REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1482
September Term, 1998
JACQUELINE MANIKHI
v.
MASS TRANSIT ADMINISTRATION, et al.
Wenner,
Eyler,
Bloom, Theodore G.
(Ret., specially assigned),
JJ.
Opinion by Eyler, J.
Filed: July 19, 1999
On March 14, 1997, Jacqueline Manikhi, appellant, filed a
complaint in the Circuit Court for Baltimore City against
multiple defendants, alleging violations of her civil rights,
various State torts, and other claims.
One of the defendants
filed a motion to strike the complaint pursuant to Rule 2-303,
and all defendants filed motions to dismiss the complaint
pursuant to Rule 2-322(b).
The motions to dismiss set forth in
detail why the complaint failed to state a cause of action.
At
the hearing on the motions, held on September 17, 1997, the
hearing judge granted the motion to strike, observing that she
“was up around page 40--something, and [her] question was ‘So
what are the causes of action?’”[1]
Appellant was given leave to
file an amended complaint, and on October 6, 1997, appellant
filed an amended complaint with an attached 50-page affidavit.
The defendants, appellees herein, the Mass Transit Administration
(MTA), Roy Ovid, Vernon Parsons, Wade Moragne-el, Charles Pettus,
Ennis Fonder, and Nelson Zollicoffer, in official and individual
capacities, filed motions to dismiss or in the alternative for
summary judgment.
Some of the appellees moved to strike the
affidavit.
The circuit court granted the appellees’ motions to strike
1
The docket entries indicate that, prior to this hearing,
the case was removed to the U.S. District Court for the District
of Maryland but was remanded back to the circuit court.
According to the transcript of the September 17, 1997 hearing in
circuit court, the U.S. District Judge, in ordering the remand,
characterized the drafting of the complaint as “painful and
outrageous.”
the affidavit and motions to dismiss, with the exception of a
battery claim against appellee Ovid in his individual capacity.
The rulings were announced in open court, and appellant did not
request further leave to amend.[2]
The trial of the battery
claim began on April 27, 1998, and resulted in a verdict and
judgment in favor of appellee Ovid on April 30, 1998.
Appellant
noted an appeal to this Court and challenges portions of the
judgment granting the motions to dismiss.
Allegations of the Amended Complaint
In essence, appellant alleged the following in the amended
complaint.
Appellant is a female African American and was
employed by the MTA beginning in 1989.
In 1991, she began
working in MTA’s Kirk Avenue shop as an “A-Cleaner” and was
responsible for cleaning vehicles.
shift.
Appellant worked the night
Ovid, “a male of African descent from Columbia, South
America,” also worked as an A-Cleaner on the night shift during
the relevant time period.
Appellant was physically and verbally
abused by Ovid from 1991 to 1995.
The amended complaint detailed
numerous acts by Ovid, including allegations that he touched
2
Appellant’s failure to request further leave to amend is
not surprising in view of her assertion that, prior to filing the
original complaint, the subject matter of this case had been the
subject of an internal MTA investigation and a criminal
proceeding against Ovid. Presumably, all or most of the relevant
information either was within her personal knowledge or became
known to her by virtue of the prior proceedings before she
initiated this action.
- 2 -
appellant in a sexually and physically abusive manner, that he
exposed himself to her, and that he verbally teased her and
threatened to perform various acts of violence against her.
Parsons, a male Caucasian, was employed by the MTA at the
Kirk Avenue location during the relevant time period and was
appellant’s superior.
Moragne-el, a male African-American, was
chief superintendent at the Kirk Avenue location beginning in
1995.
The amended complaint alleged that both Parsons and
Moragne-el had knowledge of the harassment but did nothing to
stop it and instead condoned and encouraged Ovid’s conduct.
Appellant further alleged that the “last straw” occurred on
October 11, 1995, when appellee Ovid elbowed her and called her a
“bitch.”
On October 13, 1995, appellant filed a sexual
harassment complaint with the MTA, which was resolved in her
favor on December 8, 1995.
In 1996, appellant transferred to
another location in order to get away from the unlawful conduct
and took a lower position as a “B-Cleaner,” which allowed her to
work alone.
In approximately August, 1996, appellee Ovid was
criminally convicted based on his harassment of appellant, and
the conviction was reduced to probation before judgment after
Ovid attended counseling.
Pettus, a male African-American, was president of the
Amalgamated Transit Union, Local 1300, of which appellant was a
member.
Fonder, a male African-American, was recording secretary
of Local 1300, and Zollicoffer, a male African-American, was a
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Local 1300 official during the relevant time period.
The amended
complaint alleged that Pettus, Fonder, and Zollicoffer condoned
and encouraged the abuse; that MTA knew or should have known of
the conduct but did nothing to stop it; and that the codefendants protected Ovid.
Appellant alleged the following in specific counts:
Count I — battery against Ovid;
Count II — false imprisonment against Ovid;
Count III — aiding and abetting against all defendants;
Count IV — civil conspiracy against all defendants;
Count V — discriminatory harassment/hostile work environment
in violation of Title VII, 42 U.S.C. § 2000 against the MTA;
Count VI — retaliation in violation of Title VII, 42 U.S.C.
§ 2000 against the MTA;
Count VII — deprivation of rights secured by the federal
constitution in violation of 42 U.S.C. § 1983 against the
individual defendants;
Count VIII — a conspiracy to deprive appellant of her civil
rights because of racial and class-based animus in violation of
42 U.S.C. § 1985(3) against the individual defendants;
Count X3 — a conspiracy to interfere with justice in state
courts in violation of 42 U.S.C. § 1985(2) against Ovid, Parsons,
and Moragne-el;
3
There was no Count IX in the amended complaint.
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Count XI — criminal acts of violence against appellant
motivated by gender in violation of 42 U.S.C. § 13981 against
Ovid, Parsons, and Moragne-el;
Count XII — violations of due process, equal protection, and
free speech under Articles 24 and 40 of the Maryland Declaration
of Rights against the individual defendants;
An unnumbered count — intentional infliction of emotional
distress against all defendants;
Count XIII — slander against Ovid and Moragne-el.
Questions Presented
Appellant presents the following questions, which we have
rephrased in part:
1.
Did the circuit court err in dismissing appellant’s
Title VII discrimination claims against her employer, MTA?
2.
Did the circuit court err in dismissing appellant’s
discrimination claims under 42 U.S.C. § 1983 and equal protection
claims under Article XXIV of the Maryland Declaration of Rights
against individuals Ovid, Parsons, Moragne-el, Pettus, Fonder,
and Zollicoffer?
3.
Did the circuit court err in dismissing appellant’s
false imprisonment claim against Ovid?
4.
Did the circuit court err in dismissing appellant’s 42
U.S.C. § 13981 Gender Motivated Violence Act claim against Ovid,
Parsons, and Moragne-el?
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5.
Did the circuit court err in dismissing appellant’s
intentional infliction of emotional distress, aiding and
abetting, and civil conspiracy claims against the MTA, Ovid,
Parsons, Moragne-el, Pettus, Fonder, and Zollicoffer?
On appeal, appellant presents no argument with respect to
the battery claim in Count I, the 42 U.S.C. § 1985 claims in
Counts VIII and X, the Article 40 and remaining Article XXIV
violations alleged in Count XII, or the slander claim in Count
XIII.
Consequently, those claims are not properly before us.
Finally, appellant challenges — in footnote 4 of her brief —
the circuit court’s decision to strike the affidavit that was
attached to and incorporated in the amended complaint.
The lower
court stated that it would strike the affidavit because it was a
“regurgitation” of material in the original complaint that the
court had labeled “outrageous” and “totally unnecessary” and that
had prompted the court to strike the original complaint.
Before
this Court, appellant’s argument in support of the affidavit does
not address the valid central legal concern with the material:
that it does not comply with Rule 2-303(b), prohibiting “argument
. . . or any immaterial, impertinent, or scandalous matter” in a
pleading.
We therefore deem the point waived and affirm this
aspect of the lower court’s order.
Consequently, we do not
consider the contents of the affidavit in answering the questions
presented.
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Standard of Review
A motion to dismiss tests the legal sufficiency of the
pleadings.
Bobo v. State, 346 Md. 706, 709 (1997); Popham v.
State Farm Mut. Ins. Co., 333 Md. 136, 140 n.2 (1993).
In
reviewing a motion to dismiss for failure to state a claim upon
which relief can be granted, we must assume “the truth of all
well-pleaded facts, as well as the reasonable and logical
inferences which may be drawn therefrom.”
n.2.
Popham, 333 Md. at 140
See also Board of Educ. v. Browning, 333 Md. 281, 286
(1994); Faya v. Almaraz, 329 Md. 435, 443 (1993).
The pleader
must allege facts with specificity, and this Court need not
consider wholly conclusory charges in a complaint.
See Bobo, 346
Md. at 708-09; Berman v. Karvounis, 308 Md. 259, 265 (1987).
Further, “any ambiguity or uncertainty in the allegations bearing
on whether the complaint states a cause of action must be
construed against the pleader.”
Ronald M. Sharrow, Chartered v.
State Farm Mut. Auto. Ins. Co., 306 Md. 754, 768 (1986).
See
also Bobo, 346 Md. at 709; Popham, 333 Md. at 140 n.2; Browning,
333 Md. at 286.
Dismissal is only proper if, after the
allegations of the complaint are construed in this light, the
facts and allegations in the complaint would fail to afford the
plaintiff relief if proven.
See Bobo, 346 Md. at 709; Browning,
333 Md. at 286.
Discussion
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Appellant, in the amended complaint, apparently attempted to
remove much of the material that was held to have been improperly
included in the original complaint in violation of Rule 2-303(b).
Nevertheless, as explained below, when we apply the standard of
review to the amended complaint, we conclude that it remains
substantively deficient, and we affirm the judgment.
1.
The circuit court dismissed the Title VII claims in the
amended complaint on two alternative grounds: that the court
lacked jurisdiction over the claims because the claims were
subject to mandatory arbitration under Maryland Code (1993 Repl.
Vol.), Transportation § 7-602; and that the allegations of the
amended complaint were insufficient to state a Title VII cause of
action.
With respect to its jurisdiction, the circuit court
ruled that it lacked subject matter jurisdiction over all claims
asserted against the MTA, namely, the Title VII hostile work
environment and retaliation claims, as well as the State law
aiding and abetting, civil conspiracy, and intentional infliction
of emotional distress claims.
Appellant contests the circuit
court’s decision to dismiss each of these claims.
Therefore, as
an initial matter, we shall discuss the circuit court’s
jurisdiction over the subject matter of the claims against the
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MTA.4
As we mention in footnote 2, supra, a circuit court has
jurisdiction over individual claims if it has “the power to
render a judgment over that class of cases within which a
particular one falls.”
First Federated Commodity Trust Corp. v.
4
In announcing in open court the reasons for its decision
that it lacked jurisdiction over appellant’s claims against the
MTA, the circuit court stated that the claims were subject to
arbitration both under the provisions of § 7-602 of the
Transportation article and pursuant to appellant’s collective
bargaining agreement with the MTA. The court also stated that it
would dismiss the claims on the alternate ground that they were
barred by sovereign immunity. In the pertinent part of its
written order dismissing the claims against the MTA, however, the
court gave only “lack of subject matter jurisdiction” as a
reason.
We interpret the court’s written order, dismissing the
amended complaint for lack of subject matter jurisdiction, to
encompass only a potential legislative deprivation of
jurisdiction in the circuit court by operation of § 7-602 of the
Transportation article. The effect of the terms of appellant’s
collective bargaining agreement, or of any sovereign immunity
from suit that the MTA might enjoy, could not find expression in
a dismissal for jurisdictional reasons. On the issue of a
circuit court’s subject matter jurisdiction, the Court of Appeals
has stated, “If by that law which defines the authority of the
court, a judicial body is given the power to render a judgment
over that class of cases within which a particular one falls,
then its action cannot be assailed for want of subject matter
jurisdiction.” First Federated Commodity Trust Corp. v.
Commissioner of Sec., 272 Md. 329, 335 (1974) (citing Fooks’
Ex’rs v. Ghingher, 172 Md. 612, 622-23 (1937)). As a court of
general jurisdiction, the circuit court has the power to render a
judgment in an action in which a defendant alleges either
sovereign immunity or the existence of a collective bargaining
agreement through which the plaintiff allegedly has waived his or
her right to litigate certain claims in court. Of the orally
stated reasons for its decision regarding its own jurisdiction,
only § 7-602 can be construed as a limitation of the power of the
circuit court to hear certain claims. Consequently, we credit
the circuit court’s dismissal of appellant’s claims against the
MTA for lack of subject matter jurisdiction solely to the
perceived jurisdictional effect of § 7-602.
- 9 -
Commissioner of Sec., 272 Md. 329, 335 (1974) (citing Fooks’
Ex’rs v. Ghingher, 172 Md. 612, 622-23 (1937)).
The circuit
courts of this state are courts of general jurisdiction with the
power to adjudicate Title VII claims and State law torts subject
to limitations on that jurisdiction that may be imposed by law.
See Md. Code (1998 Repl. Vol.), Cts. & Jud. Proc. § 1-501.
We
therefore consider whether the arbitration provision of § 7-602
of the Transportation article limits the jurisdiction of the
circuit court to render a judgment on any of appellant’s claims
against her employer, the MTA.5
5
We note that agreements to arbitrate, as distinguished
from statutorily mandated arbitration that is final and binding,
do not affect jurisdiction, but instead are construed as waivers
of the rights of the parties to litigate in court. In Anne
Arundel County v. Fraternal Order, 313 Md. 98, 108-09 (1988), the
Court of Appeals quoted with approval the following reasoning of
the Minnesota Supreme Court:
[T]here appears never to have been any
factual basis for holding that an agreement
to arbitrate “ousted” jurisdiction. It has
no effect upon the jurisdiction of any court.
Arbitration simply removes a controversy from
the arena of litigation. It is no more an
ouster of judicial jurisdiction than is
compromise and settlement or that peculiar
offspring of legal ingenuity known as the
covenant not to sue. Each disposes of issues
without litigation. One no more than the
other ousts the courts of jurisdiction. The
right to a jury trial, even in a criminal
case, may be waived. So, also, may the right
to litigate be waived. Such waiver may be
the result of contract or unilateral action.
Park Constr. Co. v. Independent Sch. Dist. No. 32, 296 N.W. 475,
477 (Minn. 1941).
- 10 -
Section 7-602, entitled, “Arbitration in labor disputes,”
provides in part:
(a) “Labor dispute” defined. — In this
section, “labor dispute” is to be construed
broadly and includes any controversy as to:
(1) Wages, salaries, hours, or
other working conditions;
(2) Benefits, including health and
welfare, sick leave, insurance, pension, or
retirement provisions;
(3) Grievances that arise; or
(4) Collective bargaining
agreements, including:
(i) The making or maintaining
of any collective bargaining agreement;
(ii) The terms to be included
in it; or
(iii) Its interpretation or
application.
(b) Unresolved labor dispute to be
submitted to arbitration board. — If, in a
labor dispute between the [MTA] and any
employees . . . , collective bargaining does
not result in agreement, the [MTA] shall
submit the dispute to an arbitration board.
. . . .
(d) Majority determination is final and
binding. — A majority determination of the
board is final and binding on all disputed
matters.
The MTA argues that appellant’s discrimination claims under Title
VII and common law intentional tort claims each constituted a
“labor dispute” between appellant and the MTA that was subject to
binding arbitration under the statute — arbitration that would be
final on all disputed matters.
The MTA asserts that the term
“labor dispute” is to be construed broadly and that each of
appellant’s claims in essence alleged a labor dispute as to
“working conditions,” “grievances,” or issues regarding the
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“interpretation or application” of a collective bargaining
agreement (CBA).
Thus, the MTA argues, the circuit court
properly dismissed appellant’s claims against it because the
claims were never submitted to arbitration.
Appellant’s Title VII claims in the amended complaint,
however, do not seek an express ruling on the interpretation or
application of her CBA,6 and the plain language of § 7-602
suggests that the statute was never intended to mandate
arbitration of the types of claims that appellant makes against
the MTA.
To the extent that the scope of the term “working
conditions” in § 7-602(a)(1) is ambiguous, the doctrine of
ejusdem generis confines its meaning to the class of items
described by the immediately preceding enumeration.
See, e.g.,
In re Wallace W., 333 Md. 186, 190-91 (1993) (discussing the rule
of ejusdem generis); Smith v. Higinbothom, 187 Md. 115, 130
(1946) (same).
Thus, we construe the term “working conditions”
to be limited to conditions in the nature of wages, salaries, and
hours — conditions that define the work to be performed and the
compensation to be paid.
Similarly, there is no indication in the groups of
controversies listed under § 7-602(a) that the term “Grievances,”
even if construed broadly, was intended to preclude litigation
between the MTA and its employees that is based on federal civil
6
Indeed, no party has included a copy of the CBA in the
record before this Court.
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rights legislation and Maryland common law intentional torts.
If
the Legislature had intended to confine all conceivable
litigation between the MTA and its employees to arbitration,
there would be no need to enumerate several particular categories
of potential disputes.
Additionally, to the extent that § 7-602
is in derogation of the common law of Maryland, the statute must
be strictly construed.
Md. 552, 562 (1998).
See Sears, Roebuck & Co. v. Gussin, 350
We conclude that, absent clear language to
the contrary, the Legislature did not intend to confine Title VII
and intentional tort actions between the MTA and its employees to
arbitration.
Consequently, the circuit court had jurisdiction
over appellant’s claims against the MTA.
As we discuss in the remainder of Part 1 and in Part 5 of
this opinion, however, we agree with the circuit court’s
alternate determination that appellant’s amended complaint failed
to allege any cognizable claims against the MTA.
A.
Title VII — Hostile Working Environment
Title VII makes it unlawful for an employer “to discriminate
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.”
U.S.C. § 2000e-2(a)(1) (1994).
42
Sexual harassment is a form of
sex discrimination under Title VII.
v. Vinson, 477 U.S. 57, 65 (1986).
See Meritor Sav. Bank, FSB
In addition to prohibiting
sexual harassment that is explicitly tied to the grant or denial
- 13 -
of an economic quid pro quo, Title VII prohibits sexual
harassment that creates a work environment that is sufficiently
hostile or abusive to affect a term, condition, or privilege of
employment.
See Meritor Sav. Bank, FSB, 477 U.S. at 67.
For
hostile environment sexual harassment to be actionable, the
harassment must be severe or pervasive.
Id.
See also Burlington
Indus., Inc. v. Ellerth, ___ U.S. ___, 118 S.Ct 2257, 2264 (1998)
(“The principal significance of the distinction is to instruct
that Title VII is violated by either explicit or constructive
alterations in the terms or conditions of employment and to
explain the latter must be severe or pervasive.”).
An actionably hostile work environment may be created by the
sexual harassment of an employee by a co-employee.
See 29 C.F.R.
§ 1604.11(d) (1998); Spicer v. Virginia, 66 F.3d 705, 708, 710
(4th Cir. 1995) (en banc); Wilson v. Southern Nat’l Bank, 900 F.
Supp. 803, 806, 809-10 (W.D.N.C. 1995), aff’d, 92 F.3d 1184 (4th
Cir. 1996).
Cf. Wall v. AT & T Techs., Inc., 754 F. Supp. 1084,
1091 (M.D.N.C. 1990) (Title VII racial discrimination case).
To
plead such a cause of action successfully, the plaintiff must
allege “(1) the subject conduct was unwelcome; (2) it was based
on the sex of the plaintiff; (3) it was sufficiently severe or
pervasive to alter the plaintiff’s conditions of employment and
to create an abusive work environment; and (4) it was imputable
on some factual basis to the employer.”
Spicer, 66 F.3d at 710.
See also Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772 (4th
- 14 -
Cir. 1997).
In Katz v. Dole, 709 F.2d 251 (4th Cir. 1983), the
Fourth Circuit discussed at length the fourth requirement above:
Except in situations where a proprietor,
partner or corporate officer participates
personally in the harassing behavior, the
plaintiff will have the additional
responsibility of demonstrating the propriety
of holding the employer liable under some
theory . . . . We believe that in a
“condition of work” [i.e., hostile work
environment] case the plaintiff must
demonstrate that the employer had actual or
constructive knowledge of the existence of a
sexually hostile working environment and took
no prompt and adequate remedial action. The
plaintiff may do this by proving that
complaints about the harassment were lodged
with the employer or that the harassment was
so pervasive that employer awareness may be
inferred.
709 F.2d at 255 (citations omitted).
The Fourth Circuit further
explored this standard in Spicer, supra, stating, “When presented
with the existence of illegal conduct, employers can be required
to respond promptly and effectively, but when an employer’s
remedial response results in the cessation of the complained of
conduct, liability must cease as well.”
Spicer, 66 F.3d at 711.
We conclude that the allegations of appellant’s amended
complaint, when construed in accordance with the applicable
standard of review, fail to satisfy the pleading requirements
under the fourth element of a hostile environment claim.
Assuming that appellant appropriately alleged that she was a
victim of sexual harassment by her co-worker, Ovid, appellant
fails to allege facts from which the MTA could be held liable for
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Ovid’s harassment.
We note initially that several of the factual allegations of
the amended complaint are irrelevant, repetitive, conclusory, and
ambiguous.
Our review of the pleading to glean support for
appellant’s Title VII hostile environment claim yields the
following factual allegations.
Appellant and Ovid were both “A-
Cleaners” for the MTA at the Kirk Avenue location.
Ovid
subjected appellant to sustained verbal abuse of a sexual nature
from 1991 to some time in 1996, with the exception of a period of
time from 1993 to early 1994, when appellant had temporarily
transferred to another work location “to escape the unlawful
conduct against her.”
During this time, Ovid also physically
abused appellant by “thrusting his penis in her thigh,” grabbing
her breast and arms, and elbowing her.7
At some time prior to
1996, unidentified union co-workers retaliated against appellant
for being a “snitch,” and spray painted “Jackie is a fink” and
“Jackie is a rat” inside the wash house at the Kirk Avenue work
site.
The Chief Supervisor of Kirk Division at the time of the
spray painting incident apologized for the incident and stated
that those responsible for it would be disciplined.
This
supervisor did nothing further about the incident, however, and
7
Our conclusion that the amended complaint fails to state
a claim against the appellees makes it unnecessary to consider
the preclusive effect of the jury verdict against appellant on
her battery claim.
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disregarded “complaints about Defendant Ovid.”
Appellant at some
point in time complained “about Defendant Ovid” to Night Foreman
Vernon Parsons.
complaints.
Parsons did nothing in response to these
At some point, appellant was crying in the lunch
room because of something Ovid had said to her, when Parsons
entered and jokingly said to appellant, “did your boyfriend
Defendant Ovid [sic] do something to upset you?”
At another
point in time, Parsons asked appellant if she was peeping or
spying on Ovid, and that Ovid said she was.
Appellant further alleged that the “last straw” occurred on
October 11, 1995, when Ovid elbowed her and called her a “bitch.”
Apparently, on October 13, 1995, she filed an internal complaint
with the MTA based on claims of sexual harassment, and the
internal complaint was resolved in her favor on December 8,
1995.8
On October 15, 1995, Wade Moragne-el, Chief
Superintendent of Kirk Division as of 1995, confronted appellant
in the yard in front of other employees.
Moragne-el stated that
if appellant did not resolve her differences with Ovid she would
be terminated.
Moragne-el further stated that he believed
appellant had harassed Ovid because Ovid refused to have sex with
her.
Appellant also asserted that several co-workers, Parsons,
8
We have set these occurrences in 1995 based on other
references to the occurrences in the amended complaint.
Paragraph 13 of the amended complaint actually states, “On or
about Thursday October 13, 1997, Ms. Manikhi filed a sexual
harassment EEO complaint internally with the MTA which was
resolved in her favor on December 8, 1996.”
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Moragne-el, and the union appellees all attempted to dissuade her
from taking formal action against Ovid.
Appellant does not
specifically allege that any incidents of sexual harassment
occurred after the favorable resolution of her internal
complaint.
The factual averments of the amended complaint are
insufficient to allege sexual harassment by any MTA employee
other than Ovid.
The alleged conduct of appellant’s superiors,
while possibly demeaning and unhelpful, does not constitute
discrimination because of appellant’s sex.
Further, the specific
allegations of sexual harassment all predate the resolution of
appellant’s internal complaint.
While we are not given
information relating to the specific actions taken by the MTA on
the internal complaint, the amended complaint states that the
procedure was resolved in appellant’s favor.
There are no facts,
therefore, that the MTA’s response to appellant’s formal
complaint was less than legally adequate under the rule in
Spicer, supra.
Consequently, we shall focus on the sufficiency
of the pre-internal complaint allegations to support the
inference that Ovid’s harassment of appellant was so pervasive
that the MTA could be charged with awareness of it before
appellant invoked the formal internal complaint procedure.
Appellant’s account of her previous supervisor’s notice of
the graffiti in the wash house does not support notice of sexual
harassment.
It is clear that only harassment related to the
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plaintiff’s gender is actionable as sex discrimination.
Hartsell, 123 F.3d at 772.
See
The spray painted slurs are not
sexual in nature, and appellant does not allege that the slurs
were in retaliation for, or otherwise related to, sexual
harassment complaints voiced by her.
Appellant does not even
allege that Ovid was the subject of an informal complaint by her
at that time, or that the incident was in any way related to her
contact with Ovid.
The statement by appellant’s supervisor that
those responsible for the spray painting incident would be
disciplined does not demonstrate that he had notice of severe or
pervasive sexual harassment by Ovid.
At a subsequent point in
the complaint, appellant alleges that she complained to the same
supervisor “about Defendant Ovid,” but that those complaints were
disregarded.
The nature of this complaint is not specified.
Moreover, appellant’s specific statements informing Moragneel of the harassment occurred on October 15, 1995 — after
appellant had filed an internal complaint but before it was
resolved in her favor.
It is not disputed that the MTA had
notice of appellant’s complaints at this time.
Finally, the taunting comments Parsons allegedly made to
appellant simply do not provide notice to the MTA of a hostile
work environment.
The comments are presented in a conversational
context within which Parsons engages in verbal horseplay or
teasing that is only tangentially based on appellant’s sex.
The
statements themselves do not indicate that Parsons had knowledge
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of unwelcome severe or pervasive sexual harassment by Ovid.
The
comments, like the general statement that appellant complained to
Parsons “about Defendant Ovid,” are more consistent with a
general animosity between appellant and Ovid.
In any event,
appellant does not allege a single instance in which she or
anyone else told Parsons that Ovid was sexually harassing her.
Cf. Harris v. L & L Wings, Inc., 132 F.3d 978, 982 (4th Cir.
1997) (employer charged with notice of hostile work environment
where, in the absence of a formal internal complaint procedure,
plaintiffs made repeated, specific complaints to several
managers, and company President must have witnessed graffiti and
pornography covering the walls of the workplace).9
The amended complaint describes a torrent of sexual
harassment of which MTA had no notice prior to appellant’s formal
complaint.
But the amended complaint is conspicuously devoid of
specific allegations of harassment subsequent to the resolution
of appellant’s internal complaint.
For these reasons,
appellant’s amended complaint fails to state a Title VII hostile
work environment claim against the MTA.
B.
Title VII — Retaliation
9
Given our conclusion that the amended complaint does not
allege that Parsons had notice of a sexually hostile work
environment prior to the events surrounding the internal
investigation, we do not decide the ultimate issue whether notice
to Parsons of such a hostile work environment would also satisfy
the notice requirement with respect to the MTA.
- 20 -
Appellant argues that the amended complaint stated a prima
facie case of retaliation under Title VII.
Appellant points to
allegations that, after she filed the internal complaint, the
union appellees told her that she should omit some allegations
against Ovid, that they agreed with Moragne-el and Parsons that
she “would lose a day’s work,” that Moragne-el told her to
reconcile her differences against Ovid or she would be
terminated, and that some time in 1996 she took a lower paying
position at another location “to get away from unlawful conduct
against her.”
To establish a cause of action for retaliation in violation
of Title VII, a plaintiff must prove that she “engaged in a
protected activity, that she suffered an adverse employment
action, and that the two were causally related.”
Glover v. South
Carolina Law Enforcement Div., 170 F.3d 411, 413 (4th Cir. 1999).
Once this is done, the burden shifts to the employer to show that
there was a non-discriminatory reason for the adverse employment
action, and, if this is done, the burden shifts back to the
plaintiff to show that the employer’s reason is pretextual.
See
Munday v. Waste Management of N. America, Inc., 126 F.3d 239, 242
(4th Cir. 1997).
The requirement of an adverse employment action
focuses “on the question whether there has been discrimination in
what could be characterized as ultimate employment decisions such
as hiring, granting leave, discharging, promoting and
compensation.”
Settle v. Baltimore County, 34 F.Supp.2d 969, 987
- 21 -
(D. Md. 1999) (quoting Page v. Bolger, 645 F.2d 227, 233 (4th
Cir. 1981) (en banc)).
We find the above statements of the law
persuasive.
Appellant’s retaliation claim fails because she does not
allege that the MTA took an adverse employment action against
her.10
First, the allegations regarding actions of the union
appellees are irrelevant to appellant’s retaliation claim, which
is made against the MTA alone.
Second, in alleging that the
union appellees agreed with Moragne-el and Parsons that appellant
would lose a day of work, appellant does not mention whether this
agreement was carried out, whether appellant was denied
compensation for a day of work, or when any such action took
place.
We note that Title VII retaliation does not reach mediate
decisions but extends only to ultimate employment decisions.
See, e.g., Munday, 126 F.3d at 243 (supervisor’s conduct in
failing to address employment related complaints of the
plaintiff, yelling at the plaintiff, and telling others to ignore
and spy on her, did not amount to adverse employment action
because plaintiff’s complaints were addressed, investigated, and
corrected by other agents of the employer).
The amended
complaint asserts that the internal complaint was resolved in
appellant’s favor, and, as we mention above, the amended
10
The amended complaint also fails to allege a causal
connection between a protected activity and an adverse employment
action.
- 22 -
complaint thereafter is devoid of specific allegations of
harassment or retaliation.
Finally, appellant’s decision to
transfer to another work location and accept a lower paying job
is similarly based on a general allegation that, despite the
favorable resolution of her internal complaint, appellant had to
get away from the “unlawful conduct against her.”
We decline to
construe these ambiguities in appellant’s favor and hold that the
amended complaint fails to state a claim for retaliation under
Title VII.
- 23 -
2.
A.
Claims Based on 42 U.S.C. § 1983
Appellant asserted claims against Ovid, Parsons, Moragne-el,
and the union appellees, pursuant to 42 U.S.C. § 1983.
Count VII
of the amended complaint provides in part:
61.
62.
Paragraphs 1-60 and 72-99 are
incorporated by reference as though set
forth herein.
Defendants Ovid, Parsons, Moragne-el,
Pettus, Fonder, and Zollicoffer, acting
in their individual capacities under
color of state law, deprived Ms. Manikhi
of her rights to be free from
discrimination based on gender, race or
ethnicity, secured by the Constitution
and laws of the United States.
The remaining paragraphs of Count VII contain factual allegations
and a demand for compensatory and punitive damages, as well as
fees and costs, based on the violations of appellant’s rights as
asserted in paragraph 62.
The statute 42 U.S.C. § 1983 imposes civil liability on
anyone “who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . , subjects, or causes to be
subjected, any . . . person . . . to the deprivation of any
rights, privileges, or immunities secured by the Constitution and
laws.”
42 U.S.C. § 1983 (1994).
Section 1983 is not a source of
substantive right but a method of obtaining redress for
violations of federally created rights.
See Albright v. Oliver,
510 U.S. 266, 271 (1994); Baker v. McCollan, 443 U.S. 137, 144
- 24 -
n.3 (1979); Nicholson Air Servs., Inc. v. Board of County
Comm’rs, 120 Md. App. 47, 83 (1998).
“The first inquiry in any §
1983 suit, therefore, is whether the plaintiff has been deprived
of a right ‘secured by the Constitution and laws.’”
Baker, 443
U.S. at 140.
Appellant, in her brief, predicates the § 1983 claim on
violations of her equal protection rights under the Fourteenth
Amendment to the Constitution.
Appellant cites authority for the
proposition that § 1983 provides a remedy for “discrimination in
violation of [her] equal protection rights.”
Appellant further
asserts that “[t]he elements of an employment discrimination
claim in violation of the equal protection clause are the same
under section 1983 as Title VII.”
We do not address the latter of appellant’s claims because
we conclude she did not plead a violation of the Equal Protection
Clause of the Fourteenth Amendment.
The pertinent phrase in
paragraph 62 asserts a violation of “rights to be free from
discrimination based on gender, race or ethnicity, secured by the
Constitution and laws of the United States.”
For support, Count
VII incorporates the entire remainder of the amended complaint.
Despite such broad incorporation, we are unable to locate any
references to the Fourteenth Amendment or its Equal Protection
Clause in the amended complaint.
Consequently, we conclude that
the pleading does not assert a violation of appellant’s equal
protection rights under the Constitution.
- 25 -
Additionally, if the
amended complaint is read to assert § 1983 remedies based on
direct violations of the federal statutory counts, those § 1983
remedies fail as a result of our decision to affirm the dismissal
of the predicate federal law counts.
B.
Claims Based on the Maryland Declaration of Rights
Although the amended complaint is silent with respect to
appellant’s federal equal protection rights, in Count XII it
mentions the corresponding State right to equal protection
secured by Article 24 of the Maryland Declaration of Rights.11
Count XII of the amended complaint incorporates all other
paragraphs of the pleading and asserts that the individual
appellees “deprived Ms. Manikhi of Rights secured by the Maryland
Declaration of Rights, including . . . equal protection of the
laws . . . under Article[] 24.”
Article 24 of the Maryland Declaration of Rights provides:
That no man ought to be taken or
imprisoned or disseized of his freehold,
liberties or privileges, or outlawed or
exiled, or, in any manner, destroyed, or
deprived of his life, liberty or property,
but by the judgment of his peers, or by the
Law of the land.
Md. Code (1981 Repl. Vol.), Const. Art. 24.
Although Article 24
does not guarantee equal protection in express terms, the concept
of equal protection is embodied within the due process provisions
11
Count XII also asserted violations of appellant’s State
constitutional rights “to due process for the protection of
property and liberty,” and “to free speech.” Appellant does not
contest the dismissal of these claims.
- 26 -
of Article 24.
See Kirsch v. Prince George’s County, 331 Md. 89,
96-97 (1993); Murphy v. Edmonds, 325 Md. 342, 353 (1992).
In general, the Court of Appeals has looked to United States
Supreme Court opinions interpreting the Fourteenth Amendment to
the federal Constitution in analyzing like provisions of the
Maryland Constitution and Declaration of Rights.
Md. at 97.
See Kirsch, 331
The two constitutional protections are distinct.
They are “possessed of independent animation,” such that “the
application of Article 24 . . . may require a result at variance
with the Supreme Court’s application of the fourteenth
amendment’s equal protection clause.”
Murphy, 325 Md. at 383
(Chasanow, J., dissenting) (quoting Attorney General v. Waldron,
289 Md. at 714 n.20).
Additionally, different principles govern
the recovery of compensatory damages for violations of the state
and federal constitutions.
Ashton v. Brown, 339 Md. 70, 100
(1995); Ritchie v. Donnelly, 324 Md. 344, 368-74 (1991).
While a
violation of Article 24 gives rise to a private cause of action
for damages under Maryland common law, see DiPino v. Davis, 354
Md. 18, 50 & n.7 (1999); Brown, 339 Md. at 102-08; Ritchie, 324
Md. at 368-74; Clea v. City of Baltimore, 312 Md. 662, 679
(1988); Widgeon v. Eastern Shore Hosp. Ctr., 300 Md. 520, 537-38
(1984); Dunne v. State, 162 Md. 274, 284-85 (1932); Weyler v.
Gibson, 110 Md. 636, 653-54 (1909) (discussing Article 23 of the
Maryland Declaration of Rights, predecessor to present Article
24), the corresponding federal remedy is conferred by the statute
- 27 -
42 U.S.C. § 1983.
But, especially with respect to the development of equal
protection jurisprudence, the Court of Appeals has virtually
adopted Supreme Court precedent as controlling authority in the
interpretation of corresponding State constitutional law.
In
Murphy, supra, Judge Eldridge wrote for the Court:
While the Equal Protection Clause of the
Fourteenth Amendment and the equal protection
guarantee embodied in Article 24 of the
Maryland Declaration of Rights are obviously
independent and capable of divergent
application, we have consistently taken the
position that the Maryland equal protection
principle applies in like manner and to the
same extent as the Equal Protection Clause of
the Fourteenth Amendment.[12] Thus, United
States Supreme Court opinions concerning the
Equal Protection Clause of the Fourteenth
Amendment are practically direct authorities
with regard to Article 24 of the Declaration
of Rights.
Murphy, 325 Md. at 354 (citations and internal quotation marks
omitted).
In drawing the line, however, between discrimination by
State actors that violates Maryland equal protection guarantees
and private discrimination beyond the reach of such guarantees,
the Court of Appeals has not employed the Supreme Court’s “state
action” jurisprudence.
Instead, the Maryland right to equal
12
The Court of Appeals speculated in Waldron, supra, that
it may be “because this State has no express equal protection
clause that Article 24 has been interpreted to apply in like
manner and to the same extent as the Fourteenth Amendment of the
Federal Constitution.” 289 Md. at 704 (internal quotation marks
omitted).
- 28 -
protection generally is violated by “public officials” acting
“under color of their office.”
Brown, 339 Md. at 102-03.
also Ritchie, 324 Md. at 369; Dunne, 162 Md. at 285.
See
Recently,
the Court stated that only “government agents” can violate
provisions of the Maryland constitution.
DiPino, 354 Md. at 51.
A review of the cases discussing violations of Maryland due
process or equal protection principles by individual actors,
however, reveals that the official status of the actor, and
whether the official was acting under color of his office, was
not at issue in any of the cases.
See DiPino, at 23 (local
police officer); Brown, 339 Md. at 102-04 (local police
officers); Ritchie, 324 Md. at 349 (Sheriff of Howard County);
Clea, 312 Md. at 664-65 (Baltimore City Police Officer); Widgeon,
300 Md. at 523, 534 (doctors employed by the State of Maryland
who concluded that plaintiff suffered from a mental disorder and
committed him to a hospital); Mason v. Wrightson, 205 Md. 481,
485 (1954) (Baltimore City Police Sergeant); Heinze v. Murphy,
180 Md. 423, 425 (1942) (Baltimore City Police Officer); Gibson,
110 Md. at 653-54 (Warden of the Maryland Penitentiary).
The
Court of Appeals has not defined the terms “public officials” and
“under color of office” in context, but in the absence of
contrary interpretation, such status-based terms seem to limit
the reach of Maryland’s equal protection guarantees to State or
local governmental employees purporting to act in an official
capacity.
Such a construction would be far less protective than
- 29 -
the relatively well-developed Supreme Court state action
jurisprudence, which recognizes that state action may exist even
though the actor is not a governmental employee.
We conclude that a distinct Maryland constitutional analog
to the federal state action analysis has never been articulated
and that Maryland precedents have not excluded, by negative
implication, the consideration of federal state action
jurisprudence in the development of similar Maryland principles.
Consequently, we shall begin by analyzing the actions of appellee
Ovid and the union appellees as alleged in the amended complaint
to determine whether those actions amount to state action under
Supreme Court precedent.13
In Burton v. Wilmington Parking Auth., 365 U.S. 715, 722
(1961), the Supreme Court said the following of the state action
doctrine:
It is clear, as it always has been since the
Civil Rights Cases [109 U.S. 3 (1883)], that
“Individual invasion of individual rights is
not the subject-matter of the [Fourteenth]
amendment,” at p.11, and that private conduct
13
In Part 1.A., above, we concluded that the factual
allegations of the amended complaint were insufficient to support
an inference that appellees Parsons and Moragne-el discriminated
against appellant because of her sex, as required to state a
cause of action under Title VII. For the same reasons, the
amended complaint fails to state an Article 24 equal protection
violation against Parsons and Moragne-el.
Moreover, we discussed above appellant’s allegation that the
union appellees agreed with her supervisors at MTA that she
“would lose a day’s work.” We do not take this ambiguous
statement as an allegation that appellant was denied any right or
benefit in violation of her equal protection rights.
- 30 -
abridging individual rights does no violence
to the Equal Protection Clause unless to some
significant extent the State in any of its
manifestations has been found to have become
involved in it. Because the virtue of the
right to equal protection of the laws could
lie only in the breadth of its application,
its constitutional assurance was reserved in
terms whose imprecision was necessary if the
right were to be enjoyed in the variety of
individual-state relationships which the
Amendment was designed to embrace. For the
same reason, to fashion and apply a precise
formula for recognition of state
responsibility under the Equal Protection
Clause is an “impossible task” which “This
Court has never attempted.” Kotch v. Pilot
Comm’rs, 330 U.S. 552, 556 [(1947)].
Although the Supreme Court has not formulated a precise test, the
Court has articulated several approaches to the state action
problem.
In Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922
(1982), the respondent creditor had successfully petitioned for a
writ of attachment under Virginia law to prevent the petitioner,
its debtor, from disposing of his property before the debt could
be adjudicated.
457 U.S. at 924.
The writ of attachment was
executed by a county sheriff, but it was dismissed at a judicial
hearing conducted shortly thereafter.
Id. at 924-25.
The
petitioner then brought an action against the respondent
alleging, among other things, that respondent had acted with the
State to violate petitioner’s due process rights.
Id. at 925.
In separate counts, petitioner alleged both that respondent had
misused Virginia procedure in violation of his due process rights
and that due process was violated by the application of the
- 31 -
statutory attachment procedure itself.
Id.
The Court announced a “two-part approach” to determining
whether the alleged constitutional deprivations could be
attributed to the State:
First, the deprivation must be caused by the
exercise of some right or privilege created
by the State or by a rule of conduct imposed
by the State or by a person for whom the
State is responsible. . . . Second, the
party charged with the deprivation must be a
person who may fairly be said to be a state
actor.
Id. at 937.
The Court stated that the two principles “collapse
into each other when the claim of a constitutional deprivation is
directed against a party whose official character is such as to
lend the weight of the State to his decisions” but that the
principles diverge “when the constitutional claim is directed
against a party without such apparent authority, i.e., against a
private party.”
Id.
The Court applied the two-part approach to
the facts before it, and concluded (1) that state action was not
implicated in the misuse of Virginia procedure count because the
allegations of unlawful activity presupposed actions contrary to
governmental policy and without the purported authority of the
State of Virginia, but (2) that the attachment procedure outlined
in the Virginia statute was the product of state action.
See id.
at 940-42.
The Lugar Court explained in a footnote that its decision
was consistent with the preceding case of Polk County v. Dodson,
- 32 -
454 U.S. 312 (1981), decided the same term.
In Polk County, the
Court held that a public defender’s actions in representing a
defendant in a state criminal proceeding could not be actions
“under color of state law” in a § 1983 suit.
454 U.S. at 317-19.
See Polk County,
The Court reached this conclusion in part by
giving more weight to the function performed by the public
defender in the adversarial process than to the status of the
public defender as a state employee.
See id. at 320.
After
detailing the many duties traditionally performed by a public
defender while acting as an advocate, the Court concluded, “We
find it peculiarly difficult to detect any color of state law in
such activities.”
Id.
Although in Polk County the Court found
it unnecessary to consider the comparative scope of the state
action and color of state law inquiries, id. at 322 n.12, in
Lugar it held that the “under-color-of-state-law requirement” is
broader than the state action requirement, such that “conduct
satisfying the state-action requirement of the Fourteenth
Amendment satisfies the statutory requirement of action under
color of state law,” while the reverse is not true.
U.S. at 935 n.18.
Lugar, 457
Thus, the representation of criminal
defendants held unassailable under § 1983 in Polk County
similarly would not constitute state action.
We find these cases instructive in analyzing whether the
alleged actions of Ovid and the union appellees could trigger the
equal protection concept of Article 24 of the Maryland
- 33 -
Declaration of Rights.
The amended complaint does not allege
that the union appellees were State employees, or that the State
was responsible for their actions, but instead alleges that they
were officials of the “Local 1300.”
It is patent that the union
assumes an adversarial role with respect to the MTA and the State
when it represents union members in employment matters.
Beyond
the bare allegation that the three union appellees “did nothing
to stop [the harassment] and participated in the same,” appellant
alleges that she met with the officials in October of, we
presume, the year 1995; that at this meeting she told the union
appellees Ovid had elbowed her; that they attempted to convince
her to change her internal report to omit the allegations that
Ovid elbowed her and sexually harassed her; and that the union
appellees denied her a hearing and did not properly process her
grievance.
Finally, appellant alleges that her supervisors at
MTA agreed with the union appellees’ decision to deny her a
hearing on her internal complaint and that the union appellees
agreed with her supervisors that she “would lose a day’s work.”
As a preliminary matter, we note that appellant does not
identify the manner in which the union appellees subjected her to
disparate treatment in violation of equal protection.
In the
amended complaint, appellant did not allege that she was treated
differently than others in the handling of her grievance or in
her contact with the union officials.
Moreover, if the union
appellees did subject her to disparate treatment, it could not be
- 34 -
inferred from the alleged facts that she endured such treatment
because of her sex, and appellant does not make such an
allegation.14
Finally, even if appellant had satisfied the above
deficiencies, she does not allege or plead facts to support the
conclusion that the union appellees, as private actors for whom
the State was not responsible, deprived her of those rights by
the exercise of some right or privilege created by the State, or
by a rule of conduct imposed by the State.
The allegation of an
“agreement” between the Union appellees and appellant’s MTA
supervisors to deny appellant a hearing does not transform the
union’s alleged decision into state action.
Thus, the alleged
actions of the union appellees fail to satisfy the first part of
the Lugar state action approach.
For all of the above reasons,
the amended complaint fails to state a cause of action against
the union appellees for violating appellant’s State right to
equal protection under Article 24.
Ovid’s status as a State employee, however, satisfies the
first requirement under Lugar, that the alleged constitutional
deprivation be caused by “a person for whom the State is
responsible.”
We assume, for the purposes of our analysis, that
a State equal protection violation by Ovid was otherwise
14
The facts of the amended complaint do not support an
inference that the union appellees were responsible in any way
for the alleged conduct of Ovid. All specific allegations
regarding Ovid’s conduct apparently predate appellant’s meeting
with the union appellees.
- 35 -
sufficiently alleged in the amended complaint.
We conclude,
however, that, given those allegations, Ovid can not fairly be
considered a state actor.
There is no question that, normally, when executive branch
employees act or purport to act within the scope of their
official duties, they are state actors for purposes of
constitutional analysis.
See Lugar, 457 U.S. at 937; 2 Chester
James Antieau & William J. Rich, Modern Constitution Law § 26.00,
at 21 (2d ed. 1997).
In the present case, there is no indication
that Ovid’s “official character” was such as to “lend the weight
of the State to his decisions,” of which appellant complains.
Appellant does not contend that Ovid violated her rights in his
official capacity as a bus cleaner.
Yet, if Ovid acted as a
private party, his actions were clearly contrary to State policy.
Cf. Lugar, 457 U.S. at 940.
The amended complaint alleges
privately motivated conduct that is unrelated to Ovid’s official
duties and not otherwise sanctioned by the State.
The Fourteenth
Amendment does not reach such conduct and, we are persuaded,
Article 24 of the Maryland Declaration of Rights does not reach
it as well.
3.
With respect to the false imprisonment claim against Ovid in
Count II, appellant provided fragments of alleged conduct by Ovid
that apparently occurred on different occasions.
- 36 -
Appellant
alleged that, while she was on a bus, Ovid told her that she
could not get away from him.
Appellant alleged that “Ovid would
get on the bus where [she] was working, and turn the lights off
and lock the back.”
To state a cause of action for false imprisonment, it is
necessary to allege an unlawful “deprivation by one person of the
liberty of another without his consent, whether by violence,
Mahan v. Adam, 144 Md. 355, 365 (1924).
threat or otherwise.”
See also Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173
(1956); Mason v. Wrightson, 205 Md. 481, 487 (1954).
Appellant does not allege that on any particular occasion
Ovid unlawfully deprived her of her liberty, without consent.
is insufficient that on one occasion he allegedly told her she
could not get away.
We therefore affirm the circuit court’s
dismissal of Count II.
- 37 -
It
4.
Appellant asserted in Count XI of the amended complaint
violations of 42 U.S.C. § 13981, known as the Civil Rights
Remedies for Gender-Motivated Violence Act (VAWA).
The Act
declares that “[a]ll persons . . . shall have the right to be
free from crimes of violence motivated by gender . . . .”
U.S.C. § 13981(c) (1994).
for violations.
42
Subsection (c) creates civil liability
In subsection (d)(2)(A), the term “crime of
violence” is defined in part as “an act or series of acts that
would constitute a felony against the person . . . and that would
come within the meaning of State or Federal offenses.”
The
alleged acts need not have actually resulted in criminal charges
or prosecution.
Id. § 13981(d)(2)(A).
Appellant did not identify in the amended complaint, and
does not identify in her brief, a specific crime of violence to
support a violation of the statute.
We note that appellant’s
allegations of civil battery by Ovid would not satisfy the
elements of the felony of first degree assault under Maryland
Law.15
Although Count XI incorporates all other paragraphs of
15
The felony of first degree assault is committed when a
person causes or attempts to cause another “serious physical
injury,” or commits an assault with a firearm. Md. Code (1957,
1996 Cum. Supp.), Art. 27 § 12A-1. The term “serious physical
injury” is defined as physical injury which:
(1) Creates a substantial risk of death;
(2) Causes serious permanent or serious
(continued...)
- 38 -
the amended complaint, we conclude that the pleading does not
allege facts that would constitute a felony by Ovid, Parsons, or
Moragne-el under Maryland law.
Consequently, we affirm the
dismissal of Count XI.16
5.
Appellant’s allegations with respect to the unnumbered
intentional infliction of emotional distress claim are
insufficient to state a cause of action.
In Harris v. Jones, 281
Md. 560 (1977), the Court of Appeals recognized the tort of
intentional infliction of emotional distress and listed its four
elements as follows:
(1) The conduct must be intentional or
reckless;
15
(...continued)
protracted disfigurement;
(3) Causes serious permanent or serious
protracted loss of the function of any bodily
member or organ; or
(4) Causes serious permanent or serious
protracted impairment of the function of any
bodily member or organ.
Md. Code (1957, 1996 Cum. Supp.), Art. 27 § 12(c).
16
Because we affirm the dismissal of Count XI on this
basis, we do not reach appellees’ contentions regarding (1) the
potential preclusive effect of the acquittal of Ovid on the civil
battery count, (2) the requirement of the VAWA that the “crime of
violence” relate to or be motivated by animus against women, (3)
the argument that state employees sued in their official capacity
are not “persons” within the meaning of the VAWA, and (4) the
fact that the VAWA was held unconstitutional by the Fourth
Circuit in Brzonkala v. Virginia Polytechnic Inst. and State
Univ., 169 F.3d 820 (4th Cir. 1999) (en banc).
- 39 -
(2) The conduct must be extreme and
outrageous;
(3) There must be a causal connection between
the wrongful conduct and the emotional
distress;
(4) The emotional distress must be severe.
Harris, 281 Md. at 566.
In concluding that the evidence in
Harris offered in support of the fourth element was legally
insufficient, the Court stated: “That element of the tort
requires the plaintiff to show that he suffered a severely
disabling emotional response to the defendant’s conduct.
The
severity of the emotional distress is not only relevant to the
amount of recovery, but is a necessary element to any recovery.”
Id. at 570.
The Court concluded in part that the proffered
evidence lacked necessary “evidentiary particulars” of the
severity of the emotional distress other than that the plaintiff
had seen a physician on one occasion “for his nerves.”
572.
Id. at
Compare Caldor, Inc. v. Bowden, 330 Md. 632, 642 (1993)
(allegations that plaintiff was “distraught,” did not socialize
as much after the incident, “kept to himself, and did not trust
others very readily,” but carried on with his normal activities
and obtained employment soon after the incident, held
insufficient evidence of either a “severely disabling emotional
response that hindered his ability to carry out his daily
activities or the severe emotional distress this cause of action
requires”) with Moniodis v. Cook, 64 Md. App. 1, 16 (1985) (after
the incident, plaintiff took increasing amounts of medication,
- 40 -
“began to sleep most of the time,” “became a recluse” for one
year, and relied on relatives to tend to her household chores),
superseded by statute on other grounds as stated in Weathersby v.
Kentucky Fried Chicken Nat. Management Co., 86 Md. App. 533
(1991), rev’d on other grounds, 326 Md. 663 (1992).
In Leese v. Baltimore County, 64 Md. App. 442 (1985),
overruled in part on other grounds by Harford County v. Town of
Bel Air, 348 Md. 363 (1998), we affirmed the dismissal of a claim
for intentional infliction of emotional distress in part because
the plaintiff’s declaration failed to allege “‘a severely
disabling emotional response,’ so acute that ‘no reasonable man
could be expected to endure it.’”
Leese, 64 Md. App. at 471
(quoting Harris, 281 Md. at 571).
We concluded that the
plaintiff’s allegation that he “suffered ‘physical pain,
emotional suffering and great mental anguish,’” fell short of the
“‘evidentiary particulars’ that must be pleaded to show a prima
facie case of severe injury.”
Id. at 472.
We noted that the
plaintiff did not allege that he was “unable to tend to necessary
matters,” but that he did allege that he was actively job hunting
after the incident.
Id.
In the present case, appellant alleged that “MTA, Ovid,
Parsons, Moragne-el, Pettus, Fonder, and Zollicoffer engaged in a
continuing pattern of intentional and reckless conduct, that was
extreme and outrageous, causing Ms. Manikhi severe emotional
distress.”
Appellant alleged that the appellees’ acts “caused
- 41 -
Ms. Manikhi to seek medical treatment.”
These allegations fall
short of the requirement that emotional distress be plead with
particularity.
Instead, particular facts presented in the
amended complaint suggest that appellant continued to work during
and after the alleged incidents.
Without specific allegations of
fact detailing appellant’s “severe emotional distress,” the
amended complaint failed to state a claim for intentional
infliction of emotional distress.
With respect to aiding and abetting, Count III, and
conspiracy, Count IV, we conclude that no underlying tort remains
to support the liability of any appellee under these Counts.
In
Alleco Inc. v. The Harry & Jeanette Weinberg Found., Inc., 340
Md. 176 (1995), the Court of Appeals considered whether both
aiding and abetting and civil conspiracy were sufficiently
alleged in the amended complaint.
The Court stated, “This Court
has consistently held that “‘conspiracy” is not a separate tort
capable of independently sustaining an award of damages in the
absence of other tortious injury to the plaintiff.’”
Alleco
Inc., 340 Md. at 189 (quoting Alexander & Alexander Inc. v. B.
Dixon Evander & Assocs., Inc., 336 Md. 635, 645 n.8 (1994)).
Similarly, the Court stated:
One of the requirements for tort
liability as an aider and abettor is that
there be a “direct perpetrator of the tort.”
Duke v. Feldman [245 Md. 454, 457 (1967)].
Thus, civil aider and abettor liability,
somewhat like civil conspiracy, requires that
there exist underlying tortious activity in
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order for the alleged aider and abettor to be
held liable.
Alleco Inc., 340 Md. at 200-01.
Concluding that no underlying
tort was plead in that case, the Court affirmed the dismissal of
the amended complaint on that ground.
We reach an analogous conclusion in the case at bar.
Every
tort alleged in the amended complaint was dismissed by the
circuit court.
We have affirmed the dismissal of those torts the
dismissal of which appellant contends was error.
No tort remains
to support aider and abettor or conspiratorial liability as to
any of the appellees.
We therefore affirm the dismissal of
Counts III and IV.
JUDGMENT AFFIRMED; COSTS
TO BE PAID BY APPELLANT.
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