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Littleton v. State

United States District Court, D. Maryland

February 28, 2018

REBECCA LITTLETON, Plaintiff
v.
STATE OF MARYLAND, et al., Defendants.

          MEMORANDUM

          James K. Bredar Chief Judge.

         Plaintiff Rebecca Littleton brought this action in the Circuit Court for Frederick County against the State of Maryland (“the State”), Frederick County State's Attorney J. Charles Smith III (“Defendant Smith”), and Frederick County Executive Jan Gardner alleging First Amendment retaliation in violation of 42 U.S.C. § 1983, negligence, and breach of contract. (See Compl., ECF No. 2.) The Defendants removed the case to this Court, and on November 27, 2017 Plaintiff amended her complaint and substituted Frederick County (“the County”) for Ms. Gardner. (See Am. Compl., ECF No. 18.) On the same day, Plaintiff moved to excuse notice to the State Treasurer (see ECF No. 19). Briefly, the Maryland Tort Claims Act requires those with tort claims against the State to notify the State Treasurer or a designee prior to filing an action in court, but this requirement can be excused on a motion if good cause is shown. See Md. Code Ann., State Gov't § 12-101 et seq. In response to Plaintiff's amended complaint, the County brought a motion to dismiss (ECF No. 24) and the State brought a motion to dismiss on behalf of itself and Defendant Smith (ECF No. 25). The State responded in opposition to Plaintiff's motion to excuse notice and the time for Plaintiff to reply has expired. Plaintiff responded to both motions to dismiss and both parties replied. Therefore, the motion to excuse late notice, the County's motion to dismiss, and the State's motion to dismiss are all ripe for review. No. hearing is necessary to resolve the matter. See Local Rule 105.6 (D. Md. 2016). Plaintiff did not demonstrate good cause for failure to notify the State Treasurer or designee and therefore her motion to excuse late notice will be denied. Plaintiff has failed to state claims against the Defendants, failed to overcome sovereign immunity, and failed to overcome various qualified immunities. For these reasons, explained further below, all but one claim against one Defendant will be dismissed.

         I. Background[1]

         In 2014, Plaintiff was working as a Victim Witness Coordinator at the Frederick County State's Attorney's office (“SAO”). (Am. Compl. ¶¶ 9, 11.) That year, she supported “former State's Attorney Rolle” in his campaign for Circuit Court Judge. (Id. ¶ 11.) Defendant Smith, the current Frederick County State's Attorney, “chastised” Plaintiff for “expressing her support” for Rolle in the election. (Id.)

         Soon after being “chastised” Plaintiff sent emails using her work account. (See Am. Compl. ¶¶ 11-12.) They covered two topics. First, Plaintiff vented some frustration about how Defendant Smith's religious stance on abortion had affected a child (presumably a victim, and presumably a victim Plaintiff worked with). (See Id. ¶¶ 11, 34.) The second topic of these emails was a more general frustration with Defendant Smith, including “disparaging comments about Defendant Smith in his capacity as State's Attorney.” (Id. ¶ 12.) As a result of an “internal investigation unrelated to Plaintiff, Defendant Smith became privy to Plaintiff's email correspondence.” (Id. ¶ 13.) That is (the Court assumes) Defendant Smith read Plaintiff's emails.

         On May 26, 2015, Plaintiff “was invited to a meeting in Defendant Smith's office, ” where she was shown a letter signed by Defendant Smith (“the May 26 letter”). (Am. Compl. ¶ 14; see May 26 Letter, Am. Compl. Ex. A, ECF No. 2-1.) This letter stated the following: Defendant Smith and others were notified by Human Resources of a complaint regarding “improper use of [SAO resources].” (May 26 Letter.) They then conducted an investigation, covering Plaintiff's use of work email and access to various specific databases. (Id.) During this investigation, “it was discovered that [Plaintiff] engaged in numerous violations of the Frederick County Technology Use Policy and SAO protocol [including] misuse of information systems; a lack of trustworthiness, and pervasive conduct unbecoming the Office of the State's Attorney and Its employees.” The Letter informed Plaintiff that because of these issues, her “at-will employment [was] terminated.” (Id.)

         Plaintiff “vehemently denied the accusations, based primarily on the fact that she lacked any practical access whatsoever to any of the databases listed in Defendant Smith's letter, ” a state of affairs confirmed by Deputy State's Attorneys who were in the meeting. (Am. Compl. ¶ 15.) Plaintiff does not allege that she denied improperly using SAO resources, that she lacked trustworthiness, or that she engaged in behavior unbecoming of the SAO. Based on Plaintiff's corroborated denial regarding database use, however, Defendant Smith “reconsidered his decision to terminate Plaintiff.” (Id.) Defendant Smith “also notified Plaintiff for the first time that he had read her ‘venting' emails with disparaging statements about him contained therein.” (Id.)[2]

         At some point, Defendant Smith “disclos[ed] . . . the true rationale behind Plaintiff's termination.” (Am. Compl. ¶ 16.) Considering that Plaintiff has brought a lawsuit regarding her termination, it would have been helpful for Plaintiff to state, explicitly, and in her complaint, what this rationale was. As is, the Court is left to guess that the alleged “true rationale” behind Defendant Smith's decision to fire Plaintiff has something to do with the emails Plaintiff sent, presumably that they contained disparaging remarks about Defendant Smith. Regardless, once Plaintiff knew this “true rationale” she “knew that her employer-employee relationship with [the SAO] had been irreparably harmed.” (Id.) Defendant Smith then made Plaintiff an offer, which she accepted. (Id.) Under the terms of this deal “the SAO agreed to allow Plaintiff to resign her position in consideration of their agreement to provide a good letter of recommendation, sanitize her personnel file of all accusations regarding impropriety, and ensure that no future employers are aware of those inaccurate accusations contained in Defendant Smith's initial termination letter.” (Id. ¶ 58.)

         After this meeting, County Human Resources Director Mitch Hose prepared a document that appears to be a boiler-plate human resources form, cataloging the nature of Plaintiff's departure from the SAO. (Am. Compl. ¶ 17; Hose Document, ECF No. 31-5.)[3] Under “Termination Reasons” the space next to voluntary resignation is checked. It notes that Plaintiff accrued paid leave, and that Plaintiff is not eligible for rehire by the County. On the second page there are some scribbled notes that are largely unintelligible and appear to reference sick and annual leave. After resigning from the SAO, Plaintiff was unable to find work for two months. (Am. Compl. ¶ 18.) She lost her ability to begin collecting her County pension at 52, and now has to wait until the age of 65, and cannot reinvest in the County pension plan. (See Id. ¶¶ 10, 18.)

         Ultimately, Plaintiff was able to find new employment in the Staff Judge Advocate's office on Fort Detrick in Frederick, Maryland. (See Am. Compl. ¶¶ 8, 18.). This position required her to “fill[] out a questionnaire” so she could obtain security credentials. (Id. ¶ 19.) This questionnaire asked “During the last 5 years . . . did you leave any job by mutual agreement because of specific problems . . . ?” (Id.) Plaintiff answered “no.” (Id.) “During a routine background employment check . . . the State Defendants filled out [a form] indicating that Plaintiff ‘resigned after informed of possible discharge.'” (Id. ¶ 20.)[4] Additionally, someone sent the May 26 Letter to her current employer. (See id.)

         In March 2016, after obtaining this information from the SAO, the Department of Defense (“DOD”) “issued a Statement of Reasons expressing concerns about Plaintiff's continuing eligibility for . . . credentials.” (Am. Compl. ¶ 22.) In June 2016, Defendant Smith sent an email to the DOD, stating that Plaintiff had used her work email for personal business but “did not personally or directly access any other databases or resources, or allow others to use her credentials for such access.” (Compl. Ex. E, ECF No. 2-5.)[5]

         On November 17, 2016 a hearing was held before an Administrative Law Judge (“ALJ”) to determine Plaintiff's eligibility for credentials. (Am. Compl. ¶ 25.) Plaintiff does not allege that any of the Defendants were present, or performed any action at this hearing. DOD counsel did not mention Defendant Smith's June 2016 email, but Plaintiff had a copy. (Id. ¶ 26.) Upon learning of this email, the ALJ found that “Plaintiff had potentially misused her work email to conduct personal business, but that this instance of that conduct did not rise to the level of affecting Plaintiff's credentials.” (Id. ¶ 27.) Ultimately, the ALJ “ruled that Plaintiff did not deliberately falsify her declaration for federal employment” and that any improper conduct Plaintiff engaged in in the past should not prevent her from receiving her credentials. (Id. ¶ 30.) Plaintiff retained her credentials, and continues to work at Fort Detrick.

         Plaintiff brought this action against Defendant Smith, the State, and a Frederick County Executive in the Circuit Court for Frederick County on September 29, 2017, alleging a violation of her First Amendment rights as well as various state law claims. The Defendants removed the case to this Court on October 27, and Plaintiff amended her complaint and substituted the County for the County Executive as a party. Plaintiff brought a motion to excuse her failure to properly notify the State Treasurer in accordance with the Maryland Tort Claims Act, and the State and County have brought motions to dismiss.

         II. Standard

         A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. An inference of a mere possibility of misconduct is not sufficient to support a plausible claim. Id. at 679. As the Twombly opinion stated, “Factual allegations must be enough to raise a right to relief above the speculative level.” 550 U.S. at 555. “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' . . . Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557). Although when considering a motion to dismiss a court must accept as true all factual allegations in the complaint, this principle does not apply to legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555.

         III. Analysis

         Plaintiff's amended complaint purports to state four causes of action against three Defendants: Frederick County, the State of Maryland, and Defendant Smith. The Court will review the claims against these Defendants in that order.

         a. County Liability

         Plaintiff brings two counts against Frederick County: First Amendment retaliation and breach of contract. The Court will dismiss both counts because Plaintiff has failed to allege that the County engaged in any activity involving Plaintiff that can serve as the basis for liability.

         The State's Attorney and SAO are creatures of the State, created by Article V, § 7 of the Maryland Constitution. Valle v. Pressman, 185 A.2d 368, 374 (Md. 1962); see also Md. Code Ann., Gen. Provis. § 5-101 (defining “State official” as, inter alia, “a State's Attorney”). For example, when a State's Attorney fires employees for political statements (in opposition to the State's Attorney's candidacy), the employees do not necessarily have recourse against the county. See Runnels v. Newell, 944 A.2d 1183, 1211-13 (Md. Ct. Spec. App. 2008), aff'd in part and rev'd in part on other grounds, Newell v. Runnels, 967 A.2d 729 (Md. 2009). The court in Runnels explained that the county could be liable only if the employees showed that the State's Attorney was a “policymaker for [the county]” and that he “had final policymaking authority concerning the decision to fire [the employees].” Id. at 1211 (citing McMillian v. Monroe Cty., Alabama, 520 U.S. 781, 785 (1997)). Counties fund SAOs, and there is much county-related decisionmaking in that regard, but ordinary firing decisions do not involve county policy. See Id. at 1211-12.

         Here, Plaintiff does not allege that Defendant Smith was a policymaker for the County or that he did anything to Plaintiff as part of a County policy. Therefore, nothing that Defendant Smith did towards Plaintiff can serve as the basis for liability against the County. Plaintiff does, however, allege that there is one action the County itself performed, independent of Defendant Smith, that can serve as the foundation for liability. Plaintiff alleges that “County Human Resources Director Mitch Hose . . . ratified” the alleged contract between Defendant Smith and Plaintiff. (Am. Compl. ¶ 17.)

         A county can ratify a decision made by a State's Attorney, and thus incur liability. See Runnells, 944 A.2d at 1213-15. But the plaintiff must present some facts from which a jury could infer that the county official knew the nature of the decision. See Id. at 1213. The document signed by Mitch Hose and attached to Plaintiff's complaint is not plausibly a ratification of some nefarious action by Defendant Smith or an agreement between Defendant Smith and Plaintiff. On the first page, it notes that Plaintiff resigned voluntarily, that she accrued paid leave which should be deposited into her account (not a term of the alleged contract), and that she was not eligible for rehire by the County (not a term of the alleged contract). On the second page, the document seems to note that the “action” being recorded is termination (“action” is cut off) and then there are some handwritten and largely illegible notes. These notes seem to refer to accrued sick leave. Plaintiff's signature does not appear on the document. Aside from noting that Plaintiff resigned, it does not demonstrate any knowledge on behalf of Mr. Hose (and therefore, the County) of the conditions of Plaintiff's purported contract with Defendant Smith (e.g. that the “inaccuracies” of the May 26 letter not appear in her personnel file, or that someone prepare a letter of recommendation for her), nor does it demonstrate any knowledge of Defendant Smith's “true rationale” for terminating Plaintiff, the substance of Plaintiff's emails, or even that Plaintiff was investigated. It is not plausible that this document “ratified” the purported contract between Plaintiff and Defendant Smith.

         Plaintiff nowhere alleges any other activity that the County engaged in that could serve as the basis for liability for either a First Amendment retaliation claim or a breach of contract claim. Accordingly, all claims against Frederick County will be dismissed.

         b. St ...


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