and hiring based on the exercise of’ that employee’s free speech rights. Suarez Corp. Indus.,
First, the public employee must have spoken as a citizen, not as an employee, on a matter of public concern. Second, the employee’s interest in the expression at issue must have outweighed the employer’s “interest in providing effective and efficient services to the public.” Third, there must have been a sufficient causal nexus between the protected speech and the retaliatory employment action.
Ridpath v. Bd. of Govs. Marshall Univ.,
The State Defendants contend that plaintiffs provide “no specific factual information as to what Ms. Murphy’s alleged ‘exercise of her right to free speech’ was.” State-Plaintiffs Motion at 15. However, plaintiffs’ complaint is replete with allegations regarding Ms. Murphy-Taylor’s internal complaints,
i. Deprivation of Substantive Due Process
Plaintiffs’ final due process claim concerns substantive due process. They frame their substantive due process claim as follows: “[B]oth Mrs. Murphy-Taylor’s property interest and her liberty interest in her employment were impaired and ultimately denied for a manifestly improper purpose: to exact retribution on her for exposing Mr. Hofmann’s sexual attacks on her.” Amended Complaint ¶ 51. Plaintiffs characterize the Individual Defendants’ alleged actions as “an extreme abuse of governmental power,” id. ¶ 52, “motivated solely by their desire to pursue a personal vendetta against Mrs. Murphy-Taylor,” id. ¶ 53, and “made in bad faith.” Id. ¶ 54. According to plaintiffs, the Individual Defendants’ “abuse of the public trust and manipulation of governmental procedure ... shocks the conscience and amounts to a substantive due process violation.” Id. ¶ 55.
As already discussed, the “standard analysis” under the Due Process Clause is a procedural due procеss inquiry that asks “whether there exists a liberty or property interest of which a person has been deprived, and if so ... whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, — U.S. —,
One thread of substantive due process case law, directed at legislative enactments, extends substantive due process protection to “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if they were sacrificed.’ ” Washington v. Glucksberg,
Another thread of substantive due process case law is directed at executive action. See County of Sacramento v. Lewis,
“Defining conduct that shocks the conscience does not draw on any traditional standard of liability from tort law but rather refers, as a constitutional construct of substantive due process, to ‘conduct intended to injure in some way unjustifiable by any government interest.’” Slaughter v. Mayor & City Council of Baltimore,
In briefing this issue, the State Defendants addressed only the legislative strain of substantive due process, and argued that neither the Maryland appellate courts nor the Fourth Circuit have recognized a fundamental right to continued government employment. See State-Plaintiffs Motion at 16; State-Plaintiffs Reply at 4-5. Plaintiffs agree that there is no fundamental right to government employment and expressly stated in their opposition that their claim arose instead under the executive action, shocks-the-conscience branch of the substantive due process doctrine. See State-Plaintiffs Opposition at 18. In their reply, the State Defendants provided no argument or analysis addressing the governing legal principles.
Plaintiffs cited a single case, Perry v. McGinnis,
On the other hand, the Hawkins Court found that two other types of conduct by the sheriff did rise to the level of conscience-shocking behavior that violated his employees’ substantive due process rights. As to one employee, the court held that the “sheriff’s allegedly repeated intentional touching of her breasts ... constitute^] a violation of her bodily integrity sufficient to support a substantive due process claim.” Id. The court also found a substantive due process violation where the sheriff on several occasions “pointed loaded weapons at [four employees] at close range, often pointing to their genitals, and made direct and forceful threats to kill them or cause grievous bodily injury[,] ... [becoming] agitated during the incidents, [and with] his finger ... on the trigger.... ” Id. at 787.
Other case law applying the shoeks-theeonscience standard may also shed light on whether the conduct alleged here exceeded the substantive due process threshold. However, as I see it, the State Defendants failed to meet plaintiffs’ contentions with applicable argument and analysis. Therefore, rather than attempt to resolve this issue without the benefit of adequate briefing from both sides, I will deny the State Defendants’ motion, without prejudice to renewal at the summary judgment stage.
F. Abusive Discharge
Count VI of plaintiffs’ complaint asserts the tort of abusive discharge. Tort liability for wrongful discharge or abusive discharge has been recognized in Maryland “as a judicially-created exception to the employment at-will doctrine.” Newell v. Runnels,
The Individual Defendants contend that plaintiffs’ abusive discharge claim must fail in light of Makovi v. Sherwin-Williams Co.,
In response, plaintiffs concede that Makovi forecloses an abusive discharge claim based on the public policy against sex discrimination that would be actionable under Title VII, but argue that the public policies articulated in Title VII are not the only public policies that undergird their suit. In particular, plaintiffs identify two other public policies implicated by their claims: a public policy against nepotism in public employment articulated in § 27-73 of the Queen Anne’s County Code,
In their reply, the Individual Defendants point out that, because the Sheriff is a state officer, he is not subject to the prohibition of nepotism contained in the County Code. Under the Human Resources chapter of the County Code, the Sheriff and his deputy sheriffs are classified as part of the “exempt service,” which includes “State officials who by State law are funded by the County and subject to the County budget procedures,” County Code § 27-1, and specifically includes the Sheriff and his deputy sheriffs. See id. § 27-10.A(4), .D. Although certain provisions of the Human Resources chapter of the County Code, including the prohibition against nepotism, apply to deputy sheriffs, see id. § 27-ll.C(l), the Sheriff himself is exempt from the Human Resources provisions of the County Code. See id. § 27-11. Accordingly, the County Code’s prohibition against nepotism apparently does not apply to the Sheriff.
However, the Individual Defendants offer no response to plaintiffs’ assertion of an abusive discharge claim founded on the public policy to protect whistleblowers, and the Maryland Court of Appeals has recognized that this public policy may serve as the foundation of an abusive discharge claim. In Wholey v. Sears Roebuck, supra,
Of import here, in Watson v. Peoples Security Life Insurance Co.,
Accordingly, plaintiffs’ abusive discharge claim survives.
G. Negligence
With respect to plaintiffs’ negligence claim, the Individual Defendants argue that plaintiffs fail to sufficiently plead malice or gross negligence, so as to overcome the Individual Defendants’ statutory immunity from suit.
Under the Maryland Tort Claims Act (“MTCA”), State personnel, including sheriffs and their deputies, are immune from liability “for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence.” Md. Code (2013 Repl.Vol.), § 5-522(b) of the Courts & Judicial Proceedings Article; see also S.G. § 12 — 101(a)(6) (providing that sheriffs and their deputies are state personnel under the MTCA).
In my view, plaintiffs’ complaint sufficiently alleges gross negligence, so as to overcome Sheriff Hofmann and Major Williams’ statutory immunity defense, at least at the pleading stage. Plaintiffs allege that Ms. Murphy-Taylor complained directly to Sheriff Hofmann in August 2007 regarding sexual harassment and sexual assault by his brother, Hofmann. The Sheriff took no action against his brother and the harassment continued, including the sexual assault in a departmental vehicle in August 2009, as to which Hofmann subsequently pleaded guilty to criminal assault. Although Ms. Murphy-Taylor again complained of harassment and sexual assault to Major Williams in November and December 2009 and February and April 2010, no action was taken in response to her requests to have no contact with Hofmann, even as her charges against him were investigated and after they were substantiated. These allegations, if credited by a fact-finder, could support a finding that Sheriff Hofmann and Major Williams were grossly negligent. Moreover, if the fact-finder credits plaintiffs’ claim that Sheriff Hofmann intentionally terminated Ms. Murphy-Taylor’s employment in retaliation for pressing charges against his brother, this would be sufficient to support a finding of actual malice. Cf. Newell,
Accordingly, I will deny the motion to dismiss plaintiffs’ negligence claim against the Individual Defendants.
H. Loss of Consortium
In Maryland, an “action for loss of consortium is comprised of two elements: (1) injury to the marital relationship, which is (2) caused by the wrongful conduct of the defendant.” French v. Hines,
The Individual Defendants argue that plaintiffs’ loss of consortium claim should be dismissed because plaintiffs were not married when Ms. Murphy-Taylor was assaulted by Mr. Hofmann and
In Gillespie-Linton, the Maryland Court of Special Appeals held that a married couple’s loss of consortium claim was not viable in a suit arising from one spouse’s injuries sustained in a car accident that occurred four days before their wedding. See id. at 486-87,
“When the alleged antenuptial tort was committed by the defendant against the woman plaintiff, the man plaintiff suffered no injury, because he possessed no marital right at that time, never having assumed any marital obligations. When Daniel Sawyer later took Lynn Jackson as his lawful wedded wife, he took her for better or for worse in her then existing health, voluntarily taking into himself any marital deprivation that might result from his wife’s premarital injury.”
Gillespie-Linton,
Plaintiffs concede that the rule articulated in Gillespie-Linton is an accurate statement of Maryland law, but point out that, although many of the averments of their complaint relate to alleged wrongful acts that occurred before their marriage, several of the alleged acts occurred after-wards. In particular, Ms. Murphy-Taylor went on leave from the Sheriffs Office in July 2010, after having married Mr. Taylor. Her leave-taking allegedly was the culmination of events of harassment and retaliation continuing up to the date of her departure. Moreover, her employment was actually terminated by the Sheriff in May 2010, approximately a year after plaintiffs’ marriage.
To be sure, if plaintiffs’ loss of consortium claim is tried, it will present challenges of proof. If plaintiffs assert harm to their marital relationship arising from defendants’ wrongful conduct, they will need to present evidence that can segregate the effects of Ms. Murphy-Taylor’s postnuptial injuries from her prenuptial injuries. However, I agree with plaintiffs that, as a formal matter, they can assert a viable loss of consortium claim based on the Individual Defendants’ alleged wrongful conduct occurring after plaintiffs’ marriage. Therefore, the loss of consortium claim is not subject to dismissal as a matter of law.
I. § 1983: County Liability
The County argues that plaintiffs’ § 1983 claims against it fail to allege a basis for its liability, because it had no control over the policies implemented by Sheriff Hofmann, and when the Sheriff established policy, he was acting as a State policymaker, not a county policymaker.
Unlike states, “municipalities and other local government units,” such as counties, are “among those persons to whom § 1983 applies.” Monellv. Dept. of Soc. Servs. of City of N.Y.,
However, there “is no respondeat superior liability under § 1983.” Love-Lane v. Martin,
In Connick, the Supreme Court discussed the narrow circumstances in which a municipality’s failure to formulate policy and train employees with respect to policy can give rise to § 1983 liability. It said, id. at 1359-60 (internal citations omitted):
In limited circumstances, a local government’s decision not to train certain employees about their legal duty to avoid violating citizens’ rights may rise to the level of an official government policy for purposes of § 1983. A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train. To satisfy the statute, a municipality’s failure to train its employees in a relevant respect must amount to “deliberate indifference to the rights of persons with whom the [untrained employees] come into contact.” Only then “can such a shortcoming be properly thought of as a city ‘policy or custom’ that is actionable under § 1983.”
“ ‘[Deliberate indifference’ is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action.” Thus, when city policymakers are on actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights, the city may be deemed deliberately indifferent if the policymakers choose to retain that program. The city’s “policy of inaction” in light of notice that its program will cause constitutional violations “is the functional equivalent of a decision by the city itself to violate the Constitution.” A less stringent standard of fault for a failure-to-train claim “would result in de facto respondeat superior liability on municipalities.... ”
Municipal liability under § 1983 only attaches to policies (or equivalent customs or “policies of inaction”) established by a municipality’s “policymaking officials.” Id. at 1359. Therefore, one must “identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue.” Jett v. Dallas Independent School Dist.,
In McMillian v. Monroe County,
In McMillian, a closely divided Supreme Court affirmed the decision of the Eleventh Circuit that “Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties,” but acknowledged that Alabama law did not “ ‘speak with perfect clarity’ ” as to the issue. Id. at 793,
One of the earlier federal appellate decisions cited in McMillian concerning the status of sheriffs for purposes of § 1983 liability was a decision of the Fourth Circuit involving a Maryland sheriff. In Dotson v. Chester,
On appeal, the Fourth Circuit reasoned that, under the Supreme Court’s decision in Monell, “County liability for the Sheriffs operation of the County Jail depends on whether the Sheriff had final policy-making authority for the County over the County Jail.” Dotson,
This case is not analogous to Dotson; it does not involve delegation by a county to a sheriff of the governance of a particular operation that has historically been a county function, such as management of a county jail. Rather, it involves the working environment within the Sheriffs Office and personnel decisions regarding deputy sheriffs made by the Sheriff and his senior staff. As discussed in connection with the Title VII claims, the County retains some control over personnel matters with respect to deputy sheriffs, such as benefits, leave, and establishment of various policies concerning the conditions of employment. In particular, many provisions of the County’s Human Resources Ordinance apply to deputy sheriffs. But, this does not indicate that the Sheriff is a County policymaker with respect to such matters. To the contrary, it indicates that the County itself retains policymaking authority within those areas.
Perhaps the underlying facts would support a Monell claim directly against the County for harms to Ms. Murphy-Taylor arising from the County’s policies with respect to medical leave, or the explicit exemption of deputy sheriffs from County human resources policies regarding workplace harassment. See County Code §§ 27-ll.C(l); 27-80. However, no clear claim along those lines has been articulated in plaintiffs’ complaint. Rather, the complaint contains boilerplate allegations that, “[a]t all times relevant ..., Defendants were acting pursuant to municipal custom, policy, or practice in their actions pertaining to Mrs. Murphy-Taylor.” Amended Complaint ¶ 34. This is a mere “formulaic recitation of the elements of [the] cause of action.” Twombly,
Accordingly, even if a claim of § 1983 liability could be articulated against the County on the basis of the underlying facts, plaintiffs have not sufficiently alleged it. Plaintiffs’ complaint fails to state a claim upon which relief can be granted against the County under § 1983. Therefore, Counts I, II, and III, as against the County, will be dismissed, without prejudice. Again, plaintiffs are entitled, pursuant to Fed.R.Civ.P. 15, to move for leave to file an amended complaint restating their § 1983 claims against the County. I express no view as to how the Court might rule on such a mоtion.
Because plaintiffs’ pleading of § 1983 liability against the County is generally deficient, I need not reach the County’s more specific arguments against Count III in particular, which asserts a claim of conspiracy to deprive plaintiffs of their federal rights under § 1983. However, I note that Count III remains viable against the Individual Defendants, despite the County’s contention that a conspiracy claim cannot be asserted under § 1983 and must instead be asserted under 42 U.S.C. § 1985(3). The County’s contention notwithstanding, the Fourth Circuit has recognized the viability of a civil conspiracy claim under § 1983. It reiterated the elements of such a claim in Glassman v. Arlington County,
Conclusion
In sum, for the foregoing reasons, the County’s motion will be granted in part and denied in part; the State Defendants’ motion to dismiss plaintiffs’ complaint will be granted in part and denied in part; and the State Defendants’ motion to dismiss the United States’ complaint will be denied.
In particular, Counts I, II, and III of plaintiffs’ complaint (the § 1983 claims) will be dismissed, without prejudice, as against the County. Due to plaintiffs’ concession that their State law claims against the County are not viable, Counts VI, VII, VIII, and IX of their complaint will be dismissed, with prejudice, as against the County. Of the claims in plaintiffs’ complaint, only Count TV remains viable against the County.
To the extent that plaintiffs assert claims under § 1983 in Counts I, II, and III against the Individual Defendants in their official capacities, those claims will be dismissed, with prejudice. To the extent that plaintiffs assert claims under Title VII in Count IV of their complaint against the Individual Defendants in their individual capacities, those claims will be dismissed, with prejudice. In addition, Counts I and VII of plaintiffs’ complaint (asserting claims under § 1983 and Article 24) will be dismissed, without prejudice, as against the Individual Defendants, to the extent that they assert a due process claim for deprivation of Ms. Murphy-Taylor’s liberty interest in her reputation. See Amended Complaint ¶¶ 47, 49, 149. Counts VI, VIII, and IX of plaintiffs’ com
In all other respects, the motions are denied. The United States’ complaint survives the motions to dismiss in its entirety, as against all defendants named in it (ie., the State, the County, and Sheriff Hofmann in his official capacity).
An Order implementing my rulings follows.
ORDER
For the reasons stаted in the accompanying Memorandum Opinion, it is, this 11th day of September, 2013, by the United States District Court for the District of Maryland, ORDERED:
1. The Motion to Dismiss filed by defendant Queen Anne’s County (ECF 24) is GRANTED IN PART and DENIED IN PART;
2. In particular, Counts I, II, and III of plaintiffs’ Amended Complaint (ECF 10) are DISMISSED, without prejudice, as against defendant Queen Anne’s County; Counts VI, VII, VIII, and IX of plaintiffs’ Amended Complaint are DISMISSED, with prejudice, as against Queen Anne’s County; and in all other respects, Queen Anne’s County’s motion is DENIED;
3. The Motion to Dismiss Amended Complaint filed by defendants R. Gery “Gary” Hofmann, James L. Williams, and the State of Maryland (ECF 43) is GRANTED IN PART and DENIED IN PART;
4. In particular, to the extent that Counts I, II, and III of plaintiffs’ Amended Complaint assert claims under 42 U.S.C. § 1983 against defendants John Dennis Hofmann, R. Gery “Gary” Hofmann, or James L. Williams in their official capacities, those claims are DISMISSED, with prejudice;
5. To the extent that Count IV of plaintiffs’ Amended Complaint asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., against defendants John Dennis Hofmann, R. Gery “Gary” Hofmann, or James L. Williams in their individual capacities, those claims are DISMISSED, with prejudice;
6. Counts I and VII of plaintiffs’ Amended Complaint, to the extent that they assert a due process claim for deprivation of plaintiff Kristy Lynn Murphy-Taylor’s liberty interest in her reputation, are DISMISSED, without prejudice;
7. In all other respects, the motion to dismiss plaintiffs’ Amended Complaint filed by defendants R. Gery “Gary” Hofmann, James L. Williams, and the State of Maryland is DENIED;
8. The Motion to Dismiss Plaintiff-Intervenor’s Complaint filed by defendants R. Gery “Gary” Hofmann and the State of Maryland (ECF 59) is DENIED; the United States’ Plaintiff-Intervenor’s Complaint (ECF 41) remains viable in all respects.
Notes
. As to the federal claims, subject matter jurisdiction is founded on 28 U.S.C. § 1331, with supplemental jurisdiction over the state law claims. See id. § 1367.
. Plaintiffs’ operative pleading is their Amended Complaint (ECF 10), which added the County as a defendant. Hereafter, references to plaintiffs’ "complaint” refer to the Amended Complaint, unless otherwise specified. In both their'original Complaint (ECF 1) and the Amended Complaint, plaintiffs named another defendant, the "Queen Anne’s County Office of the Sheriff.” As discussed, infra, claims against that defendant have been dismissed.
.Section 2000e-5(f)(l), a provision of Title VII, provides in pertinent part: "Upon timely application, the court may, in its discretion, permit the [Equal Employment Opportunity] Commission, or the Attorney General in a case involving a government, governmental agency, or political subdivision, to intervene in [a] civil action [under Title VII] upon certification that the case is of general public importance.”
. Major Williams did not join in the State-US Motion because the United States did not assert any claims against him.
. Accordingly, plaintiffs’ still-pending State law claims (i.e., Counts VI, VII, VIII, and IX)
. Maryland law indicates that civil conspiracy is not an independent cause of action. See, e.g., Alleco, Inc. v. Harry & Jeanette Weinberg Found.,
. Because Hofmann is not a party to any of the pending motions, I will hereafter use the term "Individual Defendants” to refer to Sheriff Hofmann and Major Williams.
. In connection with the County Motion, I have considered the motion and its supporting memorandum (ECF 24-2); plaintiffs’ opposition ("County-Plaintiffs Opp.”) (ECF 28); the County’s reply to plaintiffs’ opposition ("County-Plaintiffs Reply”) (ECF 37); the United States’ opposition ("County-US Opp.”) (ECF 47); the County’s supplemental reply to the United States' opposition ("County-US Reply”) (ECF 62); and the surreplies of the United States ("County-US Surreply”) (ECF 68) and plaintiffs ("County-Plaintiffs Surreply”) (ECF 71), filed with leave of court. See ECF 67; see also Local Rule 105.2(a).
In connection with the State-Plaintiffs Motion, I have considered the motion and its supporting memorandum (ECF 43-1); plaintiffs’ opposition ("State-Plaintiffs Opp.”) (ECF 50); and the State Defendants’ reply ("State-Plaintiffs Reply”) (ECF 61). In connection with the State-US Motion, I have considered the motion and its supporting memorandum (ECF 59-1); the United States’ opposition ("State-US Opp.”) (ECF 64); and the State Defendants' reply (“State-US Reply”) (ECF 69).
And, I have considered exhibits submitted with the briefing, to the extent permitted by the applicable provisions of the Federal Rules of Civil Procedure, as discussed, infra.
. The facts are as alleged in the complaints filed by plaintiffs and the United States, and are construed in the light most favorable to plaintiffs. In addition, some facts regarding proceedings before the Equal Employment Opportunity Commission ("EEOC”) are derived from exhibits submitted by the parties.
. At the time plaintiff was hired, she was not married and was known by her maiden name, Kristy Murphy. As discussed, infra, she married plaintiff Brian Taylor before she initiated this suit. For consistency, I will refer to her by her current name.
. Neither plaintiffs nor the United States indicate when Captain Williams was promoted
. The Feb. 2010 Charge of Discrimination was signed by Ms. Murphy-Taylor and notarized on February 15, 2010, but bears an EEOC date stamp that appears to indicate that it was actually received by the EEOC on February 18, 2010. An incomplete copy of the Feb. 2010 Charge of Discrimination (it is missing the last page) was submitted by plaintiffs as Exhibit 1 to their original Complaint. See ECF 1-2. The copy submitted by the County as Exhibit 3 to the County-Plaintiffs Reply appears to be complete.
. Although the date of plaintiffs’ marriage is nоt alleged in their complaint, they do not dispute the date of their marriage provided by the State Defendants.
. Plaintiffs’ complaint quotes from the transcript of the plea hearing and states that the transcript is attached as an exhibit, see Amended Complaint ¶ 24, but the transcript was not actually submitted with plaintiffs’ original Complaint or Amended Complaint. Plaintiffs' complaint also states that Hofmann pleaded guilty on May 25, 2011. However, the transcript reflects that, as the United States alleges in its complaint, see U.S. Complaint ¶ 36, the plea hearing occurred on May 12, 2011. The discrepancy is immaterial.
. Plaintiffs and the United States both allege that Ms. Murphy-Taylor received the termination letter on the day after Hofmann’s plea hearing. Plaintiffs allege that the termination letter was received on May 26, 2011 (the day after they state that the plea hearing occurred). Amended Complaint ¶ 25. The United States alleges that Ms. Murphy-Taylor was terminated on May 13, 2011. U.S. Complaint ¶ 37. Because the plaintiffs and the United States agree that the termination occurred the day after the plea hearing, and the transcript of the hearing reflects that the hearing took place on May 12, 2011, I have adopted the termination date as alleged by the United States.
. The Amended Charge of Discrimination was signed by Ms. Murphy-Taylor and notarized on April 3, 2012, but bears an EEOC date stamp indicating that it was received by the EEOC on April 5, 2012.
. In the County’s reply to the United States' opposition to the County Motion, the County suggested that, with respect to the issue of whether the County was Ms. Murphy-Taylor's "employer” within the meaning of Title VII, the Court might be required to construe the County Motion as a motion for summary judgment, pursuant to Fed.R.Civ.P. 12(d). Under Rule 12(d), a court has a court has the discretion to consider matters outside of the pleadings in conjunction with a Rule 12(b)(6) motion, so long as the court-treats the motion "as one for summary judgment under Rule 56,” Fed.R:Civ.P. 12(d), gives all parties "a reasonable opportunity to present all the material that is pertinent to the motion,” id., and gives the parties notice of its intent to consider the motion under a summary judgment .Standard. See Finley Lines Joint Protective Bd. Unit 200 v. Norfolk So. Corp.,
As I informed the parties in an Order issued on April 26, 2013 (ECF 67), it is unnecessary to consider the County Motion under a summaty judgment standard pursuant to Rule 12(d) because all of the documents purportedly extrinsic to the pleadings that the County submitted with its reply consist of state statutes, cоunty ordinances, and legislative history documents that are proper subjects of judicial notice under a Rule 12(b)(6) standard, without conversion to summary judgment. See Clatterbuck, supra,
The United States submitted two documents with its opposition to the County Motion that, at least arguably, would necessitate conversion under Rule 12(d) if I were to consider them. See Ex. 1 to County-US Opposition (ECF 47-1) (printout of Queen Anne's County website); Ex. 6 to County-US Opposition (ECF 47-6) (copy of notice of "mandatory training on harassment in the workplace” presented by Queen Anne's County). Accordingly, I have not relied on either document in resolving the pending motions.
. Notably, certain arguments asserted by defendants pertain not to the adequacy of administrative exhaustion, but to the timeliness of plaintiffs’ filing of their administrative claims and their initiation of this lawsuit. Under Supreme Court and Fourth Circuit precedent, the time limits under Title VII for filing administrative claims and for initiating litigation are not jurisdictional requirements. See Zipes v. Trans World. Airlines, Inc.,
A copy of plaintiffs’ original charge of discrimination with the EEOC was filed with plaintiffs’ complaint, and other filings in the EEOC proceeding, including plaintiffs’ supplemental charge, arguably could be considered as documents that are integral to the complaint and thus appropriate for consideration under a Rule 12(b)(6) standard in connection with the issues pertaining to time limitations. On the other hand, the EEOC filings arguably might constitute matters outside the pleadings that cannot be considered unless defendants’ motions are construed, pursuant to Fed.R.Civ.P. 12(d), as motions for summary judgment. See generally Garrison v. McCormick & Co., Inc., Civ. No. JFM-10-298,
. The applicable state enforcement agency is thе Maryland Commission on Civil Rights ("MCCR”), formerly known as the Maryland Commission on Human Relations.
. The State Defendants frame the issue slightly differently, as one concerning the adequacy of plaintiffs' pleading. The State Defendants maintain that suit must be dismissed because plaintiffs' did not allege in their complaint that they had received a right-to-sue letter before filing suit, and therefore failed to allege facts giving rise to subject matter jurisdiction. However, plaintiffs stated in their complaint that they filed a charge of discrimination with the EEOC and asserted that their entitlement to a right-to-sue letter had ripened, and there is no factual dispute that, in fact, they had not received a right-to-sue letter when they filed suit. Thus, the question is whether the facts that plaintiffs alleged, which are not disputed, suffice to establish satisfaction of the jurisdictional requirement of administrative exhaustion.
. The State Defendants do not challenge the administrative exhaustion or timeliness of the hostile work environment claims in this suit, perhaps because the Morgan Court articulated a different rule for "hostile environment claims.” In such a case, the " ‘unlawful employment practice’ ... cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative effect of individual acts.” Morgan, 536 U.S: at 115,
. As noted, the United States expressly limited its claims against Sheriff Hofmann to his official capacity and did not sue Major Williams in any capacity.
Although Hofmann did not join in the State Defendants’ motion, I will also dismiss plaintiffs’ claims to the extent they allege Title VII claims against Hofmann in his individual capacity, because such claims are deficient as a matter of law. See, e.g., J & J Sports Prods., Inc. v. Mayrealll, LLC,
Notably, although the Individual Defendants cannot be individually liable under Title VII, their actions and motivations are relevant to an analysis of employer liability. See, e.g., Staub v. Proctor Hosp.,-U.S.-,
.A claim of hostile work environment under Title VII is premised on the notion that "an employee’s work environment is a term 'or condition of employment.” EEOC v. Central Wholesalers, Inc.,
. These arguments are not expressly asserted in the State Defendants’ motion to dismiss plaintiffs’ complaint. However, to the extent that plaintiffs’ complaint pleads theories of retaliatory termination or constructive discharge, the same legal analysis would apply.
. As to the second element, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, 'which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Burlington N. & Santa Fe Ry. Co. v. White,
. The Supreme Court has also looked- to common-law agency doctrine to resolve questions concerning whether an employer-employee relationship exists in several other statutory contexts where statutory definitions do not resolve the question, including in the context of the Employee Retirement Income Security Act (“ERISA”), see Darden,
. It is also noteworthy that Paulone and Strickland involved sheriffs in counties other than Queen Anne's County. A complication in the analysis of potential employer liability of a Maryland county for a deputy sheriff’s employment discrimination claims is that the statutory provisions delineating the relationship between a county and its sheriff with respect to personnel matters are not uniform. Indeed, they vary dramatically. See generally Md.Code (2013 Repl.Vol.) § 2-309 of the Courts & Judicial Proceedings Article ("C.J.”) (delineating relationship between counties and sheriffs on a county-by-county basis). Thus, it is conceivable that different results might obtain in different counties, depending on the degree of control over the employment relationship allocated to and actually exercised by each county.
. The County underscores this point by submitting legislative history regarding C.J. § 2-309 in an attempt to show that a statutory provision that appears clearly to give the County Commissioners of Queen Anne’s County the authority to "appoint an assistant deputy sheriff,” C.J. § 2-309(s)(l)(iv), in practice has "no actual effect or impact.” County-US Reply at 7.
. In an Order issued on February 20, 2013 (ECF 38), I invited the United States to address, as an amicus, issues concerning defendants’ liability under § 1983. The United States declined the invitation, stating: "[T]he United States as plaintiff-intervenor in this case has been authorized by the Assistant Attorney General for the Civil Rights Division to address only the issues relating to Title VII as those are the only issues in this case within the Division’s enforcement authority.” County-US Opposition at 2 n. 1.
. Plaintiffs originally brought these claims against the State as well as the Individual Defendants. As noted, after the State Defendants moved to dismiss plaintiffs’ complaint, plaintiffs voluntarily dismissed their § 1983 and State claims against the State; they conceded the correctness of the State’s position that it is not a "person” subject to suit within the meaning of § 1983, see Will v. Michigan Dept. of State Police,
The State Defendants argue that plaintiffs have sued Sheriff Hofmann and Major Williams only in their official capacities, and thus their § 1983 claims against the Individu
To the extent that the complaint asserts § 1983 claims against the Individual Defendants in their official capacities, those claims will be dismissed (including as to Hofmann). See, e.g., J & J Sports, supra,
.To be sure, the Supreme Court said in Borough of Duryea v. Guamieri,-U.S.-,
Arguably, Ms. Murphy-Taylor's internal complaints of sexual harassment and sexual assault rose above the level of the run-of-the-mill workplace grievance and constituted matters of public concern. But see Morgan v. Ford,
. See, e.g., Tyler v. Univ. of Ark. Bd. of Trs.,
. See, e.g., Estate of Morris ex rel. Morris v. Dapolito,
. Section 27-23 of the County Code, which plaintiffs mistakenly cite as the anti-nepotism provision, governs salary increases for County employees based on job performance.
. In addition to giving State personnel immunity from suit for non-malicious, non-grossly-negligent torts, the MTCA waives the State’s sovereign immunity for such torts, and thereby " 'substitutes the liability of the State for the liability of the state employee committing the tort.' ” Bd. of Educ. of Prince George's County v. Marks-Sloan,