Doe v. Montgomery County Board of Education

FOR THE DISTRICT OF MARYLAND

JANE DOE, *

Plaintiff, *

v. * Civil Action No. GLR-24-2884

MONTGOMERY COUNTY BOARD *

OF EDUCATION,

*

Defendant.

***

MEMORANDUM OPINION

THIS MATTER is before the Court on Defendant Montgomery County Board of

Education’s (the “Board”) Motion to Dismiss for Failure to State a Claim (ECF No. 11).

The Motion is ripe for disposition, and no hearing is necessary. See Local Rule 105.6

(D.Md. 2023). For the reasons outlined below, the Court will grant in part and deny in the

part the Motion.

I. BACKGROUND

II. Factual Background1

Plaintiff Jane Doe, a self-identified female, was employed by the Montgomery

County Board of Education as a paraeducator at Hallie Wells Middle School in Clarksburg,

Maryland. (Compl. ¶¶ 2, 12–13, ECF No. 6). She alleges that she was sexually harassed by

a co-worker between January and April 2023, and was retaliated against when she opposed

the harassment. (See id. ¶ 1).

1 Unless otherwise noted, the Court takes the following facts from the Complaint

(ECF No. 6) and accepts them as true. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

by a fellow paraeducator, Damien Murray. (Id. ¶ 12). Doe alleges several specific incidents

of harassment over the course of January, February, and April 2023. (See id. ¶¶ 14–27).

Murray “routinely made dirty and sexual looks” at Doe. (Id. ¶ 17). Among other sexual

comments, Murray expressly asked Plaintiff “if they could f[***] while Plaintiff’s daughter

was nearby.” (Id. ¶ 27). Doe states that because of Murray’s behavior, she “did not feel

safe working in the same school as Mr. Murray,” (id. ¶ 29), and “was forced to take great

lengths to try and avoid Mr. Murray at school,” (id. ¶ 28).

Doe also alleges that “[a]s early as February of 2023, Plaintiff’s supervisors knew

about Mr. Murray’s inappropriate behavior with Plaintiff and others.” (Id. ¶ 30). Dr.

Woodward, a prior school principal, “had previously instructed Mr. Murray to keep his

distance from another Paraeducator.” (Id.). Doe observed Murray violating the instruction.

(Id.). Even after this warning, Doe alleges that the administration “failed to take any action

against Mr. Murray, despite being aware of his behavior.” (Id. ¶ 31).

On April 27, 2023, Doe reported the harassment to Tara Kelly, an Assistant

Administrator, (id. ¶ 32), and on April 28, 2023, Doe filed a formal complaint with the

principal at the time, William Currence, (id. ¶ 33). Soon after, Doe, who “did not feel safe”

working with Murray, went on leave. (Id. ¶ 34). Doe alleges that the Department of

Compliance and Investigations (“DCI”) conducted a “cursory investigation” of her

complaint, (id. ¶ 35), but states that DCI has a “known history of mishandling

complaints . . . and failing to properly investigate reports of harassment,” (id. ¶ 36). Doe

2

investigation, despite her many requests for information. (Id. ¶ 37).

On June 12, 2023, Doe was informed that “DCI found no evidence of sexual

harassment, and that Mr. Murray would not be removed.” (Id. ¶ 38). Because she felt that

she could not safely return to school with Murray, “she was forced to accept an assignment”

as an office secretary at another school on August 16, 2023. (Id. ¶¶ 39–40). Doe states that

this was the “only job she could find,” “it was undesirable because it was not a Paraeducator

position, which is [what] she was trained for and wished to do,” and caused her to lose

relationships with her students. (Id. ¶ 40). Further, the new position paid less per hour and

required that she work more hours per day. (Id. ¶ 41).

B. Procedural History

Doe filed a charge with the Equal Employment Opportunity Commission (“EEOC”)

and received a right-to-sue letter on August 8, 2024. (Id. ¶¶ 10–11). On August 14, 2024,

Doe filed a lawsuit in the Circuit Court for Montgomery County. (ECF No. 1-2). On

October 4, 2024, the Board removed the case to this Court based on federal question

jurisdiction. (See Notice Removal, ECF No. 1-1).

In her Complaint, Doe alleges: sexual harassment in violation of the Maryland Fair

Employment Practices Act (“FEPA”) and Title VII of the Civil Rights Act of 1964 (“Title

VII”) (Counts I & II) which the Court construes under a hostile work environment

framework; and retaliation under FEPA and Title VII (Counts III & IV). (See Compl.

¶¶ 44–69, ECF No. 6). Doe seeks a declaratory judgment that the Board “wrongfully

deprived [her] of her rights, privileges, protections, compensation, and other benefits and

3

costs. (Id. ¶ 70).

The Board now moves to dismiss all counts against it for failure to state a claim

upon which relief may be granted. (ECF Nos. 11, 12). Doe filed an Opposition on October

22, 2024. (ECF No. 14). The Board filed a Reply on November 5, 2024. (ECF No. 15).

III. DISCUSSION

A. Standard of Review

The purpose of a Rule 12(b)(6) motion is to “test[] the sufficiency of a complaint,”

not to “resolve contests surrounding the facts, the merits of a claim, or the applicability of

defenses.” King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016) (quoting Edwards v. City

of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). A complaint fails to state a claim if it

does not contain “a short and plain statement of the claim showing that the pleader is

entitled to relief,” Fed.R.Civ.P. 8(a)(2), or does not “state a claim to relief that is plausible

on its face,” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Though the plaintiff is

not required to forecast evidence to prove the elements of the claim, the complaint must

allege sufficient facts to establish each element. Goss v. Bank of Am., N.A., 917 F.Supp.2d

4

546 F.App’x 165 (4th Cir. 2013).

In considering a Rule 12(b)(6) motion, a court must examine the complaint as a

whole, consider the factual allegations in the complaint as true, and construe the factual

allegations in the light most favorable to the plaintiff. Albright v. Oliver, 510 U.S. 266, 268

(1994); Lambeth v. Bd. of Comm’rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005)

(citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). But the court need not accept

unsupported or conclusory factual allegations devoid of any reference to actual events,

United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979), or legal conclusions

couched as factual allegations, Iqbal, 556 U.S. at 678.

B. Analysis

The Board moves for dismissal on two grounds. First, the Board argues that Doe

fails to plausibly allege the elements of each claim; specifically, that Doe failed to allege

Murray’s conduct was imputable to the Board, that she did not allege that she suffered an

adverse employment action, and that she failed to allege that any adverse action was

causally connected to her complaint of sexual harassment. Second, the Board argues that

Doe is not entitled to punitive damages because it has not waived sovereign immunity for

sovereign immunity claims.

5

Doe alleges that she was sexually harassed by a co-worker between January and

April 2023 which created a hostile work environment in violation of FEPA and Title VII.

(Compl. ¶ 1). Title VII provides a cause of action for hostile work environment where “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.” Mustafa v. Iancu, 313 F.Supp.3d 684, 695

(E.D.Va. 2018) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). “A hostile

work environment claim is composed of a series of separate acts that collectively constitute

one unlawful employment practice.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

117 (2002) (cleaned up). To state a hostile work environment claim, a plaintiff must plead

that there is “(1) unwelcome conduct; (2) that is based on the plaintiff’s . . . race [or

gender]; (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.” Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 277 (4th Cir. 2015)

(quoting Okoli v. City of Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)).

The Board challenges only the fourth element: that Doe failed to allege her abusive

work environment is imputable to the Board. See Bazemore v. Best Buy, 957 F.3d 195,

2 FEPA is the Maryland state analogue of Title VII and federal courts apply Title

VII caselaw in adjudicating FEPA claims. Williams v. Silver Spring Volunteer Fire Dep’t,

86 F.Supp.3d 398, 408 n.1 (D.Md. 2015) (citing Haas v. Lockheed Martin Corp., 914 A.2d

735, 742 (Md. 2007)). Accordingly, the Court’s analysis of Doe’s Title VII claim shall

constitute its analysis of her FEPA claims. See id.

6

allege sufficient facts to plausibly satisfy the imputability requirement.”). When an

employee is sexually harassed by her coworker, the alleged hostile work environment

which results from that harassment is imputable to the employer only if the “employer

knew, or should have known, about the harassment and failed to take action reasonably

calculated to stop it.” Id. at 203.

In support of her hostile work environment claims under Counts I and II, Doe alleges

repeated instances where Murray made offensive comments and gestures to Doe based on

her sex. (See Compl. ¶¶ 14–28). She claims that she “did not feel safe working in the same

school as Mr. Murray” and that she “lost her sense of security when out near her house, as

she was afraid to run into him.” (Id. ¶ 29). Doe further alleges that the Board exhibited

reckless indifference to the harassment, having “actual and constructive knowledge of the

hostile work environment” to which Doe was subjected. (Id. ¶¶ 50, 56). Doe alleges that

the Board failed to take reasonable action to stop Murray’s behavior because it “knew about

Mr. Murray’s inappropriate behavior with Plaintiff and others” in February of 2023 and

merely instructed Murray to “keep his distance” from another coworker, which Murray

disregarded. (Id. ¶ 30). On April 27, 2023, Doe expressly reported the sexual harassment

to an assistant administrator leading DCI to conduct its investigation. (Id. ¶¶ 32, 35–38).

The Board argues that once it knew of the alleged harassment, it “acted promptly to

investigate the allegation of harassment after Plaintiff reported it.” (Def.’s Mem. Supp.

7

knowledge of Murray’s inappropriate behavior toward another coworker, the Board argues

that the allegation is “insufficient to place the Board on notice that Mr. Murray would

sexually harass the Plaintiff.” (Id.). To argue it was not on notice of Murray’s behavior, the

Board relies on Howard v. Winter, where the Fourth Circuit affirmed summary judgment

in favor of an employer where the employee claimed a coworker “often spoke to her in a

sexually provocative manner and fondled her breasts, backside, and face.” 446 F.3d 559,

562, 571 (4th Cir. 2006). The Howard court held that the plaintiff’s employer was not “on

notice” of the alleged sexual harassment when the employer knew that the alleged harasser

had previously used inappropriate language and displayed inappropriate photographs

because the conduct involved “isolated past uses of inappropriate language and displays of

lewd images.” Id. at 568–69. The court held that “a factfinder may not—without more—

find that an employer had notice of the type of specific harassment alleged here based

solely on the alleged harasser’s isolated past uses of inappropriate language and displays

of lewd images.” Id. at 569.

Here, Doe does not allege “isolated” or sporadic conduct that should have given

notice to her supervisors that Murray was a sexual harasser. Id. at 568. Rather, Doe states

that “[a]s early as February of 2023, Plaintiff’s supervisors knew about Mr. Murray’s

inappropriate behavior with Plaintiff and others” and that the principal “had previously

3 Citations to the page numbers refer to the pagination assigned by the Court’s Case

Management/Electronic Case Files (“CM/ECF”) system.

8

is true that Doe does not explain why Murray was instructed to “keep his distance” from a

coworker, but the Court, viewing the allegation in a light most favorable to Doe, can

reasonably infer that Murray’s past behavior also involved “the type of specific harassment

alleged here.” Howard, 446 F.3d at 569. Doe also alleges that Murray, on at least one

occasion, did not keep his distance from the other paraeducator and the administration

continued to fail to take any action “despite being aware of his behavior.” (Compl. ¶¶ 30–

31). These allegations adequately accuse the Board of knowing about the harassment and

“fail[ing] to take action reasonably calculated to stop it.” Bazemore, 957 F.3d at 203.

Viewing the facts set forth above in the light most favorable to Doe, her hostile work

environment claims plead sufficient facts to plausibly allege that the Board “knew, or

should have known, about the harassment,” and that it “failed to take action reasonably

calculated to stop it.” Id. at 201. Murray’s conduct is imputable to the Board and the Court

can infer that the Board was negligent in response to Murray’s conduct. As this is the only

basis for the Board’s Motion, the Court will deny the Motion as to Counts I and II.

2. Title VII and FEPA Retaliation

Title VII prohibits discrimination against an employee in retaliation for the

employee’s opposing the employer’s illegal discrimination practices. See 42 U.S.C.

§ 2000e-3(a). To state a claim for retaliation under Title VII, a plaintiff must allege “(1) that

she engaged in a protected activity . . . (2) that her employer took an adverse employment

action against her, and (3) that there was a causal link between the two events.” Boyer-

Liberto, 786 F.3d at 281 (quoting E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405–

9

affects the terms, conditions, or benefits of the plaintiff’s employment.” James v. Booz-

Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (cleaned up). The plaintiff must

allege that the employer’s conduct was such 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.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v.

Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). The adverse action “need not affect the

terms and conditions of employment,” Barnes v. Charles Cnty. Pub. Schs., 747 F.App’x

115, 119 (4th Cir. 2018) (per curiam), but the conduct must impose “some direct or indirect

impact on an individual’s employment as opposed to harms immaterially related to it.” Ray

v. Int’l Paper Co., 909 F.3d 661, 670 (4th Cir. 2018) (quoting Adams v. Anne Arundel

Cnty. Pub. Schs., 789 F.3d 422, 431 (4th Cir. 2015)).

In support of her retaliation claims under Counts III and IV, Doe alleges that the

Board retaliated against her by conducting a “sham investigation” and by failing to remove

Murray from his position at the school or otherwise discipline him. (Compl. ¶¶ 61, 67).

Doe states that the Board did so in such a manner to dissuade a reasonable person from

filing such a complaint, (id. ¶¶ 60, 66), and because she felt that she could not safely return

to school with Murray, “she was forced to accept” a less desirable assignment at another

school, (id. ¶¶ 39–40).

10

The Board argues that (1) the Board did not subject Doe to adverse action, and (2)

any adverse action was not causally connected to her complaint of sexual harassment. (Mot.

at 8–9). As to the adverse action, the Board paints Doe’s decision to leave her position and

take a less desirable one as a “unilateral decision” that is insufficient to allege an adverse

action attributable to the Board. (Id. at 10). Doe responds that she has alleged an adverse

action in the form of a “constructive transfer” to a less desirable job because her work

environment was so intolerable and the Board “refused to protect her from the severe and

ongoing sexual harassment.” (Pl.’s Mem. L. Opp’n Def.’s Mot. Dismiss [“Opp’n] at 9–10,

ECF No. 14).

The Court agrees with Doe. While the Fourth Circuit has not yet recognized the

legal theory of “constructive transfer” or “constructive-demotion,” Laird v. Fairfax County

counsels in favor of finding an adverse action based on the facts alleged here. 978 F.3d 887

(4th Cir. 2020). In Laird, the plaintiff claimed she was transferred to another department in

retaliation for filing a complaint with the EEOC for discrimination on the basis of her

disability. Id. at 890.4 She asserted that she was “effectively demoted because of her

disability and because she pursued a complaint of disability discrimination.” Id. at 894.

The Court held that such a claim “fails for a simple reason: If an employee voluntarily

requests a transfer, and the employer agrees to it, there is no actionable adverse action.” Id.

4 The Court explained that “we treat the Title VII context as being ‘analogous’ to

the ADA” for purposes of “determining whether there is an adverse action for Title VII’s

antiretaliation provision.” Laird, 978 F.3d at 893 n.5.

11

adverse action. Id. at 894 n.7. The Court noted that “the Fourth Circuit has yet to decide

whether a claim of constructive demotion is cognizable under the ADA [or Title VII],” id.,

and did not consider the issue since Laird had voluntarily sought and negotiated her transfer

as a reasonable accommodation to her disability. Id. at 894–95. In a concurring opinion,

Judge Wynn explained that he joined the majority “[b]ecause Laird clearly and

unambiguously abandoned her constructive demotion claim on appeal.” Id. at 895 (Wynn,

J., concurring). Judge Wynn explained that “a request for a transfer is not ‘voluntary’ if an

employee is subject to work conditions sufficiently intolerable to force them to seek a

transfer. Put more directly, a transfer is not voluntary if the employee was constructively

demoted.” Id. (emphasis in original). Because the Fourth Circuit has “previously held that

demotion may cause a constructive discharge,” id. at 896 (citing Carter v. Ball, 33 F.3d

450, 459 (4th Cir. 1994)), constructive demotion should be reviewed under the same

analysis as constructive discharge, id. (citing Heiko v. Colombo Sav. Bank, F.S.B., 434

F.3d 249, 262 (4th Cir. 2006)).

To allege a constructive discharge, “a plaintiff must show ‘that [s]he was

discriminated against by h[er] employer to the point where a reasonable person in h[er]

position would have felt compelled to resign’ and that she actually resigned.” Evans v. Int’l

Paper Co., 936 F.3d 183, 193 (4th Cir. 2019) (quoting Green v. Brennan, 578 U.S. 547,

555 (2016)). The conditions must go “beyond ‘ordinary’ discrimination.” Id. (quoting

Penn. State Police v. Suders, 542 U.S. 129, 147 (2004)). Courts evaluating constructive

discharge claims must consider whether a plaintiff’s workplace was so intolerable that she

12

at 262 (citing Williams v. Giant Food Inc., 370 F.3d 423 (4th Cir. 2004)). “However, mere

dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or

unpleasant working conditions are not so intolerable as to compel a reasonable person to

resign.” Id. (quoting James, 368 F.3d at 378). “In assessing intolerability, the frequency of

the conditions at issue is important.” Evans, 936 F.3d at 193 (citation omitted). Thus, “[t]he

more continuous the conduct, the more likely it will establish the required intolerability.

On the other hand, when the conduct is isolated or infrequent, it is less likely to establish

the requisite intolerability.” Id. Finally, the Fourth Circuit has advised that courts should

consider “the totality of the circumstances” in determining whether a resignation was, in

fact, a constructive discharge. See Bodkin v. Town of Strasburg, 386 F.App’x 411, 413

(4th Cir. 2010).

Adapting this standard in the context of Doe’s alleged forced transfer to a less

desirable position, the Court finds that Doe has adequately pleaded an adverse employment

action. Doe has alleged facts that show Murray’s behavior was continuous and intolerable.

She expressly pleaded that she was “forced to accept” the less desirable assignment to

avoid working alongside her alleged harasser. (Compl. ¶ 40). The Court finds that this is

sufficient to allege constructive demotion as an adverse employment action.

b. Causation

The Court also finds that Doe has alleged facts to show that the adverse action was

causally connected to her complaint of sexual harassment. “To satisfy the [causation]

element, the employer must have taken the adverse employment action because the plaintiff

13

145 F.3d 653, 657 (4th Cir. 1998) (emphasis in original). At the motion to dismiss stage, a

plaintiff can “show that the adverse act bears sufficient temporal proximity to the protected

activity,” or plead “facts that suggest that the adverse action occurred because of the

protected activity.” Laurent-Workman v. Wormuth, 54 F.4th 201, 218–19 (4th Cir. 2022)

(quoting Smith v. CSRA, 12 F.4th 396, 417 (4th Cir. 2021)).

The relevant timeline for sufficient temporal proximity is as follows: Doe alleges

that she reported Murray’s harassment on April 27, 2023 and then filed a formal complaint

with her principal on April 28, 2023. (Compl. ¶¶ 32–33). Doe alleges that DCI conducted

a “sham investigation” of her complaint, (id. ¶¶ 42, 61, 67), and on June 12, 2023, Doe was

informed that “DCI found no evidence of sexual harassment, and that Mr. Murray would

not be removed.” (Id. ¶ 38). Because she felt that she could not safely return to school with

Murray, “she was forced to accept an assignment” in a position that started on August 16,

2023. (Id. ¶¶ 39–40).

The Board contends that four months (from the date she first reported her

harassment to the date she started at her new position) is outside the temporal proximity to

support an inference of retaliation. (Mot. at 11). Plaintiff points to the temporal proximity

between her complaint (April 27) and her being informed that Murray would not be

removed (June 12), which was the event that triggered her transfer. (Opp’n at 11).

“Although there is no bright-line rule for when temporal proximity helps or hurts a cause

of action for retaliation, a two-month temporal gap “between [] notice of the complaint and

the adverse employment action is sufficiently long so as to weaken significantly the

14

(quoting King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003) (quotation marks

omitted). Therefore, the Court should look to other facts to draw an inference that the

adverse action occurred because of Doe’s protected activity. Lettieri v. Equant Inc., 478

F.3d 640, 650 (4th Cir. 2007) (“In cases where ‘temporal proximity between protected

activity and allegedly retaliatory conduct is missing, courts may look to the intervening

period for other evidence of retaliatory animus.” (quoting Farrell v. Planters Lifesavers

Co., 206 F.3d 271, 281 (3d Cir. 2000))).

Here, less than four months passed between Plaintiff’s protected activity on April

27, 2023, and her acceptance of a new position on August 16, 2023. Arguably, the

intervening summer holiday could be a factor in assessing whether the lapse in time

qualifies as an adequate temporal link. But Doe points to the additional events during that

time period, which viewing in the light most favorable to Doe, could be due to retaliatory

animus. These include: (1) failing to conduct a proper investigation into her complaint, (2)

failing to inform Doe of updates on her complaint despite her requests for information, and

(3) failing to take any action, “such as removing Mr. Murray from his position,” to protect

her. (Opp’n at 12).

“[E]stablishing a ‘causal relationship’ at the prima facie stage is not an onerous

burden,” Strothers v. City of Laurel, 895 F.3d 317, 335 (4th Cir. 2018), and “very little

evidence of a causal connection is required,” Roberts v. Glenn Indus. Grp., Inc., 998 F.3d

111, 127 (4th Cir. 2021). At this stage, Doe’s allegations are sufficient. Accordingly, the

Court denies the Motion as to Counts III and IV.

15

The Court will dismiss Doe’s claim for punitive damages. Doe concedes that

punitive damages are unavailable because under Maryland Code, § 20-1013(e) of the State

Government Article, she may only recover punitive damages “if the respondent is not a

government unit or political subdivision” and when the court finds “that the respondent has

engaged in or is engaging in an unlawful employment practice with malice.” (Opp’n at 12

n.3). The Board is a state agency. See Bd. of Educ. of Balt. Cnty. v. Zimmer-Rubert, 973

A.2d 233, 236 (Md. 2009) (“We have long considered county school boards to be State

agencies rather than independent, local bodies.”); James v. Frederick Cnty. Pub. Schs., 441

F.Supp.2d 755, 760 (D. Md. 2006) (dismissing with prejudice a § 1983 claim against

Frederick County Board of Education because “county boards of education of Maryland

are state agencies”). The Court will grant the motion as to punitive damages.

IV. CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part the Board’s

Motion to Dismiss for Failure to State a Claim (ECF No. 11). A separate order follows.

Entered this 30th day of May, 2025

/s/

George L. Russell, III

Chief United States District Judge

16