United States District Court, D. Maryland
KENDRICK A. JORDAN Plaintiff
MARYLAND TRANSIT ADMINISTRATION, ET AL. Defendants
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
J. Garbis, United States District Judge
Court has before it Defendants' Motion to Dismiss [ECF
No. 9] and the materials submitted related thereto. The Court
finds no need for a hearing.
Kendrick A. Jordan (“Jordan” or
“Plaintiff”) sues Defendants Maryland
Transportation Administration (“MTA”) and Colonel
John Gavrilis, Chief, Maryland Transportation Administration
Police Force (“Gavrilis”). Jordan asserts claims
for alleged racial discrimination and retaliation pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-5, and for alleged violations of his constitutional
rights pursuant to 42 U.S.C. §§ 1981 and 1983.
instant motion, Defendants seek dismissal of all claims.
motion to dismiss under Rule 12(b)(1) raises the fundamental
question as to whether this Court has jurisdiction to
adjudicate the claims presented. The Plaintiff has the burden
of proving that subject matter jurisdiction exists when a
defense is raised pursuant to Rule 12(b)(1). Richmond,
Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991).
a motion to dismiss filed pursuant to Rule 12(b)(6), which
confines the Court's analysis to the allegations in the
pleadings, a motion challenging subject matter jurisdiction
under Rule 12(b)(1) allows consideration of evidence outside
the Complaint. Id. In ruling on a 12(b)(1) motion, a
court must “apply the standard applicable to a motion
for summary judgment, under which the nonmoving party must
set forth specific facts beyond the pleadings to show that a
genuine issue of material facts exists.” Id.
motion to dismiss filed pursuant to Rule 12(b)(6) tests the
legal sufficiency of a complaint. A complaint need only
contain “‘a short and plain statement of the
claim showing that the pleader is entitled to relief, '
in order to ‘give the defendant fair notice of what the
. . . claim is and the grounds upon which it
rests.'” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (alteration in original) (citations
omitted). When evaluating a 12(b)(6) motion to dismiss, a
plaintiff's well-pleaded allegations are accepted as true
and the complaint is viewed in the light most favorable to
the plaintiff. However, conclusory statements or “a
formulaic recitation of the elements of a cause of action
will not [suffice].” Id. A complaint must
allege sufficient facts “to cross ‘the line
between possibility and plausibility of entitlement to
relief.'” Francis v. Giacomelli, 588 F.3d
186, 193 (4th Cir. 2009) (quoting Twombly, 550 U.S.
into whether a complaint states a plausible claim is
“‘a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.'” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009)). Thus, if “the
well-pleaded facts [contained within a complaint] do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged - but it has not
‘show[n]' - ‘that the pleader is entitled to
relief.'” Id. (quoting Iqbal, 556
U.S. at 679 (alteration in original)).
an African-American male, was hired by the MTA Police Force
in 1999 as a Probationary Police Officer. Compl. ¶
He was promoted to the rank of Corporal in 2006 and to the
rank of Sergeant in 2009. Id. He alleges that the
MTA Police Force, and Gavrilis as Chief, engaged in several
actions violative of his rights.
Denial of Promotion to Lieutenant
about the summer of 2011, Jordan took the Lieutenant's
promotional exam, achieving the fourth-highest score.
Id. at ¶¶ 9-10. The top four ranked
candidates were African-American and the sixth was Caucasian.
Id. at ¶ 10. In August 2011, the first- and
second-ranked candidates were promoted to Lieutenant and the
third-ranked candidate declined the promotion. Id.
at ¶ 11. In January 2012, Gavrilis promoted the fifth-
and sixth-ranked candidates, passing over Jordan.
Id. at ¶ 13. In January 2012, shortly after
being denied the promotion, Plaintiff filed an internal
complaint, presumably alleging that he had been passed over
for promotion because of his race. Id. at ¶ 14.
factual allegations regarding his denial of the promotion
consist of the conclusory statement:
Upon information and belief, Plaintiff was denied promotion
to the rank of Lieutenant based upon his race and/or color
and his internal complaints of discrimination.
Id. at ¶ 15.
Performance Evaluation Lowered
February 2012, Jordan's performance evaluation - that had
initially stated his performance exceeded expectations - was
revised by Gavrilis to indicate that his performance did not
exceed expectations. Id. at ¶ 16.
Demotion and Reprimand
March 2012, Plaintiff was administratively charged with two
infractions, one “serious” and one
“minor.” Id. at ¶ 17. He was found
not guilty of the major infraction but guilty of the minor
one with a recommendation of the loss of three days of leave.
Gavrilis, however, increased the sanction to a demotion of
two ranks from Sergeant to Police Officer, loss of ten days
of leave, and issued a severe letter of reprimand.
Id. at ¶ 20. This was a more severe punishment
than that recommended by the board that considered his
infraction charges, and was more severe than that typically
given to departmental members for the same or similar
infractions. Id. at ¶¶ 19, 21.
Denials of Promotion to Corporal
January 2013, Plaintiff took the exam for promotion to the
rank of Corporal. Id. at ¶ 22. He was not
promoted, despite being the only candidate eligible for the
promotion. Id. at ¶ 24. In August 2013,
Plaintiff inquired as to why Gavrilis had not promoted him
and was told that Gavrilis “did not feel like he
deserved to be promoted.” Id. at ¶ 27. In
October 2013, Plaintiff again took the Corporal's
promotional exam and once again was the only eligible
candidate for promotion. Id. at ¶ 29. Again,
Gavrilis did not promote him, and the promotional list
expired in March 2014. Id. at ¶ 31.
September 25, 2013, or December 13, 2013,  Jordan filed a
charge with the EEOC asserting claims for racial and
retaliatory discrimination stating:
I am currently employed as a Police Officer under the
supervision of Sergeant Jackson.
On October 15, 2012, I received a demotion of two ranks from
Sergeant to Officer, a 10 day suspension, and a letter of
reprimand for a minor infraction. Officer Donalie Anderson
(White) however, only received a 35 day suspension and 10
days of lost leave for an egregious infraction. On August 23,
2013, I was denied a promotion to Corporal despite being the
only eligible candidate.
I was told I would not be promoted because Colonel John
Gaurius, (sic) Chief of Police, did not feel I
deserved it. No explanation was provided for Respondent's
I believe I have been discriminated against because of my
race (Black) and retaliated against for engaging in protected
activity with respect to demotion and promotion in violation
of Title VII of the Civil Rights Act of 1964, as amended.
EEOC Charge, Ex. A to Defs.' Mem. [ECF No. 9-1] at 29.
27, 2015, Jordan received a “right to sue letter”
and, on October 23, 2015, filed the Complaint [ECF No. 1]
asserting claims in three ...