United States District Court, D. Maryland
L. Hollander United States District Judge
employment discrimination case, plaintiff Patricia Van Story,
D.D.S., has sued her former employer, the Washington County
Health Department (“WCHD”), as well as the
Maryland Department of Health & Mental Hygiene (the
“Department”) and Governor Larry Hogan, alleging
retaliation, in violation of the Equal Protection Clause of
the Fourteenth Amendment and 42 U.S.C. § 1981. ECF 1
(“Complaint”). She seeks “compensatory and
economic” damages as well as unspecified equitable and
declaratory relief. Id. at 6.
have moved to dismiss the Complaint (ECF 7), supported by a
memorandum of law (ECF 7-1) (collectively, the
“Motion”). Pursuant to Fed.R.Civ.P. 12(b)(1),
defendants seek dismissal on the ground that suit is barred
under the Eleventh Amendment, based on sovereign immunity.
ECF 7-1 at 4-5. In the alternative, defendants argue,
pursuant to Fed.R.Civ.P. 12(b)(6), that § 1981 does not
provide an independent cause of action against state actors.
Further, they maintain that even if § 1981 does provide
a cause of action, the Complaint fails to state a claim of
retaliation. Id. at 5-10.
Story opposes the Motion (ECF 10) (“Opposition”).
The defendants have replied. ECF 11 (“Reply”).
argument is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons set forth below, I shall
grant the Motion, with leave to amend.
WCHD is one of twenty-four statutorily created county health
departments in Maryland. Md. Code (2015 Repl. Vol., 2017
Supp.), § 3-301(a) of the Health-General Article
(“H.G.”). Each county has a county health
officer, who appoints the staff of the county's health
department. H.G. § 3-306(b)(2).
Story, a dentist, began her employment with WCHD on December
7, 2007. ECF 1, ¶ 9. During the relevant time
period, she served as the “Dental Director/Program
Manager.” Id. ¶ 10.
November 2012, Van Story filed a complaint against her
supervisor, Rod MacRae.Id. ¶ 11. Thereafter,
Susan Parks replaced MacRae as Van Story's supervisor.
Id. Van Story alleges that after she filed
“her complaint against Mr. [MacRae], WCHD retaliated
against her in the form of continued harassment and
discrimination” on at least three occasions.
Id. ¶ 12; see also Id. ¶¶
on September 4, 2014, Van Story learned that “even
though [she] was the Dental Director, . . . WCHD had
previously applied for a dental grant without her knowledge
and without her input.” Id. ¶ 13.
Instead, Parks, her supervisor, prepared the application.
Id. ¶ 14. Second, on September 24, 2014, WCHD
“informed Dr. Van Story that an employee complaint had
been filed against her and that she was to appear at a
hearing for said complaint” later that day.
Id. ¶ 16. Third, Van Story's “name
was omitted from the Department's staff directory while
the Department's Medical Director Dr. Mark Jameson was
included.” Id. ¶ 15.
April 9, 2015, “Van Story was terminated from her
position at WCHD.” Id. ¶ 17. She alleges
that she filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”), based
on race (African American), gender (female), and age (65), as
well as retaliation, under “Title VII of the Civil
Rights Act, ” the Age Discrimination in Employment Act,
and the Americans with Disabilities Act. ECF 1, ¶¶
5-6, ¶ 5 n.1. However, the Complaint does not specify
the date of filing of the charge. Id. ¶ 5
(citing EEOC Charge 531-2014-02518).
about June 12, 2015, the EEOC “concluded that the
evidence ‘obtained during the course of the
investigation fails to support [Dr. Van Story's]
allegations.'” Id. ¶ 8 (quoting EEOC)
(alteration in original). Van Story did not file this suit
until December 4, 2017.
Standard of Review
noted, defendants have moved to dismiss under Fed.R.Civ.P.
12(b)(1) for lack of subject matter jurisdiction, asserting
that plaintiff's claims are barred by sovereign immunity.
Under Fed.R.Civ.P. 12(b)(1), plaintiff bears the burden of
proving, by a preponderance of evidence, the existence of
subject matter jurisdiction. See Demetres v. East West
Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see
also The Piney Run Preservation Ass'n v. Cty. Comm'rs
of Carroll Cty., 523 F.3d 453, 459 (4th Cir. 2008);
Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th
Fourth Circuit recently reiterated that the defense of
sovereign immunity is a jurisdictional bar, stating that
“‘sovereign immunity deprives federal courts of
jurisdiction to hear claims, and a court finding that a party
is entitled to sovereign immunity must dismiss the action for
lack of subject-matter jurisdiction.'”
Cunningham v. Gen. Dynamics Info. Tech., Inc., 888
F.3d 640, 649 (4th Cir. 2018) (quoting Ackerson v. Bean
Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)). But,
the defendant “bears the burden of demonstrating”
sovereign immunity because it is “akin to an
affirmative defense.” Hutto v. S.C. Ret. Sys.,
773 F.3d 536, 543 (4th Cir. 2014).
defendant may test the legal sufficiency of a complaint by
way of a motion to dismiss under Rule 12(b)(6). In re
Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines
v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th
Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393,
408 (4th Cir. 2010), aff'd sub nom.,
McBurney v. Young, 569 U.S. 221 (2013); Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
A Rule 12(b)(6) motion constitutes an assertion by a
defendant that, even if the facts alleged by a plaintiff are
true, the complaint fails as a matter of law “to state
a claim upon which relief can be granted.”
a complaint states a claim for relief is assessed by
reference to the pleading requirements of Fed.R.Civ.P.
8(a)(2). That rule provides that a complaint must contain a
“short and plain statement of the claim showing that
the pleader is entitled to relief.” The purpose of the
rule is to provide the defendants with “fair
notice” of the claims and the “grounds” for
entitlement to relief. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555-56 (2007).
survive a motion under Fed.R.Civ.P. 12(b)(6), a complaint
must set forth facts sufficient to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. at 570; see Ashcroft v.
Iqbal, 556 U.S. 662, 684 (2009) (citation omitted)
(“Our decision in Twombly expounded the
pleading standard for ‘all civil actions' . . .
.”); see also Willner v. Dimon, 849 F.3d 93,
112 (4th Cir. 2017). But, a plaintiff need not include
“detailed factual allegations” in order to
satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555.
Moreover, federal pleading rules “do not countenance
dismissal of a complaint for imperfect statement of the legal
theory supporting the claim asserted.” Johnson v.
City of Shelby, Miss., 574 U.S. __, 135 S.Ct. 346, 346
(2014) (per curiam).
the rule demands more than bald accusations or mere
speculation. Twombly, 550 U.S. at 555; see
Painter's Mill Grille, LLC v. Brown, 716 F.3d 342,
350 (4th Cir. 2013). If a complaint provides no more than
“labels and conclusions” or “a formulaic
recitation of the elements of a cause of action, ” it
is insufficient. Twombly, 550 U.S. at 555. Rather,
to satisfy the minimal requirements of Rule 8(a)(2), 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.” Twombly, 550 U.S. at 556 (internal
quotation marks omitted).
reviewing a Rule 12(b)(6) motion, a court “must accept
as true all of the factual allegations contained in the
complaint” and must “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); see Semenova v. MTA, 845 F.3d
564, 567 (4th Cir. 2017); Houck v. Substitute Tr. Servs.,
Inc., 791 F.3d 473, 484 (4th Cir. 2015); Kendall v.
Balcerzak, 650 F.3d 515, 522 (4th Cir. 2011), cert.
denied, 565 U.S. 943 (2011). But, a court is not
required to accept legal conclusions drawn from the facts.
See Papasan v. Allain, 478 U.S. 265, 286 (1986).
“A court decides whether [the pleading] standard is met
by separating the legal conclusions from the factual
allegations, assuming the truth of only the factual
allegations, and then determining whether those allegations
allow the court to reasonably infer” that the plaintiff
is entitled to the legal remedy sought. A Society Without
a Name v. Virginia, 655 F.3d 342, 346 (4th. Cir. 2011),
cert. denied, 566 U.S. 937 (2012).
generally do not “‘resolve contests surrounding
the facts, the merits of a claim, or the applicability of
defenses'” through a Rule 12(b)(6) motion.
Edwards, 178 F.3d at 243 (quoting Republican
Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992)).
However, “in the relatively rare circumstances where
facts sufficient to rule on an affirmative defense are
alleged in the complaint, the defense may be reached by a
motion to dismiss filed under Rule 12(b)(6).”
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th
Cir. 2007) (en banc); accord Pressley v. Tupperware Long
Term Disability Plan, 553 F.3d 334, 336 (4th Cir. 2009).
Because Rule 12(b)(6) “is intended [only] to test the
legal adequacy of the complaint, ” Richmond,
Fredericksburg & Potomac R.R. Co. v. Forst, 4 F.3d
244, 250 (4th Cir. 1993), “[t]his principle only
applies . . . if all facts necessary to the affirmative
defense ‘clearly appear[ ] on the face of the
complaint.'” Goodman, 494 F.3d at 464 (quoting
Forst, 4 F.3d at 250) (emphasis added in