United States District Court, D. Maryland, Southern Division
MEMORANDUM OPINION AND ORDER
W. Grimm, United States District Judge.
Alston filed suit against his employer, the Maryland
Department of Health (the “Department”), the
Department's Division of Cost Accounting and
Reimbursement (“DCAR”), supervisors in the
Department, and Governor Larry Hogan, alleging that they
discriminated against him on the basis of sex and sexual
orientation, in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. §§
2000e et seq., and a Maryland Executive Order, Md.
Code Regs. 01.01.2007.09, by promoting a female instead of
him on June 7, 2017 and again on June 14, 2018. Compl., ECF
No. 1; Supp., ECF No. 1-1; Am. Compl, ECF No. 14. Pending is
Defendants' Motion to Dismiss, ECF No. 16, which the
parties fully briefed, ECF Nos. 16-1, 18, 19. A hearing is
not necessary. See Loc. R. 105.6. Alston fails to
state a claim against the supervisors in their individual
capacities, and his claims against the individual Defendants
in their official capacities are, in fact, claims against the
State of Maryland. He also fails to state a claim for sexual
orientation discrimination in violation of Title VII or for
sex or sexual orientation discrimination in violation of
Maryland Executive Order 01.01.2007.09. And, he has not
exhausted his administrative remedies regarding
Defendants' failure to promote him in June 2018.
Accordingly, the Motion to Dismiss is granted in part. The
Motion is denied with regard to the claim against the State
for sex discrimination in June 2017 in violation of Title
began working for the Maryland Department of Health (the
“Department”) in 2005 and for the
Department's Division of Cost Accounting and
Reimbursement in June 2012. Am. Compl. ¶¶
He was promoted to Fiscal Accounts Technician II on February
3, 2014. Supp. ¶ 2. On April 28, 2017, he and one other
applicant-a woman-applied for the position of Fiscal Accounts
Technician Supervisor; the female applicant was selected for
the position in June 2017. Am. Compl. ¶¶ 9, 14.
Alston claims that he “was qualified [for the position]
when juxtaposed to job announcement [sic], [his] job
experience, and pre-interview evaluation.” Id.
¶ 17. In contrast, the female applicant, according to
Alston, “ha[d] been with the company for a shorter
amount of time and embodied less knowledge and experience of
the particular department.” Supp. ¶ 3.
filed a sex discrimination charge with the Equal Employment
Opportunity Commission (“EEOC”) on September 17,
2017, Am. Compl. ¶ 21, and filed this suit after
receiving a Notice of Right to Sue, Compl., ECF No. 1;
Notice, ECF No. 1-2. Meanwhile, he had applied for another
position for which a female applicant was selected instead of
him on June 14, 2018. Supp. ¶ 4. Alston alleges that the
Department's failure to promote him was discrimination on
the basis of sex and sexual orientation, in violation of
Title VII and Maryland Executive Order 01.01.2007.09. Am.
Compl. ¶¶ 22-23.
move to dismiss pursuant to Rule 12(b)(6), under which
Alston's pleadings are subject to dismissal if they
“fail[ ] to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). A pleading 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, ” Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009). “A claim has facial plausibility when
the [claimant] pleads factual content that allows the court
to draw the reasonable inference that the [opposing party] is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. Rule 12(b)(6)'s purpose “is to test
the sufficiency of a [claim] and not to resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses.” Velencia v.
Drezhlo, No. RDB-12-237, 2012 WL 6562764, at *4 (D. Md.
Dec. 13, 2012) (quoting Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006)).
this Court is required to liberally construe documents that
self-represented litigants file and hold them to a less
stringent standard than those that attorneys draft, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Estelle
v. Gamble, 429 US. 97, 106 (1976), the requirement of
liberal construction does not mean that the Court can ignore
a clear failure in the pleading to allege facts that set
forth a claim currently cognizable in a federal district
court, see Weller v. Dep't of Soc. Servs., 901
F.2d 387, 391 (4th Cir. 1990). Rather, the Court must also
abide by the “affirmative obligation of the trial judge
to prevent factually unsupported claims and defenses from
proceeding to trial.” Bouchat v. Baltimore Ravens
Football Club, Inc., 346 F.3d 514, 526 (4th Cir. 2003)
(internal quotation marks omitted). Regardless whether a
plaintiff is pro se, “legal conclusions or conclusory
statements do not suffice.” Moore v. Jordan,
No. TDC-16-1741, 2017 WL 3671167, at *4 (D. Md. Aug. 23,
2017) (citing Iqbal, 556 U.S. at 678). I will,
however, in the interest of justice, see Fed. R.
Civ. P. 1, consider the allegations from the Complaint and
the Supplement Alston filed with his Complaint, as well as
the Amended Complaint, insofar as Alston's original
pleadings bolster his pending claims.
addition to the Department and DCAR, Alston names as
defendants Deborah Brown-Demery, Fiscal Service Manager;
Elizabeth Davis, Chief; Wayne Watts, Manager of Information
Systems; and Jennifer McMahan, Director of the Office of
Human Resources, in their official and individual capacities,
as well as Governor Larry Hogan, in his official capacity.
Am. Compl. 2-4.
VII does not provide a remedy against individual defendants
who do not qualify as ‘employers.'” Baird
ex rel. Baird v. Rose, 192 F.3d 462, 472 (4th Cir. 1999)
(citing Lissau v. S. Food Serv., Inc., 159 F.3d 177,
180-81 (4th Cir. 1998)). An “employer” is
“a person engaged in an industry affecting commerce who
has fifteen or more employees for each working date in each
of twenty or more calendar weeks in the current or preceding
calendar year, and any agent of such a person.” 42
U.S.C. § 2000e(b). While Title VII “does not
define the term ‘agent, '” it does
“‘foreclose individual liability, '” as
the Fourth Circuit has “held that ‘supervisors
are not liable in their individual capacities for Title VII
violations' because ‘the language of Title VII and
. . . its remedial scheme seems so plainly tied to employer,
rather than individual, liability.'” Dorsey v.
Watson, No. ADC-19-1278, 2019 WL 3306225, at *3 (D. Md.
July 23, 2019) (quoting Lissau v. S. Food Serv.,
Inc., 159 F.3d 177, 180-81 (4th Cir. 1998)); see
also Ford v. Collington Life Care, No. 18-3927-PX, 2019
WL 4168854, at *2 (D. Md. Sept. 3, 2019) (noting the
“well-settled law” from Lissau).
does not allege or argue that any of the individual
defendants should qualify as employers, notwithstanding this
case law. See Pl.'s Opp'n 9-10. Rather, he
insists that, as supervisors, they may be liable in their
individual capacities. See Id. Yet, the case law he
relies on in support of his position is the dissenting
opinion from a 1995 Second Circuit case where the majority
held that “individual defendants with supervisory
control over a plaintiff may not be held personally liable
under Title VII.” Tomka v. Seiler Corp., 66
F.3d 1295, 1312 (2d Cir. 1995), abrogated on other
grounds, as recognized by Belfi v. Prendergast, 191 F.3d
129, 135 (2d Cir. 1999); see Id. at 1318
(“Concurring in all but one aspect of our holding
today, I write separately in dissent only as to the narrow
issue of whether an employer's agent may be held
individually liable for discriminatory acts under Title VII.
I believe that the express language of the statute permits
individual liability under Title VII and that sound
jurisprudence counsels giving that statutory language its
full effect.”) (Parker, J., dissenting). Because the
controlling case law does not allow for supervisors to be
liable in their individual capacities on Title VII claims,
Alston's claims against Brown-Demery, Davis, Watts, and
McMahan in their individual capacities are dismissed. See
Lissau, 159 F.3d at 180-81; Ford, 2019 WL
4168854, at *2; Dorsey, 2019 WL 3306225, at *3.
“a suit against a state actor is tantamount to a suit
against the state itself.” Jiggetts v. Spring Grove
Hosp. Ctr., No. ELH-18-3243, 2019 WL 3067500, at *14 (D.
Md. July 11, 2019) (citing Brandon v. Holt, 469 U.S.
464, 471-72 (1985)). Stated differently, “a suit
against a state official in his or her official capacity is
not a suit against the official but rather is a suit against
the official's office. As such, it is no different from a
suit against the State itself.” Id. (quoting
Will v. Mich. Dep't of State Police, 491 U.S.
58, 71 (1989)). Therefore, the claims against Brown-Demery,
Davis, Watts, McMahan, and Hogan in their official capacities
are dismissed as well. See Will, 491 U.S. at 71;