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Pearl v. Prince George's Community College

United States District Court, D. Maryland, Southern Division

January 14, 2019

MARCIA PEARL, Plaintiff,


          Paul W. Grimm United States District Judge

         Marcia Pearl, who is proceeding without counsel, has filed suit against Defendants Prince George's Community College (the “College”); the College's Board of Trustees (the “Board”); Howard Stone, Chair of the Board; and Dr. Charlene Dukes, President of the College. Compl., ECF No. 1; see Pl.'s Opp'n 17, ECF No. 21 (clarifying Defendants). She claims two forms of discrimination: harassment based on race (she is Black), and discrimination based on Defendants' failure to promote her, as well as retaliation, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and Md. Code Ann., Educ. § 11-406. Compl. Defendants have moved to dismiss most, but not all, of Pearl's claims. ECF No. 14.[1] I will dismiss the Educ. § 11-406 claim because no private cause of action exists under the state statute. Because Stone and Dukes are not proper defendants, I will dismiss the claims against them in their individual capacities. And, given that Pearl failed to exhaust her discriminatory failure to promote claim, I will dismiss it. The motion is denied with regard to Abel's discriminatory harassment claim. Finally, I will limit her retaliation claim to two of the actions Pearl identifies as adverse employment actions-failure to promote and the change in her schedule-, dismissing her claim to the extent it is based on Defendants' poor evaluation of her.

         Background [2]

         Marcia Pearl began working for the College in the Art, Music & Philosophy Department in August 2004. Compl. 8. She claims that Art Department Administrator Carol Abel harassed and discriminated against her throughout her time at the College, and Professor Thomas Berault also harassed her between 2012 and 2013. Id. at 8-10. Specifically, she claims that Abel interfered with her ability to obtain an office nameplate from 2004 through 2008, called her “Buckwheat” and “Alfalfa” after she started “wearing a natural hairstyle” in 2008, and referred to students using “the N word, ” while Berault also called her “Buckwheat” and emailed her a picture of Buckwheat. Id. at 8-10.[3] According to Pearl, Art Department Chair Barbara Johnson was present once when Abel called her “Alfalfa, ” but Johnson did nothing. Id.

         Pearl complained to the College's Human Resources Department and Chief of Staff Alonia Sharps on January 23, 2013. Compl. 10. Pearl asserts that her internal complaint was investigated, but her own witnesses were intimidated to prevent them from testifying and, even though Abel and Berault admitted that they used racial epithets, Pearl's informal complaint was dismissed. Id. at 11. Additionally, Johnson “implemented no corrective measures against Abel and Berault.” Id. On February 28, 2013, Pearl filed a formal complaint with the Equal Employment Opportunity Commission (“EEOC Charge”), alleging that she was discriminated against when Abel and Berault used racial epithets in speaking with her and to describe her. EEOC Charge, ECF No. 14-4.

         According to Pearl, things got worse after she complained: She felt that she was “attacked” on February 8, 2013 by Art Department Chair Barbara Johnson for filing the EEOC Charge; she received an “unsatisfactory 2013 Multifunctional Review (MFR) Evaluation” on March 5, 2013; and she was “assigned an undesirable schedule, consisting of weekend and evening classes, ” which she views as “an attempt to isolate [her] from Department members.” Compl. 11-12. She claims that she became depressed because her colleagues stopped speaking to her during the 2013-2015 period. Id. at 12.

         On March 5, 2013 a white man named John Anderson was selected for a position as “VisComm Coordinator, ” a position that Defendants had not posted, which prevented Pearl from applying for it. Id. at 12. She claims that she was “precluded from applying to the VCC position despite [her] superior qualifications, experience and job knowledge in comparison to a white male that Johnson hand-selected without[] advertising the position through the proper channels.” Id. at 13.

         Standard of Review

         Defendants move to dismiss based on Pearl's alleged failure to state a claim and exhaust administrative remedies. A motion to dismiss based on a plaintiff's alleged failed to exhaust administrative remedies is a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. See Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013). When, as here, the defendant contends that the complaint simply does not allege that the plaintiff exhausted administrative remedies, “the facts alleged in the complaint are assumed to be true and the plaintiff, in effect, is afforded the same procedural protection as he would receive under a 12(b)(6) consideration.” Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see Lutfi v. United States, 527 Fed. App'x 236, 241 (4th Cir. 2013).

         Federal Rule of Civil Procedure 12(b)(6) provides for “the dismissal of a complaint if it fails to state a claim upon which relief can be granted.” Velencia v. Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md. Dec. 13, 2012). This rule's purpose “is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Id. (quoting Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)). To that end, the Court bears in mind the requirements of Fed.R.Civ.P. 8, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), when considering a motion to dismiss pursuant to Rule 12(b)(6). Specifically, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), and must state “a plausible claim for relief, ” as “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” Iqbal, 556 U.S. at 678-79. See Velencia, 2012 WL 6562764, at *4 (discussing standard from Iqbal and Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663.

         In an employment discrimination case such as this, “pleadings need not ‘contain specific facts establishing a prima facie case of discrimination under the framework set forth' in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Westmoreland v. Prince George's Cty. (“Westmoreland I”), No. AW-09-2453, 2010 WL 3369169, at *3 (D. Md. Aug. 23, 2010) (quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002)). Such a requirement “would essentially create a ‘heightened pleading standard' under which a plaintiff without direct evidence of discrimination would need to plead a prima facie case even though she might uncover direct evidence during discovery.” Id. (quoting Swierkiewicz, 534 U.S. at 511-12). If this were the case, a plaintiff claiming employment discrimination would have “to plead more facts than [s]he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.” Id. (quoting Swierkiewicz, 534 U.S. at 512). Nonetheless, a plaintiff “must plead facts sufficient to state each element of the asserted claim.” Lopez v. BMA Corp., No. DKC-13-2406, 2013 WL 6844361, at *9 (D. Md. Dec. 24, 2013) (discussing Swierkiewicz holding and citing Bass v. E.I. Dupont De Nemours & Co., 324 F.3d 761, 765-65 (4th Cir. 2003)).

         Because pro se lawsuits, such as Pearl's, “represent the work of an untutored hand requiring special judicial solicitude, ” the Court must “construe pro se complaints liberally, ” such that “litigants with meritorious claims [are] not . . . tripped up in court on technical niceties.” Beaudett v. City of Hampton, 775 F.2d 1274, 1277-78 (4th Cir. 1985) (citing Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978)). Even so, “[d]istrict judges are not mind readers, ” and “[e]ven in the case of pro se litigants, they cannot be expected to construct full blown claims from sentence fragments . . . .” Id. at 1278. Therefore, “[p]rinciples requiring generous construction of pro se complaints are not . . . without limits, ” and this Court need not “conjure up questions never squarely presented to [it].” Id.

         Education § 11-406 Claim

          Pearl alleges that Defendants violated Md. Code Ann., Educ. § 11-406, a state statute requiring colleges and universities in Maryland to “develop and implement a plan for a program of cultural diversity.” Md. Code Ann., Educ. § 11-406(b)(1)(i). She insists that “[t]here is a legal cause of action under Education Article, Annotated Code of Maryland, § 11-406 in this action, simply because the mandated provision applies equally and without exception to all public colleges and institutions that receive state funding.” Pl.'s Opp'n 4. But, even if their actions violated the statute, there simply is no cause of action for an individual litigant to bring under Educ. § 11-406. As Defendants explain:

The statute prescribes what a plan must include, how the plan is submitted to the Maryland Higher Education Commission (MHEC), and what MHEC must do to review the plan. Id. The statute does not, however, create a private cause of action. See id.; see also Fangman v. Genuine Title, LLC, 136 A.3d 772, 779-780 (Md. 2015) (quoting Cort v. Ash, 422 U.S. 66, 78 (1975)) (discussing whether a private remedy is implicit in a statute); Baker v. Montgomery Cnty., 50 A.3d 1112, 1122-24 (Md. 2012) (citations omitted) (there is no cause of action “simply because a claim is framed that a statute was violated and a plaintiff . . . was harmed by it”). The statutory text and legislative history of Senate Bill 438 -- the legislation that resulted in Section 11-406 -- show that the Maryland General Assembly did not intend to create a private cause of action.

Defs.' Mem. 7-8; see also EDUCATION-INSTITUTIONS OF HIGHER EDUCATION- CULTURAL DIVERSITY PROGRAMS, 2008 Maryland Laws Ch. 579 (S.B. 438) (“FOR the purpose of requiring certain nonpublic institutions of higher education to submit a certain report regarding cultural diversity programs to the Maryland Independent College and University Association on or before a certain date each year; requiring the Association to submit a certain report on the status of certain cultural diversity programs to the Maryland Higher Education Commission on or before a certain date each year; requiring the report to include a certain analysis; requiring certain public institutions of higher education to develop and implement certain plans for a program of cultural diversity; requiring certain plans to include certain improvements to certain programs under certain circumstances; requiring certain plans to include certain implementation strategies and timelines for meeting certain goals; providing for the contents of a certain plan; requiring certain plans to enhance certain programming and certain sensitivity through certain instruction and training; requiring certain public institutions of higher education to submit certain plans to the governing body of the institution for review on or before a certain date each year; requiring the governing body of certain institutions to submit a certain progress report to the Commission on or before a certain date each year; requiring the Commission to review the progress report to monitor compliance with the diversity goals of the State Plan for Higher Education; requiring the Commission to submit a certain report to certain committees of the General Assembly on or before a certain date each year; defining a certain term; and generally relating to plans for programs of cultural diversity.”). Accordingly, Pearl's claims for violations of Educ. § 11-406 are dismissed with prejudice.

         Defendants ...

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