United States District Court, D. Maryland
K. Bredar Chief Judge.
suit, Plaintiff Joel McCall alleged that Defendant Water
Witch Fire Company, Inc., retaliated against him when it
terminated his position as a volunteer member of the Fire
Company, in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-3(a), the Maryland Fair
Employment Practices Act (MFEPA), Md. Code. Ann., State
Gov't § 20-606(f), and Maryland common law. Now
before the Court is Defendant's motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6). (ECFNo.9.) No.
hearing is required. Local R. 105.6 (D. Md. 2018). Forthe
reasons set forth below, Defendant's motion will be
granted in part and denied in part.
Allegations in the Amended Complaint
Witch Fire Company is a private corporation "providing]
fire and emergency response services to Port Deposit and
Conowingo, Maryland." (Am. Compl. ¶ 3, ECF No. 4.)
McCall served as a volunteer "member" in various
capacities between 1996 and 2015, when he was notified of his
termination and denied reinstatement. (Id.
¶¶ 6, 15-16.) Volunteer members do not receive a
salary, but "they do receive a number of benefits in the
form of insurance, pension, tax credits and other benefits in
return for their service." (Id. ¶ 3.)
2010, McCall was serving as Vice President when a female
member on probation reported to him allegations that another
member was harassing her. (Id. ¶¶ 2, 8.)
The member she accused of harassment was the son of the Chief
of Emergency Medical Services (EMS), Wayne Tome, Sr., whom
McCall knew and frequently encountered in association with
his membership responsibilities. (Id. ¶¶
7-8.) McCall "encouraged" the woman to submit a
complaint to the Board of Directors. (Id. ¶ 8.)
McCall alleged that, after this incident, he began to suffer
retaliation by Chief Tome and then-President Jeff Deckard,
including personal hostility, unjustified scrutiny of his
performance, and falsification of his attendance records,
which resulted in his temporary removal from the
membership's voting roles. (Id. ¶¶
9-10, 13.) McCall was credited with the correct hours and
reinstated after his appeal "revealed" Tome's
and Deckard's actions. (Id. ¶ 10.)
2012, McCall filed complaints against Tome and Deckard, first
with the Board of Directors, and then with the Cecil County
Firemen's Association. (Id. ¶¶ 11-12.)
The complaint to the Board of Directors described
McCall's involvement with the female member's
harassment complaint and the alleged retaliation he suffered
as a result. (Id. ¶ 11.)
2013, McCall began to "fear for his safety" because
of the retaliatory conduct and took a leave of absence.
(Id. ¶ 14.) In January 2015, when McCall tried
to pay his dues, he was informed that his membership had been
terminated. (Id.) He re-applied in April 2015, but
the Board of Directors denied his application. (Id.)
He filed a complaint with the EEOC and received a right to
sue letter on June 27, 2018. (Id. ¶ 5.) McCall
filed this lawsuit on September 25, 2018.
Legal Standard for a Motion to Dismiss under Rule 12(b)
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, 678 (2009) (quoting Bell Atl Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility
exists "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 678. An inference of the mere
possibility of misconduct is insufficient. Id. at
679. Courts must "accept the well-pled allegations of
the complaint as true, . . . constru[ing] the facts and
reasonable inferences derived therefrom in the light most
favorable to the plaintiff." Ibarra v. United
States, 120 F.3d 472, 474 (4th Cir. 1997). The plaintiff
may not, however, rely on naked assertions, speculation, or
legal conclusions. Twombly, 550 U.S. at 556-57.
presents two arguments for dismissal: that, as a volunteer,
McCall was not an "employee" under Title VII or the
MFEPA; and that the state law claims are time-barred. (Mot.
Dismiss Mem. Supp. at 2-7, ECF No. 9-1). The Court will
address the statutes of limitations first.
Statute of Limitations
a motion to dismiss under Rule 12(b)(6) cannot reach the
merits of an affirmative defense, such as that claims are
barred by a statute of limitations. Goodman v. Praxair,
Inc., 494 F.3d 458, 464 (4th Cir. 2007). There is an
exception, however, for "the relatively rare
circumstances where facts sufficient to rule on an
affirmative defense. . . 'clearly appear on the
face of the complaint.'" Id. (quoting
Richmond, Fredericksburg & Potomac R.R. v.
Forst, 4 F.3d 244, 250 (4th Cir. 1993)) (emphasis and
alteration in original). In Maryland, statutory and common
law claims accrue, and the statute of limitation begins
running, "when a plaintiff in fact knows or reasonably
should know of the wrong." Arroyo v. Bd. of Educ. of
Howard Cty., 851 A.2d 576, 589 (Md. 2004) (quoting
Hecht v. Resolution Trust Corp., 635 A.2d 394, 399
(Md. 1994)); see also Id. at 590 (quoting
Poffenberger v. Risser, 431 A.2d 667, 680 (Md.
1981)) (applying the so-called discovery rule to all civil
statute of limitations is two years for an action under the
MFEPA, Md. Code Ann., State Gov't § 20-1013(a)(3),
and three years for a wrongful termination action, Md. Code
Ann., Cts. & Jud. Proc. § 5-101; see also
Bowman-Cook v. Wash. Metro. Area Transit Auth, Civ. No.
DKC-14-1877, 2017 WL 3592450, at *5 (D. Md. Aug. 21, 2017)
(applying § 5-101). According to the Amended Complaint,
McCall received notice of his termination in January 2015 and
was denied reinstatement in April 2015. (Am. Compl.
¶ 1.) It is therefore apparent from the face of his
complaint that McCall's cause of action
accrued, at latest, three years and five months before filing
suit in September 2018, beyond the statute of limitations
period for either a MFEPA claim or a common law civil action.