United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
pending and ready for resolution in this discrimination case
are: (1) the motion to dismiss or in the alternative for
summary judgment filed by Defendant Timothy K. Cameron, St.
Mary's County Sheriff, (“Defendant”) (ECF No.
16); and (2) the motion to strike Plaintiff Elizabeth
O'Connor's surreply also filed by Defendant (ECF No.
23). The issues have been briefed, and the court now rules,
no hearing being deemed necessary. Local Rule 105.6. For the
following reasons, the motion to dismiss or in the
alternative for summary judgment will be granted in part and
denied in part and the motion to strike will be granted.
otherwise noted, the facts outlined here are set forth in the
amended complaint, albeit in a somewhat confused manner, and
construed in the light most favorable to Plaintiff. Plaintiff
is a female police officer who joined the St. Mary's
County Sheriff's Department in 2000. She initially sought
a position in the K-9 Division in 2007, but was not selected.
Eventually [date not specified in complaint] she became the
first female canine handler in the St. Mary's County
Sheriff's Department. After she joined the K-9 unit, her
coworkers and supervisors made a number of sexually
disparaging comments. In 2008, Plaintiff complained about
mistreatment from her supervisor, and the supervisor was
removed. Plaintiff was labelled a troublemaker because of the
supervisor was appointed who also made disparaging comments
along with male coworkers. For example, coworkers said
“women could never advance ‘without spreading
[their] legs.'” (ECF No. 15 ¶ 15). Other times
coworkers treated her less favorably and used gender-based
slurs. One of her supervisors slapped her on the buttocks
with a water jug. When Plaintiff's dog had a tooth
problem, she was forced to take him to the veterinarian on
her own time although a male coworker was given a “duty
day.” (Id. ¶ 21). She asserts that this
caused a loss of pay.
complained to a supervisor on May 13, 2011. No. investigation
took place. Instead, Plaintiff was repeatedly investigated
for de minimis violations. After her complaint,
Plaintiff was ordered to undergo a psychological evaluation
to determine her fitness for duty. Her dog retired that
summer, and Plaintiff was not given another dog. A new male
officer was instead assigned to the K-9 unit, and Plaintiff
was assigned to patrol. (ECF No. 15 ¶¶ 22,
Plaintiff filed a charge with the EEOC alleging
discrimination on the basis of gender on July 18, 2011. The
charge alleged that the discrimination began November 1, 2010
and took place as late as June 13, 2011, and was a continuing
action. She did allege, however, that she had been treated
differently due to gender from the beginning of her
employment. Plaintiff received her notice of right to sue
from the EEOC on August 18, 2017. Plaintiff filed suit on
November 14, 2017. (ECF No. 1). Defendant moved to dismiss or
in the alternative for summary judgment (ECF No. 10), and
Plaintiff filed an amended complaint (ECF No. 15). Defendant
again moved to dismiss or in the alternative for summary
judgment (ECF No. 16), Plaintiff responded (ECF No. 18), and
Defendant replied (ECF No. 21). Plaintiff filed a surreply
(ECF No. 22), Defendant moved to strike the surreply (ECF No.
23), and Plaintiff responded (ECF No. 24).
Amended Complaint contains two counts. Count One is entitled
Title VII-Gender, and asserts that Plaintiff was subjected to
(1) unequal treatment with regard to pay for taking her
canine to the veterinarian, (2) inappropriate sexual comments
about women in the workplace that were humiliating, (3)
direct harassment by her co-workers by inappropriate
touching, lewd sexual comments, and threats if she became
pregnant, (4) retaliation after complaining to her
supervisor, and (5) unequal treatment and retaliation when
she was not given another dog when her canine retired and she
was removed from the K-9 unit and replaced with a male
officer. Count Two asserts a violation of the Law Enforcement
Officer's Bill of Rights (“LEOBR”), due to
retaliation and lack of due process. She seeks reinstatement
to a position within the canine unit, front and back pay, a
show cause order related to the LEOBR claim, compensatory
damages for humiliation and emotional distress, punitive
damages, employment benefits, costs and attorney's fees,
and injunctive relief prohibiting further discriminatory
Standards of Review
moved to dismiss or in the alternative for summary judgment.
(ECF No. 16). Like the complaint, Defendant's motion is
difficult to assess because the arguments meander between
evidence-based assertions and pleading deficiencies. For
example, the motion contends, with respect to count I, that
“the claims made for ‘gender discrimination,'
which include allegations of harassment and retaliation, are
all squarely refuted by the Plaintiff's undisputed
statements contained in her personnel records. In addition,
the employment actions claimed to be retaliatory occurred
before the Sheriff had notice of any protected activity by
the Plaintiff. The only claimed instances of alleged
discrimination not squarely refuted by Plaintiff's own
admissions fail to state a claim because the employment
decision at issue was not, as a matter of law, an adverse
employment action.” (ECF No. 16). Despite the
difficulty in deciphering both the complaint and the motion
papers, the court will endeavor to resolve the motion on the
merits and streamline the issues remaining for litigation. A
motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the complaint. Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th
Cir. 1999). To survive a motion to dismiss, “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 (2009)
(quotation omitted). A court must consider all well-pleaded
allegations in a complaint as true, see Albright v.
Oliver, 510 U.S. 266, 268 (1994), and must construe
factual allegations in the light most favorable to the
plaintiff, see Lambeth v. Bd. of Comm'rs of
Davidson Cnty., 407 F.3d 266, 268 (4th Cir.
2005). Nevertheless, a court is not required to accept as
true “a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265,
deciding a motion to dismiss under Rule 12(b)(6), courts may
only consider the facts contained in plaintiff's
complaint. When “matters outside the pleadings are
presented to and not excluded by the court, the motion shall
be treated as one for summary judgment and disposed of as
provided in Rule 56, and all parties shall be given
reasonable opportunity to present all material made pertinent
to such a motion by Rule 56.” Fed.R.Civ.P. 12; see
Talbot v. U.S. Foodservice, Inc., 191 F.Supp.2d 637, 639
(D.Md. 2002) (treating motion to dismiss as motion for
summary judgment where the court had to consider “two
items of evidence extrinsic to the pleadings”).
has not requested discovery and instead has attached her own
exhibits in opposition to Defendant's motion. Thus,
Plaintiff appears to acquiesce to the motion being treated as
a motion for summary judgment, at least in part.
motion for summary judgment will be granted only if there
exists no genuine dispute as to any material fact and the
moving party is entitled to judgment as a matter of law.
See Fed.R.Civ.P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Emmett v.
Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
To prevail on a motion for summary judgment, the moving party
generally bears the burden of showing that there is no
genuine dispute as to any material fact. Liberty
Lobby, 477 U.S. at 248-50. A dispute about a material
fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. In undertaking this
inquiry, a court must view the facts and the reasonable
inferences drawn therefrom “in the light most favorable
to the party opposing the motion, ” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed.
Credit Union, 424 F.3d 397, 405 (4th Cir.
2005), but a “party cannot create a genuine dispute of
material fact through mere speculation or compilation of
inferences.” Shin v. Shalala, 166 F.Supp.2d
373, 375 (D.Md. 2001) (citation omitted).
Count One-Title VII
single count, Plaintiff purports to bring claims against
Defendant in his individual and official capacities for a
variety of forms of gender-based discrimination and for
retaliation. (ECF No. 15 ¶¶ 34-41).
Individual Capacity Claims Against Defendant
moves to dismiss the individual capacity claims, arguing that
Defendant, in his individual capacity, is not an employer.
(ECF No. 16-1, at 14). Plaintiff does not appear to contest
this point. (ECF No. 18). “An individual person can
only be liable under Title VII if that person qualifies as an
‘employer' within the meaning of the
statute.” Weathersbee v. Balt. City Fire
Dep't, 970 F.Supp.2d 418, 425 (D.Md. 2013).
Defendant, in his individual capacity, was not
Plaintiff's employer, and, therefore, he cannot be held
liable for violations of Title VII. See Lissau v. S. Food
Serv., Inc., 159 F.3d 177, 181 (4th Cir.
1998). Plaintiff's Title VII claims against Defendant in
his individual capacity will be dismissed.
noted above, Defendant argues that he is entitled to
dismissal or summary judgment on the disparate treatment
claim for a variety of reasons. In addition to the reasons
outlined before, Defendant asserts that the harassment claim
is subject to a Faragher-Ellerth affirmative defense, the
retaliation claims are refuted by other information in the
case, the challenged personnel orders were disciplinary
actions, and the claims based on being denied a “duty
day” to ...