# Martin v. Maryland Department of Natural Resources

> District Court, D. Maryland · January 29, 2025

URL: https://www.frixlaw.com/law-library/cases/10790277

## Case

- **Court:** District Court, D. Maryland
- **Decided:** January 29, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
“FOR THE DISTRICT OF MARYLAND

DAVID MARTIN,
, *
Plaintiff,
‘
v.
* Civil No. 24-0092-BAH
MARYLAND DEPARTMENT OF NATURAL
RESOURCES, ET AL., *
Defendants. *
x * * * □ a * * * * * “x *
MEMORANDUM OPINION
Plaintiff David Martin brought suit against the Maryland Department of Natural Resources
(“DNR”) and DNR Secretary Joshua Kurtz (“Secretary Kurtz”) alleging ractal discrimination, age
discrimination, and violations of the First Amendment. ECF 1. Specifically, Plaintiff alleges
claims against DNR for race discrimination in violation of 42 U.S.C. § 2000(e) (Title VII) and the

. Maryland Fair Employment Practices Act, Md. Cede, State Gov’t (“SG”) § 20-602 et seq.
(MFEPA”) (Count 1). Plaintiff also alleges age discrimination by DNR in violation of the
MFEPA (Count 3). Plaintiff sues Secretary Kurtz in his “personal capacity” alleging that he
violated 42 U.S.C. § 1983 by interfering with Plaintiffs rights under the First Amendment to the
United States Constitution (Count 2). Pending before the Court is Defendants’ motion to dismiss ~

all claims (the “Motion”). ECF 10. Plaintiff filed an opposition. ECF 14. All filings include
memoranda of law and exhibits.’ The Court has reviewed all relevant filings and finds that no

1 The Court references all filings by their respective ECF numbers and page numbers by the ECF-
generated page numbers at the top of the page.

hearing is necessary. See Loc. R. 105.6 (D. Md. 2023). For the reasons stated below, Defendants’
Motion is GRANTED in part and DENIED in part. .
I. BACKGROUND?
Plaintiff, a 76-year-old white man, was employed as a seasonal maintenance worker by -
DNR at Pocomoke River State Park in Maryland (“the Park”). ECF 1, at 2-3, 9] 6-8. He had
worked in the same role for many years and had consistently received positive feedback on □□□
end-of-season evaluations. Jd. § 7. This action arises out of an incident that occurred at the Park
on March 27, 2023. Jd. at 3.99. On that date, Plaintiff was engaged in helping his supervisor,
Allen Holochwost, transport “a recently donated turkey mount” to the Park’s Nature Center. □□□ J
10. Inside the: Nature Center, Holochwost, who is a white man in his fifties, began a conversation
with Allison Alvarado, a seasonal naturalist at the Park who is a Latina woman in her twenities.
id. TJ 12-13. Plaintiff contends that while Holochwost and Alvarado were talking, he continued
with preparations for building the display. Jd. { 14.

At some point, Plaintiff realized that the conversation between Holochwost and Alvarado
had turned to “politically charged topics and had become heated.” ECF 1, at 3 915. Plaintiff
reports that he exited the Nature Center in hopes that Holochwost would ceasé the conversation
and follow him outside. /d. Nevertheless, after waiting for several minutes, Plaintiff determined
that Holochwost would not be coming out, and returned to the Nature Center to find that the
conversation “had become even more contentious.” /d. 916. He reported hearing the words “white
privilege,” “racism,” and “hate” being used, whereupon he again left the building and resumed
performing other custodial duties without Holochwost, id. at 499 16-17. Plaintiff attests that he
never participated in the conversation, nor attempted to do so. Id. § 18. oe

2 In evaluating the merits of a motion to dismiss, the Court must “accept as true all of the factual .
allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Later the same day, Plaintiff returned with Holochwost to the Nature Center, where they

. encountered three park rangers speaking with Alvarado. ECF t, at 4 420. ‘The group instructed □
Plaintiff and Holochwost to leave. fd. Thereafter, a park ranger named Curtis Dale, who Plaintiff
identifies as the Park Services, Manager at Pocomoke River State Park, “briefly met” with both
Plaintiff and Holochwost and told them to “pack their things and go home.” Jd. J 21. Dale
informed the two that “he would let them know when they could return to work,” though he “did
not provide them with a reason why they were being sent home.” /d. 21. Plaintiff indicates that
Dale “had previously expressed to co-workers that [Plaintiff] is ‘over the hill’ and needed to be
replaced by a younger worker.” Jd. [ 22. He further indicates that Alvarado was not sent home. -

Id. 23. After Plaintiff returned home, Dale subsequently sent out a staff-wide email “articulating
laws and policies at the park regarding Equal Employment Opportunities, Bullying, Sexual
Harassment, and Discrimination.” Id. at 5 J 24.

. A week later, on March 30, 2023, Plaintiff returned to the Park in order to try to speak with □
Dale, as Plaintiff had received no updates on his situation. ECF 1, at 5 25. Upon arrival at the
Park, Plaintiff encountered a member of the staff who orderéd him to leave, which Plaintiff says
he did “without objection or complaint.” Jd. On April 4, Plaintiff emailed Dale to request an in-
person meeting, though Dale responded that they could not have “further conversation” regarding
‘the incident while an investigation was ongoing. Jd. J 26. This was the first time that Plaintiff □

learned a “formal investigation into the March □□ incident was in progress.” Id, 427. The next
week, on April 12, Plaintiff contacted Dale through email and regular mail to request additional □
updates and reiterated-that he had not participated in the conversation between Holochwost and
Alvarado and “had never previously engaged in any kind of workplace misconduct.” Jd □□ 28.
Dale responded over email and stated that the investigation was an Equal Employment Opportunity

(“EEO”) issue and was still ongoing. Id § 29. Dale also noted that the investigation “had
expanded to include alleged comments made by [Plaintiff] on March 21, 2023 and March 30,
2021.” Id. at 6430. Plaintiff reports no knowledge of these two alleged incidents, and “is unaware

_ of any record of a formal investigation or discipline concerning them.” Jd. 4 31.
On April ‘13, 2023, Plaintiff was contacted by a DNR representative for an interview
regarding his recollection of the events of March 27, 2023, the day of the heated exchange between
Alvarado and Holochwost. ECF 1, at 6 During the interview, Plaintiff repeated that “he □□□
not participated in the argument and had not said anything to either Mtr. Holochwost or Ms.
Alvarado.” id. He was not asked “arly questions regarding the alleged March 21, 2023 and March
30, 2021 incidents.” Id On April 20, Plaintiff received a letter from Secretary Kurtz “informing
him that pursuant to ‘two separate EEO complaints that [he] engaged in discrimination and
harassment of other employees through the use of-derogatory and offensive language and racial
slurs,” □□□ his employment was being terminated.” Id. J 33 (alterations in original). Plaintiff filed
an appeal of his termination on April 27, 2023, and the appeal was denied on May 15, 2023. Id.
34-35. oe

Subsequent to his dismissal, Plaintiff filed a charge with the Equal Employment
Opportunity Commission (“EEOC”), “alleging racial and age discrimination.” ECF 1, at 6 J 38.
On January 8, 2024, the Department of Justice issued a right-to-sue letter. /d. at 7 7 38; see also
ECF 3-1 (copy of the letter). Plaintiff also filed a claim with the Maryland State Treasurer under
the Maryland Tort Claims Act. Id. at 6 { 37; see also ECF 3, at 2-7 (copy of notice of claim
submission). Finally, Plaintiff reports that his MFEPA claims are pending with the Maryland
Commission for Civil Rights. Id. at 7939.

oo 4

Il. LEGAL STANDARD
Federal Rule of Civil Procedure 12(6)(6) governs dismissals for failure.to “state a claim
_upon which relief can be granted.” In considering a motion to dismiss, a court must “accept as
true all of the factual allegations contained in the complaint.” Erickson, 551 U.S. at 94; see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court then draws all reasonable inferences in favor
of the plaintiff and considers whether the complaint states a plausible claim for relief on its face.

_ Nemet Chevrolet, Lid. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir, 2009). “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.” Jgbal, 556 U.S. at
678.
“The complaint must offer ‘more than labels and conclusions’ or ‘a formulaic recitation of

- the elements of a cause of action[.]’” Swaso v. Onslow Cnty. Bd. of Educ., 698 F. App’x 745, 747 -
(4th Cir. 2017) (quoting Bell Atl. Corp. v. Twombly, 550 US. 544, 555 (2007)). At the same time,
a “complaint will not be dismissed as long as [it] provides sufficient detail about [the plaintiff's]
claim to show that [the plaintiff] has a more-than-conceivable chance of success on the merits.”
Owens v. Balt. City State’s Att’ys Off, 767 F.3d 379, 396 (4th Cir, 2014).
II. ANALYSIS .
‘A. MFEPA Claims against DNR
Plaintiff argues that he was terminated on the basis of his race and age in contravention of
the MFEPA. See ECF 1, at 7, 9. The MFEPA prohibits employers from discriminating against

employees on the basis of an individual’s protected traits, including age, race, and SEX. SG § 20-
606(a). Defendant DNR argues that Plaintiff s MFEPA claims should be dismissed on the grounds
that, as an instrumentality and agent of the Maryland state government, they are immune from suit

under the Eleventh Amendment. ECF 10-1, at 7. Defendant DNR further indicates that the state
of Maryland explicitly did not consent to suit in federal court when it passed the MFEPA. Jd.
The Eleventh Amendment to the Constitution provides, in relevant part, that “[t]he Judicial
power of the United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State.” As interpreted by the
Supreme Court, the principle of sovereign immunity articulated in the Eleventh Amendment
establishes that “an unconsenting State is immune from suits brought in federal courts by her own
citizeng as well as by citizens of another state,” with such immunity extending to “state agents and
state instrumentalities.” Pense Md. Dep t of Pub. Safety & Corr. Servs., 926 F.3d 97, 100 (4th
Cir. 2019) (quoting Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990); Regents
of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997),
The Eleventh Amendment’s bar to suit is “not absolute” but may be waived. Feeney, 495
ULS. at 304. Waiver may be effectuated through a state statute in the event that the statute
“speciffies] the State’s intention to subject itself to suit in federal court.” Atascadero state Hosp.
Scanlon, 473 U.S. 234, 241 (1985) (emphasis in original). “In other words, ‘a State does not
consent to suit in federal court merely by consenting to suit in the courts of its own creation.’”
Pense, 926 F.3d at 101 (quoting Coll. Sav. Bank vy. Fla. Prepaid Postsecondary Educ. Expense
Bd., 527 US. 666, 675-76 (1999)). A state is deemed to have waived its Eleventh Amendment
immunity only when it has stated so “by the most express language or by such overwhelming
implication from the text as [will] leave no room for any other reasonable construction.”
Atascadero, 473 U.S. at 239-40 (internal citations omitted).
In his response to the Motion, Plaintiff did not address DNR’s immunity argument. If a
plaintiff fails to respond to an argument made in a motion to dismiss, the relevant claim may be

dismissed. See Ferdinand-Davenport v. Children’s Guild, 742 F. Supp. 24772, 777 (D. Md. 2010)
(“By her failure to respond to [defendant’s argument that her claim should be dismissed], the
plaintiff abandons any discriminatory discharge claim.”). Even if Plaintiff had not failed to address

_ Defendants’ argument with respect to his MFEPA claims, these claims would still be subject to
dismissal. Maryland has not waived its sovereign immunity as to MFEPA claims filed in in federal
court as the statute does not explicitly “specify the State’s intention to subject itself to suit in

federal court” and so “cannot be read to waive the State’s Eleventh Amendment immunity.”
Pense, 926 F.3d at 102 (quoting Atascadero, 473 U.S. at 241); see also Mack v. Maryland Dep’t
of Hum. Servs., Civ. No. DLB-23-1577, 2024 WL 580672, at *4 (D. Md. Feb. 13, 2024)
(“Maryland has not waived its immunity to MFEPA suits in federal court.”) (emphasis in original).
As an instrumentality and agent of state government, then, Defendant DNR is shielded from
Plaintiffs MFEPA claims, at least in federal court. Accordingly, the Court will dismiss both the: □

race and age discrimination claims brought pursuant to MFEPA.
B. Title VII claims

. Plaintiff also brings a claim against Defendant DNR for racial discrimination in violation
of Title VII. ECF 1, at 7. Title VII of the Civil Rights Act prohibits status-based discrimination
based on an employee’s personal characteristics such as “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a); see also Univ. of Tex. Sw. Med. Cir. v. Nassar, 570 U.S. 338,
346-47 (2013); Strothers v. City of Laurel, 895 F.3d 317, 326-27 (4th Cir, 2018). .
Plaintiff's Title VII count appears to encompass a claim of discriminatory discharge.? See

_ ECF 1, at7945. “A plaintiff pursuing a claim under Title VII may either offer direct evidence of

3 Defendant DNR interpreted the complaint to be alleging a disparate treatment claim as well. See
ECF 1 at 743. However, Plaintiff explicitly disclaims that his suit involves a disparate treatment
claim in his response. ECF 14, at 5. Given Plaintiffs explicit concession, the Court will refrain
from conducting a disparate treatment analysis. Moreover, Plaintiff's Title VII claim alleges that

_ discrimination or, using indirect evidence, [they] may rely on the burden shifting framework that
was adopted by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).” Coleman v. Whitley, Civ. No. 21-1181, 2022 WL 16630570, *1 (4th Cir. Nov. 2, 2022).
“At the motion to dismiss stage, however, Plaintiff is not required to set forth a prima facie case

for each element; instead, he is required to set forth a plausible claim of discrimination. ” Myers
v. Montgomery Cnty., Md., Civ. No. 14-3054-DKC, 2015 WL 3795915, at *7 (D. Md. June 17,
2015). Thus, though Plaintiff may ultimately seek to prove his case by offering indirect evidence
of discrimination, he need not, at this stage, allege “specific facts establishing a prima facie case
of discrimination” pursuant to the McDonnell Douglas standard. Westmoreland v. Prince
George 's Cnty, Civ. No. 09-2453, 2010 WL 3369169, at *3 (D. Md. Aug. 23, 2010) (quoting
Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 508 (2002)). Plaintiff need only “plausibly allege”
that he faced adverse employment action “because of [his] race, color, or sex to withstand a motion
to dismiss.” McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 584-85 (4th Cir. 2015)
(citing 42 U.S.C. § 2000e—2(a)(1) (emphasis in McCleary-Evans). Thus, the Court’s inquiry here
is limited to whether Plaintiff alleges facts that plausibly state a violation of Title VII “above a
speculative level.” Bing v. Brivo Sys., LLC, 959 F.3d 605, 617 (4th Cir. 2020) (citing Coleman v.
Mad. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)), Nevertheless, while a prima facie case
is not required at this stage, “reference to the elements of a claim is helpful to assess whether the

the termination created “‘an abusive and hostile work environment.” ECF 1, at 7 44. As other
courts in the Fourth Circuit have determined, however, “[d]iscrete acts, such as termination . ..,
cannot alone form the basis of a hostile work environment claim.” Oroujian v. Delfin Grp. USA,
57 F, Supp. 3d 544, 555 (D.S.C. 2014) (quoting Kelly v. Dun & Bradstreet, Inc., 557 F. App’x
896, 900 (11th Cir. 2014). As the only evidence Plaintiff offers in support of a possible hostile
work environment claim is his termination, this claim cannot proceed.
□

plaintiff has stated a plausible claim.” Allgaier v. Microbiologics, Inc., Civ. No. 22-01900-ELH,
2023 WL 2837336, at *8 (D. Md. Apr. 7, 2023).
Plaintiff argues that his race “was clearly a motivating factor” in the decision to terminate
his employment. ECF 1, at 7 745. “One might reasonably infer that an employee was terminated

because of [their] race if the employee alleges direct or indirect evidence of a discriminatory
motive or if [they] plead[] a prima facie case of discrimination under McDonnell Douglas.” Felder □

v. Maximus, Inc., Civ. No. JKB-16-3517, 2017 WL 915003, at *2 (D. Md. Mar. 8, 2017). To plead
a prima facie case of discrimination under McDonnell Douglas, “a plaintiff must show that (1) he
is a member of a protected class; (2) he was qualified for his job and his job performance was
satisfactory; (3) he was fired; and (4) other employees who are not members of the protected class
were retained under similar circumstances.” Dallas v. Giant F ood, Inc., 187 F. Supp. 2d 505, 511
(D. Md. 2002) (cleaned up).
Plaintiff does not allege direct evidence of discrimination Thus, the Court will evaluate
whether he has alleged facts sufficient to support a plausible discrimination claim through the
prism of the McDonnell Douglas factors. With respect to the first factor, Plaintiff has alleged that
he is a member of a protected class as a white person.? See ECF 1, at 3 4 8; see also Lucas, 835

* “Direct evidence is ‘evidence of conduct or statements that both reflect directly the alleged
discriminatory attitude and that bear directly on the contested employment decision.’” Bandy v..
City of Salem, Va., 59 F.4th 705, 711 (4th Cir. 2023) (quoting Taylor v. Va. Union Univ., 193 F.3d
219, 232 (4th Cir. 1999) (en banc) (citation omitted), abrogated on other grounds by Desert Palace,
Inc. v. Costa, 539 U.S. 90, 98 (2003)). As the Supreme Court has recognized, such evidence “is .
hard to come by.” Price Waterhouse v. Hopkins, 490 U.S, 228, 271 (1989) (O'Connor, J., -
concurring in the judgment).
> Defendant DNR appears to argue that because Plaintiff is white, his claims should be. analyzed
differently than other claims brought under Title VIL ECF 10-1, at 8. “The Supreme,Court has
- held that Title VII protects whites as well as minorities.” Lucas v. Dole, 835 F.2d 532, 534 (4th
Cir. 1987) (citing McDonald v. Santa Fe Transp. Co., 427 U.S. 273 (1975)). Though “[t]here is a
circuit split on the issue of whether a heightened burden applies to satisfy the protected class

F.2d at 534. Plaintiff also alleges facts to satisfy the second factor, as he claims that he .
“consistently received ‘Excellent’” on his performance reviews and had “no recorded disciplinary
issues.” ECF 1, at 3 ]7: As to the third factor, Plaintiff satisfactorily alleges that he was, in fact,
terminated. Jd at 6 { 33. With respect to the final factor, Plaintiff indicates that though he was
terminated, a co-worker of a different race — Ms. Alvarado — was retained “despite engaging in
conduct . . . substantially more severe than [Plaintiff's] passive role” in the March 27, 2023
incident. /d. at 7 4 43. Plaintiff alleges that while Alvarado had a.“heated” and “contentious”
conversation with Holochwost, Plaintiff did not participate in the conversation but was terminated,
while Alvarado was not. Id. at 3-4 FJ 15-18. At the motion to dismiss stage, Plaintiff's allegation
is sufficient to state a claim of discrimination under Title VIL. :
Defendant DNR argues that Plaintiff's complaint “acknowledges several facts that dispel
any reasonable or logical inference of reverse race discrimination,” including the investigation of
“two separate EEO complaints . . . that [he] engaged in discrimination and harassment of other

element of a reverse race discrimination claim,” Presley v. Beaufort Cnty. Sch. Dist., No. CV 9:18-
1945-BHH, 2021 WL 791206, at *4 (D.S.C. Mar. 2, 2021) (collecting cases), the Fourth Circuit
has “expressly declinefd] to decide ... whether a higher burden applies.” Lucas, 835 F.2d at 534;
see also Weeks v. Union Camp Corp., 215 F.3d 1323, 2000 WL 727771, at *6 n.13 (4th Cir. June
7, 2000) (table decision) (noting that the Fourth Circuit “[had] not taken a position on [the] issue”
of whether a higher burden applies to members of the majority who bring reverse discrimination
claims). Judges in this district have generally analyzed reverse discrimination claims in line with □
other Title VII claims and have not applied a heightened standard. See, e.g., Wethje v. CACL-JISS,
Inc., Civ. No. 18-02424-PX, 2021 WL 718939, at *4 (D. Md. Feb. 24, 2021) (applying a traditional
standard at the summary judgment stage and noting that “Title VIL. . . appl{ies] to ‘reverse
‘discrimination’ cases in which, as here, a member of the white majority alleges that she suffered
adverse employment action on account of her race”) (citing Lucas, 835 F.2d at 534); Nasiatka v.
England, Civ. No. 03-900-RDB, 2005 WL 4631400, at *6 (D. Md. Mar. 10, 2005), aff'd, 174 F.
App’x 797 (4th Cir. 2006) (applying traditional Title VII framework at the summary judgment
stage to a claim of reverse discrimination); Ciociola v. Baltimore City Bd. of Sch. Comm’rs, Civ.
No. 15-1451-CCB, 2016 WL 125597 (D. Md. Jan. 12, 2016) (applying traditional standard in
analyzing a motion to dismiss a Title VII reverse discrimination claim raised by a white plaintiff).
In line with the approach of other courts in this district, this Court.evaluates Plaintiff's reverse
discrimination cases as it would any Title VII claims.

. in

employees through the use of derogatory and offensive language and racial slurs.” ECE 10-1, at
10 (citing ECF 1, at 6 § 14). DNR alleges that “t]he only reasonable and logical inference based □

on these allegations is that DNR received complaints against Plaintiff, investigated the complaints,
and made findings which warranted Plaintiff's termination[.]” Jd Assessing proof and drawing

inferences is inappropriate at the motion to dismiss stage as courts “generally do not ‘resolve
contests surrounding the facts, the merits of a claim, or the applicability of a defense’ through a
Rule 12(b)(6) motion.” Blades of Green, Inc. v. Go Green Lawn & Pest, LLC, 598 F. Supp. 3d
348, 354 (D. Md. 2022) (quoting Edwards v, City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)).
Therefore, at the motion to dismiss stage, the Court’s inquiry is limited to assessing whether
Plaintiff's complaint “alleges facts that plausibly state a violation of Title VII above a speculative

level.” Bing, 959 F.3d at 617. Plaintiff has done so. .
Cc. First Amendment claim against Seeretary Kurtz
Plaintiff also brings a claim against Secretary Kurtz in his “personal capacity,” ECF 1, at
1,° for retaliation in violation of his First Amendment rights, pursuant to 42 U.S.C. § 1983, id at
8 47-51. “With regard to [a] retaliation claim, a public employer contravenes a public
employee’s First Amendment rights when it discharges *. . . [the] employee,’ or when it makes.
decisions relating to ‘promotion, transfer, recall, and hiring based on the exercise of? that
employee’s free speech rights.’” Ridpath v: Bd. of Governors Marshall Univ. , 447 F.3d 292, 316
(4th Cir. 2006) (citing Suarez Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)).

6 Secretary Kurtz states that Plaintiff failed “to specify whether Secretary Kurtz is sued-in his
official or individual capacity.” ECF 10-1, at 10. However, the Court construes the reference’to
Secretary, Kurtz being sued in his “personal capacity” to mean that he is being sued in in his
individual, not official, capacity. See Constantine v. Rectors & Visitors of George Mason Univ., —
F.3d 474, 483 n.5 (4th Cir. 2005) (noting that a First Amendment retaliation claim brought
under § 1983 may be brought “against [] individual defendants in their individual capacities, and
the Eleventh Amendment does not bar such a suit”).
i

Secretary Kurtz first argues that Plaintiff fails to allege that he “actually engaged in some
speech or expressive conduct.” ECF 10-1, at 12. More specifically, because Plaintiff alleges that ~

he did not participate in the March 27, 2023 conversation between Alvarado and Holochwost, he
cannot claim he was discriminated against because he engaged in protected conduct. Jd. (“In short,
free speech retaliation requires some speech.”). Secretary Kurtz alleges that “[t]here is absolutely
no case law recognizing a cause of action for free speech retaliation in the absence of some speech
or expressive conduct where the claim is based on a government.actor’s belief that the plaintiff
engaged in such activity.” Jd. .

. Plaintiff points the Court to Heffernan v. City of Paterson, N.J., 578 U.S. 266 (2016), a
case where the Supreme Court considered whether a city police department ran afoul of the First
Amendment when it demoted an officer based on the mistaken assumption that he was involved
in the campaign of a mayoral candidate. Ultimately, the Heffernan Court concluded that “the
government’s reason for demoting [the employee}],” not the actual occurrence of the protected
conduct at issue, is “what counts” for the purposes of First Amendment protection. Heffernan,
578 U.S. at 273 (emphasis added). The Court continued, ,

When an employer demotes an employee out of a desire to prevent the employee from
engaging in political activity that the First Amendment protects, the employee is entitled
to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983-even
if, as here, the employer makes a factual mistake about the employee’s behavior.
id. Determining that the First Amendment primarily focuses “upon the activity of the
Government,” rather than specifically enumerating the rights of citizens, the Court found that the

operative analysis was whether the government “acted upon a constitutionally harmful policy” □
notwithstanding if the employee “did or did not in fact engage in political activity.” Jd Thus,
“even if Plaintiff did not engage in any protected speech .. . , Plaintiff may nevertheless bring a
First Amendment retaliation claim” against Secretary Kurtz ifhe can establish that Kurtz “believed

he engaged in such speech.” Hood vy. Mariboro Cnty, No. 417-cv-03403-DCC-MGB, 2019 WL
9242907, at *11 (D.S.C. Oct. 30, 2019) (emphasis in original); see also Bird v. W. Valley City, No.
2:12-CV-00903-EJF, 2017 WL 4326485, at *10 (D. Utah Sept. 28, 2017) (“The constitutional
right at issue in this case is a public employee’s right not to be fired for her real or perceived
exercise of her First Amendment right[s].”) (emphasis added). The Court therefore proceeds to
consider whether Plaintiff has sufficiently alleged a First Amendment retaliation claim.
Plaintiff has alleged that he was terminated in retaliation for his participation in a
“politically. charged” conversation. ECF 1, at 315. “In order to make out a First Amendment
retaliation claim, a plaintiff must show that (1) he spoke as a citizen on a matter of public concern,
-yather than as an employee on a matter of personal interest; (2) the employee’s interest in his
expression outweighed the employer’s ‘interest in providing effective and efficient services to the
public’; and (3) the employee’s speech was a “substantial factor’ in the adverse employment
action.” Massaro Fairfax Cnty., 95 F.4th 895, 905 (4th Cir. 2024) (quoting McVey v. Stacy, 157
F.3d 271, 277-78 (4th Cir, 1998)).

“The first element of the test is the ‘threshold question.’” Massaro, 95 F Ath at 905 (citing
Ridpath, 447 F.3d at 316 n.26). Thus, the Court must examine the “‘content, form, and context of
a given statement’ to discern whether it qualifies as expression on a matter of public concern.” Jd.
(citing Connick v. Myers, 461 U.S, 138, 147-48 -(1983)). “An employee’s expression ‘involves a
matter of public concern when it involves an issue of social, political, or other- interest to a
community.’” Id. at 906 (citing Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc)).
As the Fourth Circuit has noted, “Ta]t bottom, ‘[t]he focus is... upon whether the ‘public’ or the
‘community’ is likely to be truly concerned with or interested in the particular expression, or
whether it is more properly viewed as essentially a ‘private’ matter between employer and

13 ,

employee.’” /d. (quoting Berger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985)). However, “when
public employees make statements pursuant to their official duties, the employees are not speaking
as citizens for First Amendment ‘purposes, and the Constitution does not insulate their
communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
Here, Plaintiff has flatly claimed that his termination was connected to alleged comments
on matters of political concern. Plaintiff has also sufficiently alleged that the conversation in □

question was not undertaken pursuant to his official duties, as he indicates he is a seasonal
maintenance worker and the conversation took place incidental to workplace tasks. See ECF 1, at
34 4 14 - 17 (moting that the conversation occurred while Plaintiff took measurements “in
preparation for building a new habitat for a snapping turtle” and later waited outside in his vehicle).
Plaintiff characterizes the conversation in question as “a political debate” touching on issues of
public concern such as racism. ECF 1, at 8 49-50. This kind of speech would meet the Fourth
Circuit’s definition of “a matter of public concern” because it is one that “addresses ‘an issue of
social, political, or other interest to a community.”” Ridpath, 447 F.3d at 316 (quoting Urofshy,
216 F.3d at 406-07).
Having determined that Plaintiff has sufficiently pled that the supposed speech in question
dealt with a matter of public concern, the Court then turns to the second prong and considers
whether his complaint has sufficiently alleged that his interest in First Amendment expression
outweighed his employer’s interest in the “efficient provision of public services.” Ridpath, 447
F.3d at 317 (citing McVey, 157 F.3d at 277). This evaluation, often referred to as Connick-
Pickering balancing after the Supreme Court’s decisions in Connick, 461 U.S. at 138, and
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), considers factors such as
whether a public employee’s speech (1) impaired the maintenance of discipline by:
supervisors; (2) impaired harmony among coworkers; (3) damaged close personal

A

relationships; (4) impeded the performance of the public employee’s duties; (5) interfered
with the operation of the institution; (6) undermined the mission of the institution; (7) was
- communicated to the public or to coworkers in private; (8) conflicted with the
responsibilities of the employee within the institution; and (9) abused the authority and
public accountability that the employee's role entailed.
Ridpath, 447 F.3d at 317 (citing McVey, 157 F.3d at 278). □

The Court is mindful of the fact that in its capacity as'an employer, “the government .. .
has far broader powers [to restrict. speech] than does the government as sovereign.” Waters v.
Churchill, 511 U.S. 661, 671 (1994) (plurality opinion) (quoted in Garcetti, 547 U.S. at 418).
“Government employers, like private employers, need a significant degree of control over their
employees’ words ‘and actions; without it, there would be little chance for the efficient provision
of public services.” Garcetti, 547 U.S. at 418. Still, “public employees do not surrender all their
First Amendment rights by reason of their employment.” /d at 417. Courts must’ balance “the
interests of the [employee], as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public services it. performs
through its employees.” Connick, 461 U.S. at 142 (quoting Pickering, 391 U.S. at 568).
Secretary Kurtz argues that Plaintiff has failed to allege facts sufficient to establish that the
“interest Plaintiff has in his association with [] Holochwost,” or in the alleged speech,’ outweighs
DNR’s interest in maintaining “discipline and ensur[ing] harmony as necessary to the operation
and mission of its agencies.’” ECF 10-1, at 13 (citing McVey, 157 F.3d at 277). However, as
applied to Plaintiff, many of the relevant factors necessary to make this determination are “still
open for determination.” McVey, 157 F. 3d. at 279. At this early stage in the litigation, the Court

Secretary Kurtz raises overlapping arguments in seeking dismissal of both the free expression
and free association claims. ECF 10-1, at 11 (arguing that free expression claims fail because
Plaintiff didn’t “engage in any protected speech”’); 12 (arguing that McVey compels dismissal of
Plaintiff's freedom of association claims). Since the above analysis applies to both claims, the
Court will deny the Motion as to both the freedom of expression and freedom of association claims.
“y5°

must read all factual allegations in a light most favorable to Plaintiff, drawing all inferences in his
favor.. Nemet Chevrolet, 591 F.3d at 253. Plaintiff has essentially alleged that his employer’s
interests In promoting efficiency is minimal by noting that another employee who allegedly _

participated in the heated exchange was not disciplined or terminated. ECF 1, at 8 4 49 (alleging
that Plaintiff and Holochwost were terminated while no action was taken against Alvarado, who
was on the “other side” of that debate). Plaintiff has also alleged that his role in the debate had

. little to no impact on the performance of his duties since he did not even participate in the
discussion and quickly “returned to the maintenance shop, and began performing other custodial

duties.” Jd. at49417. By contrast, Secretary Kurtz essentially alleges that, at minimum, the heated □
debate impaired harmony among workers, detrimentally. impacted working relationships, and .
interfered with agency operations. Cf McVey, 157 F.3d at 278. Though discovery might produce
evidence that confirms just that, at this stage of the litigation, the Court cannot make sucha
determination. See Love v. Hogan, No. 21-CV-02029-JRR, 2022 WL 3369288: at *9 (D. Md.
Aug. 15, 2022) (“Even considering the exhibits attached to the Motion, the court declines to
consider whether Plaintiff meets the Connick-Pickering test at this stage, as substantially more
evidence is required to undertake such an analysis, rendering it inappropriate for resolution at the
12(b)(6) stage.”), □

. Finally, under the third prong of the First Amendment retaliation test, the Court considers
whether the Plaintiff has sufficiently alleged that the alleged speech was a “substantial factor” in
his termination, Massaro, 95 F.4th at 905. To satisfy this standard, a plaintiff “must show that
‘but for’ the protected expression the [state actor] would not have taken the alleged retaliatory
action.” Porter v. Bd. of Trustees of N. Carolina State Univ., 72 F Ath 573, 583 (4th Cir. 2023),
cert. denied, 144 S. Ct. 693 (2024) (quoting Raub v. Campbell, 785 F.3d 876, 885 (4th Cir. 2015)

(alterations in Raub) (emphasis in Porter)). Again, Plaintiff has supported his allegation that his
perceived participation in a politically charged conversation, or his association with Holochwost,
who did participate in the conversation, ultimately led to Plaintiff's termination. ECF 1, at 3-4 {J
15-17. Dismissal of Plaintiffs First Amendment claims is therefore not warranted at this time.
IV. CONCLUSION

_ For the foregoing reasons, Defendants’ motion to dismiss is GRANTED as to Plaintiff's

MFEPA claims and DENIED as to Plaintiff's remaining claims.
A separate implementing Order will issue.

Dated: January 29, 2025 - /s/
Brendan A. Hurson
United States District Judge ~

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10790277. Public record. Not legal advice.