MARVIN J. GARBIS, District Judge.
The Court has before it Defendant Housing Authority of Baltimore City's Renewed Motion to Dismiss Complaint As Amended or In the Alternative For Summary Judgment [ECF No. 20], Defendant, Wade Johnson's, Motion to Dismiss for Failure to State A Claim and/or for Summary Judgment [ECF No. 23], and the materials submitted relating thereto. The Court finds that a hearing is not necessary.
Plaintiff Nadine Lee Young ("Plaintiff" or "Young"), an employee of Defendant Housing Authority of Baltimore City ("HABC") was, during a portion of her employment, supervised by Defendant Wade Johnson ("Johnson").
Young alleges that she was sexually harassed by Johnson during her employment. She asserts claims against both Defendants for alleged violations of Title VII of the Civil Rights Act, the Maryland Fair Employment Practices Act, the Due Process Clause of the U.S. Constitution and the Maryland Constitution, and the Equal Protection Clause of the U.S. Constitution and Maryland Constitution. She alleges that HABC negligently hired, trained, retained, and supervised Johnson, and that HABC is liable under a theory of negligent entrustment. She also asserts an assault claim against Johnson.
Young has been employed by HABC since 2003 as a maintenance worker. Amended Complaint ("AC") ¶ 12, ECF No. 11-4.
In 2012, Young went to the Duncanwood facility of HABC to receive some equipment for work and met Defendant Johnson. At the time, Johnson called her "Miss Dimples" in a "very suggestive" manner. AC ¶ 13; Aff. Young ¶ 4, ECF No. 11-2.
In or about October 2015, Young worked at the Gilmor Homes facility of HABC. Johnson was "occasionally" at Gilmor Homes, and Young alleges that his sexual harassment "became worse" in the following months. AC ¶ 15. He became more "aggressive," and every time he saw her he "took the opportunity to make sexually suggestive or lewd comments or propositions to [her]." Aff. Young ¶ 6, ECF No. 11-2.
In early 2016, Johnson officially became Young's supervisor at Gilmor Homes, and his sexual harassment became "a daily problem." AC ¶ 17. Starting at the end of 2015, Johnson "would repeatedly come to Ms. Young's desk and whisper lewd comments into her ear and ask to take her on dates."
On a date allegedly near his birthday, Johnson offered to take Young and another employee on a cruise, stating that he "could make wonders happen on that cruise."
Sometimes—no specific time was alleged—Johnson would ask Young if she was "ready," which she understood to mean "ready for a sexual encounter with him." AC ¶ 22.
On or about February 2016, Johnson told Young that "I would love to taste that." AC ¶ 23. Later that month, Young took time off work for surgery, and upon her return on April 28, 2016, Johnson told her that she would be working at the Perkins Project (another HABC facility) instead of Gilmor Homes.
Young alleges that Johnson frequently engaged in this type of activity and may have been the subject of complaints from other HABC employees in the past. AC ¶¶ 14, 16, 26, 29, 35. See also Aff. Dawson, ECF No. 11-3, Aff. Young ¶ 16, ECF No. 11-2. Young alleges that Johnson had a "previous history of workplace sexual harassment," was "fired from a previous job in the public schools for sexual harassment," and "had pending sexual harassment cases at the Health Department." AC ¶ 33.
Young alleges that, at some unspecified time "early on" in her interactions with Johnson, she contacted her Union representatives regarding the sexual harassment.
Young filed her EEOC Charge of Discrimination on December 8, 2016. Def.'s Mot. Ex. 2A at 70, ECF No. 20-7. The EEOC issued a Dismissal and Notice of Rights letter on December 16, 2016. AC ¶ 30. Young filed the Complaint in the instant case on March 15, 2017. ECF No. 1. On May 18, 2017, she filed the Amended Complaint ("AC") [ECF No. 11], asserting ten causes of action:
Both Defendants have filed motions to dismiss, or in the alternative, motions for summary judgment. Both sides have also submitted materials in addition to the Amended Complaint regarding these motions. The Court has not excluded these materials from consideration.
When "matters outside the pleading are presented to and not excluded by the court, the [12(b)(6)] motion shall be treated as one for summary judgment and disposed of as provided in Rule 56."
Because the Court has relied on supplemental affidavits and documents filed outside of the pleadings, it will treat the pending motions as motions for summary judgment.
A motion for summary judgment shall be granted if the pleadings and supporting documents "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
The well-established principles pertinent to summary judgment motions can be distilled to a simple statement: [t]he Court may look at the evidence presented in regard to a motion for summary judgment through the non-movant's rose-colored glasses, but must view it realistically. After so doing, the essential question is whether a reasonable fact finder could return a verdict for the non-movant or whether the movant would, at trial, be entitled to judgment as a matter of law.
When evaluating a motion for summary judgment, the Court must bear in mind that the "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed `to secure the just, speedy and inexpensive determination of every action.'"
In Counts I, II and V, Plaintiff asserts claims for sexual harassment under Title VII and the Maryland Fair Employment Practices Act ("FEPA"). She contends that Defendant Johnson subjected her to, and Defendant HABC allowed,
In response, Defendants argue that Young (1) failed to timely exhaust her administrative remedies, (2) failed to plead a claim for sexual harassment upon which relief can be granted, and (3) that HABC is protected from liability by an affirmative defense that it exercised reasonable care to prevent and promptly correct any sexually harassing behavior.
Defendants bring several procedural challenges to Plaintiff's claims, arguing that Plaintiff did not file her EEOC charge on time, that Plaintiff's EEOC Charge does not cover the actions now alleged in the Amended Complaint, that Plaintiff's claims are barred by the statute of limitations under FEPA, and that Plaintiff did not give proper Local Government Tort Claims Act ("LGTCA") notice for some of the claims.
To exhaust her administrative remedies before filing a Title VII action, Young must first properly "bring[] a charge with the EEOC."
Plaintiff filed her EEOC Charge against Defendant Johnson on December 8, 2016. Def.'s Mot. Ex. 2A at 70, ECF No. 20-7. Defendants contend that any alleged sexual harassment incident occurred more than 300 days prior thereto,
In the Amended Complaint, Plaintiff alleges that in February 2016, Wade Johnson stated to her "I would love to taste that." AC ¶ 23. This is consistent with her EEOC Charge, which alleges that she was "subjected to sexual harassment by [her] Supervisor Wade Johnson" "in or about February 2016." Def.'s Mot. Ex. 2A at 70, ECF No. 20-7.
Because Young has not specified the exact date in February 2016 of the alleged incident, the record does not show whether the EEOC Charge was, or was not, filed within 300 days of the alleged statement. Hence, on the current record, the Court can only conclude that based on Young's allegations it is possible that the December 8, 2016 EEOC filing was timely, but recognizes the existence of a factual issue regarding the date.
Hence, the Court will assume for present purposes that the EEOC Charge was timely filed. If the alleged February 2016 incident is within 300 days of Plaintiff's EEOC Charge, Young's claim that the incident was part of a continuing violation including other alleged incidents presents a plausible claim that evidence of the alleged related sexual harassment incidents could be considered in connection with her hostile work environment claim.
On the current state of the record, Defendants are not entitled to summary judgment dismissing Young's sexual harassment claims on this basis.
Defendants argue that the Amended Complaint asserts claims that were not included in the EEOC Charge. Specifically, the EEOC Charge states that Johnson said he wanted to "[t]aste this" and would "rock [her] world" if Young went on a cruise with him, Def.'s Mot. Ex. 2A at 70, ECF No. 20-7, while her Amended Complaint contains additional allegations of comments and actions that Johnson took to sexually harass her.
The Court finds Plaintiff's EEOC Charge is broad enough to encompass the more specific allegations that were made in her Amended Complaint. In her EEOC Charge, she states that "I was subjected to sexual harassment by my Supervisor Wade Johnson." Def.'s Mot. Ex. 2A at 70, ECF No. 20-7. She listed two specific incidents as examples, but in context her sexual harassment charge is not reasonably limited to the two specifically stated examples.
Defendants argue that any claim under Maryland's FEPA statute is time-barred because it must have been filed within six months of the date on which the alleged discriminatory act occurred.
The FEPA statute provides several different routes for dispute resolution. A plaintiff seeking to file a complaint with the Maryland Commission on Human Relations ("MCHR") has six months from the alleged discriminatory act to do so. See Md. Code Ann., State Gov't § 20-1004; Md. Code Regs. 14.03.01.03. However, a plaintiff electing to bring a civil action has possible relief from the six month rule under Md. Code Ann., State Gov't § 20-1013, which states:
(2) at least 180 days have elapsed since the filing of the administrative charge or complaint; and
Md. Code Ann., State Gov't § 20-1013.
This provision effectively provides a two-year statute of limitations for FEPA civil actions.
In the context of the present discussion, the Court assumes that Young timely filed her EEOC Charge so that she has "filed a timely administrative charge" "under federal . . . law alleging an unlawful employment practice by the respondent." Md. Code Ann., State Gov't § 20-1013. She commenced her action within two years of the alleged sexual harassment incidents.
Her EEOC Charge was filed on December 8, 2016, and she was required to wait until June 6, 2017 to file her civil action. She filed the Complaint on March 15, 2017, and an amended Complaint on May 17, 2017, both of which were filed too early,
Under Maryland's LGTCA, "an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim required by this section is given within 1 year after the injury." Md. Code Ann., Cts. & Jud. Proc. § 5-304.
Defendants contend that Plaintiff's state law claims are barred because they did not provide the required pre-filing notice to HABC.
"It is a longstanding principle of Maryland jurisprudence that the LGTCA notice provision is a condition precedent to maintaining an action directly against a local government or its employees."
Plaintiff did not plead compliance with the notice requirement in her Complaint or Amended Complaint. Her attempted characterization of the Complaint as the notice is not successful. The statute explicitly requires notice
However, the statute also provides that "unless the defendant can affirmatively show that its defense has been prejudiced by lack of required notice,
The Court cannot now excuse the required pre-filing notice and must now dismiss the claims requiring LGTCA notice as to HABC, recognizing that they may be reinstated should Young prevail on a motion pursuant to § 5-304(d).
Accordingly, the Court shall dismiss-as to HABC-Young's state law claims requiring LGTCA notice.
Plaintiff has alleged
The Amended Complaint does not include allegations sufficient to present a plausible claim that the fourth element of the tort can be established. There are no allegations presenting a plausible claim that any reaction Young had towards Johnson's advances affected "tangible aspects" of her employment, or that any job benefit or job detriment depended on her acceptance or rejection of the harassment.
Accordingly, Plaintiff's sexual harassment claims under
To establish a hostile work environment sexual harassment claim, a plaintiff must prove that:
In assessing whether a work environment is objectively hostile, it is necessary to consider "`all the circumstances,' including `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"
Young's hostile work environment claim turns on the last two elements: whether the harassment was "sufficiently severe or pervasive" as to alter Young's conditions of employment, and whether the harassment was imputable to HABC.
Young makes some generalized allegations of sexual harassment occurring on a daily basis or being a "daily problem." AC ¶ 17. She also makes allegations of specific incidents of sexual harassment, such as comments made by Johnson about how he "could make wonders happen" on a hypothetical cruise he wanted to take her on, about whether Young was "ready" for him, and a statement about how he "would love to taste that." AC ¶¶ 21-23. These statements are of a sexual nature and the allegations present a plausible claim that they rise to the level of "sufficiently severe or pervasive" to warrant liability. Beyond an allegation that Johnson would "talk with his hands" and "place his hands on Ms. Young" when making such comments, she has not alleged any inappropriate physical contact. AC ¶ 17, Aff. Young ¶ 12, ECF No. 11-2. She does, however, allege that she had a fear that inappropriate physical contact could happen due to these frequent comments and advances. AC ¶ 20 (alleging Young feared that Mr. Johnson would "one day inappropriately touch her in a sexual manner."). When considering all the circumstances, it is possible that a jury could find that the alleged incidents, in conjunction with Young's broader allegations of "daily" harassment, could be found to meet the "sufficiently severe or pervasive" standard.
To be held liable, HABC had to "know" or "should have known" of the harassment and take "
On the other hand, an affidavit filed on behalf of HABC by Anna L. Armstrong states that "the first complaint regarding Wade Johnson HABC received was by Latanya Dawson on Thursday, June 9, 2016." Aff. Armstrong ¶ 5, ECF No. 20-6. When Dawson made that complaint, Johnson was relocated and terminated shortly thereafter. The parties' factual accounts are in conflict. The question of what, if anything, HABC knew about the harassment is a question properly left for the jury.
Accordingly, Plaintiff's sexual harassment claims under hostile work environment liability would not be resolved on a summary judgment motion.
"[A] defending employer may raise an affirmative defense to liability or damages" on a sexual harassment and hostile work environment claim.
As to the second element, Defendant argues that Young never used the provided anonymous hotline for reporting sexual harassment and "never brought her concerns to the attention of the Human Resources Director, Internal Audits and Investigations Unit, General Counsel, Chief Financial officer, Controller, HABC Manager, or the employee's Supervisor or Division Director." Def.'s Mot. at 19, ECF No. 20-2. Young argues that her actions in not reporting were reasonable because she "was afraid of retaliation." Pl.'s Opp. at 17, ECF No. 21. She also alleges in her Complaint that she spoke to her union representative and her supervisor about the sexual harassment. AC ¶¶ 25-28, ECF No. 11-4.
The Court finds that HABC has adequately alleged its affirmative defense at this stage of the litigation. It is true that a single policy may not be determinative of an employer's reasonable action:
A dispute of material fact also exists as to the second element of HABC's affirmative defense. Plaintiff alleges in her Complaint that she spoke to her union representative and her supervisor about the sexual harassment but at the same time states that she was afraid of reporting the actions. AC ¶¶ 25-28, ECF No. 11-4; Pl.'s Opp. at 17, ECF No. 21. However, Young was well aware of HABC's policies and had "filed at least four prior charges with the Baltimore Community Relations Commission" during her employment with HABC. Aff. Armstrong ¶ 4, ECF No. 20-6. Yet, she did not file her EEOC Charge until months later and did not use the anonymous Inspector General hotline that was provided for this purpose. Def.'s Mot. Ex. 1A at 15, ECF No. 20-4.
There are questions of fact requiring resolution to determine whether HABC's policies were reasonably effective and whether Young reasonably took steps to avail herself of any employer protections. HABC's affirmative defense is pending.
Young alleges Due Process violations under the U.S. Constitution and the Maryland Constitution. Specifically, the Amended Complaint alleges a substantive due process violation based on Plaintiff's "right to be secure in her person in the workplace,"
However, the cases supporting a due process right to "bodily integrity" cited by Plaintiff involved actual sexual assault or physical harm.
Here, the Plaintiff at most alleges that Johnson would "`talk with his hands'" in such a manner that he would place his hands on Ms. Young while making harassing comments. AC ¶ 17, Aff. Young ¶ 12, ECF No. 11-2. Plaintiff alleges that one time, Johnson "reach[ed] over her body with his arms on either side of prevent [the alleged] abuse," the Amended Complaint does not allege a lack of procedural due process. AC ¶ 70. her" when showing her something on the computer. AC ¶ 19, Aff. Young ¶ 13, ECF No. 11-2. These facts simply do not allege a due process violation of bodily integrity. Accordingly, Defendants are entitled to summary judgment on Plaintiff's constitutional due process claims.
Plaintiff alleges in Counts IV and VII that Defendants violated her right to equal protection under both the U.S. Constitution and the Maryland Constitution. "Although the Maryland Constitution contains no equal protection clause, `the concept of equal protection is embodied in the due process requirement of Article 24' of the Maryland Declaration of Rights."
The Fourth Circuit has explained that "intentional sexual harassment of employees by persons acting under color of state law violates the Fourteenth Amendment [equal protection clause] and is actionable under § 1983."
Plaintiff alleges a violation of her right to equal protection. She alleges she was "singled out for harassment" by the defendants on the basis of her sex and that there is no rational, legitimate, or compelling state interest in the harassment. AC ¶¶ 72-75.
The Court will treat this claim as asserting a Section 1983 violation of the equal protection clause and has determined that there is a genuine dispute of material fact as to Defendant HABC's potential hostile work environment liability. Accordingly, Plaintiff's equal protection claims against HABC and Johnson remain pending.
In Maryland, assault is defined as an "attempt to cause a harmful or offensive contact with another or to cause an apprehension of such contact."
"An action for assault, libel, or slander shall be filed within one year from the date it accrues." Md. Code Ann., Cts. & Jud. Proc. § 5-105. The Complaint was filed on March 15, 2017, and contained no assault claim.
In the Amended Complaint, Plaintiff alleges that the combination of the "constant sexually inappropriate commentary" and the "occasional unwanted touching and invasion of Plaintiff's personal space" placed Young in apprehension that Johnson would "at any time" touch her in a sexually inappropriate manner. AC ¶ 100.
A complaint is required to allege more than generalized statements about "constant" or "occasional" actions that give rise to a claim for assault. It must allege sufficient facts "to cross `the line between possibility and plausibility of entitlement to relief.'"
The Amended Complaint only states that Young took medical leave in February 2016 and upon her return was transferred to a different facility, away from Johnson. Young's supplemental affidavit states that the last interaction she had with Johnson was on April 28, 2016, regarding her facility transfer. On this date, Johnson "took [her] into his office and shut the door," "informed [her] that [she] was being transferred to a different site," and "flirtatiously gave [her] his personal cell phone number and asked [her] to use it." Supp. Aff. Young ¶¶ 4-6, ECF No. 21-1.
The allegations regarding the April 2016 interaction do not assert a plausible claim for assault, which is defined under Maryland law as an "attempt to cause a harmful or offensive contact with another or to cause an apprehension of such contact."
Beyond the April 2016 interaction, there are no alleged interactions that could be said to plausibly assert an assault claim that would fall within the limitations period.
Accordingly, Defendant Johnson shall be granted summary judgment on Plaintiff's assault claim.
"[A]n employer owes a duty
"The nature and extent of the employer's duty of reasonable inquiry varies based upon the facts of each case."
When evaluating whether an act or omission was the proximate cause for an injury, the Court must examine whether there was (1) causation in fact and (2) a legally cognizable cause.
Regarding negligent hiring, Defendant argues that when Johnson applied to work for HABC in 2010, "he indicated he had never been fired or asked to resign by his prior employers," and that Plaintiff has not alleged that HABC should have known otherwise. Def.'s Mot at 25, ECF No. 20. Moreover, Defendant argues that the 2010 hiring is too remote to give rise to an injury occurring in 2015 and 2016. Finally, the Defendant argues that any negligent hiring claim is barred by the 3-year statute of limitations.
The Court does not find that there was a duty to conduct an investigation of Johnson's prior employment history when his job application states that he was "laid off" and not fired from a previous job. Moreover, even if there were such a duty, any action that HABC did not take in 2010 is not the factual or proximate cause of the alleged injuries in 2015 and 2016. It is not foreseeable from the facts in the record that a failure to investigate Johnson's prior employment history from 2009-for which HABC was not on notice-would cause injury to Plaintiff nearly 7 years later.
Regarding negligent supervision, training and retention, Defendant argues that there is no underlying tort claim at common law that could give rise to a negligence claim in this context.
Accordingly, Defendants shall be granted summary judgment on Plaintiff's negligence hiring, training, supervision, and retention claims.
Maryland adopts the Second Restatement of Torts, which states that:
Restatement (Second) of Torts § 390 (1965),
Plaintiff alleges that Defendant HABC was negligent for entrusting supervisors like Johnson with keys to the Plaintiff's office, when they "knew or should have known" that Johnson could not be trusted with such access or authority. AC ¶¶ 94-95. The alleged injury was the ability to access and approach Plaintiff to "make lewd comments in her ear and proposition her in her place of employment."
Even assuming that a key could be a "chattel," the tort of negligent entrustment exists to address physical harm.
Accordingly, Defendants' shall be granted summary judgment on Plaintiff's negligent entrustment claims.
Plaintiff has asked for punitive damages, but Defendants argue that they have not acted with ill motive or intent or with reckless or callous indifference to Young's federally protected rights and that local governments in Maryland cannot be liable for punitive damages.
To recover punitive damages, the plaintiff must show that "respondent engaged in a discriminatory practice or discriminatory practices
The Court finds that there are genuine issues of material fact that prevent summary judgment on Young's punitive damages claims against Defendant Johnson. HABC is correct in asserting that it cannot be held liable for punitive damages so that summary judgment shall be granted on Young's punitive damage claims against HABC.
Young has filed an affidavit stating that she has taken every step available to determine "the exact nature of the employment relationship between Defendant Johnson and Plaintiff" and "Defendant Johnson's disciplinary history with previous employers." Aff. Stating Pl.'s Need for Discovery ¶¶ 4-5, ECF No. 21-4. She now seeks discovery on these matters.
These matters are at least relevant to claims that remain pending, and Plaintiff shall be able to obtain the requested discovery in the course of pretrial proceedings. However, the discovery is not necessary to the resolution of the pending motion. Accordingly, the Court shall grant Young's request for discovery to be conducted as part of factual discovery in the case.
For the foregoing reasons:
SO ORDERED.
