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Blakney v. North Carolina A&T State University

United States District Court, M.D. North Carolina

March 20, 2019

SANDRA G. BLAKNEY, Plaintiff,
v.
NORTH CAROLINA A&T STATE UNIVERSITY and DR. DAVID WAGNER, Defendants.

          MEMORANDUM OPINION AND ORDER

          OSTEEN, JR., DISTRICT JUDGE

         Currently before this Court is Defendants' Motion to Dismiss Plaintiff's Complaint, alleging violations of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., among other claims. (See Doc. 7.) Defendants have filed a brief in support of their motion, (Doc. 8); Plaintiff has responded in opposition, (Doc. 14); and Defendants have replied, (Doc. 17). For the reasons that follow, this court finds that Defendants' motion to dismiss should be granted in part and denied in part. To the extent that Plaintiff has asked this court for leave to amend her Complaint, that request will be denied.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         The facts, construed in the light most favorable to Plaintiff, are as follows.

         Defendant North Carolina A&T State University (“ N.C. A&T”) is part of the University of North Carolina state school system, a state agency. (See Verified Compl. (“Compl.”) (Doc. 4) ¶ 2.)[1]Beginning in February 2014 and continuing through December 31, 2016, N.C A&T employed Plaintiff as a nurse in its student health center. (Id. ¶¶ 1, 4; see Defs.' Mot. to Dismiss, Ex. 1 (Doc. 7-1).)[2] It is undisputed that Plaintiff turned forty years of age prior to beginning employment with N.C. A&T. (See Compl. (Doc. 4) ¶ 1.)

         Beginning in August 2015, N.C. A&T employed Defendant David Wagner (“Defendant Wagner” or “Dr. Wagner”) as the Physician Director of its student health center. (Id. ¶¶ 3, 5; see Blakney Aff., Ex. 1 (Doc. 13-1) at 4.)[3] Plaintiff alleges that Dr. Wagner is a citizen and resident of Guilford County, North Carolina. (Compl. (Doc. 4) ¶ 3).

         Plaintiff alleges that Defendant Wagner's position as Physician Director required him to evenly split his time between administrative and clinical work. (Id. ¶ 6.) Defendant Wagner, however, allegedly delegated his clinical work to nurse practitioners. (See id. ¶¶ 10-12.) Clinical work included patient intake, to which Plaintiff often attended. (See Id. ¶¶ 7, 9.) During Plaintiff's shift, she and one other colleague, Frances Cole (who is over seventy years old), were the only nurses attending to patient intake. (See id. ¶¶ 7-8.)

         Defendant Wagner insisted that the patient-intake process take no longer than twenty minutes, a new requirement that he formally implemented in June 2016. (See id. ¶¶ 16, 20; Blakney Aff., Ex. 1 (Doc. 13-1) at 4.) Plaintiff took issue with this demand, asserting to Dr. Wagner at the time and in her Complaint now, that the twenty-minute intake window was not feasible given her other duties and because there were only two nurses performing intake. (See Compl. (Doc. 4) ¶¶ 18-21, 40.) Plaintiff alleges that Dr. Wagner “erroneously asserted” that only a check of the vital signs needed to be performed within twenty minutes but that the nurse practitioners “directed that Blakney assess the patient's vital signs, allergies, medications . . . among other tasks” within twenty minutes. (See id. ¶¶ 46-47.)

         Before N.C. A&T hired Dr. Wagner, Plaintiff had never been disciplined at work. (Id. ¶ 14.) She alleges that Defendant Wagner caused her performance review to be downgraded in the spring of 2016. (Id. ¶¶ 22-24.) Plaintiff's April 4, 2016 evaluation noted her work as “outstanding.” (Id. ¶ 22.)[4]Defendant Wagner allegedly stated at some point thereafter that Plaintiff's evaluation should be changed because “nobody is outstanding.” (Compl. (Doc. 4) ¶ 23.) Plaintiff's next evaluation, on May 15, 2016, was allegedly “downgraded” at Defendant Wagner's direction to “very good, ” noting a need to “pay attention to detail.” (See id. ¶ 24; Blakney Aff., Ex. 1 (Doc. 13-1) at 4.)[5]

         Besides the new intake procedure, Plaintiff had additional difficulties with Defendant Wagner. Plaintiff alleges that, shortly after he started as Physician Director, Dr. Wagner made “comments of a sexual nature that caused [P]laintiff to be uncomfortable.” (Compl. (Doc. 4) ¶ 5.) On one specific occasion, Plaintiff allegedly informed Defendant Wagner that he was using too much lubricant on a patient during a vaginal examination, to which Dr. Wagner responded by telling the patient that he was “going to use less lubricant; if you experience pain, it is Blakney's fault.” (Id. ¶¶ 28-29.)

         On August 18, 2016, Plaintiff and one of her supervisors met with N.C. A&T's Assistant Dean of Student Affairs, Marc Williams, to discuss Blakney's concerns about Dr. Wagner, “including his inappropriate sexual comments.” (Id. ¶ 30.) On August 25, 2016, Defendant Wagner verbally warned Plaintiff about her alleged “failure to perform intake for all patients within a twenty-minute time window.” (Id. ¶ 31.)

         On September 9, 2016, Dr. Wagner issued a written warning threatening Plaintiff with dismissal due to “[fifteen] incidents of patient intake taking longer than twenty minutes.” (Id. ¶ 32; Pl.'s Br. (Doc. 14) at 4 n.2.) Plaintiff alleges that the September 9th written warning cost her a raise, was forwarded to the human resources department, and might have become part of her official personnel file. (Compl. (Doc. 4) ¶¶ 34, 36.)[6] The September 9th warning demanded “a 100% improvement in intake within 60 days.” (Compl. (Doc. 4) ¶ 37.) When Plaintiff received that warning, Dr. Wagner verbally warned Plaintiff about her patient-intake shortcomings as well. (Id. ¶ 38.) Dr. Wagner also told Plaintiff that she should have raised her concerns with him instead of Assistant Dean Williams. (Id. ¶ 35.) Plaintiff responded that completing one-hundred percent of patient intakes within twenty minutes was not possible. (Id. ¶¶ 39-40.) Dr. Wagner told her that the “higher-ups” were complaining about the intake times. (Id. ¶ 43.) Plaintiff informed him that she would speak with the higher-ups about it, and Dr. Wagner allegedly responded in a threatening tone: “you've already been up there, haven't you.” (Id. ¶¶ 44-45.)

         Plaintiff alleges that she was not the only nurse to receive a written warning on September 9th for a failure to check in one-hundred percent of patients within twenty minutes. (Id. ¶ 33.) She alleges, however, that a lone male nurse did not receive such warning. (See id.) Those who did, including Ms. Cole, allegedly spoke with N.C. A&T's human resources department regarding Dr. Wagner's intake policy. (See id. ¶¶ 48-49.) Plaintiff asserts that human resources responded by asking Ms. Cole when she planned on retiring, (id. ¶ 50), and apparently noted that one of the younger nurses was excelling at patient intake, (id. ¶¶ 51-52).

         Plaintiff spoke to Assistant Dean Williams again on September 15, 2016. (Blakney Aff., Ex. 1 (Doc. 13-1) at 9.) Assistant Dean Williams informed Plaintiff that he had told Defendant Wagner that Plaintiff had come to see him (Williams). (Id.) Williams also asked Plaintiff to take her complaints directly to Defendant Wagner in the future. (Id.) Plaintiff told Williams that she had spoken directly with Defendant Wagner, but she would not continue to do so because of his “disrespectful, arrogant attitude.” (Id.)[7]

         In mid-September 2016, sometime after the September 9th warning, Plaintiff filed a formal grievance with N.C. A&T “regarding her issues with Wagner.” (See Compl. (Doc. 4) ¶ 53.) On October 17, 2016, Plaintiff received a follow-up letter to the September 9th warning, informing her that she was performing at least ninety-percent of her intakes within the twenty-minute window. (Id. ¶ 54.)

         On October 26, 2016, Plaintiff sent a follow-up email about her formal grievance. (Id. ¶ 55.) Someone responded on October 27, 2016, stating that an investigative report would be completed by October 28, 2016. (Id. ¶ 56.) Plaintiff alleges that no response was communicated to her on October 28th. (Id. ¶ 57.) Instead, she claims that she received a response at some unalleged time. (Id. ¶ 63.) It was dated November 7, 2016 and delivered to an employee mailbox that Plaintiff rarely used and not otherwise transmitted to her. (Id. ¶¶ 63, 65.) N.C. A&T indicated in the review that Dr. Wagner's behavior towards Plaintiff was unacceptable and could create a hostile work environment if it continued. (See id. ¶ 64.)

         On or around November 10, 2016, Plaintiff noticed her resignation, effective December 31, 2016. (Id. ¶ 62; Defs.' Mot. to Dismiss, Ex. 1 (Doc. 7-1).) She alleges that she resigned because she feared termination, which allegedly would have caused her to lose her retirement benefits. (Compl. (Doc. 4) ¶¶ 58, 62.) Plaintiff asserts that, had she been aware of the November 7th response by the time she resigned, “she may have decided” not to. (Id. ¶ 70.) Plaintiff claims that she was replaced by a younger and less-qualified certified medical assistant. (Id. ¶¶ 66-67.) She vaguely alleges that at least one of her supervisors “advised” that Defendant Wagner intended to replace the older nurses with younger ones. (Id. ¶ 69.)

         Plaintiff alleges generally that Defendant Wagner, as an agent of Defendant N.C. A&T, and whose alleged misconduct N.C. A&T ratified, acted “intentionally, with malice, spi[t]e and ill will towards plaintiff in retaliation for her protected activity of approaching Dean Williams.” (Id. ¶¶ 59-61.) As a result, Plaintiff alleges that she suffered a loss in income, the loss of her health insurance through N.C. A&T, and a reduction in Social Security and retirement benefits. (Id. ¶ 71.)

         On November 28, 2016, Plaintiff filed a charge of discrimination with the EEOC. (Blakney Aff. (Doc. 13-1) ¶ 3; Ex. 1 (Doc. 13-1) at 4.) The EEOC charge did not identify Dr. Wagner by name but described a “new Student Health Center Director, ” (see Ex. 1 to Blakney Aff. (Doc. 13-1) at 4), and an EEO intake form from the North Carolina Office of State Human resources did identify Dr. Wagner in a narrative section, (id. at 8-9). (It is unclear to this court if that EEO form was presented to the EEOC as well and/or filed with the North Carolina Office of State Human Resources.) On or around, but not before, December 20, 2016, Plaintiff received a dismissal and notice of rights from the EEOC, dated December 19, 2016. (See Blakney Aff. (Doc. 13-1) ¶ 4; Ex. 1 (Doc. 13-1) at 5.)

         On March 20, 2017, Plaintiff initiated this action in Guilford County Superior Court by applying for an extension of time to file a complaint, which was granted on the same day, giving Plaintiff until April 10, 2017 to file a complaint. (Blakney Aff. (Doc. 13-1) ¶ 5; Ex. 2 (Doc. 13-1) at 11.) Plaintiff attached to that application the December 19, 2016 EEOC right-to-sue notice setting forth that she had ninety days to sue from receipt. (Blakney Aff., Ex. 2 (Doc. 13-1) at 12.) The application for an extension of time to file a complaint also failed to identify Dr. Wagner. (See id. at 11.) A civil summons to be served on N.C. A&T with the order extending time to file a complaint was also prepared on March 20, 2017. (Id. at 13.) The civil summons did not identify Defendant Wagner. (Id.)[8]Plaintiff filed her complaint in Guilford County Civil Superior Court on April 10, 2017. (See Doc. 1-1 at 15.)

         On September 29, 2017, Defendants petitioned this court for removal pursuant to 28 U.S.C. § 1441(a). (Doc. 1 at 1-2.) On October 26, 2017, Defendants moved to dismiss for lack of subject-matter jurisdiction, lack of personal jurisdiction, and for failure to state a claim under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6), respectively. (Defs.' Mot. to Dismiss (Doc. 7) at 1.)

         II. CLAIMS FOR RELIEF

         Plaintiff appears to bring each claim against both Defendants. She sues Defendant Wagner in his individual and official capacity as an agent of N.C. A&T, (Compl. (Doc. 4) at 1.)

         Plaintiff's first two claims for relief allege age and sex discrimination in violation of the ADEA and Title VII, respectively. (Id. ¶¶ 72-87.) In each of her first two claims for relief, Plaintiff seeks compensatory damages, as well as declaratory and injunctive relief, including reinstatement. (Id. ¶¶ 77-79, 85-87.)

         Plaintiff's third claim for relief alleges that Defendants retaliated against Plaintiff, specifically by means of the August 25, 2016 verbal warning and the September 9, 2016 written warning, for engaging in the protected activity of meeting with Assistant Dean Williams. (See id. ¶¶ 88-92.) Plaintiff alleges that the retaliation, taken together with the alleged untimely response to her formal grievance, caused her to lose confidence in the meaningfulness of the administrative remedies available to her, and she “concluded that she would be discharged and lose her retirement benefits if she did not immediately resign.” (Id. ¶ 91.) In her third claim for relief, Plaintiff seeks monetary damages and declaratory and injunctive relief, including reinstatement. (Id. ¶ 92.)

         Plaintiff's fourth claim for relief alleges an “interference with administrative remedies.” (Id. at 8.) Plaintiff alleges that she should not be required to exhaust administrative remedies because they are futile, (id. ¶¶ 93-98); yet also claims that she filed a timely charge of discrimination with the EEOC, received a right-to-sue letter, and complied with the requisite timeline in filing this action, (id. ¶¶ 97-98). And finally, Plaintiff's fifth claim for relief alleges punitive damages. (Id. ¶¶ 99-100.)[9]

         III. STANDARD OF REVIEW

         Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable” and demonstrates “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556-57). When ruling on a motion to dismiss, this court accepts the complaint's factual allegations as true. Iqbal, 556 U.S. at 678. Further, this court liberally construes “the complaint, including all reasonable inferences therefrom, . . . in plaintiff's favor.” Estate of Williams-Moore v. All. One Receivables Mgmt., Inc., 335 F.Supp.2d 636, 646 (M.D. N.C. 2004) (citation omitted). This court does not, however, accept legal conclusions as true, and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

         Employment discrimination complaints must meet this plausibility standard; however, the plaintiff is not required to make out a prima facie case of discrimination or satisfy any heightened pleading requirements at the motion to dismiss stage. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002); McCleary-Evans v. Md. Dep't of Transp., 780 F.3d 582, 584-85 (4th Cir. 2015). The plaintiff need only plead facts that permit the court to reasonably infer each element of the prima facie case. McCleary-Evans, 780 F.3d at 585; see also Coleman v. Md. Ct. of App., 626 F.3d 187, 191 (4th Cir. 2010) (stating that a complaint must “assert facts establishing the plausibility” that plaintiff was terminated based on race). If a plaintiff makes such a showing, the claim will usually survive a motion to dismiss, and the burden then shifts to the defendant to provide a legitimate, nondiscriminatory reason for the disparate treatment. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

         Defendants also move to dismiss the Complaint for lack of subject-matter and personal jurisdiction pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2), respectively.

         Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff must prove by a preponderance of the evidence the existence of subject-matter jurisdiction. See Demetres v. East West Constr., Inc., 776 F.3d 271, 272 (4th Cir. 2015). A defendant may challenge subject-matter jurisdiction facially or factually. See Kerns, 585 F.3d at 192. In a facial challenge, a defendant asserts that the allegations, taken as true, are insufficient to establish subject-matter jurisdiction. See id. In a factual challenge, a defendant asserts that the jurisdictional allegations are false, and the court may look beyond the complaint to resolve the disputed jurisdictional facts without converting the motion to one for summary judgment. Id. at 192-93.

         Under Federal Rule of Civil Procedure 12(b)(2), a plaintiff must ultimately prove by a preponderance of the evidence that this court's personal jurisdiction over a defendant is proper. Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). A plaintiff need only “make a prima facie showing of a sufficient jurisdictional basis in order to survive the jurisdictional challenge.” Id. (citation omitted).

         IV. ANALYSIS

         A. Jurisdictional Issues

         Before filing suit under the ADEA or Title VII, a plaintiff must file a charge of discrimination with the EEOC within 180 days of the alleged unlawful discrimination. 29 U.S.C. § 626(d) (ADEA); 42 U.S.C. §§ 2000e-5(e)(1), 2000e-5(f)(1) (Title VII). The EEOC charge must be in writing and signed under oath. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir. 2009) (citing Edelman v. Lynchburg Coll., 535 U.S. 106, 112 (2002)). An EEOC charge need not be painstakingly precise but should describe generally the alleged discriminatory conduct. See Jones, 551 F.3d at 300 (citations omitted). Any claims brought in a subsequent lawsuit must be reasonably related to those in the EEOC charge or able to be “developed by reasonable investigation of the original complaint.” Chacko v. Patuxent Inst., 429 F.3d 505, 506 (4th Cir. 2005) (citation omitted).

         After filing the EEOC charge, a plaintiff must wait at least sixty days before initiating a civil action. 29 U.S.C. § 626(d)(1). If the EEOC investigates and then dismisses the charge, then a plaintiff has ninety days from the giving of notice of such dismissal by the EEOC to file suit. 29 U.S.C. § 626(e); 42 U.S.C. § 2000e-5(f)(1).

         A plaintiff's failure to exhaust administrative remedies concerning an ADEA or a Title VII claim “deprives the federal courts of subject matter jurisdiction over th[at] claim.” Jones, 551 F.3d at 300-01 (citing Davis v. N.C. Dep't of Corr., 48 F.3d 134, 138-40 (4th Cir. 1995) (Title VII); Vance v. Whirlpool Corp., 707 F.2d 483, 486-89 (4th Cir. 1983) (ADEA)).

         This court assumes (Defendants advance no substantive argument) that Defendants challenge this court's subject-matter jurisdiction based on a failure to exhaust administrative remedies and/or that Plaintiff's claims are untimely. Courts generally treat such a challenge as a factual one. See, e.g., Belyakov v. Med. Sci. & Computing, 86 F.Supp.3d 430, 440 (D. Md. 2015) (“[The defendant] asserts a factual challenge that [the plaintiff] has not, in fact, exhausted his administrative remedies as he initially claimed.”). Accordingly, this court may look beyond the pleadings to make its determination, including to the exhibits attached to the parties' submissions.

         Aside from the potential misstep as to Defendant Wagner, see supra at 11 n.8, and in the absence of any argument from Defendants, Plaintiff appears to have exhausted her administrative remedies, at least as to Defendant N.C. A&T. She filed her EEOC claim on November 28, 2016, within 180 days of the alleged discriminatory acts.[10] She signed the EEOC charge under penalty of perjury. (Blakney Aff., Ex. 1 (Doc. 13-1) at 4.) And Plaintiff followed the appropriate timeline in the interim between the EEOC charge and the initiation of this lawsuit by seeking, within ninety days of receipt of the EEOC's notice on December 20, 2016 at the earliest, an extension of time to file a complaint on March 20, 2017.

         Turning to Defendants' apparent challenge to this court's personal jurisdiction, frankly, this court does not see the basis for Defendants' challenge. Plaintiff has alleged that Defendant Wagner is a citizen and resident of Guilford County, North Carolina, employed at the relevant time by Defendant N.C. A&T, a component member of the University of North Carolina, which is a North Carolina state agency.

         Therefore, this court is satisfied at this time that it has subject-matter jurisdiction of this case and personal jurisdiction over these Defendants. The court will proceed to analyze Defendants' motion to dismiss as one brought pursuant to Federal Rule of Civil Procedure 12(b)(6).

         B. Defendant Wagner

         This court finds that the ADEA and Title VII claims against Defendant Wagner should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). Employees, even supervisory ones, are not liable in their individual capacities for ADEA or Title VII violations. Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir. 1994) (ADEA); Lissau v. S. Food Serv., Inc., 159 F.3d 177, 178 (4th Cir. 1998) (Title VII).

         A plaintiff may pursue age discrimination and sexual harassment claims under the ADEA and Title VII against her employer. See 29 U.S.C. § 623(a); 42 U.S.C. § 2000e-2(a). The ADEA defines “employer” to include persons “engaged in an industry affecting commerce” and employing twenty or more persons. 29 U.S.C. § 630(b). The ADEA's definition of “employer” also includes “any agent of such a person.” Id. Title VII's definition of “employer” is similar and also includes “any agent of such a person.” 42 U.S.C. § 2000e(b). Plaintiff latches on to this agent reference, suing Defendant Wagner in his individual capacity and official capacity as N.C. A&T's agent.

         The Fourth Circuit, however, has found that the inclusion of an employer's agent in the definition of employer under the ADEA and Title VII merely reflects “‘an unremarkable expression of respondeat superior - that discriminatory personnel actions taken by an employer's agent may create liability for the employer.'” Lissau, 159 F.3d at 180 (emphasis added) (quoting Birkbeck, 30 F.3d at 510). Further, even “[e]mployees with authority to make discharge decisions for an employer generally are . . . not individually liable as an employer's ‘agent.'” Lane v. Lucent Techs., Inc., 388 F.Supp.2d 590, 595 (M.D. N.C. 2005) (citation omitted).

         Plaintiff attempts to rely on the Supreme Court's decision in Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986), to save her claims against Defendant Wagner. Plaintiff argues that the Fourth Circuit's precedent is in tension with that decision. (Pl.'s Br. (Doc. 14) at 17.) This court disagrees. One of the Supreme Court's holdings in Vinson - actually quoted by Plaintiff, (Pl.'s Br. (Doc. 14) at 17) - was that “the Court of Appeals erred in concluding that employers are always automatically liable for sexual harassment by their supervisors.” Vinson, 477 U.S. at 72 (citation omitted). This court fails to see any tension between the cases; rather, the cases strike this court as harmonious. In Vinson, before remanding the case, the Supreme Court considered and analyzed several possible rules of employer liability, not employee liability. See id. at 69-73. The Fourth Circuit's later pronouncement that Congress defining “employer” to include an agent was “an unremarkable expression of respondeat superior . . . [, ]” Birkbeck, 30 F.3d at 510, is consistent with the Supreme Court's analysis. While the doctrine of respondeat superior might make an employer liable for the acts of its employees, supervisors, and agents, it does not follow, as Plaintiff would have it, that an employee is liable under the ADEA or Title VII for those same acts.

         Plaintiff alleges that N.C. A&T was her (and Dr. Wagner's) employer, and she may not bring the ADEA or Title VII claims against Defendant Wagner in his individual capacity. Defendant Wagner's potential liability, therefore, must be premised upon his role as an agent of a state agency, and any potential recovery against him only in his official capacity, see Harvey v. Blake, 913 F.2d 226, 227-28 (5th Cir. 1990) - to the extent that the Fourth Circuit has not foreclosed that option, compare Hoffman v. Baltimore Police Dep't, 379 F.Supp.2d 778, 780 n.2, 790 (D. Md. 2005) (relying on Lissau to dismiss Title VII claims against defendant in his official capacity), with Scannell v. Bel Air Police Dep't, 968 F.Supp. 1059, 1067 (D. Md. 1997) (collecting cases) ...


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