Carter v. Baltimore City Police Department

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

MARTEZ CARTER

Plaintiff,

v. Civil No. JRR-21-02724

MICHAEL HARRISON, et al.,

Defendants.

MEMORANDUM OPINION

This matter comes before the court on Defendant James Handley’s Motion to Dismiss

Plaintiff’s Second Amended Complaint and Defendants Baltimore Police Department (hereafter

“BPD”) and Michael Harrison’s Motion to Dismiss Plaintiff’s Second Amended Complaint. (ECF

17 and 18, respectively; the motions will be referred to as the “Handley Motion” and the

“BPD/Harrison Motion”.) No hearing is necessary. Local Rule 105.6 (D. Md. 2021.)

BACKGROUND

Plaintiff filed this action against Defendants for various forms of employment

discrimination and retaliation under Title VII and related state law. 42 U.S.C. § 2000e; MD. CODE

ANN., STATE GOV'T § 20-606. (ECF 1.) Plaintiff, an African American man, applied four times to

become a Baltimore City Police Officer with Defendant BPD. Plaintiff was denied each time and

was banned from reapplying after the fourth application. (ECF 16.) Plaintiff alleges that the

individual responsible for denying his applications and banning him from reapplying was Major

James Handley, and that the denials were racially motivated. Id. Despite being banned from

reapplying, Plaintiff applied again. Id. Plaintiff alleges that during a phone call with Major

Handley on August 2, 2019, while discussing the status of his application, Major Handley referred

to Plaintiff as a liar and uttered a racial slur. Id. Plaintiff filed an administrative charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”) on May 26, 2020.

Following issuance of a Notice of Right to Sue letter, this action followed.

I. BPD/Harrison Motion

a. Individual Liability

Defendant Harrison argues that because he is not Plaintiff’s employer, he may not be held

individually liable for employment discrimination and retaliation. Plaintiff did not respond to this

argument. Although Plaintiff has effectively abandoned this claim, the court will briefly address

the merits. Mentch v. E. Sav. Bank, FSB, 949 F. Supp. 1236, 1246-47 (D. Md. 1997) (holding that

failure to oppose a dispositive motion constitutes abandonment of the claim). Neither Title VII

nor related state law permits an employee or supervisor to be sued in their individual capacity.

Lissau v. S. Food Serv., Inc., 159 F.3d 177, 178-80 (4th Cir. 1998); Baird ex rel. Baird v. Rose,

192 F.3d 462, 472 (4th Cir. 1999) (“We have expressly held that Title VII does not provide a

remedy against individual defendants who do not qualify as ‘employers.’”) The court will grant

the BPD/Harrison Motion with respect to Defendant Harrison.

b. Local Government Tort Claims Act

The Local Government Tort Claims Act (“LGTCA”) prohibits a plaintiff from suing a local

government or its employees unless the claimant provides notice of the claim within one-year after

injury. MD. CODE ANN., CTS. & JUD. PROC. § 5-304.1 Notice, however, is not required when,

“within 1 year after the injury, the defendant local government has actual or constructive notice

1 The LBTCA is applicable to the state law claims in this case, as it applies to constitutional torts. See Martino v. Bell,

40 F. Supp. 2d 719, 723–24 (D. Md. 1999) (quoting Thomas v. City of Annapolis, 113 Md. App. 440 (1997) (holding

that the LGTCA applies to “all torts without distinction, including intentional and constitutional torts.”)).

of: (1) the claimant’s injury; or (2) the defect or circumstances giving rise to the claimant’s injury.”

Id. §5-304(e).

BPD contends the Complaint must be dismissed because Plaintiff failed to conform with

the notice requirement. Plaintiff has pled that he filed his administrative charge of discrimination

on May 26, 2020, within one-year of his alleged injury of August 2, 2019. Assuming the truth of

this allegation, BPD had actual notice in accordance with the LGTCA. The BPD/Harrison Motion

will be denied on these grounds.

c. Sovereign Immunity

The doctrine of sovereign immunity “prohibits suits against the State or its entities absent

its consent.” Beka Industries, Inc. v. Worcester County Bd. Of Educ., 419 Md. 194, 206 (2011)

(quoting Magnetti v. University of Md., 402 Md. 548, 557 (2007)). The LGTCA provides that “a

local government shall be liable for any judgment against its employee for damages resulting from

tortious acts or omissions committed by the employee within the scope of employment with the

local government.” MD. CODE ANN., CTS. & JUD. PROC., § 5-303(b).

BPD argues that sovereign immunity shields it from Plaintiff’s claims. Because the

LGTCA extends to this case, and BPD received LGTCA-compliant notice, see supra, BPD waived

its sovereign immunity as to the instant claims. The BPD/Harrison Motion will be denied on these

grounds.

d. Failure to Exhaust Administrative Remedies

BPD contends that Plaintiff failed to exhaust his administrative remedies regarding

retaliation because he did not describe any retaliatory conduct, or otherwise mention retaliation, in

his administrative charge. Before a plaintiff may sue under Title VII, he is first required to file an

administrative charge of discrimination. 42 U.S.C § 2000e-5(f)(1). The scope of a complainant’s

entitlement to sue is limited to the “parties identified and practices complained of in the charge of

discrimination.” Jones v. Calvert Grp. Ltd., 551 F.3d 297 (4th Cir. 2009); Evans v. Technologies

Applications & Service Co., 80 F.3d 954 (4th Cir.1996). This requirement serves two important

purposes: notice to the charged party and an opportunity for the charged party to comply

voluntarily with law without resort to litigation.

The requirement that a plaintiff pursue his retaliation claim administratively as a condition

precedent to this court’s jurisdiction may be excused where the conduct is “reasonably related to

the original complaint, and … developed by reasonable investigation of the original complaint.”

Evans, 80 F.3d at 962–63. The administrative charge is not construed narrowly; rather, it is

considered a “jurisdictional springboard to investigate whether the employer is engaged in any

discriminatory practices,” which may include conduct not listed in the administrative charge.

Equal Employment Op. Com’n v. General Elec. Co, 532 F.2d 359, 364 (4th Cir. 197) (quoting

Equal Employment Op. Com’n v. Huttig Sash & Door Co., 511 F.2d 453, 455 (5th Cir. 1975)).

The Court in Equal Employment Opportunity Commission v. General Electric Company explains

If the EEOC uncovers during that investigation facts which support a charge of another

discrimination than that in the filed charge, it is neither obliged to cast a blind eye over

such discrimination nor to sever those facts and the discrimination so shown from the

investigation in process and file a Commissioner's charge thereon, thereby beginning again

a repetitive investigation of the same facts already developed in the ongoing investigation.

To cast a blanket over such facts in the ongoing proceedings would be a violation of the

EEOC's statutory obligation in the area of employment discrimination. To require a new

charge based on those facts and to begin again the administrative process thereon, would

result in an inexcusable waste of valuable administrative resources and an intolerable delay

in the enforcement of rights which require a “timely and effective remedy.”

532 F. 2d at 365. See also, Hentosh v. Old Dominion Univ., 767 F.3d 413, 416-17 (4th Cir.

2014) (citing Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992)); and Jones v. Calvert Grp., Ltd.,

551 F.3d 297, 304 (4th Cir. 2009), all of which discuss principles underpinning excusal of technical

exhaustion for claims of retaliation during pendency of the administrative charge and

circumstances constituting continuing or ongoing retaliation.

The requirement of administrative exhaustion (as well as the naming requirement) is not

designed to operate as a technical “gotcha” – to bar Plaintiff’s pursuit of a retaliation claim where

it might reasonably have been discovered through the administrative investigation. Assuming the

truth of Plaintiff’s allegations, the complained-of retaliatory conduct is part of the larger

transaction of alleged discriminatory conduct. Plaintiff satisfactorily states a claim for retaliation

in the Complaint and will be permitted to pursue discovery to explore the facts uncovered in the

administrative investigation.

e. Discrimination

Plaintiff alleges discriminatory failure to hire under Title VII and Maryland law. The

elements of a prima facie claim of discriminatory failure to hire are as follows

The plaintiff (1) the belonged to a protected class; (2) applied for, and was qualified for, a

job for which the employer was seeking applicants; (3) was rejected despite his

qualifications; and (4) after his rejection, the position remained open and the employer

continued to seek similarly qualified applicants, or filled the position with an applicant

outside the protected class.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Danial v. Morgan State Univ., 426

F. Supp. 3d 135, 143–44 (D. Md. 2019). BPD argues that Plaintiff has not stated a claim for

discriminatory failure to hire, asserting that Plaintiff was not qualified for a position with BPD;

that Plaintiff has failed to allege that the position remained open; and that Plaintiff has failed to

allege that BPD filled the position with someone outside of the protected class.

The Supreme Court has held that a plaintiff is not required to affirmatively plead all

elements of a prima facie case of discrimination. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511

(2002) (“This Court has never indicated that the requirements for establishing a prima facie case

under McDonnell Douglas also apply to the pleading standard that plaintiffs must satisfy in order

to survive a motion to dismiss.”) The requirements of a prima facie case “can vary depending on

the context and were ‘never intended to be rigid, mechanized, or ritualistic’” Id. at 512 (quoting

Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978)). Further, setting forth a prima facie

case of discrimination at the pleading stage can present insurmountable difficulty before a plaintiff

has an opportunity to engage in discovery. Id.

Assuming the truth of Plaintiff’s allegations that he was subjected to discriminatory

treatment based on his status as an African American, including, but not limited to, the use of a

racial slur on a phone call, that he was denied employment with BPD based on his race, and that

BPD maintains a vacancy rate, Plaintiff has alleged sufficient facts to state a claim for

discriminatory failure to hire. The Motion will be denied on these grounds.

f. Retaliation

Plaintiff also asserts a claim for retaliation under Title VII and related state law. To state a

claim for retaliation, a plaintiff must allege that “(1) he engaged in a protected activity, such as

filing a complaint with the EEOC; (2) that [the employer] acted adversely against him; and (3) the

protected activity was causally connected to the adverse action” Okoli v. City of Balt., 648 F.3d

216, 223 (4th Cir. 2011). Plaintiff alleges that he engaged in protected activity when he

complained about Officer Handley’s discriminatory behavior to other BPD Officers, when he filed

a grievance with Internal Affairs on August 2, 2019, and when he filed the administrative charge

on May 26, 2020. Plaintiff alleges that he was denied employment as a direct result of these

protected activities.

Plaintiff’s allegations that he engaged in protected activities and that his employment

application was thereafter rejected despite his qualifications are adequate to state a claim for

retaliation. Id; Swierkiewicz, 534 U.S. at 511. The Motion will be denied on these grounds.

II. Handley Motion

Plaintiff may not maintain a Title VII or related state law claim against Defendant Harrison.

See supra, Section I, Subsection (a). Defendant Handley’s Motion will be granted.

CONCLUSION

For the reasons set forth herein, Defendants BPD and Michael Harrison’s Motion to Dismiss

Plaintiff’s Second Amended Complaint will be GRANTED with respect to Defendant Harrison

and DENIED with respect to Defendant BPD. Defendant James Handley’s Motion to Dismiss

Plaintiff’s Second Amended Complaint will be GRANTED. The court will issue an accompanying

order in accordance with this memorandum opinion.

_______/s/______________

Judge Julie R. Rubin

United States District Court Judge

May 17, 2022