
    Barbara WYCKOFF, Plaintiff, v. State of MARYLAND, Maryland State Police, et al., Defendants.
    Civil No. WDQ-07-0058.
    United States District Court, D. Maryland, Northern Division.
    Oct. 1, 2007.
    
      Howard B. Hoffman, Esquire, Attorney at Law, Rockville, MD, for Plaintiff.
    
      Betty A. Stemley, Office of the Attorney General, Maryland Department of State Police, Pikesville, MD, for Defendants.
   MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Barbara Wyckoff sued her former employer, State of Maryland, Maryland State Police (“MDSP”), and Homer Rich, an MDSP Lieutenant, for violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1983 (2006), Article 24 of the Maryland Declaration of Rights, and the First and Fourteenth Amendments of the United States Constitution.

Pending are MDSP and Rich’s motions to dismiss. For the following reasons, Rich’s motion will be granted on Wyckoffs First Amendment retaliation and Maryland Declaration of Rights claims, and denied on Wyckoffs Fourteenth Amendment claim. On Wyckoffs Title VII claims, MDSP’s motion will be granted on Wyck-offs retaliation and disparate treatment claims, and denied on Wyckoffs discriminatory denial of reassignment claim.

I. Background

Wyckoff was a Trooper First Class assigned to the Prince Frederick barracks in Calvert County, Maryland. In August 2004, Wyckoff applied for a detective position with the Criminal Investigation Division (“CID”). On October 4, 2004, Rich interviewed her for the position. At the interview, Wyckoff alleges that Rich told her that although her status as a single woman without children “would work in her favor,” there were already enough “girls” in the unit, so she could not be reassigned to CID. First Am. Compl. ¶¶ 11-12. On October 7, 2004, Rich informed Wyckoff that Dave Carter had been selected for the position. On October 8, 2004, Rich allegedly told Sergeant Norma Trass, Wyckoffs supervisor, that there were “too many girls” in the unit to justify putting Wyckoff in the position. First Am. Compl. ¶ 14.

In November 2004, Wyckoff filed a grievance with the MDSP. First Am. Compl. ¶ 15. In February 2005, Wyckoff filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”). In August 2005, Wyckoff contacted MDSP Captain Michael Spauld-ing to inquire about her grievance, and was told not to call him again. First Am. Compl. ¶ 18. The following month, Rich filed administrative charges against Wyck-off for a minor accident with a department vehicle. Wyckoff received several phone calls from MDSP Fair Practice Section Captain Christopher Finn about her grievances and was denied a transfer from the Prince Frederick barracks. First Am. Compl. ¶ 21. MDSP also placed Wyckoff on “stress” leave, which was converted to “ordinary” leave. Id. MDSP then approved Wyckoffs request for medical retirement.

On August 3, 2006, the EEOC determined that there was reasonable cause to believe that MDSP had violated Title VII. Compl. Ex. B. On October 16, 2006, Wyck-off received a right to sue notice from the U.S. Department of Justice, Compl. Ex. C., and on January 10, 2007, Wyckoff sued MDSP and Rich.

II. Analysis

Defendants have moved to dismiss all claims, arguing that: (1) Wyckoff has not established sex discrimination under Title VII against MDSP or § 1983 against Rich; (2)Wyckoff has not alleged sufficient facts to establish an equal protection violation or First Amendment retaliation claim against Rich; and (3) Wyckoff s Maryland constitutional claims against Rich are barred by the Maryland Tort Claims Act (“MTCA”).

A. Standard of Review

Under Rule 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). “Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic Corp. v. Twombly, — U.S.-, 127 S.Ct. 1955, 1969, 167 L.Ed.2d 929 (2007).

The court “should view the complaint in a light most favorable to the plaintiff,” and “accept as true all well-pleaded allegations,” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993), but the court is “not bound to accept as true a legal conclusion couched as a factual allegation,” Papasan v. Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986), nor “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” Veney v. Wyche, 293 F.3d 726, 730 (4th Cir.2002) (citation and internal quotation marks omitted). Thus, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic, 127 S.Ct. at 1965.

Although the notice-pleading requirements of Rule 8(a)(2) are “not onerous,” the plaintiff must allege facts that support each element of her claim. Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir.2003).

In deciding a Rule 12(b)(6) motion, the court will consider the facts stated in the complaint and any incorporated documents. Biospherics, Inc. v. Forbes, Inc., 989 F.Supp. 748, 749 (D.Md.1997), aff'd, 151 F.3d 180 (4th Cir.1998). The court may also consider documents referred to in the complaint and relied upon by the plaintiff in bringing the action. Id.

B. Sex Discrimination

1. Denial of Reassignment

Wyckoff argues that she was denied a reassignment to the CID detective position because of her sex. This denial, Wyckoff argues, was an actionable adverse employment action. MDSP disagrees.

Title VII makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his ... terms, conditions, or privileges of employment, because of such individual’s ... sex.” 42 U.S.C. § 2000e-2(a)(1) (2006). Title VII also makes it unlawful “to limit, segregate, or classify ... employees ... in any way which would ... adversely affect [one’s] status as an employee, because of such individual’s ... sex.” Id. § 2000e-2(a)(2).

If a Title VII plaintiff presents direct evidence of discrimination, “the plaintiff need not establish a prima facie case because creating an inference of discrimination is unnecessary.” Bashara v. Black Hills Corp., 26 F.3d 820, 824 (8th Cir.1994).

To state a claim for discrimination under Title VII, Wyckoff must demon-strate that she suffered an employment action that “adversely affect[ed] the terms, conditions, or benefits of [her] employment.” See James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.2004) (internal quotation marks omitted). This inquiry focuses on ultimate employment decisions, including “hiring, granting leave, discharging, promoting, and compensating.” Page v. Bolger, 645 F.2d 227, 233 (4th Cir.1981).

MDSP contends that only reassignments resulting in a “decrease in compensation, job title, level of responsibility, or opportunity for promotion” are adverse employment actions. Def.’s Supp. Mem. at 6 (quoting Booz-Allen, 368 F.3d at 376) (internal quotation marks omitted). Therefore, Wyckoff must establish that the denial of her reassignment “had a significant detrimental effect on her employment status.” Def.’s Reply at 1.

MDSP contends that a CID detective’s job is equivalent to Wyckoffs rank of Trooper First Class. Therefore, Wyckoffs failure to receive the detective job was not an adverse employment action. MDSP’s reliance on employee reassignment cases is misplaced. Although styled a “reassignment,” Wyckoffs application and interview for the CID detective job are similar to an internal promotion process. The detrimental effect analysis is usually encountered in involuntary reassignment cases. See Booz-Allen, 368 F.3d at 377 (“[A]n employee’s dissatisfaction with this or that aspect of work does not mean an employer has committed an actionable adverse action.”).

Wyckoffs allegations that the detective position was a “status” promotion and that she lost training, supervisory, and future promotion opportunities as a result of MDSP’s denial of her application state a Title VII claim. First Am. Compl. ¶¶ 9-12,14.

2. Retaliation

Wyckoff also argues that MDSP retaliated against her for complaining about gender discrimination. To establish a Title VII retaliation claim, Wyckoff must demonstrate that: (1) she engaged in a protected activity; (2) MDSP acted adversely against her; and (3) there was a causal connection between the protected activity and the adverse action. Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir.2007). Wyckoffs filing of the internal charge and EEOC charge are protected activities. See Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir.1998). The parties dispute whether Wyckoff suffered any adverse action as a result of filing the charges.

In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), the Supreme Court held that Title VII’s anti-retaliation provision, 42 U.S.C. 2000e-3, protected against activity “beyond workplace-related or employment-related retaliatory acts and harms.” Burlington Northern, 126 S.Ct. at 2414. The Court confined the limits of the clause to retaliation that “produces an injury or harm,” and adopted a material adversity standard that asks whether the action “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 2414-15 (internal quotation marks omitted). The Court cautioned that reporting discriminatory behavior does not “immunize [an] employee from those petty slights or minor annoyances that often take place at work.” Id. at 2415.

Wyckoff alleges that because of her previous complaints, Rich brought an administrative charge against her for damaging a department vehicle. Wyckoff contends that the charge included an enhanced penalty and that other officers were not treated similarly when they damaged a department vehicle. That an administrative charge was filed does not equate to material adversity. Wyckoff does not explain how the charge was resolved or whether it affected her employment. Without more, the filing of an administrative charge is not a materially adverse action. Cf. Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996) (filing criminal charges against employee is adverse employment action).

Wyckoff also contends that MDSP retaliated against her when she was denied a permanent reassignment to an alternate barracks not under Lieutenant Rich’s command. She argues that she was only offered a temporary reassignment, which did not guarantee against a future transfer. Wyckoff argues that multiple phone calls she received from Captain Finn advising her that the complaints “were not good for her” compounded the difficulty of staying at the barracks. Pl.’s Supp. Mem. at 11. Wyckoff s refusal to take the offered temporary reassignment cannot be considered materially adverse because she alleges no injury caused by her continued employment at the Prince Frederick barracks. Moreover, Finn was required to investigate Wyckoff s complaint as part of his fair practices duties. See Md.Code Ann., State Pers. & Pens. § 5-207(c)(2) (West 2006). Taken together, no reasonable jury could consider these actions materially adverse.

Wyckoff also argues that MDSP put her on “stress leave,” which reduced her accrued leave time. Wyckoff does not explain why she was placed on leave, how this treatment differed from that afforded other employees, or how this affected her employment. That Wyckoff lost days from her personal leave bank is not materially adverse. Cf. Burlington Northern, 126 S.Ct. at 2415 (excluding employee from weekly training lunch tied to professional advancement is likely materially adverse). Accordingly, MDSP’s motion to dismiss Wyckoff s retaliation claim will be granted.

C. Equal Protection

Wyckoff alleges that Rich engaged in sex discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983 by considering her gender in denying her the detective job. Rich contends that Wyckoff does not have a cause of action because the denial of her reassignment was not an adverse employment action.

Gender discrimination by employees acting under color of state law is actionable under § 1983. Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir.1994). As previously discussed, the denial of Wyckoffs application for the detective job was an adverse employment action. Wyckoff has also alleged that Rich was acting under color of state law when he informed her that although she was a good candidate for the job, there were already enough “girls” in CID. First Am. Compl. ¶¶ 10-12. This evidence is sufficient to survive Rich’s motion to dismiss.

D. First Amendment Retaliation

Wyckoff also brings a First Amendment retaliation claim against Rich under § 1983. She contends that filing an internal claim and an EEOC charge were protected First Amendment activities on matters of public concern. PL’s Supp. Mem. at 12. Wyckoff alleges that Rich filed administrative charges against her in retaliation for exercising that protected right. Alternatively, Wyckoff argues that even if filing an EEOC charge is not a matter of public concern, her good faith belief in the substance of the charge affords her constitutional protection.

Rich counters that the EEOC charge is not a matter of public concern that is protected by the First Amendment, and she has not alleged a causal connection to the administrative charge or any effect on protected speech caused by the charge.

To state a claim for First Amendment retaliation, Wyckoff must establish that: (1) her speech relates to a matter of public concern; (2) Rich’s retaliation adversely affected her speech; and (3) there was a causal connection between her speech and the retaliation. Suarez Corp. Indus, v. McGraw, 202 F.3d 676, 686 (4th Cir.2000).

Whether an employee’s speech addresses a matter of public concern is determined by the “content, form, and context of a given statement.” Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Matters that are directed at an employee’s self-interest, such as personal grievances or employment conditions, are not matters of public concern. Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir.1992). Although statements made by public employees in the scope of their official duties are not protected, see Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 1960, 164 L.Ed.2d 689 (2006), a public employee speaking as a citizen has a right to raise matters of public concern. Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). The fact that an employee’s speech is made in private or concerns the subject matter of her employment is not dispositive. Garcetti 126 S.Ct. at 1959.

All parties rely on Campbell v. Galloway, 483 F.3d 258 (4th Cir.2007). In Campbell, a female police officer was terminated after writing a memorandum addressing her complaints about the workplace. Id. at 263. The memorandum primarily focused on perceived slights, such as not being invited to breakfast with other officers, but also raised multiple sexual harassment incidents. Id. While declining to find that sexual harassment contentions were per se matters of public concern, the Campbell court determined that the officer’s complaints sufficed. Id. at 269. The court emphasized that the officer’s complaints raised issues concerning the general public, in addition to treatment of her and her fellow female officers. Id. at 270.

Rich argues that Wyckoff s EEOC complaint was personal to her and was not motivated by a concern for the public interest. Of the nine allegations made by Wyckoff in her EEOC charge, Rich identifies only one that refers to someone other than Wyckoff. The charge alleged, “[t]here has been an ongoing systematic and pattern and practice of discrimination against me and other females,” Compl. Ex. A, is in Rich’s view too vague and conclu-sory to rise to the level of public concern. Rich also argues that the sexist comments alleged by Wyckoff, that there were already “too many girls” in CID, adds little to the calculus. Rich compares the two claims alleged by Wyckoff with the multiple harassment claims alleged by the officer in Campbell, and asserts that Wyck-off s content “pales in comparison.” Def.’s Reply at 5.

Although tallying the number and specificity of discrimination claims alleged may help determine whether the complained-of conduct is a matter of public concern, it is not dispositive. In Campbell, the Fourth Circuit declined to follow other circuits that require retaliation plaintiffs to complain about a pattern of discrimination. Campbell, 483 F.3d at 268-69. But see, e.g., David v. City of Denver, 101 F.3d 1344, 1356 (10th Cir.1996) (sexual harassment complaints must address widespread practices rather than personal grievances). Rather than adopting a test that distinguishes between personal and systemic discrimination, the court determined that the inquiry “depends on the content, form and context of the complaint.” Id. at 269. Viewing Wyckoffs allegations as true, her complaints about sex discrimination are matters of public concern.

Rich allegedly advised Wyckoff that although she was qualified, she could not be assigned to the position because there were already enough “girls” in CID. First Am. Compl. ¶ 12. Wyckoff also alleges that Rich informed her supervisor that there were “too many girls” in CID to justify Wyckoffs assignment there. Id. ¶ 13. Wyckoffs EEOC allegations, if true, demonstrate at least an informal policy of excluding women from the department. Discriminatory promotion processes within public police departments are matters of public concern.

Although Wyckoffs EEOC filing addresses a matter of public concern, she has not demonstrated that Rich’s alleged retaliation rose above trivial or de minimis harm. Suarez, 202 F.3d at 686. Wyckoff contends that Rich instituted administrative charges against her in retaliation for her protected activity. Wyckoff does not discuss the severity of the charge or the outcome, and does not contend that it led to any suppression of protected speech. Moreover, Wyckoff has not demonstrated a causal link between the administrative charge and the filing of her EEOC complaint. Accordingly, Wyckoffs First Amendment retaliation claim against Rich will be dismissed.

E. Maryland Declaration of Rights

Wyckoff contends that Rich violated Article 24 of the Maryland Declaration of Rights through his discriminatory actions against her. Rich counters that Wyckoff has not satisfied the conditions of the MTCA that govern her claims.

In Maryland, state employees are entitled to immunity under the MTCA for constitutional torts committed within the scope of state employment and made without malice or gross negligence. Lee v. Cline, 384 Md. 245, 266, 863 A.2d 297, 310 (Md.2004). Under the MTCA, plaintiffs must file a claim with the State Treasurer within one year after the injury. Md.Code Ann., State Gov’t § 12-106(b) (West 2006). Rich argues that Wyckoffs failure to file a claim with the Treasurer bars her Maryland constitutional claims. Wyckoff counters that filing the EEOC charge put Rich on notice of the claims and substantially complied with the MTCA.

Whether Wyckoffs claims are barred by the MTCA’s procedural requirements is irrelevant because Wyckoffs pleadings do not state any Maryland constitutional torts that were committed and she does not raise any in her Response. Accordingly, Rich’s motion to dismiss Wyckoffs Maryland constitutional claims will be granted.

III. Conclusion

For the reasons discussed above, Defendants’ motions to dismiss will be granted on Wyckoffs disparate treatment, retaliation, First Amendment retaliation, and Maryland constitutional claims, and denied on her discriminatory denial of reassignment and Fourteenth Amendment claims.

ORDER

For the reasons discussed in the accompanying Memorandum Opinion, it is, this 1st day of October, 2007, ORDERED that:

1. State of Maryland, Maryland State Police’s (“MDSP”) motion to dismiss (Paper No. 11) BE, and HEREBY IS, GRANTED in part and DENIED in part;

a. MDSP’s motion to dismiss is granted on Wyckoffs disparate treatment and retaliation claims;
b. MDSP’s motion to dismiss is denied on Wyckoffs discriminatory denial of reassignment claim;

2. Homer Rich’s motion to dismiss (Paper No. 11) BE, and HEREBY IS, GRANTED in part and DENIED in part;

a. Rich’s motion to dismiss is granted on Wyckoffs First Amendment retaliation and Maryland constitutional claims;
b. Rich’s motion to dismiss is denied on Wyckoffs Fourteenth Amendment claim; and

3. The Clerk of the Court shall send copies of this Memorandum Opinion and Order to counsel for the parties. 
      
      . 42 U.S.C. § 2000e et seq. (2006).
     
      
      . On May 21, 2007, Wyckoff filed an amended complaint. Paper No. 6. All references are to the amended complaint unless otherwise noted.
     
      
      .On December 26, 2005, Wyckoff filed a second EEOC charge against MDSP for retaliation. Compl. Ex. A.
     
      
      . To the extent that Wyckoff argues that MDSP has created a "separate but equal” workplace, see PL’s Supp. Mem. at 7, those contentions are without merit and accordingly are not a basis for relief.
     
      
      . Beyond alleging that a male was selected for the CID detective job over her, Wyckoff has not presented any evidence that she was treated differently from similarly qualified male officers. Thus, Wyckoffs disparate treatment claim will be dismissed.
     
      
      . To the extent that Wyckoff asks the Court to find her speech protected because the Supreme Court would not require it to be a matter of public concern, her claim is without merit. An employee’s speech must be addressed to a matter of public concern for First Amendment protections to apply. See, e.g., Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir.1992).
     
      
      . Article 24 provides ''[t]hat 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. Const. Decl. of Rts. art. 24.
     