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Alston v. State, Department of Health

United States District Court, D. Maryland, Southern Division

September 17, 2019

JAMES ALSTON, Plaintiff,


          Paul W. Grimm, United States District Judge.

         James 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 VII.


         Alston 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. ¶¶ 3-4.[2] 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.

         He 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.

         Standard of Review

         Defendants 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)).

         While 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.


         Individual Defendants

         In 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.

         “Title 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).

         Alston 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.

         Additionally, “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; Ji ...

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