Opinion
CIVIL NO. H-01-720
July 19, 2001
MEMORANDUM AND ORDER
A former employee of the Dorchester County Health Department (the "DCHD"), Elizabeth Joyce Temple ("Temple") has filed a civil action in this Court asserting claims under 42 U.S.C. § 1983 ("§ 1983"), under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII") and under state law. Plaintiff alleges that eight individual defendants subjected her to sexual harassment and retaliation, and she is here seeking compensatory and punitive damages as well as injunctive relief.
Suit has been brought against the eight named defendants both individually and in their official capacities. Named as defendants are Dr. George C. Benjamin (Secretary of the Department of Health and Mental Hygiene of the State of Maryland), five County Commissioners of Dorchester County (Thomas Flowers, Effie Elzey, Jay Newcomb, William Nichols and Glenn Payne), Roger Harrell (Health Officer of the DCHD), and Jay Cutler (Acting Director of the DCHD).
Presently pending before the Court are two motions to dismiss the complaint. A motion to dismiss has been filed by the five Dorchester County Commissioners (hereinafter the "County Defendants") and a separate motion to dismiss has been filed by defendants Benjamin, Harrell and Cutler (hereinafter the "State Defendants"). Memoranda in support of and in opposition to these motions have been filed by the parties. No hearing is necessary for a decision. See Local Rule 105.6. For the reasons stated herein, both motions to dismiss will be granted. However, plaintiff will be permitted to file an amended complaint asserting certain claims against the State of Maryland under Title VII.
The Attorney General of Maryland represents the State Defendants.
I. Allegations of the Complaint
Plaintiff's 20-page complaint has been sloppily drafted by her attorney. As filed with the Clerk, the complaint contained no page 6. There are several misspellings, and various counts have been misnumbered. There is a Count 2 on page 15 and another Count 2 on page 16. There is a Count 3 on page 16 and another Count 3 on page 17. Presumably, counsel for plaintiff intended that the complaint should contain six different counts.
Among other deficiencies, critical dates have not been included, and, in particular, the complaint is unclear as to the precise dates when one or more of the defendants engaged in allegedly discriminatory acts.
According to the complaint, plaintiff started working for the DCHD as an Addictions Counselor III in January of 1991. At a subsequent date, she quit her job but that date is not revealed in the complaint. According to plaintiff, she was sexually harassed by defendant Cutler, her supervisor, in September of 1997, in July of 1998 and in August of 1998. Three specific examples of crude and sexually explicit statements allegedly made by Cutler are set forth in Paragraph 24 of the complaint.
In Paragraph 28 of her complaint, plaintiff alleges that in August of 1998 she made an inquiry to Cutler and asked about the status of her request to do an internship through the DCHD and the Department of Social Services. Cutler allegedly told plaintiff that he would not give his approval for her to obtain the internship. According to plaintiff, Cutler denied her the opportunity to participate in this internship in retaliation for her reporting his sexually explicit comments to defendant Harrell. It is alleged in Paragraph 26 that plaintiff also discussed with Cutler her need to complete the internship in the Spring of 2000. Although plaintiff asserts that Cutler told her that he could schedule her to be supervised by a social worker so that she could participate in the internship program, it is not alleged that Cutler once again in 2000 denied her request for an internship. In Paragraph 28, plaintiff alleges that she found out in August of 2000 that another DCHD employee was granted the same internship which was denied the plaintiff even though plaintiff had applied for that internship first.
On September 5, 2000, plaintiff filed a charge of discrimination with the Maryland Commission on Human Relations (the "MCHR"). In that charge, she alleged that the discrimination at issue took place on August 18, 2000. She further there alleged that she quit her job under duress of the sexual harassment and that she felt that she was being disciplined more severely after reporting the sexual harassment to a County Health Officer. The date when plaintiff quit her job and was no longer an employee of the DCHD has not been indicated either in the complaint or in the charge which she filed with the MCHR.
A copy of that charge was attached to the State Defendants' motion to dismiss.
II. Plaintiff's Claims
The complaint contains six counts. Count 1 asserts a claim of sexual harassment against all defendants under § 1983. Count 2 alleges a claim of sexual harassment against defendant Cutler under Title VII. In Count 3 (misnumbered as Count 2), a Title VII claim of sexual harassment is alleged against defendant Harrell on the ground that he was deliberately indifferent to the complaint that plaintiff made to him about Cutler's sexual harassment.
Count 4 (misnumbered Count 3) alleges a separate claim against defendant Harrell under Title VII. Count 5 (misnumbered Count 3) asserts a claim under state law of intentional infliction of emotional distress against defendant Cutler. Count 6 asserts that the Dorchester County Commissioners and defendant Benjamin are liable for the tort of intentional infliction of emotional distress committed by defendant Cutler.
III. Applicable Principles
It is well established that a motion to dismiss filed under Rule 12(b)(6), F.R.Civ.P., should be denied unless it appears beyond doubt that a plaintiff can prove no set of facts in support of her claim which would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In determining whether to dismiss a complaint, this Court must view the well-pleaded material allegations in a light most favorable to the plaintiff, with the alleged facts accepted as true. 2A Moore's Federal Practice, ¶ 12.07 [2.-5] (2d ed. 1987); 5A C. Wright A. Miller, Federal Practice and Procedure § 1357, at 304-21 (1990).
The allegations contained in a complaint should be construed liberally in favor of the pleader. Scheurer v. Rhodes, 416 U.S. 232, 236 (1974). The issue for a court in reviewing the sufficiency of the pleadings in a complaint is not whether a plaintiff will ultimately prevail, but whether the plaintiff is entitled to offer evidence to support the claims. Id.
IV. Count 1 — Section 1983
In Count 1, plaintiff has alleged claims of sexual harassment under § 1983 against both the State Defendants and the County Defendants. Insofar as the State Defendants are concerned, it is apparent that plaintiff's § 1983 claim is based on the same allegations as her Title VII claims alleged in Counts 2, 3 and 4.
In Great American Savings Loan v. Novotny, 442 U.S. 366 (1979), the Supreme Court noted that cases of alleged employment discrimination are subject to detailed administrative and judicial processes, and the Supreme Court stated that, by allowing a claim alleging discrimination to go forward in a suit brought under § 1983, "a complainant could avoid most if not all of these detailed and specific provisions." Id. at 372, 375-78. In Middlesex County Sewerage Auth. v. National Sea Clamers Ass'n, 453 U.S. 1, 20 (1981), the Supreme Court stated that when "a state official is alleged to have violated a federal statue which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directly under § 1983." Both the Fourth Circuit and this Court have held that the fact that a plaintiff originally could have instituted a Title VII cause of action precluded a suit brought under § 1983 for violation of the Fourteenth Amendment. Zombro v. Baltimore City Police Dept., 868 F.2d 1364, 1366-67 (4th Cir. 1989), cert. denied, 493 U.S. 850 (1989); Burtnick v. McLean, 953 F. Supp. 121-123 (D.Md. 1997).
These principles are applicable to plaintiff's claim of sexual harassment asserted in this case under § 1983 against the State Defendants. For the reasons stated in the cases cited hereinabove, this Court concludes that plaintiff may not in Count 1 present in this Court a § 1983 cause of action based on a claim of sexual harassment which is identical to her Title VII claims asserted elsewhere in the complaint.
A somewhat different analysis applies to plaintiff's claims asserted under § 1983 against the County Defendants. Plaintiff was not employed by the County Defendants. In Paragraph 23 of her complaint, she alleges that she was working for the DCHD as "a state employee. . ." In the memorandum filed by plaintiff in opposition to the motion to dismiss of the County Defendants, plaintiff concedes that she has not claimed that the Dorchester County Commissioners "were at any time her employer."
Under the circumstances, plaintiff is not entitled to sue the County Defendants under Title VII. Title VII makes it unlawful for "an employer" to discriminate against an individual. 42 U.S.C. § 2000e-2(a)(1). Since plaintiff is not entitled to sue the County Defendants under Title VII, she would be entitled to proceed under § 1983 if she has properly alleged a claim under that statute.
Plaintiff argues that she is entitled to sue the County Defendants under § 1983 pursuant to the principles enunciated by the Supreme Court in Monell v. Dep't. of Social Servs, 436 U.S. 658 (1978). The Court must disagree.
It is alleged in the complaint that the County Commissioners failed to properly train, monitor and supervise defendants Harrell and Cutler about their responsibilities under federal sexual harassment law and that such failure constituted a custom or policy actionable under Monell. But, as noted, neither Dorchester County nor any of its County Commissioners was the "employer" of Cutler and Harrell. It was not the duty or responsibility of the County to give proper training to these two individuals who are employees of the State of Maryland. As established by the affidavit of Jane Baynard, Acting County Administrator, Dorchester County is not involved in the administration or personnel practices of the DCHD. Since Harrell and Cutler were State employees, the State had the responsibility to provide training and instruction to these supervisors of plaintiff. The alleged policy and custom in question could not therefore have constituted the "moving force" behind the injury alleged by plaintiff. See Board of County Comm'rs v. Brown, 520 U.S. 397 (1997). If County officials may have improperly assisted in the training of Harrell and Cutler, their actions might lead to a claim of negligence but would not constitute a basis for an equal protection claim brought under § 1983 against the County Defendants.
For these reasons, Count 1 of the complaint will be dismissed as to all defendants without leave to amend.
V. Counts 2, 3 and 4 — Title VII
Counts 2, 3 and 4 of the complaint all assert claims under Title VII. The descriptive heading in each of these counts is "SEXUAL HARASSMENT." Cutler is named as the sole defendant in Count 2, and Harrell is named as the sole defendant in both Count 3 and Count 4. Although in Paragraph 20 of the complaint there are allegations that Harrell and Cutler engaged in retaliatory conduct in violation of Title VII, Counts 2, 3 and 4 do not specifically allege claims of retaliation.
Plaintiff has erroneously named Cutler and Harrell as defendants in Counts 2, 3 and 4 of the complaint. As noted herein, the State of Maryland was plaintiff's employer, while Cutler and Harrell were at all relevant times her supervisors.
Plaintiff's Title VII claims against defendants Cutler and Harrell are foreclosed by the Fourth Circuit opinion in Lissau v. Southern Food Service, Inc., 159 F.3d 177, 180 (4th Cir. 1998). In Lissau, the Fourth Circuit flatly held that supervisors are not liable in their individual capacities for sexual harassment in violation of Title VII. Id. The Court reasoned that Congress intended that only an employer may be held liable for a Title VII violation and noted that nowhere in the Civil Rights Act of 1991 was individual liability mentioned as an available remedy. Id. at 181.
For these reasons, Counts 2, 3 and 4 of the complaint will be dismissed without leave to amend.
VI. Counts 5 and 6 — Intentional Infliction of Emotional Distress
In Counts 5 and 6 of the complaint, plaintiff seeks a recovery from defendant Cutler, from the County Defendants and from defendant Benjamin for the intentional infliction of emotional distress. It is alleged in Count 5 that Cutler's uninvited and unsolicited statements to plaintiff were vulgar, extreme and outrageous as a matter of Maryland law. It is alleged in Count 6 that the County defendants and Benjamin are liable for the intentional infliction of emotional distress committed by Cutler.
The tort of intentional infliction of emotional distress is rarely viable in a case brought under Maryland law. Bagwell v. Peninsula Reg'l Med. Ctr., 106 Md. App. 470, 514 (1995), cert. denied, 341 Md. 172 (1966). The tort is to be used "sparingly" and only for "opprobrious behavior that includes truly outrageous conduct." Kentucky Fried Chicken Nat'l Mgmt. Co. v. Weatersby, 326 Md. 663, 670 (1992). The elements of such a claim were set forth by the Court of Appeals of Maryland in Harris v. Jones, 281 Md. 560, 566 (1977), as follows:
(1) The conduct must be intentional or reckless;
(2) The conduct must be extreme and outrageous;
(3) There must be a causal connection between the wrongful conduct and the emotional distress; and
(4) The emotional distress must be severe.
Each of these elements must be pled with specificity. Foor v. Juvenile Services Admin., 78 Md. App. 151, 175, cert. denied, 316 Md. 364 (1989). A plaintiff must set forth facts which would suffice to demonstrate that all the elements exist. Id.
Following its review of the allegations of the complaint, the Court has concluded that the claims asserted by plaintiff in Counts 5 and 6 must be dismissed. Maryland courts have established a high standard of culpability before conduct can be considered "extreme and outrageous." Harris, 281 Md. at 566-572. Plaintiff has failed to allege conduct on the part of Cutler which was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." Id. at 567. To be actionable, the conduct relied upon in this case "must strike to the very core of one's being, threatening to shatter the frame upon which one's emotional fabric is hung." Hamilton v. Ford Motor Credit Co., ¶¶ Md. App. 46, 59-60, cert. denied, 306 Md. 118 (1986). The allegations here do not satisfy the requirement of the Maryland cases that a plaintiff must specifically plead and prove extreme and outrageous conduct. See Farasat v. Paulikas, 32 F. Supp.2d 244, 247-48 (D.Md. 1998).
For these reasons, Counts 5 and 6 of the complaint will be dismissed without leave to amend.
VII. Leave to File an Amended Complaint
When the allegations of plaintiff's poorly drafted complaint are viewed in a light most favorable to the plaintiff and are construed liberally in favor of plaintiff, the Court concludes that plaintiff should be granted leave to file an amended complaint. Leave to file an amended complaint "shall be freely given when justice so requires." Rule 15(a), F.R.Civ.P. It is apparent that plaintiff has been attempting to assert Title VII claims of sexual harassment and retaliation against her former employer. However, as discussed herein, her former employer was the State of Maryland and not the individuals named as defendants in the complaint. Whether or not the allegations later set forth by plaintiff in an amended complaint will permit plaintiff to go forward with her claims must await the filing by her of the new pleading in question.
There are two general types of sexual harassment: (1) "quid pro quo" harassment, in which a tangible employment action is conditioned on the acceptance of the harassment or sexual favors, see e.g., Burlington Indus., Inc. v. Ellerth, 524 U.S. 742. 763 (1998); and (2) "hostile environment" harassment in which severe and pervasive harassment alters the conditions of employment. See e.g., Meritor Savings Bank v. Vincent, 477 U.S. 57, 62 (1985). To satisfy the requirements of claims of this sort, plaintiff must be guided by the principles set forth by the Fourth Circuit in Wrightson v. Pizza Hut of America, Inc., 99 F.3d 138, 142 (4th Cir. 1996) and Reinhold v. Virginia, 151 F.3d 172, 174 (4th Cir. 1998). For plaintiff to be able to allege a prima facie case of discriminatory retaliation, she should satisfy the requirements enunciated by the Fourth Circuit in Tinsley v. First Union Nat. Bank, 155 F.3d 435, 443 (4th Cir. 1998).
As noted, the present complaint relates three specific examples of crude and sexually explicit statements made by Cutler in September of 1997, in July of 1998 and in August of 1998. In Paragraph 23 of the complaint, plaintiff has also alleged that Cutler "repeatedly" made vulgar and lewd remarks, and plaintiff complains of his "repeated" sexual innuendo and sexually suggestive sounds and gestures in the office "over an extended period of time." In her amended complaint, plaintiff must be more specific. If she is relying on more than the three statements set forth in her complaint, she should state what was said or done by Cutler, when it was said or done and the circumstances surrounding the statements or conduct.
In their memorandum, the State Defendants contend that plaintiff's Title VII claims are barred by limitations because the three acts alleged as a basis for those claims occurred well before 300 days prior to September 5, 2000, the date when she filed her charge of discrimination with the MCHR. See 42 U.S.C. § 2000e-5(e). Plaintiff's present complaint is unclear concerning the dates when the alleged discriminatory acts occurred. Moreover, plaintiff has not stated the date when she quit her job. Questions arise as to whether in August of 2000 plaintiff was still an employee of the State and was then entitled to assert a timely claim under Title VII.
In responding to the amended complaint, defendant State of Maryland may move to dismiss all or parts of that pleading. Memoranda previously submitted by the Attorney General of Maryland may be adopted by reference if the arguments therein are applicable to new allegations of the amended complaint. In responding to defendant's prospective motion to dismiss the amended complaint, plaintiff may adopt by reference applicable portions of previous memoranda filed by her in opposition to the pending motions.
VIII. Conclusion
For all the reasons stated, the motion to dismiss of the County Defendants will be granted, and the motion to dismiss of the State Defendants will also be granted. Plaintiff will be permitted to file an amended complaint which complies with the rulings contained herein. Accordingly, it is this ___ day of July, 20001 by the United States District Court for the District of Maryland,
ORDERED:
1. That the motion to dismiss the complaint of defendants Flowers, Elzey, Newcomb, Nichols and Payne is hereby granted;
2. That the motion to dismiss the complaint of defendants Benjamin, Harrell and Cutler is hereby granted;
3. That leave is hereby granted to plaintiff to file an amended complaint naming State of Maryland as the sole defendant; and
4. That plaintiff's amended complaint must be filed within 20 days.