Perry v. State

          MEMORANDUM AND ORDER RE: MOTION TO DISMISS

          MARVIN J. GARBIS UNITED STATES DISTRICT JUDGE.

         The Court has before it Defendants' Motion to Dismiss [ECF No. 10], Defendant Allen J. Perdue's Motion to Dismiss for Failure to State A Claim Upon Which Relief Can Be Granted [ECF No. 11], and the materials submitted relating thereto. The Court finds that a hearing is not necessary.

         I. BACKGROUND

         A. Parties and Claims

         Plaintiff Sandra R. Perry (“Plaintiff” or “Perry”) was an Agent Procurement Specialist at Deer's Head Hospital Center (“DHHC”), and was terminated from employment in October 2017. Compl. ¶¶ 1, 58. Defendants are (1) the State of Maryland, (2) Maryland Department of Health, (3) DHHC, (4) Mary Beth Waide, (5) Kenneth Waller, (6) Elizabeth Perdue, (7) Allen John Perdue, and (8) Luanne Dashield.^[1] Plaintiff brings the following claims against each Defendant:

Count	Title
I	Title VII: Discrimination Based Upon Sex
II	Title VII: Sexual Harassment (Hostile Work Environment)
III	Title VII: Retaliation
IV	Civil Conspiracy
V	Intentional Infliction of Emotional Distress

         All Defendants have moved to dismiss the Complaint [ECF Nos. 10 and 11], although Allen J. Perdue's motion to dismiss is contained in a separate filing [ECF No. 11].

         B. Facts As Alleged by Perry^[2]

Plaintiff Perry was employed by DHHC from 2009 to 2017 as an “Agency Procurement Specialist II, ” meaning that she was responsible for “procuring equipment, services, supplies, and other needs” for DHHC through a competitive procurement process. Compl. ¶¶ 12-13. On October 1, 2015, Plaintiff received the following email message to her work email address, from <leglover13@hotmail.com>:

are you an exhibitionist? love those short skirts and your long legs. when you bent over your cheeks looked great. do you go commando? my picture says so? need more personal contact. you might agree by sending me proof and if you shave. I know you don't want this circulated.

Id. ¶¶ 16-17. Plaintiff did not recognize the email address, felt “extremely uncomfortable and threatened, ” and reported the email to her supervisor (Defendant Elizabeth Perdue) and her department director (Defendant Waller), neither of whom took action. Id. ¶¶ 18-19.

         Later that same day, she “determined, by performing a Google search that the sexually harassing email message came from Allen John Perdue, who is the husband of [her] immediate supervisor, Mrs. Beth Perdue.”^[3] Id. ¶ 20. Plaintiff explained this finding to Defendant Waller and “members of the IT staff” yet still received no response. Id. ¶¶ 21-22. Afterwards, a member of the IT staff allegedly went onto her computer and moved the email message from her inbox to the spam folder. Id. ¶ 23. Plaintiff retrieved the email from the spam folder, shared it with the Human Resources Department, and requested that Human Resources address this matter with Mrs. Perdue and prelude Mr. Perdue from entering the premises. Id. ¶ 24.

         Following the incidents on October 1, 2015, Plaintiff alleges that Defendant Elizabeth Perdue “initiated a pattern of hazing, harassment, hostility, and isolation” directed at Plaintiff, including giving her “the silent treatment” and “bec[oming] critical” of her work performance. Id. ¶ 25. Plaintiff alleges that her complaints about Defendant Elizabeth Perdue were ignored, that she was refused a request for a different supervisor, that she began medical treatment for stress, anxiety, and depression. Id. ¶¶ 26-28.

         In November 2015, Defendant Dashield informed Plaintiff that she was assigned to a “clerical position of ‘timekeeping, '” which was a lower level position than her procurement position and was located in an “unoccupied area of the DHHC building.” Id. ¶¶ 29-30, 33. Upon hearing that this position would be permanent, Plaintiff allegedly suffered a panic attack and had to take 12 weeks of medical leave. Id. ¶¶ 34-35.

         On February 11, 2016, Plaintiff filed a charge of discrimination with the EEOC, alleging sexual harassment and retaliation. Id. ¶ 37. She returned to work soon thereafter (in her original procurement position), and continued to be supervised by Defendant Elizabeth Perdue. Id. ¶ 36. Ms. Perdue allegedly began to remove responsibilities from Plaintiff, including personally handling responsibilities for which Plaintiff used to handle, not providing Plaintiff with access to files that she believed she needed to effectively complete her work, and changing the way contract review was assigned so that Plaintiff had fewer independent responsibilities. Id. ¶¶ 36-39, 41-43. Ms. Perdue also “slamm[ed] office doors, slamm[ed] filing drawers, and slamm[ed] restroom doors” whenever Plaintiff was nearby. Id. ¶ 40.

         During this time, Plaintiff discovers a 6-month performance review finalized during her medical leave that gave her work a rating of “Satisfactory, ” even though she had always received an “Outstanding” performance review prior to her medical leave. Id. ¶¶ 14, 44.

         On April 10, 2017, Plaintiff was approved for, and took, another three-month long medical leave as a result of “stress, anxiety, and depression.” Id. ¶¶ 47-48. Although she was scheduled to return to work on July 5, 2017, on that date she stated that she was not medically cleared to return to work due to stress, anxiety and depression. Id. ¶ 50. Defendants requested a Task Analysis from Plaintiff's medical provider, and sent Plaintiff for a medical evaluation by a doctor at the State Medical Director's Office, who reported that Plaintiff “is not likely psychologically fit to efficiently perform her job duties at her current location at Deer's Head Hospital Center” but that Plaintiff “would be able to perform [her] duties . . . in a different location.” Id. ¶¶ 51-54.

         Following this medical evaluation, Defendant Dashield wrote a letter to Plaintiff on September 12, 2017, stating that reassignment was not feasible due to a lack of vacancies and that “a list of reasonable accommodations” could be provided but not guaranteed. Id. ¶ 55. The letter “concluded by stating that if accommodations cannot be granted, ” then Plaintiff could resign, apply for disability or service retirement, or be terminated. Id.

         Plaintiff filed for disability retirement on September 25, 2017, and was formally terminated by letter on October 7, 2017. Id. ¶¶ 57-58.

         II. LEGAL STANDARD

         A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 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) (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. at 557).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Inquiry into whether a complaint states a plausible claim is &ldquo;a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.&rdquo; Id. 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 shown - that the pleader is entitled to ...