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Windsor v. Board of Education of Prince George's County

United States District Court, D. Maryland

September 13, 2016

BOARD OF EDUCATION OF PRINCE GEORGE'S COUNTY, MARYLAND, JANICE BRISCOE, in her official and individual capacities, KARYN LYNCH, in her official and individual capacities, JACQUELINE NAVES, in her official and individual capacities, and DOUGLAS ANTHONY, in his official and individual capacities, Defendants.


          THEODORE D. CHUANG United States District Judge.

         Plaintiff Suzanne Windsor has filed this employment discrimination suit against the Board of Education of Prince George's County, Maryland ("the Board") and Janice Briscoe, Karyn Lynch, Jacqueline Naves, and Douglas Anthony, all of whom are Board employees sued in their official and personal capacities (collectively, the "Individual Defendants"). Presently pending is Defendants' Motion to Dismiss Windsor's Second Amended Complaint. Having reviewed the submitted materials, the Court finds no hearing necessary. See D. Md. Local R. 105.6 (2016). For the following reasons, Defendants' Motion to Dismiss is GRANTED IN PART and DENIED IN PART.


         Windsor is a light-skinned, multiracial woman who began working for the Board of Education of Prince George's County in August 1993 as a classroom teacher. During the 2005-2006 school year, Windsor lodged several complaints about the behavior of an assistant principal at the school where she was teaching. Those complaints made their way to Janet Briscoe, who was then the Associate Superintendent for the region in which Windsor's school was located. Based on Briscoe's handling of the incident as well as other factors, Briscoe was removed from her position as Associate Superintendent at the end of the 2005-2006 school year.

         I. The 2011 Hearing Officer Position

         In 2011, Windsor and Briscoe crossed paths again. By that point, Windsor was working as a Pupil Personnel Worker ("PPW"), a position requiring her to investigate issues of student discipline, including suspension and expulsion, at her assigned schools. Briscoe had the position of Special Projects Officer, which put her in a supervisory position over Windsor. On August 14, 2011, Briscoe sent an email to PPWs announcing five newly-created hearing officer positions within the Board's Office of Appeals. According to Windsor, she was left off of the list of email recipients and never received the announcement. Windsor did not learn of the positions until Briscoe mentioned them at a back-to-school meeting, by which time three of the positions had already been filled. Windsor submitted her application for one of the remaining positions and was given a first-round interview, conducted by Shauna Battle, an attorney for the Board. Windsor was brought back for a second interview, as part of which she was given an opportunity to observe some of the newly hired hearing officers as they conducted hearings. After the interview and observation, Battle informed Windsor that she "did not think" she could offer her a position because Karyn Lynch, the Board's Chief of Student Services, had approved only three, rather than five, hearing officer positions due, to funding constraints. 2d Am. Compl. ¶ 66, ECF No. 52-1. Windsor thus felt that she "had applied for a non-existent position." Id. ¶ 67.

         Believing that she had missed out on the opportunity to interview for the available positions in the Office of Appeals because she had not received the August 14, 2011 email announcing the openings, Windsor met with Briscoe to discuss how the positions had been posted and the interviews conducted. As part of this conversation, Windsor suggested that the hiring for the Office of Appeals positions had not been done in accordance with the "Negotiated Agreement, " the collective bargaining agreement between the Board and the Prince George's County Educators' Association. Id. According to Windsor, Briscoe was not receptive to her concerns and dismissed them by asserting that "she could hire anyone that she wanted." Id. ¶ 68.

         With Briscoe unresponsive, Windsor contacted her union representative, who told her that Windsor had been "black-balled" by Briscoe and that Windsor was generally disliked because she was light-skinned and "pretty." Id. ¶ 70. Windsor suggests that when Briscoe learned of Windsor's meeting with her union representative, Briscoe changed Windsor's duty assignment in retaliation. Windsor's "base school" had been Annapolis Road Academy ("Annapolis Road"), but she had also been assisting part-time with pupil placement at Northwestern High School ("Northwestern"), whose main PPW had retired. Id. ¶ 71. Briscoe, however, changed Windsor's base school for the 2011-2012 school year from Annapolis Road to Northwestern. Windsor had concerns about working at Northwestern because one of its assistant principals was someone who, Windsor asserts, had harassed her in the past. With Windsor now at Northwestern full time, she could not avoid the assistant principal, who "bad mouthed" Windsor to school staff and made negative reports to Lynch about Windsor. Id. ¶ 74.

         Windsor complained to Briscoe about the placement, but Briscoe told her to "deal with it" and that she had no intention of moving Windsor out of Northwestern. Id. ¶ 75. Windsor then went to Lynch. After explaining her history with Briscoe and the Northwestern assistant principal, Windsor expressed concern about what she believed to be "present discrimination, harassment, and retaliation." Id. ¶ 77. Because Windsor was reporting alleged discrimination, Lynch was, Windsor asserts, obligated to follow Administrative Procedure 4170, which requires supervisors who receive reports of alleged discrimination to obtain within five days of the complaint a written responsive statement from the alleged offender. Lynch, however, did not address or pursue Windsor's allegations, but instead "scolded" Windsor for her conduct at Northwestern. Id. ¶ 78.

         Windsor turned at that point to the Board's Equity Office, filing a report complaining about Briscoe's alleged failure to include her on the August 14, 2011 email advertising the Office of Appeals positions and Lynch's failure to follow Administrative Procedure 4170. The Equity Office arranged a mediation session between Windsor and Briscoe. At that session, Briscoe produced what she asserted was a copy of the August 14, 2011 email announcing the Office of Appeals positions with Windsor listed as a recipient. Two other individuals were listed below Windsor on the recipient list. Windsor later contacted them, and they both told her that they had not received the email. The first woman was African American and was, like Windsor, light-skinned; the second had not even been hired by the Board at the time the email was originally sent. Dubious about the validity of the email Briscoe presented at the mediation, Windsor followed up with the Equity Office. Her efforts went nowhere; instead she was told that "[n]othing will be done, you will not be moved" from the Northwestern placement. Id. ¶ 85.

         II. The EEOC Complaint

         By May 2012. Windsor decided she had to go outside the school system for help, so she contacted the Baltimore Office of the United States Equal Employment Opportunity Commission ("EEOC"). She submitted an Intake Questionnaire later that month. Meanwhile, over the summer, Windsor again applied for a position in the Office of Appeals but was not hired, nor did it appear that anyone else was offered the job. She also learned that Briscoe had increased her school caseload from two schools to six, a caseload that she believed was more strenuous than those given to other PPWs.

         By the start of 2013, Windsor's formal EEOC Charge of Discrimination ("Charge") had been drafted. As to the bases for discrimination, the boxes for "Race" and "Color" were checked, but "Retaliation" was not. As to the dates of discrimination, the period in question was listed as beginning and ending on August 14, 2011, and the box indicating that the discrimination was a "continuing action" was not checked. The narrative section, which contained several handwritten edits by Windsor, alleged that Windsor was intentionally left off the August 14, 2011 email announcing the Office of Appeals positions. Windsor also stated that she believed that she was given a "more strenuous caseload than my co-workers." EEOC Charge, ECF No. 43-2. She asserted that the reason for this disparate treatment is that she is "bi-racial" and "fair skinned." Id. Windsor signed and dated the Charge on January 8, 2013. The Charge was mailed to the Board on January 23, 2013, and the Board was given a deadline of February 23, 2013 to file its response.

         On February 12, 2013, Windsor emailed the EEOC to state that she wanted to amend her Charge to include a retaliation claim. On February 17, 2013, Windsor faxed a corrected copy of her Charge to the EEOC. Windsor altered the Charge by checking the box for "Retaliation" and adding, in the narrative section of the document, that when she reported the August 14, 2011 incident and the alleged caseload disparity to others, she was and continued to be "subjected to retaliation." First Opp'n Mot. Dismiss ("First Opp'n") Ex. D, ECF No. 41-5. In a letter dated February 19, 2013, the Board responded to Windsor's January 8, 2013 Charge. The Board indicated that its investigation revealed that there had been two emails sent regarding the positions in the Office of Appeals, one sent on July 27, 2011 and the other on August 2, 2011, and that Windsor had been included on both distribution lists. Id. Ex. E at 1, ECF No. 41-6. The Board also asserted that Windsor's caseload was "equal to those of her colleagues in the same position." Id. at 2. The Board's response, which quoted the January 8, 2013 version of the Charge, made no reference to Windsor's February 17, 2013 allegations of retaliation. In a mediation session the following month, the parties failed to reach any resolution.

         III. 2013 Incidents

         Meanwhile, in January 2013, Windsor applied to be the Supervisor of Pupil Personnel. At a county-wide PPW meeting, Briscoe informed the PPWs that while she had assisted in assembling the hiring committee for that position, she herself would not be on it. Windsor was interviewed for the position, but it appeared to her that Briscoe had poisoned the committee against her. When Windsor arrived at the interview, one interviewer allegedly told Windsor that she was familiar with her name, but would not explain how. Another interviewer, Anthony Boyd, described his plans for Windsor at her current assignment, which she interpreted to mean that he had no intention of hiring her for the supervisory position. Once in the interview room, Windsor discovered that Battle was also on the interview panel, which she felt was a conflict of interest since Battle had been involved in the Office of Appeals interview process about which Windsor had complained. Windsor ultimately was not selected for the position. Instead, Defendant Jacqueline Naves, whom Windsor asserts is a friend of Briscoe and Boyd, was offered the job.

         Windsor contacted the Human Resources Department with her concerns about the composition of her interview panel. In response to Windsor's email, a Department representative informed her that the panel had been selected in accordance with all relevant guidelines. Dissatisfied, Windsor went to the Department to ask for a copy of the guidelines mentioned in the email. She was informed that no such document existed and that if she had further concerns, she should direct them to Defendant Douglas Anthony, who was at that time the Acting Chief of the Human Resources Department. According to Windsor, when she pursued the issue with Anthony, he evaded her questions. Windsor then forwarded her email to the members of the Board, one of whom indicated that the matter should be addressed. In response, Anthony allegedly consulted with Battle before repeating to Windsor that the interview panel had been selected in accordance with Human Resources guidelines but that no document laying out those guidelines existed. As to the guidelines, Anthony explained that it was the practice of Human Resources to ensure that all members of the interview panel held supervisory positions and to screen panel members for any possible bias or conflict of interest. In a later meeting with members of the Human Resources Department, Windsor voiced her belief that her panel had not been selected in accordance with this policy and that it appeared to her that the informality of the Department's procedures had led to discriminatory hiring practices. Her complaints failed to result in any change to the hiring decision.

         Windsor asserts that Naves, who had become Windsor's supervisor, then began to retaliate against her by scheduling her for an off-cycle performance evaluation, scheduling and then cancelling multiple appointments, refusing to approve expense requests that had never previously been denied, and then, at the end of the school year, refusing to provide Windsor with her duty assignment for the subsequent year, as she was obligated to do by the terms of the Negotiated Agreement. This retaliatory activity allegedly continued into the next school year.

         At some unspecified point in 2013, Naves announced that the Board would again interview candidates for positions in the Office of Appeals. Windsor applied and was again selected for an interview. The interview panel included Briscoe, a Pupil Personnel Transition Worker, and a non-supervisory secretary, and thus had not been selected in accordance with the guidelines that Anthony had described to Windsor. Windsor contacted Anthony with her concerns, who responded that some of his subordinates were better at following HR directives than others and that he would try to ensure that any future interview panels were properly selected. Anthony also "insisted" that Windsor discuss her concerns with Douglass Williams, the new Chief of Student Services, who had previously invited Windsor to shadow him during the workday. 2d Am. Compl. ¶ 126. Immediately prior to that meeting, however, Windsor observed Naves enter Williams's office. Windsor asserts that, following Naves's conversation with Williams, Williams's demeanor towards her became "abrasive." Id. ¶ 128. Williams later rescinded his offer to allow Windsor to shadow him and, in Windsor's estimation, did not follow up on the concerns she expressed at their original meeting.

         Throughout this period, Windsor sent a series of emails to the EEOC to describe acts that she perceived to be retaliation, including the inclusion in 2013 of Briscoe on her interview panel for a position in the Office of Appeals. In a July 3, 2013 email, Windsor also inquired about the progress of the investigation and expressed her interest in amending and correcting her charging document because the current document "left out quite a bit of the information I originally submitted." First Opp'n Ex. G, ECF No. 41-8. The EEOC responded by informing Windsor that her case was still under investigation and that she did not "have to do a new charge every time something on the job happens that you feel is retaliation." Id.

         IV. Procedural History

         On April 22, 2014, the EEOC issued Windsor a Right to Sue letter. Corr. First Mot. Dismiss Ex. 3, ECF No. 43-3. On July 18, 2014, Windsor, proceeding pro se, filed suit in this Court. On August 29, 2015, Windsor, now represented by counsel, filed her Second Amended Complaint alleging nine causes of action: (1) color discrimination in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-7 (2012); (2) a hostile work environment based on race and color, in violation of Title VI; (3) retaliation, in violation of Title VI; (4) color discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-4; (5) a hostile work environment based on race and color, in violation of Title VII; (6) retaliation, in violation of Title VII; (7) race and color discrimination in violation of 42 U.S.C. § 1981; (8) infringement of her due process and equal protection rights in violation of 42 U.S.C. § 1983; and (9) breach of contract. Windsor appears to allege all causes of action against all Defendants, although her pleading on this score is not precise. On December 1, 2015, Defendants filed a Motion to Dismiss Windsor's Second Amended Complaint. Windsor filed her Response on December 22, 2015, and Defendants filed their Reply on January 7, 2016.


         Defendants move to dismiss some of Windsor's Title VII claims under Federal Rule of Civil Procedure 12(b)(1) and seek to dismiss all of her remaining claims under Rule 12(b)(6). As to dismissal pursuant to Rule 12(b)(1), Defendants argue that Windsor has not exhausted her administrative remedies as to her Title VII hostile work environment and retaliation claims. Under the precedent of the United States Court of Appeals for the Fourth Circuit, a failure to exhaust administrative remedies under Title VII should be addressed by way of a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1).[1] Jones v. Calvert Group, Ltd., 551 F.3d 297, 300-01 (4th Cir. 2009). On a Rule 12(b)(1) motion, the plaintiff bears the burden of proving that subject matter jurisdiction exists, while a defendant may assert either (1) a facial challenge that the allegations as stated in the complaint are not to sufficient to establish subject matter jurisdiction, or (2) a factual challenge that the allegations establishing jurisdiction are not true. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Defendants assert a factual challenge, arguing that Windsor did not, in fact, exhaust her administrative remedies as to her hostile work environment and retaliation claims.

         Pursuant to Rule 12(b)(6), Defendants argue (1) that Windsor's Title VII claims cannot proceed against the Individual Defendants, and that she fails to plead adequate facts to state a viable Title VII failure to hire claim; (2) that Windsor's Title VI claims fail because Windsor does not adequately plead that the Board received federal funds that it used primarily for employment purposes and because the bulk of those claims arose outside of the applicable statute of limitations period; (3) that Windsor's § 1983 claims against the Board and the Individual Defendants in their official capacities are barred by the Eleventh Amendment to the United States Constitution, and that Windsor's § 1983 claims against the Individual Defendants in their personal capacities are either time-barred or fail to state a claim; (4) that Windsor's § 1981 claims against the Board and the Individual Defendants in their official capacities are barred by the Eleventh Amendment, and that § 1981 claims against the Individual Defendants in their personal capacities fail either because they are time-barred or because they may only be brought under § 1983; and (5) that Windsor's breach of contract claims must be dismissed because Windsor failed to exhaust the grievance procedures set forth in the governing Collective Bargaining Agreement.

         To defeat a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Legal conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint as a whole, consider the factual allegations in the complaint as true, and construe the factual allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268 (1994); Lambeth v. Bd. of Comm 'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005).

         I. Exhaustion of Administrative Remedies

         Defendants argue that Windsor's Title VII hostile work environment and retaliation claims must be dismissed because those claims were not included in Windsor's EEOC Charge of Discrimination. Before filing suit under Title VII, a plaintiff is required to file an administrative charge of discrimination with the EEOC. 42 U.S.C. § 2000e-5(f)(1). The "EEOC charge defines the scope of the plaintiffs right to institute a civil suit." Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 132 (4th Cir. 2002). The EEOC Charge must contain allegations "sufficiently precise to identify the parties, and to describe generally the actions or practices complained of." Chacko v. Patuxent Institution, 429 F.3d 505, 508 (4th.Cir. 2005) (quoting 29 C.F.R. §1601.12(b) (2004)). If the claims asserted in a civil action "exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred." Id. at 509.

         A. Hostile ...

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