Garcia v. Baltimore Police Department

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

*

LUIS GARCIA

*

Plaintiff

*

v.

* Civil No.: BPG-22-1423

BALTIMORE POLICE DEPARTMENT

*

Defendant

* * * * * * * * * * * *

MEMORANDUM OPINION

Currently pending before the court are defendant’s Motion to Dismiss (“defendant’s

Motion”) (ECF No. 15), plaintiff’s Motion in Opposition to Defendant’s Motion to Dismiss

(“plaintiff’s Opposition”) (ECF No. 17), and defendant’s Reply to Plaintiff’s Response in

Opposition to Baltimore Police Department’s Motion to Dismiss (“defendant’s Reply”) (ECF No.

23). The issues are fully briefed, and no hearing is necessary. Loc. R. 105.6. For the reasons

discussed herein, defendant’s Motion to Dismiss (ECF No. 15) is granted.

I. BACKGROUND

Plaintiff Luis Garcia (“plaintiff”), a Hispanic man, began working for defendant Baltimore

Police Department (“BPD” or “defendant”) in April 2014. (ECF No. 1 ⁋⁋ 14, 17). Plaintiff alleges

the following facts in his Complaint. Starting in January 2018, coworkers and supervisors in

plaintiff’s Unit repeatedly accused him of engaging in a sexual relationship with a female member

of the Unit. (Id. ⁋ 21). The comments often referred to plaintiff’s sex and national origin. (Id.)

Plaintiff was subjected to further adverse consequences when he objected to the accusations,

including being denied backup on calls, targeted with complaints, and placed under investigation.

(Id. ⁋ 22). On December 17, 2018, plaintiff filed an EEOC complaint alleging discrimination

based on sex, national origin, and retaliation. (Id.) In December 2019, plaintiff filed a lawsuit in

this court, which settled in March 2020. (Id. ⁋ 23).

Following the lawsuit, plaintiff alleges that he has suffered increased retaliation, including

“constantly facing accusations of being ‘corrupt,’ being refused overtime on certain shifts in an

effort to affect his pay, and [ ] often [being] skipped over for positions that [he] is overqualified

for.” (Id. ⁋ 25). Specifically, plaintiff alleges that he was denied the position of Detective, which

he applied for in the Fall of 2020 (Id. ⁋ 26), and on three occasions, a promotion to Sergeant despite

being qualified for the rank. (Id. ⁋⁋ 27-28). Plaintiff further alleges that defendant manipulated

the list of qualified applicants for both the Detective and Sergeant positions to avoid promoting

plaintiff. (Id. ⁋⁋ 27-29).

On March 5, 2021, plaintiff filed a second EEOC complaint, alleging retaliation stemming

from his 2018 EEOC complaint and the resulting lawsuit. (Id. ⁋ 31). Plaintiff received his Right

to Sue letter from the EEOC by email notification on March 9, 2022. (Id. ⁋ 9, ECF No. 17-1 at 3).

On June 10, 2022, plaintiff filed suit in this court against defendant Baltimore Police Department

(“defendant”). Plaintiff asserts four counts against defendant: (I) retaliation in violation of Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq; (II) hostile work environment in

violation of Title VII; (III) violation of plaintiff’s civil rights pursuant to 42 U.S.C. § 1981; and

(IV) violation of the Maryland Fair Employment Practices Act (“MFEPA”), Maryland Code, State

Gov’t, § 20-601, et seq. Defendant moves to dismiss all counts of plaintiff’s Complaint. (ECF

No. 15).

II. STANDARD OF REVIEW

Defendant moves to dismiss Counts I, II, and III of plaintiff’s Complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6). Under Rule 12(b)(6), a complaint may be dismissed for

failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The purpose of

a motion to dismiss for failure to state a claim under Rule 12(b)(6) is to test the legal sufficiency

of a complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). When ruling

on such a motion, the court must “accept[] all well-pleaded allegations in the plaintiff’s complaint

as true” and “draw[] all reasonable factual inferences from those facts in the plaintiff’s favor.” Id.

at 244. Nonetheless, “[t]he mere recital of elements of a cause of action, supported only by

conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).”

Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)). Rather, “a complaint must contain sufficient factual matter . . . to state a claim to

relief that is plausible on its face.” Ashcroft, 556 U.S. at 678 (internal citation and quotation marks

omitted). A plaintiff satisfies this standard not by forecasting evidence sufficient to prove the

elements of the claim, but by alleging sufficient facts to establish those elements. Walters, 684

F.3d at 439. Accordingly, “while a plaintiff does not need to demonstrate in a complaint that the

right to relief is ‘probable,’ the complaint must advance the plaintiff’s claim ‘across the line from

conceivable to plausible.’” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

Defendant moves to dismiss Count IV of plaintiff’s Complaint pursuant to Federal Rule of

Civil Procedure 12(b)(1). When ruling on a Rule 12(b)(1) motion for lack of subject matter

jurisdiction, the court regards the pleadings as “mere evidence on the issue,” and may “consider

evidence outside the pleadings without converting the proceeding to one for summary judgment.”

Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999). While

the plaintiff bears the burden of proving that the court has jurisdiction over the claim or controversy

at issue, a Rule 12(b)(1) motion should only be granted if the “material jurisdictional facts are not

in dispute and the moving party is entitled to prevail as a matter of law.” Ferdinand-Davenport v.

Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010).

III. DISCUSSION

Defendant moves to dismiss all counts of plaintiff’s Complaint. Specifically, defendant

contends that plaintiff failed to file his Complaint within the 90-day period following the issuance

of the notice of right to sue letter. (ECF No. 15-2 at 4-6). In addition, defendant argues that

plaintiff fails to state a claim with regard to his retaliation, hostile work environment, and § 1981

claims. (Id. at 6-8, 13-15). Defendant asserts that plaintiff’s hostile work environment claim

should also be dismissed because plaintiff failed to exhaust all administrative remedies. (Id. at 9-

13). Finally, defendant maintains that plaintiff’s MFEPA claim should be dismissed because

defendant has sovereign immunity from state law claims. (Id. at 16-19).

A. Timeliness

Defendant contends that plaintiff’s Complaint should be dismissed with prejudice because

he failed to timely file suit within the 90-day period following the issuance of the notice of right

to sue letter. (Id. at 4). Plaintiff responds that the 90-day period was not triggered until plaintiff

actually viewed the document, and that plaintiff is entitled to application of the mailbox rule

because the date of receipt is in dispute. (ECF No. 17-1 at 2-3). It is well-settled that “[t]o bring

a Title VII claim in federal court, a plaintiff must file suit within ninety days of receiving notice

of the right to sue.” Strothers v. City of Laurel, Md., 118 F. Supp. 3d 852, 860-61 (D. Md. 2015).

A plaintiff who fails to file his claim within the statutory period is procedurally barred from

pursuing the claim in court. See Quinn v. Copart of Conn., Inc., 791 Fed. App’x 393, 395 (4th

Cir. 2019) (“[I]t is well settled that a Title VII claimant who fails to file a complaint within the 90-

day period generally forfeits his right to pursue his claims.”). In determining the date on which

the period begins to run, the Fourth Circuit has rejected the adoption of an “actual receipt” rule.

Harvey v. City of New Bern Police Dep’t, 813 F.2d 652, 654 (4th Cir. 1987). Instead, the court

applies “a flexible rule which requires a case-by-case examination to determine if equitable tolling

of the filing period is appropriate.” Id.

There is no dispute that plaintiff and his counsel received the email containing directions

to access the right to sue letter on March 9, 2022. (ECF Nos. 17-1 at 3, 23 at 1-2). Plaintiff

contends, however, that the 90-day period was not triggered until he viewed the letter on March

14, 2022, and directed the email to counsel’s attention. (ECF No. 17-1 at 3). As a result, he claims

that the deadline for filing was June 12, 2022, and his June 10, 2022 filing was timely. (Id.)

Contrary to plaintiff’s position, this court has held that delivery of an email triggers the running of

the filing period. See Ward v. Comm’r of Soc. Sec., No. WDQ-11-1004, 2012 WL 122412, at *2,

*4 (D. Md. Jan 12, 2012) (delivery of an email notifying plaintiff of the right to sue letter triggered

the 90-day period in which to file a federal lawsuit on plaintiff’s Title VII claims). Other courts

in the Fourth Circuit have similarly held that receipt of the email notice is sufficient to trigger the

90-day period, and failure to read one’s emails is an insufficient basis upon which to toll the filing

deadline. See Wolfe v. Wps Health Solutions, Inc., No. 20-CV-175, 2021 WL 1992027, at * (E.D.

Va. Apr. 7, 2021) (“The fact that [plaintiff] neglected to read her emails does not change the fact

that she received delivery of her notice of right to sue via email on August 6, 2020, and that this

receipt triggered the beginning of the 90-day period.”). Further, counsel’s receipt serves as

constructive notice to plaintiff of the right to sue letter. See Gatewood v. Johnson, No. JKB-16-

854, 2016 WL 6569060, at *3-*4 (D. Md. Nov. 3, 2016) (“Plaintiff received constructive notice

of the EEOC’s decision when her attorneys are presumed to have received such notice”). That

counsel received notice of the right to sue letter but did not access the letter does not toll the

deadline. Id. As a result, plaintiff’s receipt of the email on March 9, 2022 triggered the 90-day

period to file, such that the deadline to file was June 7, 2022, and plaintiff’s June 10, 2022

Complaint was untimely.

Plaintiff argues that the date of receipt is in dispute, such that Federal Rule 6(d) (i.e., the

mailbox rule) applies and the letter is presumed to have been delivered three days after it was

mailed (i.e., emailed). (ECF No. 17-2 at 3). Defendant counters that the delivery date is not in

dispute at all, but rather that the evidence shows that plaintiff received the email from the EEOC

on March 9, 2022. (ECF No. 23 at 2). The court is persuaded by defendant’s argument. “[I]f the

actual date of receipt is confirmed by evidence, that date governs.” Nguyen v. Inova Alexandria

Hosp., 187 F.3d 630, *3 (4th Cir. 1999) (per curiam). Plaintiff does not dispute that the email was

delivered to plaintiff’s inbox on March 9, 2022, nor is there any dispute that the notice was sent

and received by email, and not by postal mail. Under these circumstances, it is not appropriate to

apply the mailbox rule.

Finally, the court considers whether plaintiff has asserted any facts sufficient to support an

equitable tolling argument. Plaintiff suggests that he has provided evidence that he did not receive

notice until March 14, 2022. (ECF No. 17-1 at 4). In the absence of a showing that there was not

sufficient time to act timely, the Fourth Circuit has made clear that where plaintiff knows of the

right to sue within a matter of days following its delivery, equitable tolling will not apply. See

e.g., Nguyen, 187 F.3d at *4 (declining to apply equitable tolling when plaintiff had 80 days left

to file after reading the letter); Watts-Means, 7 F.3d at 42 (declining to apply equitable tolling

when plaintiff had 85 days left to file after retrieving letter from post office); Harvey, 813 F.2d at

654 (declining to apply equitable tolling when plaintiff had 84 days left to file after reading the

letter). Here, according to plaintiff, he read the letter and forwarded it to counsel’s attention five

days after receipt. (ECF No. 17-1 at 3). Plaintiff had 85 days to file his Complaint before the 90-

day deadline on June 7, 2022, and, therefore, there is no justification for tolling the 90-day filing

period on that basis. As a result, plaintiff’s Complaint must be dismissed as time barred.

Accordingly, the court grants defendant’s Motion to Dismiss, and plaintiff’s Complaint is

dismissed with prejudice. Although the court concludes that plaintiff’s Complaint should be

dismissed, the court nevertheless examines the parties’ arguments with respect to the individual

counts of plaintiff’s Complaint.

B. Retaliation Claim (Count I)

Defendant argues that plaintiff fails to state a claim for retaliation. (ECF No. 15-2 at 5-8).

To establish a prima facie case of retaliation under Title VII, plaintiff must show: (1) he engaged

in a protected activity; (2) the employer acted adversely against him; and (3) there was a causal

connection between the protected activity and the adverse employment action. Guessous v.

Fairview Prop. Investments, LLC, 828 F.3d 208, 216–17 (4th Cir. 2016). Here, the parties do not

dispute the first element of a prima facie case. Plaintiff engaged in protected activity when he filed

his EEOC Charge in 2018 and in filing his subsequent federal lawsuit in 2019. (ECF No. 15-2 at

7).

As to the second element of a prima facie case, whether an adverse employment action

occurred, defendant suggests that plaintiff’s non-selection for the Detective position was not an

adverse employment action. (Id.) “A plaintiff can demonstrate that an employer ‘acted adversely’

by showing that ‘a reasonable employee would have found the challenged action materially

adverse, which in this context means it well might have dissuaded a reasonable worker from

making or supporting a charge of discrimination.’” Lewis v. Baltimore City Bd. of Sch. Comm’rs,

187 F. Supp. 3d 588, 595 (D. Md. 2016) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006)). An adverse action in a retaliation claim must be “materially adverse.”

Burlington N., 548 U.S. at 68. This requirement “seeks to differentiate those harms that work a

‘significant’ detriment on employees from those that are relatively insubstantial or ‘trivial.’”

Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 431 (4th Cir. 2015) (quoting Burlington

N., 548 U.S. at 68). Defendant maintains that a change of position from Officer to Detective is

not a promotion, and therefore, plaintiff’s non-selection for the Detective position is not an adverse

employment action. (ECF No. 15-2 at 7). Plaintiff does not address this argument. Although

defendant may be correct that non-selection for the Detective position does not constitute an

adverse employment action, plaintiff’s allegation that defendant denied him a promotion to

Sergeant, which the court accepts as true for purposes of defendant’s Motion to Dismiss,

constitutes an adverse employment action. See e.g., Musema v. Baltimore Cty. Police Dep’t, No.

ADC-18-158, 2019 WL 454093, at *7 (D. Md. Feb. 5, 2019) (failure to promote plaintiff to

Sergeant, if plaintiff can prove he is qualified for promotion, may constitute an adverse

employment action). Thus, plaintiff satisfies the second element of a prima facie case.

Finally, as to the third element, “Title VII retaliation claims require proof that the desire to

retaliate was the but-for cause of the challenged employment action.” Univ. of Texas Sw. Med.

Ctr. v. Nassar, 570 U.S. 338, 352 (2013). To state a prima facie case of retaliation, a plaintiff may

demonstrate that “the adverse act bears sufficient temporal proximity to the protected

activity.” Johnson v. United Parcel Service, Inc., 839 Fed. App’x 781, 784 (4th Cir.

2021) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)). Where the basis

of the causal connection is temporal proximity, “a lapse of as little as two months between the

protected activity and an adverse employment action is ‘sufficiently long so as to weaken

significantly the inference of causation.’” Clark v. DynCorp Int’l LLC, 962 F. Supp. 2d 781, 790

(D. Md. 2013) (citation omitted).

Defendant contends that plaintiff cannot satisfy this element because there is no causal

relationship between the alleged adverse employment actions and plaintiff’s protected activities.

(ECF No. 15-2 at 8). Plaintiff alleges that defendant was aware of plaintiff’s engagement in

protected activity prior to the adverse actions, and that the adverse actions are “a direct result of

[p]laintiff having previously engaged in statutorily-protected activity.” (ECF No. 1 at 7 ⁋ 5-6).

The alleged protected activity occurred when plaintiff filed his EEOC charge in December 2018

and when plaintiff subsequently filed suit in this court in 2019. (Id. at ⁋ 22-23). Plaintiff’s suit

against defendant settled in March 2020. (Id.) Plaintiff’s Complaint alleges that the earliest

retaliatory activity, his non-selection for the Detective position, first occurred months later in Fall

of 2020. (Id. ⁋ 26). Plaintiff does not provide the dates for any of the three subsequent non-

selections for the Sergeant promotion, although the Complaint suggests these events occurred after

his non-selection for the Detective position. (Id. ⁋⁋ 27-28).

Drawing all rational inferences from the allegations of plaintiff’s Complaint in plaintiff’s

favor, all of the retaliatory activity occurred at least six months after plaintiff’s lawsuit was settled.

(Id.) “Although there is no ‘bright-line rule’ for temporal proximity, courts within our Circuit have

found that shorter lapses of time similar to the three-month period . . . are insufficient to infer a

causal relationship without other evidence of a causal link.” Roberts v. Glenn Indus. Grp., Inc.,

998 F.3d 111, 127 (4th Cir. 2021). Plaintiff offers no additional evidence of a causal link between

the alleged retaliatory conduct on the part of defendant and his EEOC charge in 2018 and lawsuit

in 2019. Indeed, plaintiff does not allege that any of the same supervisors or officers were involved

in handling both his earlier protected activity and his non-selection for Detective or Sergeant.

Accordingly, the court grants defendant’s Motion on Count I.

C. Hostile Work Environment Claim (Count II)

Defendant argues that plaintiff’s hostile work environment claim should be dismissed

because plaintiff failed to exhaust administrative remedies and fails to state a claim. (ECF No. 15-

2 at 9). Specifically, defendant contends that plaintiff’s EEOC charge did not include a claim for

hostile work environment, such that he is procedurally barred from bringing that claim now. (Id.)

Plaintiff counters that his hostile work environment claim does not exceed the scope of his EEOC

charge. (ECF No. 17-1 at 7). Before filing a lawsuit in federal court, Title VII requires a plaintiff

to exhaust administrative remedies by filing a charge with the EEOC. Sydnor v. Fairfax Cnty.,

Va., 681 F.3d 591, 593 (4th Cir. 2012). “Only those discrimination claims stated in the initial

charge, those reasonably related to the original complaint, and those developed by reasonable

investigation of the original complaint may be maintained in a subsequent Title VII lawsuit.”

Jackson v. Maryland, No. DLB-20-270, 2021 WL 6072929, at *4 (D. Md. Dec. 23, 2021) (citation

omitted). A plaintiff, however, fails to exhaust his administrative remedies when “his

administrative charges reference different time frames, actors, and discriminatory conduct than the

central factual allegations in his formal suit.” Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th

Cir. 2005). In addition, if “the claims raised under Title VII exceed the scope of the EEOC charge

and any charges that would naturally have arisen from an investigation thereof, they are

procedurally barred.” Id. at 509 (quoting Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir.

1995)).

Defendant argues that plaintiff’s EEOC charge is devoid of any allegations related to

hostile work environment, but rather focuses on discrete incidents in which he was not selected for

the Detective position or promoted to Sergeant. (ECF No. 15-2 at 12). Plaintiff responds that

although his charge focused on separate incidents, when taken together they form a continuous

and pervasive pattern of retaliation in the form of “verbal harassment; denial of overtime; and

denial of [p]laintiff’s ability to pursue upward mobility in his career.” (ECF No. 17-1 at 7). The

Fourth Circuit has held that “the allegation of a discrete act or acts in an administrative charge is

insufficient when the plaintiff subsequently alleges a broader pattern of misconduct.” Chacko,

429 F.3d at 509. While “[c]ourts do not require a plaintiff to have invoked a hostile work

environment claim by name or to use specific ‘magic words’ in order to exhaust it . . . the plaintiff

must offer at least some suggestion of a hostile work environment in the charge narrative, such as

by referring to an ongoing pattern of conduct or describing a workplace pervaded by abuse.”

Gaines v. Baltimore Police Dep’t, No. ELH-21-1211, 2022 WL 1451629, at *18 (D. Md. May 9,

2022) (citation omitted).

Plaintiff’s EEOC charge alleges that he was subjected to retaliation and references two

incidents in which he was denied the position of Detective and not promoted to Sergeant. (ECF

No. 15-3 at 2). Although plaintiff checked the box for “Continuing Action,” the “Date(s)

Discrimination Took Place” included only a single day—February 2, 2021. (Id.) A hostile work

environment claim based on continuous, pervasive conduct would not “reasonably be expected to

follow” a charge that claims discrimination took place on a single day. Miles v. Dell, Inc., 429

F.3d 480, 491 (4th Cir. 2005) (plaintiff’s retaliation claim could not have been “reasonably

expected to follow from an investigation of [plaintiff’s] sex and pregnancy discrimination

claims.”). Further, plaintiff’s charge contains no facts to support a claim of hostile work

environment; rather, the charge presents a straightforward retaliation argument. (ECF No. 15-3 at

2). Accordingly, plaintiff has failed to exhaust administrative remedies on his hostile work

environment claim.

Even if plaintiff exhausted his administrative remedies on his hostile work environment

claim, defendant argues that plaintiff fails to state a claim for relief. (ECF No. 15-2 at 9). A hostile

work environment exists when “the workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.” Boyer-Liberto v. Fontainebleau Corp.,

786 F.3d 264, 277 (4th Cir. 2015) (citation omitted). To adequately plead a hostile work

environment, a plaintiff must allege facts showing: “(1) unwelcome conduct; (2) that is based on

the plaintiff’s [protected status]; (3) which is sufficiently severe or pervasive to alter the plaintiff’s

conditions of employment and to create an abusive work environment; and (4) which is imputable

to the employer.” Strothers, 895 F.3d at 328 (quoting Okoli v. City of Baltimore, 648 F.3d 216,

220 (4th Cir. 2011)). With respect to the third element, an abusive work environment requires a

showing that the work environment is perceived and would be perceived by a reasonable person

in the plaintiff’s position as hostile or abusive. Boyer-Liberto, 786 F.3d at 277. “‘[W]hen

determining whether the harassing conduct was objectively severe or pervasive, we must look at

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.’” Perkins v. Int’l Paper Co., 936

F.3 196, 208 (4th Cir. 2019). An isolated incident of harassment, however, may be sufficient if it

is “extremely serious.” Boyer-Liberto, 786 F.3d at 277.

Plaintiff’s allegations do not rise to the level of severe or pervasive conduct. Plaintiff’s

Complaint alleges that he has been subjected to petty charges, denied overtime, branded “corrupt,”

and denied promotion. (ECF No. 1 at 10 ⁋ 4). Accepting these allegations as true, this conduct

does not constitute the type of harassing, threatening, or humiliating conduct Title VII is meant to

prohibit. See e.g., Hoffman v. Baltimore Police Dep’t, 379 F. Supp. 2d 778, 791 (D. Md. 2005)

(dismissing plaintiff’s hostile work environment claim where plaintiff “was forced to relocate his

office numerous times without justification, his work was subjected to ‘intense scrutiny,’ he was

given increased case load and forced to work longer uncompensated hours, and his job title was

downgraded.”). Plaintiff’s allegations that he was subjected to “petty charges” and branded

“corrupt,” without more do not constitute severe or pervasive conduct. “‘[S]imple teasing, offhand

comments, and isolated incidents (unless extremely serious) will not amount to discriminatory

changes in the terms and conditions of employment.’” Perkins, 936 F.3d at 208 (citation omitted).

Plaintiff’s allegation that he was denied the position of Detective or Sergeant three times, similarly

fails to describe the type of severe or pervasive conduct necessary to state a hostile work

environment claim. (ECF No. 1 at 10 ⁋ 4). In the absence of factual allegations identifying

objectively severe or pervasive conduct, plaintiff fails to state a claim for hostile work

environment.

In sum, the court concludes that plaintiff failed to exhaust his administrative remedies by

not including his hostile work environment claim in his EEOC charge. Additionally, the court

concludes that plaintiff fails to state a hostile work environment claim upon which relief could be

granted. Accordingly, the court grants defendant’s Motion on Count II.

D. Section 1981 Claim (Count III)

Defendant contends that plaintiff fails to state a retaliation or hostile work environment

claim pursuant to 42 U.S.C. § 1981. The cause of action “created by § 1983 constitutes the

exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental

units.” Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701, 733 (1989). “The framework of proof for

claims of intentional employment discrimination brought under § 1981 and § 1983 is the same as

the framework applicable to a Title VII claim.” Gaines, 2022 WL 1451629 at *30. Plaintiff’s

Opposition does not address defendant’s argument that he fails to state a claim under § 1981, which

defendant contends constitutes a concession that the Complaint fails to state a § 1981 claim and

an abandonment of the claim. (ECF No. 23 at 11). For the same reasons detailed above, because

plaintiff failed to state a claim for retaliation and hostile work environment under Title VII,

plaintiff also fails to state a claim under § 1981.

Even if plaintiff stated a prima facie case of retaliation pursuant to § 1981, defendant argues

that plaintiff completely fails to plead a Monell claim as required to maintain a § 1983 claim

against defendant. (ECF No. 23 at 13). Only when “an injury was inflicted by a government’s

‘lawmakers or by those whose edicts or acts may fairly be said to represent official policy’” may

a government official be held liable under § 1983 for actions taken in their official capacity. City

of St. Louis v. Praprotnik, 485 U.S. 112, 121-22 (1988) (quoting Monell v. Dep’t of Soc. Servs.,

436 U.S. 658, 690-91 (1978)). Not every decision of a municipality gives rise to liability pursuant

to § 1983. “[I]t is not enough for a § 1983 plaintiff merely to identify conduct properly attributable

to the municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the

municipality was the ‘moving force’ behind the injury alleged.” Bd. Of Cnty. Comm’rs of Bryan

Cnty. Okl. v. Brown, 520 U.S. 397, 404 (1997). A plaintiff may demonstrate deliberate conduct

by offering proof of a “persistent and widespread practice” giving rise to injury, where the

municipality “fail[s] to put a stop to or correct a widespread pattern of unconstitutional conduct.”

Spell v. McDaniel, 824 F.2d 1380, 1390-91 (4th Cir. 1987). A plaintiff may demonstrate the

existence of an official policy or custom through: (1) a written ordinance or regulation; (2) certain

affirmative decisions of a person with final policymaking authority; or (3) certain omissions that

“manifest deliberate indifference to the rights of citizens.” Carter v. Morris, 164 F.3d 215, 218

(4th Cir. 1999).

In plaintiff’s Opposition he contends that there is a “practice of retaliation throughout BPD

in an effort to quiet those who speak out against corruption that has become so persistent and

widespread as to be considered a custom.” (ECF No. 17-1 at 10). Plaintiff’s Complaint, however,

only conclusorily alleges that he experienced retaliation as a result of this custom. (ECF No. 1 ⁋

37). Although plaintiff references the widespread institutional problems of the BPD (Id.), plaintiff

makes no argument with regard to how any specific practices are connected to his alleged

discrimination, or who the alleged policymaker is. While plaintiff’s Opposition aims to fill in

some of the gaps in plaintiff’s Complaint, for example, by referencing “Anti-Retaliation Policy

1729” (ECF No. 17-1 at 10), plaintiff’s Complaint cannot be amended by plaintiff’s arguments

advanced in his Opposition. See Middleton v. Baltimore Police Dep’t, No. ELH-20-3536, 2022

WL 268765, at *27 (D. Md. Jan. 28, 2022) (“[I]t is axiomatic that the complaint may not be

amended by the briefs in opposition to a motion to dismiss.”) (citation omitted). Because plaintiff

fails to adequately plead a Monell claim and fails to state a claim for relief, the court grants

defendant’s Motion on Count III.1

1 With regard to plaintiff’s Counts I and III, if the court was not dismissing plaintiff’s case as untimely, defendant’s

Motion would be granted without prejudice and with leave to file an Amended Complaint. Because the timeliness

error is incurable through amendment, however, dismissal is granted with prejudice and without leave to amend. See

United States v. Manor Car, Corp., 851 F.3d 293, 305 (4th Cir. 2017) (“Furthermore, when a complaint is incurable

through amendment, dismissal is properly rendered with prejudice and without leave to amend”). Further, to the

extent plaintiff’s hostile work environment claim is dismissed for failure to exhaust all administrative remedies,

plaintiff would not have been entitled to amend his Complaint on Count II. See Hejirika v. Md. Div. of Correction,

264 F. Supp. 2d 341, 346 (D. Md. 2003) (dismissing plaintiffs’ hostile work environment claim without leave to amend

“because plaintiffs did not include such allegations in their charges with the EEOC and failed to exhaust administrative

remedies with respect to this claim.”).

E. MFEPA Claim (Count IV)

Defendant asserts that plaintiff’s MFEPA claim in Count IV should be dismissed because

plaintiff fails to provide the notice required by the Local Government Torts Claims Act

(“LGTCA”), and defendant is entitled to sovereign immunity. (ECF No. 15-2 at 16-19, 16 n.6).

Plaintiff maintains that sovereign immunity does not apply to defendant in this case, and that he

may bring a parallel state claim on the same basis as his Title VII claim. (ECF No. 17-1 at 11).

The LGTCA provides that a plaintiff must give local government defendants notice of claims

within 180 days of injury. Md. Cts. & Jud. Proc. § 5-304(a). “The notice shall be in writing and

shall state the time, place, and cause of the injury.” Id. § 5-304(b)(3). “Compliance with the

LGTCA is a condition precedent to maintaining suit against a local government.” Edwards v.

Montgomery College, TDC-17-3802, 2018 WL 4899311, at *8 (D. Md. Oct. 9, 2018) (citing Rios

v. Montgomery Cnty., 872 A.2d 1, 14 (Md. 2005)). “As a result, a plaintiff is required, in the

complaint, to plead compliance with the notice provision of the LGTCA.” Id. A timely-served

EEOC charge, however, “can be used to satisfy the notice requirement [if] it ‘provide[s] the

identity of the claimant, the time and place of the event, the nature of the claim, and the [p]laintiff’s

intent to pursue litigation.’” Brown v. Baltimore Police Dep’t, RDB-11-00136, 2011 WL

6415366, at *13 (D. Md. Dec. 21, 2011) (quoting Nelson v. Cty. of Crisfield, BEL-10-1816, 2010

WL 4455923, at *2 (D. Md. Nov. 5, 2010).

The court need not decide whether plaintiff satisfied the LGTCA notice requirement by

filing his EEOC charge because defendant is entitled to sovereign immunity from plaintiff’s

MFEPA claim. See Estate of Anderson v. Strohman, 6 F. Supp. 3d 639, 643 (D. Md. 2014)

(holding that the LGTCA did not bar the BPD from asserting sovereign immunity and, therefore,

dismissing state law claims against the BPD with prejudice); see also Jackson v. Baltimore Police

Dep’t, WDQ-11-3569, 2013 WL 1121412, at *9 (D. Md. March 15, 2013) (dismissing state law

claims against the BPD for the same reasons). This court has repeatedly held that the BPD is

immune from state law claims on sovereign immunity grounds. See e.g., Effland v. Baltimore

Police Dep’t, No. CCB-20-3503, 2022 WL 3107144, at *6 (D. Md. Aug. 4, 2022) (dismissing

plaintiff's state law claims against BPD on sovereign immunity grounds). “Put simply, the

LGTCA only prohibits the BPD from asserting sovereign immunity to avoid its statutorily-

imposed duty to defend or indemnify its employees.” Id. (citing Baltimore Police Dep’t v.

Cherkes, 780 A.2d 410, 424 (Md. Ct. Spec. App. 2001)). “But the BPD cannot be vicariously

liable and may still raise sovereign immunity in its own defense. Even under the LGTCA,

Plaintiffs cannot bring state law claims directly against the BPD for the actions of Baltimore police

officers acting within the scope of their employment.” Id. Accordingly, the court grants

defendant’s Motion on Count IV.”

IV. CONCLUSION

For the foregoing reasons, defendant’s Motion to Dismiss (ECF No. 15) is granted.

Plaintiff's Complaint is dismissed with prejudice and without leave to amend. A separate order

will follow.

Date: April 21, 2023 /s/

Beth P. Gesner

Chief United States Magistrate Judge

2 The court notes that even if plaintiffs Complaint were not dismissed with prejudice as time barred, leave to amend

Count IV would be denied because defendant is entitled to sovereign immunity and cannot be liable for the violation

alleged by plaintiff under the MFEPA. No amendment of the complaint, therefore, would cure that defect. See Estate

of Anderson, 6 F. Supp. 3d at 646 (denying plaintiffs’ request for leave to amend the Complaint because defendant

“cannot be liable for the alleged offenses” on sovereign immunity grounds).

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