Ellen Lipton Hollander United States District Judge
Melissa Kearney, plaintiff, an employee of the Maryland Department of Public Safety and Correctional Services (the “Department”), filed suit against the State of Maryland (the “State”); the Department; her supervisor, Dianne Lutz; and her co-worker, Jeffrey Joseph Cooke, defendants, based on alleged misconduct of Cooke. See Complaint (ECF 20). In particular, she has lodged a claim against Cooke for intentional infliction of emotional distress (Count I); a claim against the State and the Department for negligent hiring, retention, and supervision (Count II); a claim of hostile work environment under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, lodged against the State and the Department (Count III); and claims against Lutz pursuant to 42 U.S.C. § 1983, alleging denial of due process and equal protection with respect to the investigation of plaintiff’s complaints about Cooke (Count IV).
Defendants filed a “Motion to Dismiss, or in the Alternative, Motion for Summary Judgment” (“Motion, ” ECF 12), along with a supporting legal memorandum (“Memo, ” ECF 12-1). Plaintiff opposed the Motion (“Opposition” or “Opp., ” ECF 13), to which defendants replied (“Reply, ” ECF 16). As no hearing is necessary to resolve the Motion, the Court now rules pursuant to Local Rule 105.6.
For the reasons that follow, I will construe the Motion as a motion to dismiss and grant it with respect to plaintiff’s claims under federal law, asserted in Counts III and IV. As to Count III, I will grant plaintiff leave to amend to demonstrate that she has exhausted her administrative remedies, as required by Title VII. Count IV will be dismissed with prejudice. Given my ruling at to Counts III and IV, I will deny the Motion with respect to Counts I and II, which present claims under Maryland common law, without reaching the merits. In the event that plaintiff amends her suit to satisfy Title VII’s exhaustion requirement, I will consider a renewed motion as to Counts I and II. On the other hand, if plaintiff cannot satisfy the exhaustion requirement, a remand of Counts I and II to the State court may be appropriate. See 28 U.S.C. § 1367(c)(3).
The Department is an agency of the State. Plaintiff is an employee of the Department’s Division of Parole and Probation (the “Division”) at its office in Aberdeen, Maryland. Compl. ¶¶ 4-5. Cooke was plaintiff’s co-worker at the Aberdeen office until September 2010. Id. ¶ 6.The Complaint includes a lengthy list of alleged acts of harassment by Cooke over a two-year period, beginning in December 2008 and ending in September 2010.
On December 30, 2008, Cooke “stole Plaintiff Kearney’s cellular phone” from her office desk. Id. ¶ 11. He used it to access plaintiff’s “private text (SMS) messages.” Id.
On January 4, 2010, Cooke called plaintiff a “fucking whore” and a “liar” because plaintiff had failed to respond to a phone call from Cooke made earlier that day. Id. ¶ 12. Also on January 4, 2010, Cooke “improperly accessed” plaintiff’s account on Facebook.com, and changed plaintiff’s password “without her knowledge, permission, or consent.” Id. ¶ 13.
Cooke entered plaintiff’s office at about 5:15 p.m. on the evening of February 24, 2010, and “cornered” her. Id. ¶ 14. According to the Complaint, “Cooke accused Plaintiff Kearney of making false accusations about him.” Id. When plaintiff asked Cooke to leave her office, Cooke again called her a “fucking whore” and “threatened to file fallacious charges against” her, which Cooke claimed would deprive plaintiff of “a roof over [her] head.” Id. Cooke told plaintiff that he had “access” to her office key and a key to her “personal filing cabinet.” Id. After Cooke left, plaintiff called her co-worker, Walter Hays, who escorted plaintiff to her car. Id. ¶ 15.
Thereafter, plaintiff “initiated a complaint against Defendant Cooke with her supervisor, Defendant Diane Lutz.” Id. ¶ 16. Lutz “was responsible for taking disciplinary action regarding [plaintiff’s] work-related complaints.” Id. ¶ 7. Lutz did not interview plaintiff, although Lutz took “a written personnel statement” from plaintiff. Id. ¶ 16. On April 27, 2010, Lutz “concluded, without vigorous investigation, that no sexual or other type of harassment had occurred.” Id. Lutz also concluded that Cooke and Kearney “had an on-going conflict and that both should act in a more professional manner while at the workplace.” Id. No disciplinary action was taken against Cooke. Id.
Hays also “filed a complaint with his supervisors regarding Defendant Cooke’s behavior towards, and harassment of Kearney.” Id. ¶ 17. However, “Lutz failed to pursue any reasonable investigation into Hays’ complaint.” Id.
Plaintiff alleges that, on the morning of July 9, 2010, Cooke “insinuated” that plaintiff “was having sexual relations” with two Maryland State Police officers visiting the office by asking: “[A]re they friends of yours?” Id. ¶ 18. A co-worker was present when he made that statement. Id. Later that day, Cooke “harassed” plaintiff “about her physical appearance, including the style of her clothes and the way she had done her make-up that day.” Id. ¶ 19. Cooke then hugged plaintiff, “without her consent.” Id.
On or about July 15, 2010, Cooke called plaintiff on her cell phone and “threatened that she was going to get into trouble” because Cooke had “reported that Plaintiff was on her personal cellular phone during work hours.” Id. ¶ 20. On or about July 16, 2010, Cooke allegedly told plaintiff’s co-worker, Eve Jacobs, that plaintiff was a “fucking whore.” Id. ¶ 22. Also on July 16, 2010, plaintiff’s co-worker, Dave Farnan, told plaintiff that her complaints about Cooke had been “‘blocked’ by upper level management, ” including Lutz. Id. ¶ 21.
On the afternoon of September 7, 2010, Cooke and another Division employee, Kirk Everetts, “approached Plaintiff while she was talking to a probationer, Mr. Rodney Maenner.” Id. ¶ 23. As Cooke and Everetts walked by, Cooke announced that plaintiff “screws offenders.” Id. Shortly thereafter, Cooke walked past plaintiff’s office while he was talking on his cell phone. Id. ¶ 24. Cooke “again made a statement insinuating that Plaintiff had inappropriate relations with ‘offenders’ and with ‘Kirk’s offender [Rodney Maenner]’ in particular.” Id. (alteration and quotation marks in Complaint). Immediately afterwards, plaintiff called Lutz to inform her of Cooke’s statements. Id. ¶ 25. Although plaintiff was “audibly upset and scared, ” Lutz “giggle[d]” in response to the call, and did not indicate that she would investigate the incident. Id. Plaintiff also filed a police report against Cooke based on his statements. Id. ¶ 26.
Plaintiff filed a “complaint of discrimination” with the Department’s “Equal Employment Opportunity Office” on or about September 8, 2010. Id. ¶¶ 28-29, 55. On September 23, 2010, the Equal Employment Opportunity Office “confirm[ed] that [plaintiff’s] sexual discrimination complaint had been substantiated and that appropriate actions were being taken” by the Department. Id. ¶ 30. As a result of plaintiff’s complaint, “Cooke was transferred to the [Division’s] Bel Air office.” Id. ¶ 31.
According to plaintiff, the Bel Air office has “extensive contact” with the Aberdeen office. Id. Plaintiff avers that, “from time to time, [she] may have indirect contact with Defendant Cooke, ” and that she “is still required to interact with Defendant Cooke on a routine basis.” Id. ¶¶ 31-32. Additionally, she alleges that “the situation” between herself and Cooke is “well known” in her office, which has “strained [her] office relations . . . in general.” Id. ¶ 32.
Plaintiff began “intensive psychotherapy” on October 5, 2010, and “continues to see her psychotherapist on a regular basis.” Id. ¶¶ 33, 42. She has told her psychotherapist, inter alia, that she “feared for her physical safety” as a result of Cooke’s behavior, id. ¶ 33; that she “felt anxious about going to work because it was an unsafe environment for her, ” id. ¶ 34; that she “often wakes up in the middle of the night with feelings of anxiety about her work situation, ” id. ¶ 35; and that “the mere mention of the name ‘Jeff’ in her office causes [her] to become anxious and lose control of her emotions.” Id. ¶ 39. According to the Complaint, plaintiff’s psychotherapist “reports that although [plaintiff’s] anxiety . . . is abating in both her work and personal lives, Plaintiff is still suffering from fear of being ridiculed at work for reporting her complaint and she subjectively perceives herself to have poor job performance as well as feelings of insecurity at work regarding her performance on the job.” Id. ¶ 42.
Standard of Review
Defendants seek dismissal of plaintiff’s claims for failure to state a claim under Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain facts sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008); see Aschroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in Twombly expounded the pleading standard for ‘all civil actions’ . . . .” (citation omitted)); see, e.g., Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d 754, 768 (4th Cir. 2011) (applying Twombly plausibility standard).
Whether a complaint adequately states a claim for relief is judged by reference to the pleading requirements of Fed.R.Civ.P. 8(a)(2). See Twombly, 550 U.S. at 554-55. Rule 8(a)(2) provides that a complaint must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Although a plaintiff need not include “detailed factual allegations, ” the rule demands more than bald accusations or mere speculation. Twombly, 550 U.S. at 555. To satisfy the minimal requirements of the rule, the complaint must set forth “enough factual matter (taken as true) to suggest” a cognizable cause of action, “even if . . . [the] actual proof of those facts is improbable and . . . recovery is very remote and unlikely.” Id. at 556 (brackets in original) (internal quotation marks omitted). A complaint that provides no more than “labels and conclusions, ” or “a formulaic recitation of the elements of a cause of action, ” is insufficient. Id. at 555.
When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court “must accept as true all of the factual allegations contained in the complaint, ” and “draw all reasonable inferences [from those facts] in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations omitted). However, the court is not required to accept legal conclusions drawn from the facts. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Monroe v. City of Charlottesville, Va., 579 F.3d 380, 385-86 (4th Cir. 2009). And, if the “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has not shown that “the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (citation omitted).
As to Count III, defendants have moved to dismiss or, in the alternative, for summary judgment, claiming that plaintiff failed to exhaust administrative remedies before filing suit. In support, they rely on the Affidavit of Paula Green-Holt, the Deputy Executive Director of the Department’s “Equal Employment Opportunity Division.” (“Green-Holt Aff., ” ECF 12-2). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th Cir. 2007). Generally, if a court considers material outside of the pleadings, “the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d).
Under controlling Fourth Circuit precedent, “failure by the plaintiff to exhaust administrative remedies concerning a Title VII claim deprives the federal courts of subject matter jurisdiction over the claim.” Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009). Therefore, defendants’ challenge on the basis administrative exhaustion is properly considered under Rule 12(b)(1) of the Federal Rules of Civil Procedure, authorizing dismissal for lack of subject matter jurisdiction.
A test of subject matter jurisdiction under Rule 12(b)(1) may proceed “in one of two 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, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); see also Buchanan v. Consol. Stores Corp., 125 F.Supp.2d 730, 736 (D. Md. 2001). This case presents a factual challenge, because defendants rely on the facts set forth in the Green-Holt Affidavit.
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, 555 F.3d 337, 347 (4th Cir.), cert. denied, 558 U.S. 875 (2009). In that circumstance, the court “may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Velasco v. Gov’t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004). Moreover, the district court is “entitled to decide disputed issues of fact with respect to subject matter jurisdiction, ” Kerns, 585 F.3d at 192, “[u]nless ‘the jurisdictional facts are intertwined with the facts central to the merits of the dispute.’” Vuyyuru, 555 F.3d at 348 (citation omitted). Of import here, “the district court may . . . resolve the jurisdictional facts in dispute by considering evidence . . . such as affidavits.” Id. Therefore, as to Count III, I will consider the Green-Holt Affidavit, without applying the summary judgment standard.
A. Hostile Work Environment