Ambush v. City Of Frederick
| Decision Date | 24 January 2011 |
| Docket Number | CIVIL NO.: WDQ-10-1953 |
| Parties | STEPHANIE DAVIS AMBUSH, Plaintiff, v. CITY OF FREDERICK, et al. , Defendants. |
| Court | U.S. District Court — District of Maryland |
Stephanie Davis Ambush sued the City of Frederick (the "City"), Randy McClement, Richard B. Weldon, Jr., and Kathryn Nicolato (collectively, the "defendants") for due process violations, wrongful discharge, and civil conspiracy. For the following reasons, the defendants' motions to dismiss and strike will be granted.
In 1992, Ambush began working for the City as an administrative secretary. Compl. ¶ 8. By 2006, she had become a Community Outreach Specialist. Id.
The City's Employee Policies and Procedures (the "Policy") provide, inter alia:
(1) Discharge can be for any reason not prohibited by law. In the absence of a specific written agreement, employees may resign at any time and for any reason; and the City reserves the right to terminate employment at any time.
(2) Discharge: Discharges are generally caused by an employee's misconduct, delinquency, inefficiency, and/or inability to perform the required work satisfactorily.
(3) When a full-time employee has been issued a suspension, demotion[,] or discharge... the employee must submit a written appeal... within [30] days[.]
(4) Layoff: [I]t may become necessary to reduce the work force due to lack of funds, reorganization, or other reasons. Factors to consider when such occasions arise include past performance [and] seniority.... The City shall attempt to transfer potential layoff candidates (if positions are available)[.]
(5) Separation and discharge procedures are only guidelines and do not create a legal contract between the City and its employees.... [S]pecified grounds for termination are not all-inclusive since the City reserves the right to terminate employment for any reason.
Id., Ex. B at 29-30; Mot. to Dismiss, Ex. 2 at 78-79.2
On April 16, 2010, Weldon3 sent Ambush a letter that McClement, the City Mayor, had decided to "involuntar[ily] ter-minat[e her] by reason of layoff, " which would "not be portrayed as a disciplinary action." Compl., Ex. A at 1. The letterstated that because the layoff was an "executive decision of the Mayor, " Ambush had no "right to appeal [her] termination." Id. at 2.
On May 7, 2010, a letter "to appeal [Ambush's] layoff" was sent by her attorney to Nicolato, the City Human Resources Manager. Id., Ex. C at 1. The letter stated that the City had neither tried to transfer Ambush to another department, nor considered her seniority or performance. Id. On May 21, 2010, Nicolato replied that because McClement had laid off employees "in his role as Chief Executive Officer, " Ambush had "no right to appeal, " and no "hearing [would] be scheduled." Id., Ex. D.
On July 19, 2010, Ambush sued the defendants for procedural and substantive due process violations under the Fifth and Fourteenth Amendments, 42 U.S.C. § 1983, and Articles 19 and 24 of the Maryland Declaration of Rights; wrongful discharge; and civil conspiracy. On August 11, 2010, the defendants moved to dismiss. On August 31, 2010, Ambush opposed that motion. ECF No. 8. On September 13, 2010, the defendants filed their reply. ECF No. 9. On October 14, 2010, Ambush filed an amended complaint. ECF No. 11. On October 15, 2010, the defendants moved to strike the amended complaint. ECF No. 12.
Under Fed. R. Civ. P. 12(b)(6), an action may be dismissed for failure to state a claim upon which relief can be granted. Rule 12(b)(6) tests the legal sufficiency of a complaint, but does not "resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The Court bears in mind that Rule 8(a)(2) requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." Migdal v. Rowe Price-Fleming Int'l, Inc., 248 F.3d 321, 325-26 (4th Cir. 2001). Although Rule 8's notice-pleading requirements are "not onerous, " the plaintiff must allege facts that support each element of the claim advanced. Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 764-65 (4th Cir. 2003). These facts must be sufficient to "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To present a facially plausible complaint, a plaintiff must do more than "plead[ ] facts that are 'merely consistent with' a defendant's liability"; the facts as pled must "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 557). The complaint must not only allege but also "show" the plaintiff is entitled to relief. Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). "[W]he[n] the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not show[n]--that the pleader is entitled to relief." Id. (citation and internal quotation marks omitted). 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. Allain, 478 U.S. 265, 286 (1986), or "allegations that are mere[ ] conclus[ions], unwarranted deductions of fact, or unreasonable inferences, " Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (citation and internal quotation marks omitted).
Count One alleges that the defendants violated Ambush's procedural and substantive due process rights under the Fifth and Fourteenth Amendments, 42 U.S.C. § 1983, and Articles 19 and 24 of the Maryland Declaration of Rights by failing to comply with the Policy when terminating her--that is, they did not consider Ambush's "past performance and seniority, " try to transfer her to another department, or give her an appeal hear-ing. Compl. 11 10-11, 14-15. In moving to dismiss, the defendants assert that Ambush was an at-will employee and had no property interest in her job. Mot. to Dismiss 3-11.
The Due Process Clause of the Fifth Amendment applies only to federal actors. Winfield v. Bass, 106 F.3d 525, 530 n.2 (4th Cir. 1997). Because all the defendants are state actors, see Compl. 11 4-7, Ambush's Fifth Amendment claim must be dismissed.
The first step in reviewing a Fourteenth Amendment due process challenge is to determine "whether the plaintiff has been deprived of a protected interest in 'property' or 'liberty.'" Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). A government employee has a property interest in continued employment "only if he can show a legitimate claim of entitlement to his job under state or local law." Andrew v. Clark, 561 F.3d 261, 269 (4th Cir. 2009) (citation and internal quotation marks omitted). In Maryland, an at-will state or local government employee has no "property right in continued public employment." Elliott v. Kupferman, 58 Md. App. 510, 520, 473 A.2d 960, 966 (1984). An employer or employee may terminate an at-will relationship for "almost any reason or no reason, atany time." Bagwell v. Peninsula Reg. Med. Ctr., 106 Md. App. 470, 490, 665 A.2d 297, 307 (1995).
However, even an at-will employee may have an entitlement to continued employment if he can show "rules and understandings, promulgated and fostered by state officials, " to justify that entitlement. Perry v. Sindermann, 408 U.S. 593, 602-03 (1972). In Maryland, an employment policy that "set[s] forth a required procedure for termination" may be a "contractual under-taking[ ] by the employer" enforceable by the employee.4 This exception to Maryland's at-will doctrine protects an employee who has "justifiably relied" on a policy that limits an employer's discretion to terminate. See Bagwell, 106 Md. App. at 494, 665 A.2d at 309 (citation and internal quotation marks omitted). But such reliance is unjustified when "contractual intent has been expressly disclaimed." Castiglione v. Johns Hopkins Hosp., 69 Md. App. 325, 341, 517 A.2d 786, 793-94, cert. denied, 309 Md. 325, 523 A.2d 1013 (1987).
The Policy states that absent "a specific written agreement, employees may resign at any time and for any reason[,] andthe City reserves the right to terminate employment at any time." Mot. to Dismiss, Ex. 2 at 78-79.
Ambush has neither alleged a "specific written agreement, " id., nor disputed the defendants' contention that she was an at-will employee, see generally Compl.; ECF No. 8. Thus, her employment was at-will. See Bagwell, 106 Md. App. at 490, 665 A.2d at 307.
Ambush has alleged that the defendants did not comply with the Policy when laying her off because they failed to: consider her past performance and seniority, try to transfer her, or give her an appeal hearing. Compl. 11 14-15. The Policy's termination procedures state that when it is "necessary to reduce the work force, " "[f]actors to consider when [making a 'layoff'] include past performance [and] seniority, " and the "City shall attempt to transfer potential layoff candidates to other departments (if positions are available)." Mot. to Dismiss, Ex. 1 at 78. Only "suspen[ded], demot[ed], or discharge[d]" employees may appeal a termination. Compl., Ex. B at 29. The Policy's "[s]eparation and discharge procedures are only guidelines and do not create a legal contract between the City and its employees." Mot. to Dismiss, Ex. 1 at 79 (emphasis added).
Because the Policy states that it does "not...
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