Jabari-Kitwala v. Montgomery County Public Schools

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

(SOUTHERN DIVISION)

Horatio M. Jabari-Kitwala, )

)

Plaintiff, )

)

v. ) Civil Case No.: GLS 22-0069

)

Montgomery County Public Schools, )

)

Defendant. )

__________________________________________)

MEMORANDUM OPINION

This case is before the undersigned for all proceedings with the consent of the parties

pursuant to 28 U.S.C. § 636(c). (ECF No. 12).

Plaintiff Horatio M. Jabari-Kitwala (“Plaintiff”) brings this action against Montgomery

County Public Schools. (ECF No. 1) (“Complaint”). Plaintiff advances three claims: (1) race

discrimination (disparate treatment), in violation of 42 U.S.C. § 2000(e) et seq. (“Title VII”); (2)

retaliation for engaging in a protected activity, in violation of Title VII; (3) race discrimination, in

violation of 42 U.S.C. § 1983 (“Section 1983”); (4) negligence, in violation of Maryland law; (5)

gross negligence, in violation of Maryland law; and (6) breach of contract, in violation of Maryland

law. (Id.).

Pending before this Court is “Defendant’s Motion to Dismiss Plaintiff’s Complaint,” (ECF

No. 27) (“Motion”), filed by Defendant Board of Education for Montgomery County1

(“Defendant” or “BOE”). Also pending is the Plaintiff’s “Motion to Change Nomenclature of the

Defendant,” (ECF No. 30) (“Motion to Amend”). The issues have been fully briefed, see ECF

Nos. 29, 30, 33, and this Court finds that no hearing is necessary. See Local Rule 105.6 (D. Md.

1 See infra Section IV.A.

2021). For the reasons set forth herein, Defendant’s Motion is DENIED IN PART, GRANTED

IN PART. Furthermore, Plaintiff’s Motion to Amend is GRANTED.

I. PROCEDURAL BACKGROUND

On September 29, 2021, Plaintiff filed a Charge of Discrimination with the Equal

Employment Opportunity Commission. (ECF No. 27-2) (“Charge”). On January 10, 2022,

Plaintiff filed this action against the Defendant. (ECF No. 1). On March 15, 2022, Defendant filed

a notice of intent to file a motion to dismiss. (ECF No. 18). After letter briefing, the Court granted

the Defendant’s request and set forth the briefing schedule related to the Defendant’s motion to

dismiss. (ECF Nos. 22, 24, 25). On November 15, 2022, the Defendant filed the Motion, which

Plaintiff opposed. (ECF No. 27; see also ECF No. 29, “Opposition”). On December 16, 2022,

Plaintiff filed his Motion to Amend, seeking leave to amend the named defendant in the Complaint.

On December 19, 2022, the Court issued an Order directing Defendant to respond to the Motion

to Amend as part of its Reply in support of its Motion. (ECF No. 31). On December 23, 2022,

Defendant filed its Reply. (ECF No. 33, “Reply”).

II. FACTUAL BACKGROUND2

Plaintiff, an African American male, is a schoolteacher with nearly thirty years of

experience in education. (Complaint, p. 2). In 2020, Plaintiff worked as a schoolteacher for Paint

Branch High School (“Paint Branch”), in Montgomery County Maryland. (Id.). Paint Branch High

School is part of the Montgomery County Public School system and operates under the

Montgomery County Board of Education. (Id.).

2 Unless otherwise noted, the facts are taken from the Complaint, ECF No. 1, and are construed in the light most

favorable to the non-moving party, Plaintiff. This Court assumes the facts to be true. Aziz v. Alcolac, 658 F.3d 388,

390 (4th Cir. 2011); Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In addition, when the Court cites to

the exhibits, it is because they are incorporated into and/or integral to the Complaint. Philips v. Pitt Cnty. Memorial

Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

In October 2020, Paint Branch promoted a professional development group program to

faculty and staff. (Complaint, p. 4). As part of the program, the staff and faculty would meet and

be divided into groups and discuss “race matters.” (Id., p. 3). On October 28, 2020, Plaintiff learned

that the professional development groups were going to be segregated on the basis of race, i.e.,

faculty and staff were going to be racially segregated, with one group being reserved for “whites

only.” (Id., p. 4). Plaintiff immediately objected to the groups being racially segregated by sending

a mass email to Paint Branch faculty, including the Paint Branch Principal, Dr. Mirshah Nayar

(“Principal Nayar”). (Id.). In the email, Plaintiff argued that the groups should be multicultural and

that there should not be an “all black” or “all white” group. (ECF No. 1-1, pp. 1-2). Plaintiff also

sent a written request to Dr. Jack Smith, the superintendent of Montgomery County Public Schools,

seeking admission into the “white only” racial group. (Complaint, p. 4). Thirty minutes after

submitting this request, Paint Branch staff was notified by Victoria Kennick, the Central Office

Administrator, that Black, Indigenous, and People of Color (“BIPOC”) individuals would be

allowed to join the “white only” racial group, but only as observers. (ECF No. 1-3, p. 1). One

minute later, Plaintiff sent Ms. Kennick a message requesting full admission into the white only

racial group but was denied. (Complaint, p. 4).

The racially segregated professional development groups met on five occasions: (1)

October 28, 2020; (2) November 18, 2020; (3) December 2, 2020; (4) December 9, 2020; and (5)

December 16, 2020. Despite voicing his objections and seeking admission to the “white only”

group, Plaintiff was unable to join the “white only” group for any of the five sessions. (Id., p. 5).

After voicing his objections, Defendant implemented a “communication blackout,” and ignoring

Plaintiff’s questions related to the racially segregated groups. (Id.). The Complaint does not set

forth a period of time related to the “communication blackout.”

On March 1, 2021, Paint Branch faculty and staff began to return to in-person activities

and telework ended. (Id., pp. 6-7). However, Plaintiff requested to continue teleworking due to

urgent medical reasons. (Id., p. 7). In support of this accommodation request, Plaintiff submitted

three separate physicians’ letters. (Id.). Initially, Paint Branch approved Plaintiff’s request, and he

was permitted to continue teleworking. (Id.). However, on April 23, 2021, Principal Nayar told

Plaintiff that he had to return to in-person instruction or be placed on “No Pay Reported Status.”

(Id., p. 5). On April 26, 2021, Paint Branch discontinued Plaintiff’s ability to teach remotely,

cutting off his access to the students and forcing Plaintiff to take sick days for the remainder of the

semester. (Id., pp. 6-7).

III. STANDARD OF REVIEW

A. Motion to Dismiss for Failure to State a Claim

When a defendant files a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), that

defendant is asserting that, even if you construe the facts advanced in the plaintiff’s complaint as

true, that complaint fails to state a claim upon which relief can be granted. To survive a motion to

dismiss, then, a complaint must contain sufficient facts, and must state a “plausible claim for

relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Fed. R. Civ. P. 8(a); Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 556 (2007) (complaint must set forth enough facts as to suggest

a “cognizable cause of action”). A claim “has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. The purpose of Rule 12(b)(6) “‘is to test the

sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim,

or the applicability of defenses.’” Velencia v. Drezhlo, Civ. 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)). In addition, when a plaintiff is pro se, his pleadings are held to a less stringent

standard” and the court is “obliged to liberally construe [his] filings.” United States v. Brown, 797

F. App'x 85, 89 (4th Cir. 2019); Williams v. BTST Servs., LLC, Civ. No. MJM-21-1732, 2023 WL

2585069, at *2 (D. Md. Mar. 21, 2023).

In general, when a motion is filed pursuant to Fed. R. Civ. P. 12(b)(6), a court cannot

consider documents outside of the pleadings to resolve factual disputes. Bosiger v. U.S. Airways,

510 F.3d 442, 450 (4th Cir. 2007). However, a court may consider documents “attached or

incorporated into the complaint,” as well as documents attached to a motion to dismiss, “so long

as they are integral to the complaint,” Philips, 572 F.3d at 180, “and if the plaintiffs do not

challenge authenticity.” Pasternak & Fidis P.C. v. Recall Total Info. Mgmt., Inc., 95 F. Supp. 3d

886, 894 (D. Md. 2015).

IV. DISCUSSION

Defendant advances several arguments in support of its Motion: (1) Plaintiff’s Complaint

should be dismissed because he named the Montgomery County Public Schools as the Defendant,

which is not a distinct legal entity, and that the proper party is the Board of Education for

Montgomery County; (2) Plaintiff’s allegations prior to December 3, 2020, are time barred; (3)

Plaintiff’s retaliation claim must be dismissed because the “protected activity, which occurred on

October 28, 2020, is time barred,” Plaintiff fails to allege an adverse employment action, and

Plaintiff fails to establish a causal connection between a protected activity and an adverse

employment action; (4) Plaintiff’s Section 1983 claim is precluded by his Title VII claim and

Section 1983 does not apply to the BOE because Section 1983 only applies to “persons;” (5)

Plaintiff’s negligence claim is unsupported by any factual assertions; (6) Plaintiff’s gross

negligence claim must fail because the BOE retains state immunity against such claims; (7)

Plaintiff failed to allege facts to support his breach of contract claim; and (8) to the extent that

Plaintiff seeks punitive damages, the BOE retains state immunity, so any claim for punitive

damages must be dismissed. (Motion, pp. 5-11).

Plaintiff argues that: (1) the Court should not dismiss the Complaint due to the improperly

named Defendant because the Plaintiff has filed a Motion to Amend, which renders Defendant’s

argument moot; (2) the events within the Complaint are not time barred; and (3) the Complaint

contains adequate allegations to support his retaliation, negligence, gross negligence, and breach

of contract claims, and such claims should not be dismissed. (Opposition, pp. 1-5). The Court will

address these arguments in turn.

A. Motion to Amend Complaint

The Defendant asserts that because “Montgomery County Public Schools” is not a distinct

legal entity, the Complaint should be dismissed. (Motion, p. 5). In response, Plaintiff, through his

Motion to Amend, seeks to amend his Complaint to name “Board of Education, Montgomery

County Public Schools, Maryland,” as the named defendant. (Motion to Amend, p. 1)

As a preliminary matter, the Court finds that the Defendant is correct, and that Montgomery

County Public Schools is not a distinct legal entity. The proper name is “Board of Education for

Montgomery County.” See Miller v. Montgomery Cnty. Pub. Schs., Civ. No. TJS-19-3067, 2020

WL 2097686, at *1 (D. Md. May 1, 2020). Accordingly, the Defendant’s Motion shall be granted

with respect to Plaintiff’s claims against an entity called “Montgomery County Public Schools.”

However, because the Court is obliged to liberally construe the pleadings of this pro se

Plaintiff, see Brown, 797 F. App'x at 89, the Court will construe the Motion to Amend as a request

to change the named defendant to its proper one, namely the Board of Education for Montgomery

County.

A motion for leave to amend a pleading is governed by Fed. R. Civ. P. 15. Pursuant to

Rule 15(a)(1), a party may amend his pleading once as a matter of course, so long as it is done

within 21 days after serving the pleading, or 21 days after service of a responsive pleading. Fed.

R. Civ. P. 15(a)(1)(A),(B). “In all other cases, a party may amend his pleading only with the

opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). Courts are

encouraged to “freely give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). Put another

way, a court should deny a request to amend a pleading “only where it would be prejudicial [to the

nonmoving-party], there has been bad faith, or the amendment would be futile.” Nourisan Rug

Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (quoting HCMF Corp. v. Allen, 238 F.3d

273, 276-77 (4th Cir. 2001)).

Having reviewed the docket and pleadings in this case, the Court finds that the Defendant

will not be prejudiced by the proposed name-change amendment, that there has not been bad faith

by the Plaintiff, nor would the amendment be futile. Accordingly, the Motion to Amend to allow

a name change shall be granted.

For the purposes of resolving the remaining arguments in the Motion, then, the Court will

exercise its discretion and treat the Motion as if the Plaintiff properly named the Board of

Education for Montgomery County as the defendant in the Complaint. See Lazarte v. Montgomery

Cnty. Pub. Schs., Civ. No. DLB 20-1515, 2021 WL 5770281, at *4 (D. Md. Dec. 6, 2021).

B. Title VII Claims

1. Disparate Treatment

Defendant asserts that Plaintiff’s disparate treatment race discrimination claim must be

dismissed because the alleged adverse employment actions are time barred. Specifically,

Defendant argues that any allegations of discrimination related to the professional development

group meetings that took place prior to December 3, 2020 are time barred because the meetings

occurred more than 300 days before Plaintiff filed his Charge. (Motion, pp. 5-6).

Title VII prohibits employers from “discharge[ing] any individual, or otherwise …

discriminat[ing] against any individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e–2(a)(1). This section of Title VII has “often been referred to as the

‘disparate treatment” (or ‘intentional discrimination’) provision. . . .” E.E.O.C. v. Abercrombie &

Fitch Stores, Inc., 575 U.S. 768, 771 (2015). Plaintiff bears the burden of proving this claim at

trial by a preponderance of evidence. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253

(1981) (emphasis supplied).

Typically, a plaintiff may prove intentional discrimination or disparate treatment at trial in

one of two ways. First, by offering “‘direct or indirect’ evidence of discrimination under ordinary

principles of proof.” Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (internal

citation omitted), cert. denied, 520 U.S. 1116 (1997). “Direct evidence” of discrimination must be

“evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and

that bear directly on the contested employment decision.” Taylor v. Virginia Union Univ., 193

F.3d 219, 232 (4th Cir. 1999) (en banc). If a plaintiff does not establish direct or circumstantial

evidence of discrimination, a plaintiff can show a Title VII violation by utilizing the burden-

shifting framework first established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

The elements for a prima facie case of discrimination in violation of Title VII are: “(1)

membership in a protected class; (2) satisfactory job performance; (3) adverse employment action;

and (4) different treatment from similarly situated employees outside the protected class.” See

White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004); McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 801 (1973). A plaintiff must allege facts showing that the plaintiff’s status

as a member of a protected class is the reason for the adverse employment action. McCleary-Evans

v. Md. Dep’t of Transp., 780 F.3d 582, 585 (4th Cir. 2015). A plaintiff need not make a prima facie

showing at the pleading stage; however, the plaintiff must submit a claim that allows a court to go

beyond speculation. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); Staggers v. Becerra,

Civ. No. ELH-21-0231, 2021 WL 5989212, at *13 (D. Md. Dec. 17, 2021).3

Before filing suit under Title VII, a litigant must file a Charge with the EEOC within 300

days of the alleged conduct and receive a Right to Sue letter. See 42 U.S.C. § 2000e-5(f)(1); see

also Prelich v. Med. Res., Inc., 813 F. Supp. 2d 654, 661-62 (D. Md. 2011). An EEOC charge

“defines the scope of the plaintiff’s right to institute a civil suit.” Bryant v. Bell Atlantic Md., Inc.,

288 F.3d 124, 132 (4th Cir. 2002).

In addition, the law in the Fourth Circuit is clear that any discriminatory acts that occurred

more than 300 days before the Charge is filed are procedurally barred. Gilliam v. S.C. Dep’t of

Juv. Just., 474 F.3d 134, 139 (4th Cir. 2007).

In this case, Plaintiff filed a Charge, which Defendant attached as an exhibit to its Motion.

(ECF No. 27-2). In performing its motion to dismiss analysis, the Court can, without running afoul

of Fed. R. Civ. P. 12(d), look at the Charge. This is because courts frequently treat a charge as

effectively part of a complaint. See, e.g., Rhodes v. Montgomery Cnty. Dept. of Corr. & Rehab.,

Civ. No. AW–12–03172, 2013 WL 791208, at *6 (D. Md. Mar. 1, 2013); Betof v. Suburban Hosp.,

Inc., Civ. No. DKC–11–01452, 2012 WL 2564781, at *3 n. 6 (D. Md. June 29, 2012).

3 The so called “McDonnell Douglas” framework is a proof scheme that a plaintiff must satisfy at trial, not at the

pleading stage. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993). When evaluating whether a Rule 12(b)(6)

motion should be granted, courts usually examine the elements of a prima facie claim under McDonnell Douglas to

determine how adequately Plaintiff has advanced plausible factual allegations in a complaint. Staggers, 2021 WL

5989212, at *13.

The Charge was filed on September 29, 2021. (ECF No. 27-2). Because the Plaintiff filed

his Charge on September 29, 2021, any allegations that occurred prior to December 3, 2020, are

time barred. As such, the only allegations that Plaintiff makes in support of his disparate treatment

claim that the Court will consider are his alleged exclusion from the “white only” professional

development group meetings on December 9, 2020, and December 16, 2020. See Gilliam, 474

F.3d at 139.

As a preliminary matter, the Plaintiff pleaded that he is a member of a protected class; he

is an African-American male. (Complaint, p. 2). Liberally construing Plaintiff’s Complaint, the

Court finds that Plaintiff plausibly alleged satisfactory job performance, as he is an educator with

over 30 years of experience who has been an outspoken leader in encouraging multiculturalism

and diversity. (Complaint, pp. 2-3).

However, the Court finds that Plaintiff’s alleged exclusion from the “white only” racial

groups during the professional development group meetings do not qualify as adverse employment

actions for a disparate treatment claim. Adverse employment actions are limited to actions against

an employee that have a “tangible effect on the terms and conditions of employment” such as a

termination or demotion. See Boone v. Goldin, 178 F.3d 253, 256 (4th Cir. 1999) (categorizing

adverse employment actions as things like hiring, firing, failing to promote, or reassigning to a

different position with significantly different responsibilities); Yampierre v. Balt. Police Dep’t,

Civ. No. ELH-21-1209, 2022 WL 3577268, at *26 (D. Md. Aug. 18, 2022) (same). Exclusion from

meetings, however, are not adverse employment actions under the law. Staggers, 2021 WL

5989212, at *17 (“Exclusion from meetings does not, by itself, constitute an adverse employment

action”) (internal citations omitted). Thus, Plaintiff’s exclusion from the “white only” professional

development group meetings that occurred on December 9, 2020 and December 16, 2020 cannot

be considered to support Plaintiff’s disparate treatment claim. Id.

Accordingly, even when viewing the facts in the light most favorable to Plaintiff, the Court

finds that the Plaintiff has not adequately pleaded disparate treatment and the Motion is granted

with respect to this claim.

2. Retaliation

Defendant also argues that any events that took place prior to December 3, 2020, are time

barred with respect to Plaintiff’s retaliation claim. Defendant further contends that the following

allegations in the Complaint are time barred because they are undated: (1) Defendant ignored

Plaintiff’s questions regarding the segregated professional development groups, i.e., the

“communication blackout;” (2) the Defendant denied Plaintiff’s telework request which resulted

in the loss of sick days and wages; and (3) the Defendant stopped Plaintiff from taking steps after

denial of his telework to continue teaching some of his students, i.e., there was a “reversal of

methodology.” (Motion, p. 8; see also Complaint, p. 6).

In his Opposition, Plaintiff responds to the Defendant’s argument by simply reciting the

acts that Plaintiff contends were retaliatory. (Opposition, pp. 3-5).

Title VII prohibits an employer from retaliating against an employee because the employee

opposed “any practice made an unlawful employment practice by [Title VII],” including

complaining about discrimination to supervisors. See 42 U.S.C. § 2000e-3(a); see also Romeo v.

APS Healthcare Bethesda, Inc., 876 F. Supp. 2d 577, 588 (D. Md. 2012) (internal citation omitted).

The elements of a retaliation claim under Title VII are: (1) engagement by a plaintiff in a protected

activity; (2) adverse action by an employer against a plaintiff; and (3) a causal link between the

protected activity and the adverse action taken by the employer. Sempowich v. Tactile Sys.

Technology, Inc., 19 F.4th 643, 653 (4th Cir. 2021).

“Protected activity” falls into one of two categories: (1) opposition; or (2) participation.

Protected activity under the “opposition” category includes informal protests related to an

employment practice, such as voicing complaints or filing formal grievances. Prosa v. Austin, Civ.

No. ELH-20-3015, 2022 WL 394465, at *31 (D. Md. Feb. 8, 2022). For an employee’s conduct in

the “opposition” category to be protected, the employee must show that: (1) he reasonably believes

that the action he opposed constituted a Title VII violation; and (2) his conduct in opposition was

reasonable. Id. Protected activity in the “participation” category includes an employee

participating in an ongoing investigation or proceeding under Title VII. Netter v. Barnes, 908 F.3d

932, 938-39 (4th Cir. 2018).

An adverse employment action, in the context of a retaliation claim, extends beyond actions

that have a tangible effect on the terms and conditions of employment. Rodgers v Eagle All., 586

F. Supp. 3d 398, 446 (D. Md. 2022). Instead, the “adverse action” need only have some “direct or

indirect impact on an individual’s employment” such that a reasonable worker would be dissuaded

from engaging in a protected activity. Id.

A plaintiff can establish a causal link between the protected activity and the adverse action

at the pleading stage through two routes. Roberts v. Glenn Indus. Grp., Inc., 998 F.3d 111, 123

(4th Cir. 2021) (internal citations omitted). First, a plaintiff may establish the existence of facts

that show that the protected activity caused the adverse action. Johnson v. UPS, Inc., 839 F. App’x

781, 784 (4th Cir. 2021). Second, a plaintiff can establish that the “adverse act bears sufficient

temporal proximity to the protected activity.” Id. Generally, a period of longer than two months

between the protected activity and the adverse action “significantly weakens the inference of

causation.” Roberts, 998 F.3d at 128 (internal citation omitted).

In the Complaint, Plaintiff alleges that he voiced his opposition to the racially segregated

professional development groups in writing to the entirety of the Paint Branch faculty and the

school district’s Superintendent, Dr. Jack Smith. (Complaint, p. 4). The Court finds that the

Plaintiff engaged in a protected activity when he voiced his complaints. See Prosa, 2022 WL

394465, at *31. However, Defendant argues that because Plaintiff voiced his opposition on

October 28, 2020, more than 300 days before the Plaintiff filed his Charge, the Plaintiff’s

retaliation claim must fail because his assertion of engaging in a protected activity is time barred.

The Court finds the Defendant’s argument unavailing. The 300-day period rule precludes

the Court from considering allegations of unlawful activity that took place more than 300 days

prior to an individual filing a Charge. However, the Court is not precluded from considering

Plaintiff’s retaliation claim because he engaged in a protected activity more than 300 days prior to

filing his Charge. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109-110 (2002)

(“[T]he charge [must] be filed … [within] 300 days after the unlawful practice happened….”)

(emphasis added); Gilliam v. S.C. Dep’t of Juv. Just., 474 F.3d 134, 139 (4th Cir. 2007) (“Any

discrete acts of discrimination that occurred prior to the applicable limitations period are

procedurally barred and cannot be used as a basis for recovery”) (emphasis added).

There are three undated allegations (“remaining allegations”), two of which are analyzed

here.4 The Court finds unavailing Defendant’s argument that the following two remaining

allegations are time barred because they are undated: (1) Defendant’s so-called denial of Plaintiff’s

4 See Section IV.B.2, p. 16, infra, for the Court’s analysis related to the third “remaining allegation,” the so-called

“communication blackout.” For the purposes of resolving the instant Motion, the Court will assume arguendo that the

“communication blackout” is not time barred and address whether it qualifies as an adverse employment action.

telework request, (despite Plaintiff’s alleged medical need to continue working remotely); and (2)

Defendant’s efforts to stop Plaintiff from taking steps to continue teaching some of his students

after his telework request was denied. Upon review of the Complaint and construing the facts in

Plaintiff’s favor, Plaintiff alleges that Paint Branch’s Principal informed him that he needed to

discontinue telework and return to in-person instruction on April 23, 2021. (Complaint, p. 5).

Thereafter, on April 26, 2021, Paint Branch discontinued Plaintiff’s ability to work remotely and

“revers[ed] methodology regarding actions that would be engaged by Plaintiff to facilitate the

teaching of at least one section of a class….” (Complaint, p. 6). Thus, the Court finds that these

acts took place after December 3, 2020 and are not time barred.

As to all three remaining allegations5, the Plaintiff must establish that the retaliatory

conduct: (1) qualifies as an “adverse employment action;” and (2) that a causal nexus exists

between the retaliatory conduct and the protected activity. As held above, in the context of a

retaliation claim, the standard for an adverse employment action is lower than when assessing a

disparate treatment claim. See Rodgers, 586 F. Supp. 3d at 446 (an adverse employment action

need only be an act that would dissuade a reasonable worker from engaging in a protected activity).

Here, the Court finds that all three remaining allegations do qualify as adverse employment

actions for the purposes of a retaliation claim. Plaintiff alleges that: he was prevented from

teleworking, despite a medical need to do so; when he tried to find alternative ways to teach his

students, Paint Branch deliberately precluded him from continuing his work; and the Defendant

imposed a “communication blackout.” Construing the facts in the Plaintiff’s favor at this juncture,

as the Court must, Plaintiff plausibly alleges more than “minor annoyances,” which are not

actionable, he alleges actions “that are likely to deter victims of discrimination” from taking

5 See n.4. supra.

responsive action. See Howerton v. Bd. Of Educ of Prince George’s Cnty., Civ. No. TDC-14-242,

2015 WL 4994536, at *17 (D. Md. Aug. 19, 2015) (internal citations omitted); see also Smith v.

Bd. of Ed. of Prince George’s Cnty., Civ. No. GJH 16-206, 2016 WL 4014563, at *5 (D. Md. July

26, 2016) (finding that many courts have mistakenly applied the restrictive definition of “adverse

employment actions” related to disparate treatment in the context of retaliation claims and that the

bar is much lower in the retaliation context).

The Court does not find, however, that Plaintiff has plausibly established a causal nexus

between the protected activity and the following adverse employment actions: (a) the denial of

Plaintiff’s telework request; and (b) Paint Branch taking deliberate steps to prevent Plaintiff from

continuing teaching his students through alternative means. First, the Plaintiff does not allege

“existence of facts that show that the protected activity caused the adverse action.” Johnson, 839

F. App’x at 784. Next, the Court finds no temporal proximity sufficient to plausibly establish

causation. The Plaintiff asserts that he engaged in a protected activity on October 28, 2020. The

alleged adverse employment actions did not occur until April 2021, roughly five months later. A

gap of five months between an individual engaging in a protected activity and an adverse

employment action is insufficient to establish a causal nexus. Roberts, 998 F.3d at 127 (“[A] period

of longer than two months between the protected activity and the adverse action ‘significantly

weakens the inference of causation’”) (internal citation omitted); Perry v. Kappos, 489 F. App’x

637, 643 (4th Cir. 2012) (“Although neither we nor the Supreme Court have adopted a bright

temporal line, we have held that a three- or four-month lapse between the protected activities and

discharge was ‘too long to establish a causal connection by temporal proximity alone’”) (internal

citations omitted).

Accordingly, even when viewing the facts in the light most favorable to Plaintiff, the Court

finds that the Plaintiff failed to plausibly allege Title VII retaliation related to the Defendant’s

alleged denial of his telework request or the alleged “reversal of methodology,” and the Motion is

granted with respect to those two undated remaining allegations.

Finally, regarding the third remaining allegation (the Defendant ignored Plaintiff’s

questions and imposed a “communication blackout”), the Court finds that it cannot discern when

this undated conduct occurred, nor whether it occurred more than once. However, at this

procedural juncture, if Plaintiff were granted leave to amend the Complaint to include specific

dates related to the so-called “communication blackout,” the Complaint could plausibly allege a

viable retaliation claim. Given Plaintiff’s pro se status, and the fact that Plaintiff has yet to file an

amended complaint in this case, the Court finds that Fed. R. Civ. P. 15(a)(2) and “justice so

requires” that Plaintiff be given the opportunity to amend his Complaint to include specific dates

regarding the “communication blackout” and specific allegations pertaining to his attempts to

communicate with Paint Branch staff related thereto.

In permitting amendment to the Complaint on this limited factual issue, the Court holds

that there has been no bad faith by the Plaintiff nor any prejudice that will flow to the Defendant.

Similarly, permitting amendment would not be futile. See Nourisan Rug Corp., 535 F.3d at 298.

In sum, the Court further grants the Motion to Amend to also allow Plaintiff to plausibly-

allege facts related to the “communication blackout.” Accordingly, the Motion to Dismiss is denied

only as to this “communication blackout” allegation.

C. Section 1983 Claim

The Defendant argues that the Plaintiff’s Section 1983 claim must be dismissed because:

(1) Plaintiff is precluded from raising a Section 1983 claim as it is duplicative of his Title VII race

discrimination claim; and (2) Section 1983 only applies to “persons” and the Board of Education

for Montgomery County is not a person. (Motion, pp. 8-9).

Here, the Court finds that the Section 1983 claim must be dismissed because the Defendant

is not a “person” as required by Section 1983. As the Defendant correctly argues, various courts

have found that school boards, such as the Board of Education for Montgomery County, are arms

of the state and therefore not subject to liability under Section 1983. See, e.g, Mee v. Hubbard,

Civ. No. MJG-02–1750, 2003 WL 22571715, at *3 (D. Md. Feb. 3, 2003) (“It is well established

that states and “arms of the state” are not “persons” for § 1983 purposes, and thus are not subject

to suit under the statute … further, “[i]t is well-established that Maryland county school boards are

state entities” or agents of the state”); Rosenfeld v. Montgomery County Pub. Schs., 41 F. Supp.

2d 581, 586 (D. Md. 1999) (same); Jones v. Frederick County Board of Educ., 689 F. Supp. 535,

537–38 (D. Md. 1988) (same); see also Zimmer-Rubert v. Board of Educ. Of Balt. Cnty., 947 A.2d

135, 141 (Md. 2008) (“The Court of Appeals undoubtedly considers county school boards

instrumentalities of the State”).

Accordingly, the Defendant’s Motion is granted with respect to Plaintiff’s Section 1983

claim.

D. Negligence, Breach of Contract, Punitive Damages Claims

As to the remaining claims, the Court finds that they all must be dismissed due to a lack of

subject matter jurisdiction. Although the Defendant ostensibly, even when raising an immunity

defense related to the Plaintiff’s gross negligence and punitive damages claims, seeks dismissal on

Fed. R. Civ. P. 12(b)(6) grounds, the Court maintains an obligation to ensure that it has subject

matter jurisdiction at all times. See Fed. R. Civ. P. 12(h)(3); see also Cook v. Georgetown Steel

Corp., 770 F.2d 1272, 1274 (4th Cir. 1985) (finding that even if the parties believe that the court

has jurisdiction, the court is under a duty to review subject matter jurisdiction).

In this case, as held above, the BOE is an “arm of the state.” Zimmer-Rubert, supra, at 141.

As such, it is entitled to sovereign immunity from tort and contract actions. Id. (finding that county

school board is entitled to sovereign immunity); see also Donlon v. Montgomery Cnty. Pub. Schs,

188 A.3d 949, 964 (Md. 2018) (“[F]or purposes of Eleventh Amendment/sovereign immunity

analysis, local boards of education are entities of State government”); Lee-Thomas v. Prince

George’s Cnty. Pub. Schs., 666 F.3d 244, 248, n. 5 (4th Cir. 2012) (“We agree with the courts that

have evaluated the foregoing factors and concluded that the State exercises a significant degree of

control over boards of education and that Maryland law treats them as instrumentalities of the

State”). The Court recognizes that the Maryland legislature enacted the Maryland Tort Claims Act,

which includes a limited waiver of sovereign immunity pertaining to contract and tort actions. MD.

CODE ANN. STATE GOV’T § 12-104 (West 2023) (limited waiver related to tort actions); MD. CODE

ANN. STATE GOV’T § 12-201 (West 2023) (limited waiver related to contract actions). However,

such waiver pertains solely to actions brought in state court. See Hartman v. Univ. of Md. at Balt.,

Civ. No. ELH-10-2041, 2013 WL 6858854, at *4 (D. Md. Dec. 20, 2013) (“The Maryland

legislature explicitly limited its waiver of sovereign immunity to cases filed in state court. For

example, Maryland's waiver of sovereign immunity in tort cases, [] § 12–104, provides that ‘the

immunity of the State and of its units is waived as to a tort action, in a court of the State’ …

Likewise, Maryland's waiver of sovereign immunity in contract actions, [] § 12–201, provides that

‘the State, its officers, and its units may not raise the defense of sovereign immunity in a contract

action, in a court of the State….’”).

As such, the BOE, as an arm of the state, retains sovereign immunity in federal court for

both tort and contract actions. Id. Similarly, the Court finds that arms of the state, in Maryland,

retain sovereign immunity from punitive damages claims, so any such claim must be dismissed.

See MD. CODE ANN. STATE GOV’T § 5-522(a),(d) (West 2023) (the state does not waive immunity

with respect to punitive damages in tort or contract).

In sum, even when viewing the facts in the light most favorable to Plaintiff, Plaintiff’s

negligence, gross negligence, breach of contract, and punitive damages claims must be dismissed.

Accordingly, the Motion is granted with respect to these claims.

V. Conclusion

For the foregoing reasons, the Motion is DENIED IN PART, GRANTED IN PART and

the Motion to Amend is GRANTED.

A separate Order follows.

Dated: June 23, 2023 /s/

The Honorable Gina L. Simms

United States Magistrate Judge