Smith-Hosch, Ed.D v. Bramble

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

:

MARIA SMITH-HOSCH

:

v. : Civil Action No. DKC 18-3659

:

GLENN L. BRAMBLE, et al.

:

MEMORANDUM OPINION

Presently pending and ready for resolution in this employment

case brought under Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§2000e et seq. and 42 U.S.C. § 1983, is the motion to

dismiss filed by Defendants Glenn Bramble, Phillip Rice, and Laura

Layton. (ECF No. 7).1 The issues have been fully briefed, and

1 Plaintiff amended her complaint after these Defendants filed

their motion to dismiss. “Normally, an amended complaint

supersedes the original complaint.” Pac. Bell Tel. Co. v. Linkline

Commc'ns, Inc., 555 U.S. 438, 456 (2009)(citing 6 C. Wright & A.

Miller, Federal Practice & Procedure § 1476, pp. 556–557 (2d

ed.1990)). Sometimes, for reasons of judicial economy:

defendants should not be required to file a

new motion to dismiss simply because an

amended pleading was introduced while their

motion was pending. If some of the defects

raised in the original motion remain in the

new pleading, the court simply may consider

the motion as being addressed to the amended

pleading. To hold otherwise would be to exalt

form over substance.

Buechler v. Your Wine & Spirit Shoppe, Inc., 846 F.Supp.2d 406,

415 (D.Md. 2012), aff'd, 479 F. App'x 497 (4th Cir. 2012)(quoting

6 Wright et al., § 1476, at 638 (2010 ed.)). Here, the first

amended complaint does not remedy the alleged defect raised in the

the court now rules, no hearing being deemed necessary. Local

Rule 105.6. For the following reasons, the motion to dismiss

will be denied.

I. Background

A. Factual History

Unless otherwise noted, the facts outlined here are set forth

in the amended complaint and construed in the light most favorable

to Plaintiff. The Dorchester County Board of Education (the

“Board”) is a five-member body tasked with management of all

educational matters that affect Dorchester County, Maryland. Md.

CODE ANN., Educ. § 4-101. At all relevant times, the Board consisted

of President Glenn Bramble, Vice President Phillip Rice, and Member

Laura Layton (collectively, the “Individual Defendants”), as well

as Members LeOtha Hull and Glen Payne. In the summer of 2017, the

Board made a series of staffing and personnel changes. First, the

Board hired Dr. Diana Mitchell as superintendent. (ECF No. 13, at

16). Dr. Mitchell is the first African American superintendent of

Dorchester County. Id. Second, the Board restructured upper-

management under Dr. Mitchell, eliminating two assistant

original motion. The first amended complaint merely adds the Board

as a defendant without altering the substance or legal sufficiency

of the claims against these Defendants.

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superintendent positions and replacing them with four “cabinet”

positions. Id. at 17. One of these four cabinet positions is the

Director of Secondary Education which Plaintiff Dr. Maria Smith-

Hosch applied for, interviewed for, and received via an offer

letter dated August 7, 2017. Id. at 15.

Prior to her hiring as the Board’s Director of Secondary

Education, Dr. Smith-Hosch — who is African-American — had spent

42 years as an employee of Prince George’s County’s Board of

Education (“PGCBE”). Id. at 9. Dr. Smith-Hosch retired from PCGBE

effective September 1, 2017, but her nearly contemporaneous hiring

and retirement ran up against MD. CODE ANN., State Pers. & Pens. §

22-406: “An individual who is receiving a service retirement

allowance under this title may not be employed within 45 days of

the date the individual retired[.]” Thus, Dr. Smith-Hosch was

designated a “retired rehired” employee and her official start

date was delayed until October 15, 2017, although she volunteered

her time in an advisory capacity prior to that date. Id. at 25,

26.

In February of 2018, a fight broke out at a local Dorchester

County high school which roiled the community, the Board, and Dr.

Mitchell’s cabinet. Id. at 28, 29. The fight — described as

“involving African American students and staff” — quite literally

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divided the community along racial lines, with black and white

community members at the ensuing Board meeting allegedly sitting

on opposite sides of the room. Id. In the aftermath of the fight,

the community pressured the Board to implement security and safety

plans, with some community members allegedly going so far as to

offer money to the individual defendants if they would fire Dr.

Mitchell and her cabinet, including Dr. Smith-Hosch. Id. at 30,

32.

In the spring of 2018, Mr. Bramble ordered Dr. Mitchell to

investigate Dr. Smith-Hosch over allegations that she had been

“bullying” several principles working under her, all of whom were

white. Id. at 34. This missive came from Mr. Bramble himself and

not from the Board as a whole. Id. Dr. Mitchell reluctantly

acceded to Mr. Bramble’s order and launched an investigation. Id.

at 37. That investigation ultimately refuted the allegations of

“bullying” and turned up just one complaint: a principal serving

under Dr. Smith-Hosch, Ms. Lynn Sorrells, expressed some

discomfort over the fact she was tasked with supervising Dr. Smith-

Hosch’s husband, Dr. Benjamin Hosch, who was then serving as a

“retired rehired” assistant principal at Ms. Sorrells’ school.

Id. at 38.

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Mr. Bramble met Dr. Mitchell’s findings with skepticism,

however, and, on May 17, called for Dr. Smith-Hosch’s immediate

termination. Id. at 39, 40. In the ensuing vote on May 22, Mr.

Bramble, Mr. Rice, and Ms. Layton, composing a bare majority of

the Board, voted for Dr. Smith-Hosch’s termination. Id. at 44.

Over the next few months, the Board also took action against three

other African-American employees, terminating Dr. Hosch, placing

Dr. Mitchell on paid administrative leave, and doing the same for

Arcelius Brickhouse, another African-American cabinet member. Id.

at 59. The complaint makes no reference to any supposed reason

for Dr. Hosch’s termination. The complaint does, however, state

that the Board’s decision to place Dr. Mitchell and Dr. Brickhouse

on leave had to do with an alleged conspiracy between the two of

them and Dr. Smith-Hosch “to give an African American candidate

for assistant principal the interview questions in advance of his

interview[.]” Id. at 61. That interview took place on August 9,

2018 — over two months after Dr. Smith-Hosch’s termination. Id.

B. Procedural Background

Plaintiff filed suit against the three named Defendants on

November 29, 2018. In the initial complaint, Dr. Smith-Hosch

stated that:

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Upon the EEOC’s issuance of the Notice of Right to Sue,

Dr. Smith-Hosch will be amending her lawsuit to add the

Board as the defendant to her race discrimination claim

under Title VII, which arises from the same set of facts

supporting her § 1983 claim against the Individual

Defendants.

Id. at 3. In the meantime, the Individual Defendants moved to

dismiss on January 21, 2019. (ECF No. 7).

On April 16, 2019, this court granted Plaintiff’s unopposed

motion for leave to file the first amended complaint, adding a

Title VII claim against the Board itself pursuant to the EEOC’s

April 9, 2019 Notice of Right to Sue. (ECF No. 12).

II. Standard of Review

The purpose of a motion to dismiss under Rule 12(b)(6) is to

test the sufficiency of the complaint. Presley v. City of

Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff’s

complaint need only satisfy the standard of Rule 8(a), which

requires a “short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule

8(a)(2) still requires a ‘showing,’ rather than a blanket

assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 556 n. 3 (2007). That showing must consist of more

than “a formulaic recitation of the elements of a cause of action”

or “naked assertion[s] devoid of further factual enhancement.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations

omitted).

At this stage, all well-pleaded allegations in a complaint

must be considered as true, Albright v. Oliver, 510 U.S. 266

(1994), and all factual allegations must be construed in the light

most favorable to the plaintiff, see Harrison v. Westinghouse

Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan

Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). In

evaluating the complaint, unsupported legal allegations need not

be accepted. Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 873

(4th Cir. 1989). Legal conclusions couched as factual allegations

are insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual

allegations devoid of any reference to actual events, United Black

Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). “[W]here

the well-pleaded facts do not permit the court to infer more than

the mere possibility of misconduct, the complaint has alleged, but

it has not ‘show[n] . . . that the pleader is entitled to relief.’”

Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus,

“[d]etermining whether a complaint states a plausible claim for

relief will . . . be a context-specific task that requires the

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reviewing court to draw on its judicial experience and common

sense.” Id.

III. Analysis: Individual Board Member Liability under § 1983

The Amended Complaint asserts that each of the three

individual defendants “usurped” his or her role as a Board Member

and voted in favor of Plaintiff’s termination, on the basis of

race. The Amended Complaint also alleges that Mr. Bramble ordered

the superintendent to investigate Plaintiff. Plaintiff argues

that by voting in favor of her “termination,” the Individual

Defendants “acting under color of state law, caused a deprivation

of a federal right.” (ECF No. 9, at 19) (citing Hafer v. Melo,

502 U.S. 21, 25 (1991)). The sole argument of the Individual

Defendants is that causation is lacking. Because, they contend,

“the board of directors acts as a unit,” Hecht v. Resolution Trust

Corp., 333 Md. 324, 332 (1994), individual board members cannot be

said to have “caused” the deprivation in question. (ECF No. 7, at

6).

Defendants cite two unreported trial court decisions to try

to make their argument: Hanifee v. Bd. Of Educ. Of Kent Cty., 2010

WL 723772 (D.Md. Feb. 24, 2010), and Moore v. Bd. Of Educ. of

Baltimore Cty., 2017 WL 3172820 (D.Md. July 25, 2017). Neither,

however, is factually identical to this case, and Defendants

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attempt to carry their rationale too far. In Hanifee, the

Plaintiff — a member of the Kent County, Maryland Board of

Education — brought suit against his fellow board members over an

alleged conspiracy to deprive him of his First and Fourteenth

Amendment Rights. The court found against Hanifee for a litany of

reasons: 1) Hanifee could “not make any specific allegations

regarding individual conduct” by the individual board members; 2)

the lack of any “clearly established” federal right meant that the

individual board-members were protected by qualified immunity; and

3) because “a local governmental body disciplining one of its

members is a ‘core legislative act’ and therefore protected by

legislative immunity.” Hanifee, 2010 WL 723772, at *6.

In addressing the first reason for granting a motion to

dismiss Hanifee’s complaint, the court noted the inability of a

Maryland county’s Board of Education to act as anything but a

cohesive unit. Id. (“In Maryland, individual Board members and

employees have no authority to take actions against other Board

members.”)

Moore, the other case Defendants rely on to make their

causation argument, includes similar language. There, the

plaintiff brought suit, not against any individual school board

members, but against the board’s legal counsel for his role in

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causing the board to deprive plaintiff of her federal rights.

Moore, 2017 WL 3172820, at *4. In Moore, as in Hanifee, the court

stressed that “under Maryland law, a county’s Board of Education

decides all matters of public education — neither its individual

board members nor its legal counsel has individual decision making

authority.” Id.

Surely no individual board member or board employee may be

held liable for the actions of a board as a whole. If, however,

a plaintiff can make 1) specific allegations regarding the

individual conduct of a member of board, and 2) that individual

action is found to have deprived the plaintiff of a federal right,

then the individual member of that board may be held liable for

his or her actions under § 1983.

This conclusion flows from the blackletter standard for §

1983 claims: “to establish personal liability in a § 1983 action,

it is enough to show that the official, acting under color of state

law, caused the deprivation of a federal right.” Hafer v. Melo,

502 U.S., at 25 (emphasis added). See also, Lyles v. Montgomery

Cty., MD, 162 F. Supp. 2d 402, 405 (D.Md. 2001) (“To state a

claim under 42 U.S.C. § 1983, a plaintiff must allege that the

defendant, while acting under color of state law, violated a

federal right.”) There can be no doubt that when a member of a

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Maryland board of education casts a vote, he or she does so “under

color of state law.” And, if it is alleged, and then proven, that

an illegal reason was a motivating factor in the individual’s vote,

and a change in that person’s vote would alter the outcome of the

Board’s decision, causation can be shown. See, e.g., Quigg v.

Thomas Cty. School Dist., 814 F.3d 1227, 1244 (11th Cir.

2016)(discussing “same decision” defense in the context of §1983

claims against individual board members). This notion of

“causation” is the flip-side of the recognized “cat’s paw” theory

of liability of an employer for acts of a supervisor without

ultimate decision-making authority. Weathersbee v. Baltimore City

Fire Dept., 970 F.Supp.2d 418, 425 n. 4 (D.Md. 2013) (citing Staub

v. Proctor Hosp., 562 U.S. 411 (2011)).

Other courts have recognized the potential viability of

claims under § 1983 against individual board members under similar

circumstances. See, e.g., Martin v. Shelby Cty Bd. of Educ., 756

Fed.Appx. 920, 925 (11th Cir. 2018); Zurchin v. Ambridge Area School

Dist., 300 F.Supp.3d 681, 692 (W.D.Pa. 2018); Williams v. Alhambra

School Dist., 234 F.Supp.3d 971 (D.Ariz. 2017); Pettis v. Nottoway

Cty School Bd., 2013 WL. 3063704, at *7 (E.D.Va., October 31,

2014); Smith v. Brockton School Dist., 2008 WL 11414565, at *6-7

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(D. Mont. November 24, 2008); Dunlop v. Colgan, 687 F.Supp. 406

(N.D. Ill. 1988).

The Individual Defendants’ motion to dismiss rests entirely

on the premise that individual school board members can, under no

circumstances, be held liable under §1983 for the consequences of

their votes. Neither the case law in this circuit, nor the others

that have addressed it, support this premise. Unlike in Hanifee,

Plaintiff identifies specific, individual conduct by each of the

Individual Defendants: namely, their votes regarding Dr. Smith-

Hosch’s termination. It is enough that Plaintiff plausibly alleges

that the Individual Defendants’ votes were 1) motivated by

discriminatory animus, 2) intended to cause an adverse employment

action, and 3) that each vote proximately caused the adverse

employment action.

IV. Conclusion

For the foregoing reasons, the motion to dismiss filed by

Defendants Bramble, Layton and Rice will be denied. A separate

order will follow.

/s/

DEBORAH K. CHASANOW

United States District Judge

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