Manikhi v. Mass Transit

• Decision Date: 24 August 2000
• Docket Number: No. 106,106
• Citation: 758 A.2d 95,360 Md. 333
• Parties: Jacqueline MANIKHI v. MASS TRANSIT ADMINISTRATION et al.
• Court: Maryland Court of Appeals

758 A.2d 95

360 Md. 333

Jacqueline MANIKHI v. MASS TRANSIT ADMINISTRATION et al.

No. 106, Sept. Term, 1999.

Court of Appeals of Maryland.

August 24, 2000.

Elizabeth Colette, Baltimore, for petitioner.

Callista M. Freedman (Paul F. Newhouse of the Law Office of Paul F. Newhouse, on brief), Towson; Paul D. Starr (H. Victoria Hedian of Abato, Rubenstein and Abato, P.A., on brief), Baltimore; Kathleen J. Masterton, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. of Maryland, on brief), Baltimore, for respondents.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ. RODOWSKY, Judge.

The petitioner, Jacqueline Manikhi (Manikhi), alleges that she was the victim of sexual harassment by a coworker that continued over a period of years. Undertaking to assert multiple theories of liability, she sued her employer, two supervisors, three union officials, and the coworker in the Circuit Court for Baltimore City. The issue before us is the legal sufficiency of the allegations in certain counts of an amended complaint.

The employer is the respondent, Mass Transit Administration (MTA), a unit of the Department of Transportation of the State of Maryland. The events with which we are concerned are said to have occurred at night at the MTA facility on Kirk Avenue near Twenty-fifth Street in Baltimore City where buses that are not in service are cleaned, refueled, and parked on a large, open air lot. The alleged harasser is Francisco "Roy" Ovid (Ovid), another respondent. Manikhi and Ovid were classified as "A-Cleaners" of buses; both worked the night shift at the Kirk Avenue facility. The respondents, Vernon Parsons (Parsons) and Wade Moragne-el (Moragne-el), collectively, the "MTA Officials," are alleged to have been, respectively, the foreman of the night shift at Kirk Avenue and, as of 1995, the chief superintendent of that facility. Charles Pettus, Ennis Fonder, and Nelson Zollicoffer, the remaining respondents, are officials of Local 1300 of the Amalgamated Transit Union, A.F. of L.-C.I.O., and they are collectively referred to as "the Union Officials." The complaint seeks compensatory and punitive damages and counsel fees. There is no specific request for prospective relief.

The only count that survived dismissal on the face of the pleadings in the circuit court was one charging battery by Ovid. It was tried to a jury and resulted in a judgment for the defendant, apparently based on Manikhi's failure to convince the jury that a battery had occurred within the one-year period of limitations for that tort. The Court of Special Appeals affirmed the dismissal. Manikhi v. Mass Transit Admin., 127 Md.App. 497, 733 A.2d 372 (1999). We granted Manikhi's petition for certiorari. 356 Md. 495, 740 A.2d 613 (1999). This certiorari review concerns Manikhi's allegations of violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e,¹ of 42 U.S.C. § 1983, and of Articles 24 and 40 of the Maryland Declaration of Rights, as well as counts labeled "False Imprisonment" and "Intentional Infliction of Emotional Distress." When discussing a particular claim, infra, we shall identify the respondents against whom the claim is asserted.

Inasmuch as the instant appeal is from the grant of a motion to dismiss for insufficient allegations in a complaint, we would ordinarily proceed directly to summarizing those allegations before determining whether they "contain a clear statement of the facts necessary to constitute a cause of action." Maryland Rule 2-305. In the instant matter, however, there is a complication. Before we can determine whether the amended complaint states one or more causes of action, we must first determine whether an affidavit by Manikhi, which she purported to incorporate into her amended complaint, forms part of that amended complaint.

I

The complaint initially filed by Manikhi was over sixty pages in length, consisting of 241 paragraphs. MTA moved to strike that complaint, arguing that it was "rambling" and constituted "an assemblage of opinions, argument, recitations of evidentiary minutiae, and extraneous allegations." Commenting that she had been unable to discern a cause of action alleged within the first forty pages of the complaint, the circuit court (Judge Bonita J. Dancy) dismissed, with leave to amend.

This dismissal was proper. Maryland Rule 2-303(b) requires that "[e]ach averment of a pleading shall be simple, concise, and direct" and that it "shall contain only such statements of fact as may be necessary to show the pleader's entitlement to relief." The rule further requires that a pleading "shall not include argument, unnecessary recitals of law, evidence, or documents, or any immaterial, impertinent, or scandalous matter."

In Maryland, contrary to federal practice, dismissals for failure to state a claim are not limited to those cases in which "it appears beyond doubt that the plaintiff can prove no state of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957) (footnote omitted). See J.A. Lynch, Jr. & R.W. Bourne, Modern Maryland Civil Procedure § 6.1, at 342-47 (1993) (distinguishing between pleading requirements in Maryland and federal practice); P.V. Niemeyer & L.M. Schuett, Maryland Rules Commentary 161 (2d ed.1992) (same); P.M. Sandler & J.K. Archibald, Pleading Causes of Action in Maryland § 1.1, at 2 (2d ed.1991) (same). Instead, when drafting a Maryland circuit court complaint, it is the responsibility of counsel to distill from the client's narrative and any other relevant information acquired by investigation a concise statement of facts that will identify for the professional reader, be it adverse counsel or the court, the cause of action that is being asserted. That is the essence of "thinking like a lawyer."

In her amended complaint Manikhi reduced the allegations to twenty-five pages and ninety-nine paragraphs. The amended complaint, however, expressly states that it incorporates by reference, as part of the complaint, the matters contained in an affidavit by Manikhi which is attached to the complaint. That affidavit, consisting of fifty pages and 185 paragraphs, substantially repeats the original complaint and precipitated another round of motions to strike and to dismiss. At the hearing on those motions the circuit court (Chief Judge Robert I.H. Hammerman) described the affidavit as a "regurgitation" of the original complaint and struck the affidavit from the amended complaint.

By a footnote in her brief to the Court of Special Appeals Manikhi submitted that the affidavit materials were properly incorporated into the amended complaint. Ruling that Manikhi's footnote argument did not address the basis of the circuit court's ruling—violation of Rule 2-303(b)—the Court of Special Appeals considered Manikhi to have waived any issue concerning the striking of the affidavit. Manikhi, 127 Md.App. at 509, 733 A.2d at 379. That court decided the appeal to it on the basis of the amended complaint, unenhanced by the contents of the affidavit. In her brief to this Court, Manikhi asks us to consider that the affidavit forms part of the amended complaint.

The circuit court did not err in striking the affidavit from the amended complaint. Incorporating the subject affidavit into the amended complaint made the amended complaint substantially indistinguishable from the original complaint. We have already held that the original complaint was properly dismissed, with leave to amend. Manikhi chose not to suffer judgment on the original complaint, but to amend. The incorporation stratagem is an effort to have it both ways. There was no abuse of discretion in striking the affidavit from the amended complaint, inasmuch as the incorporation stratagem seems clearly to have been designed to attempt to circumvent the trial court's ruling on the original complaint.

II

The amended complaint consists of an introductory statement followed by separately numbered counts, many of which state additional facts. Each count incorporates the preceding and succeeding allegations. In most instances there is no effort to state when conduct or events occurred.

When setting forth below the material allegations of the amended complaint, we are mindful of the following rules:

1. Well pleaded allegations are accepted as true for purposes of the motion to dismiss, Sharrow v. State Farm Mut. Auto. Ins. Co., 306 Md. 754, 768, 511 A.2d 492, 499-500 (1986);

2. The inferences most favorable to the plaintiff are drawn from well pleaded facts, id.; and

3. "[A]ny ambiguity or want of certainty in [the] allegations must be construed against the pleader." Read Drug & Chem. Co. v. Colwill Constr. Co., 250 Md. 406, 416, 243 A.2d 548, 555 (1968).

Manikhi was first employed by MTA in 1989. She transferred to the Kirk Avenue facility in 1991. There she was subjected to repeated sexual harassment by Ovid. This abuse continued throughout 1991, 1992, 1994, and 1995. During 1993 Manikhi transferred to MTA's Eastern Avenue facility in order to escape Ovid's conduct. For reasons that are unexplained in the complaint, Manikhi transferred back to Kirk Avenue in 1994. On October 11, 1995, Ovid elbowed Manikhi and called her a "bitch." From Manikhi's standpoint this was "[t]he last straw." On or about October 13, 1995, Manikhi filed a sexual harassment complaint with MTA's internal equal employment opportunity (EEO) office. That complaint "was resolved in her favor" by the MTA-EEO on December 8, 1995. Manikhi further alleges:

"20. Even after the December 8, 1995, favorable EEO finding for Ms. Manikhi, Defendants did not take any measures to protect her from Defendant Ovid.

"21. Ultimately, in order to get away from unlawful conduct against her, in 1996, Ms. Manikhi was forced to transfer to Northwest Division where she finally had to move to a B-Cleaner position, a lower position,...