United States District Court, D. Maryland
ROOSEVELT M. GRANDY Plaintiff
CITY OF BALTIMORE BALTIMORE CITY DEPARTMENT OF PUBLIC WORKS and CITY OF BALTIMORE HUMAN RESOURCES Defendants.
L. HOLLANDER, UNITED STATES DISTRICT JUDGE
employment discrimination case, self-represented plaintiff
Roosevelt M. Grandy has sued the Baltimore City Department of
Public Works (“DPW”), as well as the City of
Baltimore (the “City”), the “City of
Baltimore Human Resources” (“DHR”), and
three individuals. See ECF 1
(“Complaint”). He has twice amended his suit.
See ECF 6 (“First Amended Complaint”);
ECF 9 (“Second Amended Complaint”).
alleges retaliation and failure to promote in violation of
the following: (1) Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e et seq. (“Title
VII”); (2) the Age Discrimination in Employment Act, as
amended, 29 U.S.C. §§ 621 et seq.
(“ADEA”); (3) § 3-1(5) of Article 4 of the
Baltimore City Code; (4) §§ 1-2 of the Baltimore
City Administrative Manual AM-204-18 (the
“Manual”), and (5) multiple articles of the
Memorandum of Understanding between Baltimore City and the
City Union of Baltimore, Local 800, ATF, AFL-CIO
(“Collective Bargaining Agreement”) for Fiscal
Years 2017-2019. See id. He seeks a promotion to the
position of Liaison Officer I, as well as punitive damages,
liquidated damages, and back pay. ECF 9 at 7; see
also ECF 1 at 6.
motions are now pending. First, defendants have moved to dismiss
all of plaintiff's claims, with the exception of his
claim brought under the ADEA. ECF 13 (“Defendants'
Motion”). Pursuant to Fed.R.Civ.P. 12(b)(6), they seek
dismissal on the ground that plaintiff fails to state a claim
under Title VII, the Collective Bargaining Agreement, and
Article 4 of the Baltimore City Code. ECF 13 at 6-8. They
also claim that the individual defendants, DPW, and DHR
“have no legal identity and are not subject
suit.” Id. at 5. They do not directly address
plaintiff's claims under the Manual. Second plaintiff
filed a motion for judgment on the pleadings, pursuant to
Fed.R.Civ.P. 12(c). ECF 23 (“Plaintiff's
parties oppose one another's motions. See ECF 21
(“Plaintiff's Opposition”); ECF 27
(“Defendants' Opposition”). The parties did
not reply, and the time for them to do so has expired.
See Docket; Local Rule 105.2.a.
Court is mindful of its obligation to construe liberally the
pleadings of a pro se litigant, which are “held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007); see also Sause v. Bauer, ___ U.S.___, 138
S.Ct. 2561, 2563 (2018); White v. White, 886 F.2d
721, 722-23 (4th Cir. 1989). Nonetheless, no hearing is
necessary to resolve the motions. See Local Rule
reasons that follow, I shall deny plaintiff's Motion, and
I shall grant Defendants' Motion in part and deny it in
part. In particular, I shall grant Defendants' Motion as
to the discrimination claim brought under Title VII and the
claims under the Collective Bargaining Agreement. I shall
also grant the Defendants' Motion as to the three
individually named defendants, as well as DPW and DHR.
However, I shall deny the Motion as to the claim brought
under §§ 1-2 of the Manual. Furthermore, I shall
construe the Second Amended Complaint's claim of
retaliation brought under Title VII as one brought under
§ 4(d) of the ADEA, as amended, 29 U.S.C. § 623(d).
I shall also construe the claim of discrimination brought
under § 3-1(1) of Article 4 of the Baltimore City Code
as one brought under § 3-1(5).
Baltimore City Charter establishes a municipal corporation
known as “‘Mayor and City Council of Baltimore,
'” which “may sue or be sued.” Balt.
City Charter, Art. 1, § 1. It also establishes the
Baltimore City Department of Public Works (“DPW”)
and the Department Human Resources (“DHR”).
See Id. Art. VII, §§ 27-42 (creating DPW);
id. Art. VII, §§ 96-97 (creating DHR).
was born in 1956. ECF 9 at 4. He began working for DPW's
Bureau of Water and Wastewater on November 5, 2001.
See ECF 8-2 (Letter from Nikki Jackson, Office
Supervisor for the Bureau of Waste and Waster of the DPW,
dated May 6, 2010). On December 13, 2011, he earned a
Bachelor of Science from Coppin State University.
See ECF 8-4 (Diploma). According to Grandy, DHR told
him that his degree entitled him to the “In-Promotion
Office Assistant III position.” ECF 8
(“Supplement to First Amended
Complaint”). At the time and throughout the relevant
period, Grandy was classified as an Office Assistant II. ECF
20, 2016, plaintiff interviewed for the open position of
Liaison Officer I. ECF 9 at 5. The interview was conducted by
a three-member panel of DPW staff as well as DHR
representative Ajeenah Green. Id.; ECF 1-1 at 1.
Grandy maintains that during the interview, he was
“asked a question about [his] age, ” which he
answered. ECF 9 at 5. According to Grandy, Green “did
not communicate to [the] panel [that] the question was
position was not offered to Grandy. If he had been selected,
the position would have been a promotion for him. ECF 9 at 7.
Instead, the City selected a candidate “at least 30
years younger than all of the other interviewees.” ECF
1-1 (“EEOC Determination Letter”) at 1. According
to the Equal Employment Opportunity Commission
(“EEOC”), “the test results . . . were a
compilation of subjective interview scores by the panel
members.” Id. The “selected candidate .
. . was given a perfect score on every answer by two members
of the interview panel and prefect scores on almost all
responses by the third.” Id. The other three
interviewees, including Grandy, did not receive a single
perfect score on any question from any member of the
interview panel. Id. Additionally, “notes of
the selected candidate's interview reveal that she cited
her youth as a positive factor in response to a particular
interview question; that response was scored highly by all
members of the interview panel.” Id.
Grandy was not selected for the position, he “was told
to file a grievance pursuant to Grievance Procedures of the
Memorandum of Understanding [i.e., the Collective Bargaining
Agreement] Article 8.” ECF 9 at 5. But, it appears that
Grandy thought the grievance process was biased and that his
case “needed to be investigated by an outside
agency.” Id.; see ECF 21
(“Plaintiff's Opposition”) at 1 (“I did
not pursue the grievance process . . . because I saw [on a
previous occasion] that justice was not equally
applied[.]”). Grandy concedes that he did not complete
the Collective Bargaining Agreement's four-step grievance
process. ECF 21 at 1 (“I did not pursue the grievance
process pursuant to the City of Baltimore and Union of
Baltimore Memorandum of Understanding [i.e., Collective
Bargaining Agreement]); see also ECF 18 at 5-8
(Article 8 of the Collective Bargaining Agreement).
also sought relief through the EEOC's investigative and
remedial processes. According to Gandy, on March 20, 2017, he
filed a charge of discrimination based on age, as well as
retaliation, with the EEOC. ECF 1 at 5; ECF 1-1 at
Grandy did not file a copy of the charge with the Court.
the process of filing for a grievance and gathering
documentation for [his] EEOC claim, ” Grandy
“continued to apply for several other position[s] in
the [C]ity[.]” ECF 9 at 5-6. According to Grandy, the
City did not notify him of a vacant Office Specialist III
position, in retaliation for his preparation of an EEOC
charge based on the City's earlier refusal to promote
him. ECF 9 at 6. The City filled the position with a
candidate from another division. Id.; see
also ECF 14-2 at 2. Defendants maintain that Grandy was
not contacted for the open position because he did not sit
for the qualifying exam. See ECF 9 at 6; ECF 14-2 at
February 2017, another Liaison Officer I position became
available. ECF 14-2 at 2. Grandy asserts that the City did
not consider him as another act of retaliation. Id.
According to the DHR, Grandy was not considered for the
position because the interview applicants were pulled from
the so-called “promotional list” dated February
28, 2017. Id. Grandy was not on this list
“because he applied for the previous Liaison Officer 
I position on 4/29/16, under the open list option and not
under the promotion list option.” Id.
EEOC issued a Determination on January 31, 2018, finding
“reasonable cause to believe” that Grandy
“was denied [a] promotion to the Liaison Officer I
position September 21, 2016, due to his age, in violation of
the ADEA.” ECF 1-1 at 2. The EEOC “made no
finding” as to Grandy's other allegations.
Id. According to Grandy, the City did not engage in
reconciliation with the EEOC officer. See ECF 9 at
February 29, 2018, Grandy accepted a promotion to the
position of “Office Support Specialist III” for
the Department of Transportation. ECF 9 at 6. He filed this
suit on May 8, 2018. ECF 1. Three weeks later, the EEOC
issued a Notice of Failure to Conciliate (ECF 9-1 at 3) and a
Notice of Suit Rights (ECF 8-6 at 2-3). The Notice of Suit
Rights instructed plaintiff that a “lawsuit
must be filed WITHIN 90 DAYS of [his]
receipt of this notice; or [his] right to sue based
on this charge will be lost.” ECF 8-6 at 2.
amended his Complaint on June 4, 2018. ECF 6. Plaintiff filed
his Second Amended Complaint (ECF 9) on June 19, 2018. And,
plaintiff has twice submitted supplements to his complaints.
See ECF 3 (“Supplement to Complaint”);
ECF 8 (“Supplement to First Amended Complaint”).
Motion To Dismiss
Standard of Review
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 contain 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., ___ 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.,
637 F.3d at 440 (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 ...