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JOAN KALTREIDER, et al. Plaintiffs v. FLOYD STARNES, et al. Defendants
* * * * * * * * *
CASE NO. 360930-V The Honorable Ronald B. Rubin
DEFENDANTS' MOTION TO DISMISS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF
Defendants, Floyd Starnes (hereinafter, "Starnes") and Montgomery County Board of Education (hereinafter, "Board"), by and through counsel, and pursuant to Maryland Rule 2-322, hereby submit this Motion to Dismiss and Memorandum of Points and Authorities in Support of
STATEMENT OF THE CASE
Plaintiffs filed a Complaint on March 20, 2012, against Floyd Starnes ("Starnes") and the
Montgomery County Board of Education ("Board"), alleging three counts against both defendants (Intentional Infliction of Emotional Distress, Gross Negligence, and Negligence), and one additional count (Negligent Retention/Supervision) against the Board. Defendant Starnes is
the Principal at Kemp Mill Elementary School, where all Plaintiffs were previously employed as teachers and staff members. Plaintiffs have asked this Court for compensatory damages in the amount of two million dollars ($2,000,000) per Plaintiff. II.
STATEMENT OF FACTS A. Facts Common to All Parties
Plaintiffs Joan Kaltreider, Carmel Mansour, Barbara Reeks, Louis A. Scarci, Emily R.
We1tchek and Gabriela Zavala have filed claims arising out of alleged actions taken by Defendant Starnes against Plaintiffs, who are former teachers or staff at Kemp Mill Elementary School (hereinafter referred to as "KMES") in Silver Spring, Maryland. See Complaint. Plaintiffs bring this action against the Board and the KMES Principal, Floyd Starnes. Id. According to the Complaint, Defendant Starnes became the principal ofKMES in July, 2007. Id at ~ 37. All Plaintiffs, with the exception of Plaintiff Weltchek, allege that prior to Defendant Starnes' arrival at KMES they all had exemplary careers and received positive performance evaluations.' Id at ~~ 89, 124, 154, 196-96, and 218. Plaintiffs allege that since his arrival at
KMES, Defendant Starnes engaged in inappropriate behavior, used inappropriate language, was disrespectful towards staff, untruthful, and generally created a hostile work environment. Id. at ~~ 48,57,62-63,90-91,103,105,112,116-17,130,134,136, 145-46, 151, 160-62, 166,209,
211, 220-22, and 224. Plaintiffs allege that they both individually and as a group intermittently notified the Board of Defendant Starnes' alleged behaviors, and further allege that Defendant Board did not take actions to address their concerns which led to a decline in the KMES work environment. Id at ~~ 48, 57-58, 60-61, 63, 66-67, 69, 76-77, 81-83, 91, 104-05, 108, 117, 132, 163, 166, 171, 194,200,209, and 216. Plaintiffs allege that their
143, 146, 149,156-58,
attempts to notify the Board led to Defendant Starnes engaging in retaliatory behavior against them. Id. at ~~ 62-63, 74, 76-77,92,94-95,98-102,106,112,116-17,119-20,143,151,159, 160,162,164-65,167-70,172-73,182-83,186,188-89, 16, and 221. B. Statement of Facts Specific to Plaintiff Mansour 192-94, 199-202, 204-05, 211, 213, 215-
Plaintiff Mansour alleges that she started working for Defendant Board in 2000, moved to KMES in 2002, and throughout her time as a teacher has received positive evaluations. Id. at ~~
Weltchek began her teaching career in Spring of 20 11 and had not been previously evaluated by the Board.
88-89. Plaintiff Mansour alleges that her problems at KMES began when Defendant Starnes became principal in 2007, specifically because she refused to be called "doll" and because she made reports to Defendant Board about the "unprofessional" language and behavior, and her perception that Defendant Starnes was dishonest. Id at
J04-05, and 108. Plaintiff
Mansour alleges that as a result of her actions, and her statements in the summer of2010 regarding KMES and Defendant Starnes, Defendant Starnes engaged in retaliatory behavior against her including denying her leave, assigning her to different and difficult classes, subjecting her to three unscheduled evaluations, issuing her two negative performance evaluations, being angry at her, and fabricating false allegations against her. ld at ~~ 92, 94-95, 98-102, 106, 110, 112, 116-17, and 119-21. Plaintiff Mansour alleges that by January 9,2012, as a result of Defendants' behaviors, the physical and mental distress became "debilitating" and that her psychiatrist recommended that she no longer work at KMES. Id at ~ 122. Plaintiff Mansour alleges that she suffered and continues to suffer from "extreme anxiety, depression, panic disorder, adjustment disorder, and post-traumatic stress disorder," as well as "panic attacks, nightmares, insomnia, loss of appetite, exhaustion, depression, crying spells, headaches, muscle strain, irritable bowel syndrome, grinding/clenching teeth, and difficulty concentrating" and now requires the care of a psychiatrist and the taking of medications. 2012. ld. . C. Statement of Facts Specific to Plaintiff Reeks ld. Plaintiff Mansour has not taught at KMES since January 9,
Plaintiff Reeks alleges that prior to Defendant Starnes' arrival at KMES, she had been the school's music teacher for 28 years and received excellent evaluations. Id. at
Plaintiff Reeks claims that in the fall of2007, she was humiliated when Defendant Starnes
reprimanded her for not being able to control a disruptive child. Id. at ~ 130. Plaintiff Reeks alleges that in May, 2008 and 2010 and in March, 2010 she attempted to notify Defendant Board of Defendant Starnes' behavior. Id. at
and 148-49. Plaintiff Reeks alleges
that, as a result of a conversation with co-Plaintiff Scarci, she sent an email to Defendant Starnes in September of2008, asking that he cease calling staff by "inappropriate names." Plaintiff
alleges that Defendant Starnes said he would stop, but that his behavior continued, and as a result, she suffered from "stress and guilt." Id. at 1'11134-35. Plaintiff Reeks alleges that, as a result of alleged conversations she had with co-workers and KMES staff, or interactions she saw, she suffered stress. Jd. at ~1 127-29, 131, 134-38, 140-52. Plaintiff Reeks retired in June, 2011 to avoid being evaluated by Defendant Starnes the following school year. Id at ~ 153 _z D. Statement of Facts Specific to Plaintiff Kaltreider
Plaintiff Kaltreider alleges that prior to Defendant Starnes' arrival at KMES in July 2007, she was a "veteran teacher of 32 years" who always received positive evaluations, including a positive evaluation by Defendant Starnes during the 2008 - 2009 school year. Id. at
Plaintiff Kaltreider alleges that she was witness to Defendant Starnes calling teachers and staff "babe, doll, and honey" and to his groping of "male teachers and staff." Id. at ~ 155. Plaintiff Kaltreider alleges that she made several attempts to inform the Board of Defendant Starnes' behavior from February 2009 through June, 2011. Jd. at ~'II156-58, 166, 171. Plaintiff Kaltreider alleges that as a result of her attempts to notify the Board about Defendant Starnes, he retaliated against her by providing her with two negative evaluations, evaluating her performance too often and for an excessive amount of time, placing her in Peer Assistance and Review ("PAR"), and placing her in a special evaluation year. ld. at ~, 159-60, 162-65, 167-73, and
The Complaint does not state whether Plaintiff Reeks experienced any emotional distress other than stress and guilt.
175. Plaintiff Kaltreider alleges that Defendant Starnes' behavior and her attempts to satisfy the requirements of PAR led to her being anxious and emotionally distressed and upon the advice of her doctor, she filed for medical leave on December 22, 2011. Id. at ~ 174. Plaintiff Kaltreider continues to be on medical leave and alleges that as a result of Defendants' behaviors, her physical health and mental well-being have been affected, and she suffers from "panic attacks, heart palpitations, and shortness of breath, insomnia, severe depression and anxiety." Id. at ~ 177. E. Statement of Facts Specific to PlaintiffWeltchek
Plaintiff Weltchek is 25 years old and started her first teaching position in August 2011 at KMES. Id. at ~~ 178-79. Plaintiff Weltchek alleges Defendant Starnes gave her negative evaluations due to her mentorship/friendship with Plaintiffs Kaltreider and Mansour and
retaliated against her due to a report to Child Protective Services. Id. at ~~ 181-90, 193. Plaintiff Welchek alleges that in December 2011, she was informed that Defendant Starnes and the school's Vice Principal wanted to conduct a mid-year review and enter her into the PAR programs due to concerns in her teaching, and she was advised to consider resigning. Id. at ~ 192. Plaintiff Weltchek resigned in late December 2011, and alleges that as a result of Defendants' behaviors she has suffered from "extreme mental distress and severe anxiety," and an "exacerbation of her irritable bowel syndrome and has developed insomnia, eating difficulties,
and irregular menses." Id. at ~~ 179, 194. F. Statement of Facts Specific to Plaintiff Zavala
Plaintiff Zavala began working for Defendant Board in 2003 and was transferred to KMES in 2006 as an Attendance Secretary. Id. at ~ 195. Plaintiff Zavala alleges that her
problems at KMES began when she questioned Defendant Starnes' decision not to hire her for the summer 2009 break. Id. at ~~ 197-98. Zavala alleges that upon her return to KMES in the fall of 2009, Defendant Starnes harassed and intimidated her by leaving large stacks of disorganized student files and accusing Plaintiff Zavala of being disorganized when she could not locate the file. Id at ~~ 199-200. Plaintiff Zavala also alleges that Defendant Starnes deprived her of her break time; criticized her, followed her closely, was mean to her; did not hire her for summer 2010 break, threatened to have her transferred to another school, placed her in the PAR program, and was untruthful. Id at ~~ 200-02, 204, 208-09, 211, 213-14. Plaintiff Zavala also alleges that she attempted to notify Defendant Board about Defendant Starnes' behavior on at least two occasions. Id. at ~~ 204, 209, 211. Plaintiff Zavala alleges that she began to see a therapist during the summer of2010, who indicated she had symptoms of anxiety and depression which, according to Plaintiff Zavala, were exacerbated by her work at KMES. Id. at ~~ 206, 212. Plaintiff Zavala issued her letter of resignation on January 14,2011 and her last day at KMES was January 31,2011. Id. at ~ 216. Plaintiff Zavala alleges that as a result of Defendants' behaviors she "continues to experience high levels of stress, crying spells, high blood pressure, constant and painful headaches; extreme anxiety, nervousness, depression, temporal mandibular joint disorder, insomnia, nightmares and severe irritable bowel syndrome." Id at ~ 217. G. Statement of Facts Specific to PlaintiffScarci
Plaintiff Scarci alleges that he has been teaching for over 35 years and that he was the instrumental music teacher at KMES from 2007-2009. Id. at ~ 218. Plaintiff Scarci alleges that upon their first meeting, Defendant Starnes "made it known" that he was gay. Id. at ~ 219. PlaintiffScarci alleges that Defendant Starnes called him "doll," "honey," "sweetie," and "babe"
in a "sexually-suggestive"
manner, which Plaintiff Scarci perceived as unwanted advances. Id. at
Plaintiff Scarci alleges that he found Defendant Starnes' behavior "abusive, intimidating,
and unrelenting" and that he confronted Defendant Starnes and demanded that he stop. Id. Plaintiff Scarci alleges that Defendant Starnes did not give him a classroom to teach in during the 2008 - 2009 school year, and that Defendant Starnes would "touch, slap and pinch" Plaintiff Scarci. Id. at '11'11 221-22. Plaintiff Scarci allegedly felt uncomfortable and scared and due to
Defendant Starnes' behaviors his co-workers questioned his sexual orientation, so he also felt embarrassed, anxious, nervous, distressed, and violated. Id. at '11'11 222-23. Plaintiff Scarci
alleges that Defendant became "even more sexually aggressive and unrelenting towards [him]" as a result of a Reeks email to Defendant Starnes in September 2008. Id. at '11224. Plaintiff Scarci left KMES in June 2009, and alleges that as a result of Defendant Starnes' behavior and Defendants' behaviors he has and, "will continue to suffer" mental and physical distress, including but not limited to sleeplessness, headaches, nightmares, and anxiety. Id. at
STANDARD OF REVIEW
. A motion to dismiss is a procedural device designed to test the sufficiency of the
pleadings. Under Md. Rule 2-322(b), a complaint may be dismissed for failure to state a claim upon which relief can be granted. When considering a motion to dismiss on this ground, the court must assume the truth of, and view in a light most favorable to the non-moving party, all well-pleaded facts and allegations contained in the complaint, as well as all inferences that may reasonably be drawn from them, and order dismissal only if the allegations and permissible inferences, if true, would not afford relief to the plaintiff. RRC Northeast LLC v. BAA Md., Inc., 413 Md. 638, 643 (2010). However, the facts setting forth each cause of action in a complaint
must be pleaded with sufficient specificity; bald assertions and conc1usory statements by the
pleader will not suffice. Id. at 644; Adamson v. COOl'.Med. Servs., Inc., 359 Md. 238,246, 753 A.2d 501, 505 (2000). The grant of a motion to dismiss is proper if the complaint does not disclose, on its face, a legally sufficient cause of action. Rossaki v. NUS Corp., 116 Md. App. 11,695 A.2d 203 (1997). The complaint must set forth, with particularity and definiteness, sufficient facts to support a Plaintiff's claims. Nigido v. First National Bank of Baltimore, 264 Md. 702,288 A.2d 127 (1972). The Nigido Court, in finding that the appellants' declaration failed to state a claim, noted that "naked adjectival or adverbial words, phrases or expressions can never take the place of facts." Id. at 706. Further; mere "conclusions of the pleader" are inadequate to state a valid cause of action. Id. When this standard of review is applied to the "conclusions of the pleader" in Plaintiffs' Complaint, it is clear that each count should be dismissed as to each of the Defendants. IV. ARGUMENT A. Plaintiffs Have Failed to State a Claim of Negligent Retention and Supervision
Count I of the Complaint alleges that the Board was negligent in its retention and supervision of Defendant 'Starnes. Specifically, Plaintiffs allege that the Board owed a duty to the Plaintiffs to select fit and competent employees, and to not retain any employee who "posed an unreasonable risk to other persons who would foreseeably come into contact with that employee." Complaint, ~ 230. Plaintiffs further allege that, because the Board retained and failed to supervise Starnes, each Plaintiff has been a victim of his "misconduct, inappropriate behaviors, harassment and retaliation." Complaint, ~ 231. To survive a motion to dismiss a claim of negligent hiring, retention, or supervision, Plaintiffs must establish the following five elements: (1) the existence of an employment relationship;
(2) the employee's incompetence; (3) the employer's actual or constructive knowledge of such incompetence; (4) the employee's act or omission causing the plaintiffs injuries; and (5) the employer's negligence in hiring [, supervising] or retaining the employee as the proximate cause of plaintiff's injuries. Latty v. St. Joseph's Soc'y of the Sacred Heart, 198 Md. App, 254,272 (2011) (citations omitted); see also Williams v. Wicomico County Bd of Educ., 2011 U.S. Dist. LEXIS 79191 at *31 (D. Md. July 21, 2011) (citation omitted). There is "a rebuttable presumption that an employer has used due care in hiring the employee." Horridge v. St. Mary's County Dep 't of Soc. Servs., 382 Md. 170, 1~1, 854 A.2d 1232 (2004). Typically, claims of negligent hiring, retention, and supervision are brought in cases involving criminal acts of violence. See, e.g., Jones v. State, 2012 Md. LEXIS 77 (plaintiff brings claim against police department after police officers punched her in the face, entered her apartment, sprayed her with pepper spray, beat her
with a baton,
and pulled hair from her scalp);
Horridge, 382 Md. 170 (father of child killed by mother or her boyfriend brings claim against
DSS employees for not properly investigating his prior reports of abuse); Athas v. Hill, 300 Md. 133,476 A.2d 710 (1983) (bus boy brings claim against employer country club after his coworker, a chef, attacked him with a butcher knife, causing him to suffer permanent disability and facial disfigurement); Henleyv. Prince George's County, 60 Md. App. 24, 479 A.2d 1375 (1984) (parents bring claim against company who allegedly hired the man who sexually assaulted and murdered their son as a security guard); Evans v. Morsell, 284 Md. 160,395 A.2d 480 (1978) (plaintiff brings claim against tavern owner after tavern owner's bartender shot him).
In analyzing the fourth element listed above, the Court of Appeals recently affirmed a circuit court's granting of a motion to dismiss on plaintiffs' negligent hiring, supervision, and
retention claim because "there simply is no evidence here of criminal misconduct." Latty, 198 Md. App. at 273 (emphasis original). In analyzing the proximate cause element in another case, the Court of Special Appeals held that the appellants' position must be that the killer's alleged employment in a security position "increased his motivation to confront and deal with vandals to the point that he committed crimes he would not otherwise have committed." App. at 40 (emphasis added). Henley, 60 Md.
Therefore, as none of the Plaintiffs have brought a claim based on
criminal misconduct, their claims of negligent retention and supervision must fail. Further, Plaintiffs' claims of negligent retention and supervision must be dismissed as the alleged conduct of Defendants does not constitute a violation of common law. In Maryland, "a plaintiff may not maintain a negligent supervision and retention claim when the underlying conduct is not actionable under Maryland common law." Bishop v. Ed of Educ., 2011 U.S. Dist. LEXIS 71794, at *28 (D.Md. July 5,2011) (citations omitted). Further, Maryland courts have "repeatedly held that 'Title VII may not form the predicate for claims of negligent retention and supervision' because such claims are 'preempted by the Maryland Worker's Compensation Act.' " ld. at *28. (citations omitted). This is because the Act provides the "'exclusive remedy for employee injuries arising out of and in the course of employment. '" Id. (citations omitted). In Bishop, the Plaintiff filed claims for race discrimination under federal and state statutes, as well as claims of negligent supervision and retaliation and intentional infliction of emotional distress. The Court found that there was no common law tort for race discrimination. Bishop at *29-30 (citations omitted). Because the Court also found that Plaintiff failed to establish a tort claim of intentional infliction of emotional distress, Plaintiff failed to establish an underlying violation of common law, and' thus failed to state a claim for negligent supervision and retention. Id.
Better Business Bureau, 923 F. Supp. 720 (D. Md. 1996), the
Plaintiff brought a federal sexual harassment and discrimination claim, a federal disability claim and claims of battery, intentional infliction of emotional distress, and negligent supervision, retention and selection. Plaintiff claimed that the defendants maintained a pattern of harassment and that the defendant's failure to stop the harassment caused her to be subject to "daily and ongoing abuse [and] discrimination." Id. at 751. The Court found that the Plaintiff could not "pursue negligent selection, supervision and retention claims based on the alleged verbal abuse she suffered." Id. This was because the claims were based on federal statutes, not Maryland common law. Id. The Court would only permit Plaintiffto pursue a negligent selection, supervision and retention claim against the employer for permitting a battery to occur. Id. In Braxton v. Domino's Pizza, LLC, 2006 U.S. Dist. LEXIS 92902 (D.Md. Dec. 21, 2006), Plaintiff claimed federal and state statutory sexual harassment, hostile work environment, retaliation, race discrimination and claims of breach of contract, intentional infliction of emotional distress, violation of public policy and negligent supervision. Plaintiff conceded that her negligent supervision claim based on Title VII should fail, but pursued the theories of race discrimination, a violation of public policy and intentional infliction of emotional distress. The Court reiterated that there was no common law tort for race discrimination in Maryland. Further, Plaintiffs wrongful discharge claim failed to state a claim upon which relief could be granted,
and thus, failed as well. Further, many of Plaintiffs' allegations concern the hostile work environment allegedly created by Defendant Starnes due to his alleged sexual harassment. However, the Maryland Court of Appeals has held that claims of negligent supervision and retention based on such allegations are only actionable under Title VII: "The source of the policy against hostile
environment sexual discrimination is statutory, and exclusively statutory."
Watson v. Peoples
Ins. Co., 322 Md. 467, 480,588 A.2d 760, 766 (1991). While the Court of Appeals has since held, in part, that Title VII did not preempt an employee's negligent hiring/retention claim based on allegations of sexual harassment and retaliation, the Court's rationale was based not on Title VII but on plaintiff's "completely independent" cause of action arising out of her assertion of her rights as a victim of assault and battery. Ruffin Hotel Corp. of Md. v. Gasper, 418 Md. 594, 615616, 17 A.3d 676 (2011); see also Bishop v. Bd. of EduG., 2011 U.S. Dist. LEXIS 71794, at *2930 (D. Md. July 5, 2011) (dismissing plaintiff's negligent supervision and retention claims based on racial discrimination as statutorily preempted by Title VII, distinguishing Ruffin based on its rationale that "an entirely independent cause of action existed under common law assault and battery"). As Plaintiffs have not alleged any acts of criminal misconduct against them taken by Defendant Starnes, nor have they brought any claims based on common law causes of action, other than intentional infliction of emotional distress, the facts as alleged do not support any claim of negligent retention and supervision against the Board. As to Plaintiffs' claims of intentional infliction of emotional distress, argued subsequently, the claims have failed as well, and thus, there are no common law causes of action to support Plaintiffs' claims of negligent retention and supervision. B. Plaintiffs Have Failed to State a Claim of Intentional Infliction of Emotional Distress
Count II of Plaintiff's Complaint alleges a claim of intentional infliction of emotional distress ("lIED") against both Defendants. However, Plaintiffs cannot bring this cause of action against Defendant Board, as "Maryland courts have recognized that a county school board may not be held liable for intentional torts under a respondeat superior theory because such torts are
never considered within the scope of an individual's employment." U.S. Dist. LEXIS 71794, at
Bishop v. Bd. of Educ., 2011
(D. Md. July 5, 2011) (citations omitted). As such,
Plaintiffs' cause of action for IIED against the Board fails. Id. at *25 (dismissing plaintiffs IIED claim against defendant Board of Education, as the Board could not be liable under that claim). Similarly, Plaintiffs claims against Defendant Starnes must fail as well. Four elements
must be met in order to impose liability: "(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; (4) the emotional distress must be severe." Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611 (1977). The failure of anyone element will defeat the cause of action. Hrehorovich v. Harbor Hospital Center, Inc., 93 Md. App. 772,614 A.2d 1021, 1035 (1992); Reagan v. Rider, 70 Md. App. 503, 521 A.2d 1246, 1251 (1987). The Court of Appeals has noted that, in particular, two elements of this tort - the extreme and outrageous nature of the behavior and the severity of the distress - place a sizable burden on a plaintiff. Manikhi v. Mass Transit Admin., 360 Md. 333,369, 758 A.2d 95 (2000) ("Previous cases indicate the high burden imposed by the requirement that a plaintiff s emotional distress be severe," and "[m] any previous cases have found that a cause of action in lIED did not lie because the plaintiff could not satisfy the 'extreme and outrageous' element") (citations omitted). The extreme and outrageous element requires a plaintiff to allege conduct "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." Harris at 569. See Figueiredo-Torres v. Nickel, 321 Md. 642,653,584 A.2d 69, 75 (1991) (psychologist had sexual
relations with plaintiff's wife during the time when he was treating the couple as their marriage
counselor); Young v. Hartford Accident & Indemnity, 303 Md. 182,492 A.2d 1270 (1985) (workers' compensation insurer's sole purpose in insisting that claimant submit to psychiatrist examination was to force her to abandon her claim or to commit suicide). For emotional distress to be sufficiently severe, it must be so acute that "no reasonable man could be expected to endure it." Harris, 281 Md. at 571 (citation omitted). See also Hanna v. Emergency Med Assocs., 77 Md. App. 595, 609, 551 A.2d 492 (1989) (severe depression, humiliation, and anxiety over job prospects and finances suffered by a physician allegedly fired by employer for filing a civil rights claim would not rise to the level of severe emotional distress); Moniodis v. Cook, 64 Md. App. 1, 15-16,494 A.2d 212 (1985) (lIED claim should not have been sent to jury, as evidence failed to show that any plaintiff was "emotionally unable, even temporarily, to carry on to some degree with the daily routine of her life"). Severity is measured by the intensity of the response as well as its duration. Id. Allegations of severity must also "state with reasonable certainty the nature, intensity or duration of the alleged emotional injury." Manikhi, 360 Md. at 370 (citing Moniodis v. Cook, 64 Md. App. I, 15,494 A. 2d 212 (1985)). In Manikhi, the Court of Appeals affirmed the trial court's granting of a motion to dismiss on plaintiff s lIED claim because: Manikhi does not state whether the medical treatment that she was forced to seek was of a psychological or physical nature, how long the treatment lasted, whether it was successful or is still continuing, whether it was periodic or intensive, and so forth. Without such "evidentiary particulars," the allegation that Manikhi was forced to seek medical treatment is akin to the plaintiff s assertion in Bowden, supra, that he went to a psychologist one time. Manikhi, 360 Md. at 370 (internal citations omitted). Turning now to the specific allegations made by each individual Plaintiff concerning only the actions directed at them, none of the Plaintiffs have stated a cause of action for lIED as to
Defendant Starnes, as the conduct claimed is not sufficiently outrageous and their reactions are not sufficiently severe. See Hrehorovich, 93 Md. at 800 (affirming district court's motion to dismiss terminated employee's claim for IIED, noting that such an action "is an everyday occurrence in our world and [is] rarely 'beyond all bounds of decency' and 'utterly intolerable in a civilized society' "), 1. Plaintiff Mansour
Plaintiff Mansour alleges that Defendant Starnes did not assign her to all of the classes she requested; that she had to teach some children who needed "significant accommodations" that he questioned two of her uses of personal or sick leave in five years; that he performed three unannounced observations of her class (one per school year); that he asked her about an allegation a student had made; and that his occasional evaluations (written and verbal) of her were allegedly rude, false and outrageous, as they contained criticism such as, "Ms. Mansour has been somewhat inconsistent in maintaining professionalism during interactions with colleagues and supervisors." Complaint, ~~ 98-99. This conduct is simply not "so outrageous in character,
and so extreme in degree, as to go beyond allpossible boundaries of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" as required by Maryland courts. Lauture v. St. Agnes Hosp., 429 Fed. Appx, 300,309 (4th Cir. 2011) (unpublished opinion) (citing Harris, 380 A.2d at 614). The allegations concerning the severity of her reactions also lack the "evidentiary particulars" concerning their nature, duration, and intensity necessary to state a claim as required by Maryland courts. Manikhi, 360 Md. at 370. For all of these reasons, Plaintiff Mansour's claim of intentional infliction of emotional distress must be dismissed. 2. Plaintiff Reeks
Plaintiff Reeks' allegations consist overwhelmingly of the stress that she felt in having
discussions with other people. As those allegations involve conduct directed at other people when Plaintiff Reeks was not present, they cannot meet the first element of the tort, which requires that the Defendant intended the conduct to injure the party at whom it was directed, absent particular circumstances (presence of the third party and a truly outrageous act, such as murder of one spouse in the presence ofthe other) that are not present here. Homer v. Long, 90 Md. App. 1, 13-15,599 A.2d 1193 (1992). The only allegations that remain are: one event in 2007 where Defendant Starnes reprimanded her for sending a child to the office, which she alleges embarrassed her in front of her co-workers; "guilt and stress" she felt over sending Defendant Starnes an email in the fall of2008 on PlaintiffScarci's behalf; and two performance
evaluations of Plaintiff Kaltreider in spring 2011 that she attended, where Defendant Starnes allegedly spoke "extremely negatively" about Kaltreider's teaching skills. Complaint", 130,
134-135, 151. None of these incidents are sufficiently outrageous or severe to be actionable. Additionally, Plaintiff Reeks does not state any injury that she sustained other than generally feeling stressed, which fails to meet the pleading standard requiring a plaintiff to "state with reasonable certainty the nature, intensity or duration of the alleged emotional injury." Manikhi, 360 Md. at 370. For all of these reasons, Plaintiff Reeks' claim of intentional infliction of emotional distress should be dismissed with prejudice.
Plaintiff Kaltreider's allegations are that Defendant Starnes attempted to oust her from the school by observing her classroom once in March 2010 and four times from March to June 2011, that he gave her negative teaching evaluations based on those observations, and placed her on a Professional Development Plan ("Plan") in September 2011. Complaint, ,,164-65, 167-68,
172. In December, Defendant Starnes allegedly added more items to this Plan, whereupon
Plaintiff Kaltreider felt that "compliance [was] impossible," and, feeling anxious and emotionally distressed, she filed for medical leave. Id. at ~~ 173-74. Plaintiff Kaltreider claims that shortly after she filed for medical leave, Defendant Starnes placed her on a Special Evaluation Year for a reason she claims is false. ld. at ~ 175. She is still on medical leave, as she alleges that she is unable to return to work, and that she suffers from panic attacks, severe depression and anxiety, insomnia, shortness of breath and heart palpitations. Id. at ~ 177. These allegations, concerning a few poor performance evaluations and corresponding disciplinary action taken by a supervisor, do "not rise to the level of truly outrageous conduct . beyond all possible boundaries of what a civilized society is willing to accept. The allegations concerning the severity of her reactions also lack the "evidentiary particulars" concerning their nature, duration, and intensity necessary to state a claim. Manikhi, 360 Md. at 370. For all of these reasons, Plaintiff Kaltreider's IIED claim must be dismissed. 4. PlainfiffWelfchek allegations concerning
As she only joined KMES in August 2011, PlaintiffWeltchek's
actions taken directly by Defendant Starnes are rather sparse. She alleges that Starnes "fraudulently manipulate [d] the observation process" by verbally providing positive feedback during two observations and subsequently writing negative evaluations or feedback, and when faced with the possibility of being placed on a PAR panel due to concerns about her teaching, she chose to resign in December 2011. Complaint;
189, 192-94. PlaintiffWeltchek
claims that she has "suffered extreme mental distress and severe anxiety, for which she is now under medical care." Id. at, 194. She also claims irritable bowel syndrome, insomnia, eating problems and irregular periods. Id. lIED requires a showing of outrageous conduct that is well beyond all possible
boundaries of what a civilized society is willing to accept, and providing two negative performance evaluations to a new employee does not rise to that level. Plaintiff s emotional and physical reactions lack the "evidentiary particulars" concerning their nature, duration, and intensity necessary to state a claim. Manikhi, 360 Md. at 370. For all of these reasons, Plaintiff Weltchek's claim of intentional infliction of emotional distress must be dismissed. 5. Plaintiff Zavala
Plaintiff Zavala alleges that Defendant Starnes frequently criticized her and her job performance, insulted her clothes, followed her around the office, told her to look for another job, and fabricated and exaggerated complaints concerning her job performance, forcing her into the PAR program. Complaint, ~~ 200-02,204,208-09,211,213-14. Once in the PAR program,
she claims that his "ever-shifting PAR requests ultimately proved to be too much for Ms. Zavala to handle emotionally," and she resigned. Id. at~ 216. She now alleges that she suffers from "high stress, crying spells, high blood pressure, has extreme anxiety, nervousness, depression, tmj, insomnia, nightmares, and severe irritable bowel syndrome." Id. at ~ 217. Plaintiff Zavala's claims fail to meet the high pleading standard for lIED cases. See Hanna v. Emergency Med. Assocs., 77 Md. App, 595,609,551 A.2d 492 (1989) (severe
depression, humiliation, and anxiety over job prospects and finances suffered by a physician allegedly fired by employer for filing a civil rights claim did not rise to the level of severe emotional distress). Additionally, Plaintiff Zavala's allegations of severity, which list numerous maladies but only mention generally seeing a therapist, fail to provide the required information concerning their nature, duration, and intensity. Complaint, ~ 212; Manikhi, 360 Md. at 370. Thus, Plaintiff Zavala's claim of lIED should be dismissed. 6. Plaintiff Scarci
Plaintiff Scarci's IIED claim rests on his allegations that Defendant Starnes spoke and touched him in an inappropriate manner; that his co-workers questioned his sexuality, making him feel embarrassed and violated; and that Starnes did not give him a classroom to teach in. Complaint, ~, 220-224. Again, the allegations fail to establish outrageous conduct that is well beyond all possible boundaries of what a civilized society is willing to accept, and Plaintiff Scarci's emotional and physical reactions lack the "evidentiary particulars" concerning their nature, duration, and intensity necessary to state a claim. Manikhi, 360 Md. at 370. Additionally, his alleged distress consisting of mental and physical distress, sleeplessness, headaches, nightmares and anxiety, does not rise to the required level that it has "disrupted [the plaintiff's] ability to function on a daily basis." Complaint' 226; Bishop v. Bd. ofEduc., 2011
U.S. Dist LEXIS 71794, at *26-27 (D. Md. July 5, 2011) (citation omitted). For these reasons, Plaintiff Scarci' s IIED claim should be dismissed. C. Plaintiffs Have Failed to State a Claim of Gross Negligence
Count III of Plaintiffs' Complaint alleges gross negligence against both Defendants. Specifically, Plaintiffs allege that Defendant Starnes "had a duty to conduct himself in a professional manner and to provide a healthy and safe workplace environment for the Plaintiffs, free from the type of hostility, harassment and retaliation that he inflicted upon them." Complaint, ~ 240. Plaintiffs claim that Defendant Starnes breached this duty "through conduct that exhibited a wanton and reckless disregard for the well being of others [and that] was intentional and/or utterly indifferent to the rights of the Plaintiffs," and that his conduct constituted gross negligence under Md. Code Ann., Cts. & Jud. Proc.§ 5-518(e). Complaint, ~~ 241-42. This language is important, as Maryland law provides that "[a] county board employee acting within the scope of employment, without malice and gross negligence, is not personally
liable for damages resulting from a tortuous act or omission." Md. Code Ann., Cts. & Jud. Proc., § 5-518(e) (emphasis added). Thus, unless Plaintiffs can prove that Defendant Starnes acted with malice and gross negligence, their claim against him fails. As for their claim against the Board, Plaintiffs state no basis for their claim other than the assertion that Defendant Starnes was a Board employee acting within the scope of his employment. Complaint, ~ 239. As discussed above, a county school board may not be held
liable for intentional torts, as such torts are never considered to be within the scope of the individual's employment. Hunter v. Bd. of Educ., 292 Md. 481, 491 n.8 (1982). As all of the
definitions of gross negligence discussed below require the evil intention of the actor, such actions, if any, are outside of the scope of Starnes' employment, and the Board may not be held liable for them. As such, this claim should be dismissed as to Defendant Board. Plaintiffs have asserted no basis for the duty they have ascribed to Defendant Starnes, and, although they claim that his actions were grossly negligent, they do not also allege that he acted with malice, as required by § 5-518 (e).3 While the Complaint occasionally attributes malice to Defendant Starnes," it only does so in a conc1usory manner lacking the specificity required to properly plead malice. Scottv. Jenkins, 345 Md. 21,29,690 A.2d 1000 (1997). The
general, vague allegations of gross negligence are also improperly pled. Wells v, State, 100 Md. App. 693, 702-703, 642 A.2d 879 (1994) ("When dealing with such a standard, bald and conc1usory allegations will not suffice; specificity is required.") the Complaint should be dismissed as to both Defendants. For these reasons, Count III of
3 Compare § 5-518's immunity provision for actions absent "malice and gross negligence" with the Maryland Tort Claims Act, Md. Code Ann., Cts. & Jud. Proc., § 5-222(b), which provides immunity from an act or omission "made without malice or gross negligence" (emphasis added in both). 4 See, for example, ~ 237, alleging that "[a]l1 of the above-described wrongful conduct by the Defendant Starnes was done with evil motive, intent to injure, ill will and with actual malice."
Even if these deficiencies are somehow overcome, Plaintiffs' assertions do not state a claim of gross negligence. The Court of Appeals has defined gross negligence as
an intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another, and [it] also implies a thoughtless disregard of the consequences without the exertion of any effort to avoid them. Stated conversely, a wrongdoer is guilty of gross negligence or .acts wantonly and willfully only when he inflicts injury intentionally or is so utterly indifferent to the rights of others that he acts as if such rights did not exist. Barbre v. Pope, 402 Md. 157, 187,935 A.2d 699 (2007) (citations omitted). "Only conduct that is of an extraordinary or outrageous character will be sufficient to supply the requisite state of mind [for gross negligence]." Khawaja v. Mayor & City Council of Rockville, 89 Md. App. 314,
319; 598 A.2d 489 (1991). As discussed in the previous section on Plaintiffs' lIED claims, none of the conduct alleged by the individual defendants is sufficiently extraordinary or outrageous to rise to the level of gross negligence. Maryland case law also supports this. In Wells, the adoptive parents of a child sued the state and several social workers for gross negligence based on their alleged failure to prevent the repeated abuse of their child by his mother and her boyfriend. 100 Md. App. at 694. The Court of Special Appeals affirmed the trial court's
dismissal of the gross negligence claim, noting that while These allegations, taken in a light most favorable to appellants, suggest individual negligence and bureaucratic mismanagement and incompetence; they suggest a critically important governmental unit not properly doing its job because of underfunding, lack of effective leadership and supervision, lack of training, and lack of clear procedures and protocols. They do not indicate, however, malice, evil intention, or wanton, willful, or recldess disregard for human life or the rights of others. In short, they do not allege gross negligence on the part of any of the defendants. Wells, 100 Md. App. at 705-706 (emphasis added). See also Tatum v. Gigliotti, 80 Md. App.
559,565 A.2d 354 (1989), aff'd, 321 Md. 623, 583 A.2d 1062 (1991) (Plaintiffs failed to present sufficient evidence of Defendants' gross negligence where paramedics failed to properly administer oxygen to patient who died from lack of oxygen); Khawaja v. Mayor & City Council of Rockville, 89 Md. App. 314; 598 A.2d 489 (1991) (no finding of gross negligence where police officer did not act with a wanton or reckless disregard for human life and requisite state of mind was not found where the conduct was not of an extraordinary or outrageous character). As seen in the analysis conducted in the section on IIED above, none of the Plaintiffs have alleged any conduct showing a reckless disregard for human life or the rights of others, or conduct that is sufficiently outrageous to rise to the level of gross negligence. must be dismissed as to both Defendants. Thus, this claim
Plaintiffs Have Failed to State a Claim of Negligence
Count IV of the Complaint brings a claim of negligence against both Defendants, alleging that Defendant Starnes "had a duty to conduct himself in a professional manner and to provide a healthy and safe workplace environment for the Plaintiffs, free from the type of hostility, harassment and retaliation that he inflicted upon them." Complaint, ~ 245. Plaintiffs have alleged no basis for the Board's liability other than that Defendant Starnes was a Board employee acting within the scope of his employment. Complaint, ~ 244. Plaintiffs also do not
distinguish how this claim of negligence against the Board differs from their claim of negligence against the Board in Count 1. Thus, this Count should be dismissed as to the Board, as it is duplicative and it fails to state a claim. See Bryant v. Better Business Bureau, 923 F. Supp. 720, 750-751 (D. Md. 1996) (the duty to provide a safe workplace translated in part to the duty to use due care in the hiring, supervision and retention of its employees) (citations omitted).
Defendant Starnes is not liable for this claim under the code section cited by Plaintiffs in Count III, which states that "a county board employee acting within the scope of employment, without malice and gross negligence, is not personally liable for damages resulting from a tortious act." Md. Code Ann., Cts. & Jud. Proc. § 5-518(e); see also Williams v. Wicomico County Bd ofEduc., 2011 U.S. Dist. LEXIS 79191, at *31 (D. Md. July 21; 2011) (dismissing negligence claims against county school board employees under § 5-518(e), as "Maryland law is clear that county school board employees cannot be held liable for negligence committed while acting in the scope of their employment"). Thus, unless the employee acted with malice and
gross negligence, he or she is immune from suit. Williams, 2011 U.S. Dist. LEXIS 79191, at *31. Thus; Defendant Starnes is statutorily immune from Plaintiffs' claims of negligence. Further, Plaintiffs have neither stated a proper basis for nor alleged facts supporting a negligence claim against either Defendant. They have not alleged any specific negligent acts by the Board, and are simply reasserting their claim in Count 1. See Savoy v. Charles County Pub. Schs., 2010 U.S. Dist. LEXIS 10147, at *13-14 (D. Md. Feb. 5,2010) (dismissing plaintiffs' negligence claim against public school system, as plaintiffs were just reasserting their battery claim, had not alleged any negligent acts by the school, and "conc1usory allegations are insufficient to establish a claim for negligence"). As for Defendant Starnes, Plaintiffs have all alleged that his actions were grossly negligent because he acted willfully in intentionally harassing and bullying them and lying during their evaluations with the intent to get them to leave the school. Since "[b]y definition; a showing of negligence cannot include malice or gross negligence," there are no facts that support Plaintiffs' claim of negligence. Savoy v. Charles County Pub. Schs., 2010 U.S. Dist. LEXIS 10147, at *19 (D. Md. Feb. 5; 2010). The Court of Special Appeals has stated that
Although an act committed intentionally may give rise to an action in negligence if one or more of the harmful consequences of that act are unintended, the complaint here avers that both the act and the consequences were intended. That is the essence of a claim of malicious conduct - conduct in "conscious," rather than negligent or even reckless, disregard of the effect on [the plaintiff], Walser v. Resthaven Memorial Gardens, Inc., 98 Md. App. 371, 393-94, 633 A.2d 466,476-77 (1993) (internal citations omitted) (holding that, because plaintiff pled intentional rather than negligent conduct, plaintiff failed to plead an action for negligence). As Plaintiffs have pled intentional conduct (covered in Count III), they have failed to plead an action for negligence. Additionally, Plaintiffs have provided no basis for their claim that Defendant Starnes owed them a duty. Duty has been defined as an obligation to conform to a certain standard of conduct to another. Muthukumarana v. Montgomery County, 370 Md. 447, 486, 805 A.2d 372 (2002) (citations omitted). The duty must be one that is recognized by law. Id at 486. There is no duty on the part of a supervisory co-employee to provide a safe place to work. See Athas v. Hill, 300 Md. 133, 148-149,476 A.2d 710 (1984). There is no contractual basis for this claim, either as Plaintiffs have not alleged the existence of a contract between Plaintiffs and Defendant Starnes. See Hrehorovicb v. Harbor Hosp.
93 Md. App. 772, 798,614 A.2d 1021
(1992). Without a duty, Plaintiffs' negligence claim fails, and must be dismissed.
WHEREFORE, based on the foregoing, Defendants Floyd Starnes and Montgomery County Board of Education request this Court to dismiss of Plaintiffs' Complaint with prejudice, and grant such further relief as this Court deems appropriate.
Respectfully submitted, MARC P. HANSEN COUNTY ATTORNEY.
Heather A. Mulloy Associate County Attorney Attorneys for Defendants 101 Monroe Street, Third Floor Rockville, Maryland 20850 (240) 777-6700
Patricia P. Via, Chief Division of Litigation ~ Self-Insurance (signature by Heather A. Mulloy
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this ~ mailed, first-class, postage prepaid, to: Robert J. Weltchek, Esquire Weltchek Mallahan & Weltchek, LLC 2330 West Joppa Road, Suite 203 Lutherville, MD 21093
day of April 2012, a copy of the foregoing was
Heather A. Mulloy Associate County Attorney
IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY, MARYLAND
JOAN KALTREIDER, et al. Plaintiff v. FLOYD STARNES, et al. Defendants
* * *
Case No. 360930- V The Honorable Ronald B. Rubin
Upon consideration of Defendants' Motion to Dismiss, good cause having been shown, any opposition having been considered, and any hearing having been held, it is this __
,2012, by the Circuit Court for Montgomery County, Maryland,
ORDERED that Defendants' Motion to Dismiss is hereby GRANTED; and it is further ORDERED that Plaintiff's Complaint is dismissed with prejudice.
Judge, Circuit Court for Montgomery County, Maryland
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