OPINION
THOMAS T. WOODALL, JUDGE.
Defendant, Jermaine Smith, appeals the trial court's order revoking Defendant's probation in various sentences and ordering Defendant to serve his sentences in confinement. It appears from the record that as of the probation violation hearing on February 9, 2009, a "fourth amended" probation violation warrant was pending against Defendant. This warrant alleged that Defendant had violated various terms and conditions of his probation in Montgomery County cases numbered 40300037, 40600256, and 40601232. In this appeal, Defendant acknowledges that the evidence showed he violated the terms of his probation. However, he argues that the trial court should have reinstated probation rather than order service of the sentence by incarceration. After full review we affirm the orders of the trial court.
I. Background
Gary Hammer of the Board of Probation and Parole testified for the State. He said that Defendant violated his probation by being arrested around 11:00 p.m. on November 10, 2007, in Coopertown, Tennessee, for unlawful possession of a weapon. He was also in violation of his curfew because he was supposed to be at home between the hours of 7:00 p.m. and 6:00 a.m. Defendant failed to report his arrest, and he missed curfew again on September 6, 2007, and on September 14, 2007. Mr. Hammer had no documentation that Defendant was seeking employment, and Defendant offered no explanation as to why he was not working. Mr. Hammer said that Defendant was $180 in arrears on his supervision fees and did not indicate that he was incapable of working and paying those fees
Mr. Hammer testified that Defendant reported on September 30, 2008, and admitted that he had used drugs. Mr. Hammer administered a drug test, and a laboratory report later confirmed that Defendant testified positive for THC. On September 30, 2008, Mr. Hammer testified that he reviewed a list of known gang members with Defendant and informed him that as a condition of probation, he was not to participate in street gangs or associate with gang members. The list of gang members included Michael Flippen, who was associated with the "Nine Trey Bloods," and Josh Crowder, who was associated with the "Birchwood Boy Bloods." Mr. Hammer testified that Defendant was a member of the "Birchwood Boy Bloods" when he was charged with attempted murder. Mr. Hammer testified that since September 30, 2008, Defendant reported to him only one time on November 26, 2008. Mr. Hammer testified that Defendant was again arrested on December 16, 2008, for "[t]he offense of weapons, U-C-D-W, drugs, unlawful carrying of paraphernalia, and drugs, schedule six."
Joseph Williamson is a drug agent with the Clarksville Police Department. Agent Williamson testified that on December 16, 2008, he charged Defendant, Michael Flippen, Joshua Crowder, and Kennis Anderson for possession of marijuana with intent to sell, possession of drug paraphernalia, and unlawful possession of a deadly weapon. The four men were initially stopped by a patrol officer around 10:00 p.m. In the vehicle, Agent Williamson found a .380 caliber gun, a digital scale, and a plastic sandwich bag containing eleven individual bags of marijuana. No one claimed ownership of the gun or drugs. Defendant told Agent Williamson that he had been to the Starlite Lounge, a club that serves alcohol. Agent Williamson testified that Michael Flippen and Josh Crowder are both documented gang members. Mr. Flippen was wearing a red bandana around his neck and a "red T-shirt that said Nine trey on it." Agent Williamson explained that Nine Trey is a subset of the Bloods street gang.
II. Analysis
A trial court may revoke a sentence of probation upon a finding by a preponderance of the evidence that the defendant has violated the conditions of his release. T.C.A. § 40-35-311(e) (2006); Stamps v. State, 614 S.W.2d 71, 73 (Tenn. Crim. App. 1980). A revocation will be upheld absent a showing that the trial court abused its discretion. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991). In order to establish that the trial court has abused its discretion, the defendant must show that there is no substantial evidence to support the determination that he violated his probation. Id. (citing State v. Grear, 568 S.W.2d 285, 286 (Tenn. 1978); State v. Delp, 614 S.W.2d 395, 398 (Tenn. Crim. App. 1980)). Relief will be granted only when "`the trial court's logic and reasoning was improper when viewed in light of the factual circumstances and relevant legal principles involved.'" State v. Shaffer, 45 S.W.3d 553, 555 (Tenn. 2001) (quoting State v. Moore, 6 S.W.3d 235, 242 (Tenn. 1999)). Upon finding a violation, the trial court may "revoke the probation and suspension of sentence and cause the defendant to commence the execution of the judgment as originally entered." T.C.A. § 40-35-311(e). Furthermore, when probation is revoked, "the original judgment so rendered by the trial judge shall be in full force and effect from the date of the revocation of such suspension." Id. § 40-35-310. The trial judge retains the discretionary authority to order the defendant to serve the original sentence. See State v. Duke, 902 S.W.2d 424, 427 (Tenn. Crim. App. 1995).
Defendant acknowledges that he violated the terms of his probation. However, he argues that the trial court "abused its discretion" by ordering the sentences to be served in the Tennessee Department of Correction rather than reinstating him to probation.
Having considered Defendant's arguments, we are unpersuaded that the trial court abused its discretion in this case. The record shows that Defendant violated the terms of his probation by obtaining a new arrests and failing to report the arrests, missing curfew, testing positive for marijuana, failing to report, and associating with known gang members. The trial court was well within its authority to determine that Defendant had violated his probation and to order him to serve the remainder of his sentence incarcerated. Accordingly, Defendant is not entitled to relief.
CONCLUSION
After a full review, the judgments of the trial court are affirmed.
fendant contends that these claims must be dismissed because they are time-barred due to Plaintiff's failure to file an EEOC charge within 300 days of the alleged violations.
To bring a Title VII claim in federal court, "a plaintiff must first exhaust his administrative remedies by filing a charge of discrimination with the EEOC." Edelman v. Lynchburg Coll., 228 F.3d 503, 506 (4th Cir. 2000). In a state, such as Maryland, a Title VII claim of discrimination or retaliation must be filed with the EEOC within 300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-5(e)(1). "If a charging party fails to comply with this statutorily mandated filing period, alleged discriminatory acts which occurred more than 300 days prior to the filing of the EEOC charge may not be subsequently challenged in a Title VII suit." Van Slyke v. Northrop Grumman Corp., 115 F. Supp. 2d 587, 592 (D. Md. 2000). Here, Plaintiff filed her EEOC charge on October 20, 2006. Thus, Plaintiff's claims based on allegedly discriminatory acts occurring prior to December 24, 2005, are time-barred and not properly before the Court. See, e.g., Beall v. Abott Labs., 130 F.3d 614, 620 (4th Cir. 1997) ("[i]ncidents outside the statutory window are time-barred"). Accordingly, the Court must dismiss Plaintiff's claims for race and gender discrimination based on events that allegedly occurred in August 2005. The Court notes, however, that Plaintiff's race and sex discrimination claims based on events that allegedly occurred after December 24, 2005, are properly before the Court.
A deferral state is one with "a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof." 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(2). Maryland is classified as a deferral state due to the Maryland Commission on Human Relations, a state agency that is capable of providing relief from discrimination.
C. Plaintiff's Sex and Race Discrimination Claims (Counts I II)
1. Step III Disciplinary Charges
Plaintiff claims that Defendant subjected her to discriminatory discipline on the basis of race and sex in violation of Title VII. Specifically, Plaintiff claims that "[o]ut of the thirty-nine . . . students [involved in the Cheating Incident, she] was the only individual who was singled out and disciplined at the most severe level of a Step III discipline." (Compl. ¶¶ 41, 52.) To establish a prima facie case of race or sex discrimination in the enforcement of employee disciplinary measures, Plaintiff must show that: (1) she is a member of a class protected by Title VII, (2) the prohibited conduct in which she engaged was comparable in seriousness to the misconduct of employees outside of the protected class, and (3) the disciplinary measures enforced against here were more severe than those enforced against those other employees. See Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993).
The first element of the prima facie case is clearly satisfied as Plaintiff is an African-American female, and thus a member of a protected class. However, Plaintiff has failed to sufficiently plead the second and third elements. With regard to the second element, the Complaint does not discuss the race or gender of Plaintiff's alleged comparators (the other thirty-eight students involved in the Cheating Incident). Without such information, the Court cannot make the inference that Plaintiff was the subject of discrimination on the basis of her race or sex. As to the third element, Plaintiff concedes that the disciplinary charges brought against her and the other thirty-eight students involved in the Cheating Incident were eventually dropped. Because the proposed disciplinary actions against Plaintiff and the other thirty-eight students were ultimately dropped, Plaintiff cannot satisfy the requirement of showing that "the disciplinary measures enforced against her were more severe than those enforced against other employees." Cook, 988 F.2d at 511 (emphasis added). Accordingly, Plaintiff has failed to make a prima facie showing on her discriminatory discipline claim. Therefore, the Court will grant Defendant's motion to dismiss as to this claim with prejudice.
2. Transfer out of the Academy
Plaintiff purports to allege that defendant subjected her to discrimination on the basis of race and sex when she was transferred out of the Academy on October 10, 2006. It appears that Plaintiff is attempting to proceed in this case under a disparate treatment theory. "Disparate treatment is said to define a situation where the employer simply treats some people less favorably than others because of their race, color, religion, sex or national origin." Taylor v. Sec'y of Army, 583 F. Supp. 1503, 1507 (D. Md. 1984) (citing Wright v. Nat'l Archives Records Serv., 609 F.2d 702, 711 (4th Cir. 1979)). To plead an actionable claim of disparate treatment, Plaintiff must state facts demonstrating that: (1) she is a member of a protected class; (2) she has satisfactory job performance; (3) she was subjected to adverse employment action; and (4) similarly situated employees outside her class received more favorable treatment. Prince-Garrison v. Md. Dept. Health Mental Hygiene, 317 Fed App'x 351, 353 (4th Cir. 2008) (citing Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007)).
It is uncontested that Plaintiff satisfies the first two elements of the prima facie case. First, she is an African-American female, and therefore a member of a protected class. Second, Defendant concedes that Plaintiff was an exemplary performer. As to the third element, without more facts and sufficient evidence, which may be obtained through discovery, the Court is not prepared, at this time, to determine whether Plaintiff suffered "adverse employment action." See Patrick v. Henderson, 255 F.3d 914, 916 (8th Cir. 2001) (noting that "adverse employment action is a fact issue that is rarely appropriate for Rule 12 resolution").
However, Plaintiff has not alleged sufficient facts to demonstrate that similarly situated employees outside of her protected class were treated differently. To establish this element, "the plaintiff must identify a `comparator,' i.e., someone who is `similarly situated' to the plaintiff and who engaged in similar misconduct." Hoffman v. Balt. Police Dep't, No. 04-3072, 2009 U.S. Dist. LEXIS 6626, at *50 (D. Md. Jan 21, 2009). Here, Plaintiff has failed to identify any relevant comparator(s) as to which the Court can compare her conduct. Therefore, the Court cannot determine whether the alleged disparate treatment was a product of race and/or gender discrimination. Accordingly, the Court cannot find that Plaintiff has sufficiently alleged a prima facie claim for disparate treatment based on her transfer out of the Academy. The Court will allow Plaintiff to amend her Complaint to plead the necessary facts to support her claim for disparate treatment based on her transfer out of the Academy on August 10, 2006.
Plaintiff also contends that her reassignment to Station 40 was discriminatorily based upon her race and gender. To sufficiently plead a prima facie case of discrimination due to a reassignment, Plaintiff must show that: (1) she is a member of a protected class; (2) she was performing her duties in a satisfactory manner; (3) she was subjected to an adverse employment action; and (4) she was replaced by someone of comparable qualifications outside her protected class, Jyachosky v. Winter, 343 Fed. App'x 871, 876 (4th Cir. 2009) (citing Holland, 487 F.3d at 214).
It is undisputed that Plaintiff is a member of a protected class and that she was performing her job at an acceptable level. Furthermore, as discussed above, at this early stage in the litigation the Court will not make a determination as to whether Plaintiff suffered adverse employment action. Moreover, Plaintiff alleges that after she was transferred out of the Academy, she was replaced by two Caucasian males, ( see Compl. ¶ 54), thus satisfying the fourth element. Accordingly, the Court finds that Plaintiff has set forth sufficient facts to survive Defendant's Motion to Dismiss. Therefore, the Court will deny Defendant's Motion to Dismiss as to Plaintiff's discriminatory reassignment claim.
3. Failure to Investigate
Plaintiff also claims that she was subjected to disparate treatment because "when [she] asked for assistance in investigating allegations made against her that called into question her competence and integrity, Defendant[] failed to investigate any of these allegations." (Compl. ¶¶ 43, 52.) Plaintiff's second disparate treatment claim fails because she has failed to sufficiently plead the fourth element of the prima facie case. As discussed above, the Complaint does not identify any relevant comparator(s), nor does it discuss the race or gender of the employees outside of Plaintiff's protected class who were allegedly treated differently. As such, the Court cannot make the inference that the alleged disparate treatment was based upon Plaintiff's race or gender. The Court will allow Plaintiff to amend her Complaint to allege the necessary facts to support her second disparate treatment claim.
D. Plaintiff's Retaliation Claims (Count III)
In Count III, Plaintiff asserts a claim for retaliation for engaging in protected activity. Specifically, Plaintiff alleges that in response to her filing an internal EEO complaint on June 30, 2006, Defendant engaged the following retaliatory actions: (1) attempting to transfer Plaintiff out of the Academy on July 3, 2006; (2) giving Plaintiff a "marginal satisfactory performance evaluation" on October 13, 2006; (3) instituting three Step III disciplinary actions against Plaintiff; and (4) involuntarily transferring Plaintiff out of the Academy on October 10, 2006.
To establish a prima facie case of retaliation, Plaintiff must show that (1) she engaged in protected activity; (2) an adverse employment action was taken against her; and (3) there was a causal connection between the protected activity and the adverse action. Dowe v. Total Action Against Poverty, 145 F.3d 653, 656 (4th Cir. 1998). It is undisputed that Plaintiff's filing of her internal EEO complaint constitutes protected activity. Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004) (holding that prior EEO complaints constitute protected activity).
To satisfy the second element, Plaintiff must show that she suffered an adverse employment action that a reasonable employee would have found materially adverse. The standard for demonstrating a materially adverse employment action is less stringent for a Title VII retaliation claim than it is for a substantive discrimination claim under Title VII. See Burlington N. Santa Fe Ry. v. White, 548 U.S. 53, 67 (2006) Nevertheless, a plaintiff is still required to demonstrate actual harm or injury caused by the retaliatory conduct. Id. Unlike Title VII's substantive provisions, however, the anti-retaliation provision "is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 64. Rather, Plaintiff need only allege that a reasonable employee would have found the action "materially adverse," meaning it "might have `dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Id. at 68.
"Whether an action is materially adverse will, in most cases, require a fact-intensive analysis." McClintock v. Leavitt, No. 05-2880, 2007 U.S. Dist. LEXIS 21331, at *20 (D. Md. Mar. 26, 2007) (discussing the element of "adverse employment action" in the context of a Title VII retaliation claim). Presumably, many essential facts are missing from the record because discovery has not commenced. Accordingly, the Court believes that it is too early in the litigation to make an ultimate determination as to whether Plaintiff suffered adverse employment action. See Retirement Sys. of LA v. Hunter, 477 F.3d 162, 170 (4th Cir. 2007) ("[U]nder this scheme of notice pleading and broad discovery, consideration of a motion to dismiss must account for the possibility that a noticed claim could become legally sufficient if the necessary facts were to be developed during discovery."); see also Lambeth v. Bd. of Comm'rs, 407 F.3d 266, 268 (4th Cir. 2005) ("a district court may dismiss a complaint for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief"). Therefore, the only remaining question with respect to Plaintiff's retaliation claims is whether she has satisfied the pleading standard for the third element of the prima facie case of retaliation. As noted above, Plaintiff alleges four separate grounds for her retaliation claim. The Court considers each in turn.
1. Retaliation Claim Based Upon Transfer
Plaintiff first claims that Defendant retaliated against her for filing an internal EEO complaint by attempting to transfer her out of the Academy on July 3, 2006. The dispositive question is whether Plaintiff can make a prima facie showing of causation so as to satisfy the third element. "[A] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse action against the employee shortly after learning of the protected activity." See Price, 380 F.3d at 213 (citing Williams v. Cerebonics, 871 F.2d 452, 457 (4th Cir. 1989)). Here, the Court will infer that Plaintiff engaged in protected activity on June 30, 2006, when she filed her internal EEO charge with Mr. Jones. Defendant received notice of Plaintiff's charge on that same day. Then, on July 3, 2006, Defendant attempted to transfer Plaintiff out of the Academy. Thus, the alleged adverse employment action occurred three days after defendant learned of the protected activity. As such, the Court may, at this stage of the litigation, infer a causal connection between the two events. See, e.g., Silva v. Bowie State Univ., 172 Fed. App'x 476, 478 (4th Cir. 2006) (holding that a ten-week lapse of time sufficiently established a causal connection to survive a motion to dismiss). Therefore, the Court will allow Plaintiff's to proceed on her first retaliation claim.
2. Retaliation Claim Based Upon Marginal Performance Evaluation
Plaintiff next claims that she received a "marginal satisfactory performance evaluation" on October 13, 2006, in retaliation for filing an internal EEO complaint on June 30, 2006. Defendant contends that Plaintiff has not presented sufficient facts to make out a prima facie showing of causation. One of the ways a plaintiff may prove causation is by showing that the "temporal proximity between the protected activity and the adverse employment action" is "very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per curiam). Although there is no bright-line rule on the issue of temporal proximity, the Fourth Circuit has held that a lapse of over three months between the protected activity and the alleged retaliation is too long to give rise to an inference of causality. See, e.g., Pascual v. Lowe's Home Ctrs., Inc., 193 Fed. App'x 229, 233 (4th Cir. 2006) (three-to-four month period too long to establish causation). As such, retaliatory intent cannot be inferred from the proximity between Plaintiff's June 30, 2006, internal complaint and her October 13, 2006, performance evaluation. Accordingly, Plaintiff cannot establish a prima facie showing of causation under the "temporal nexus theory."
However, the Court will not dismiss Plaintiff's second retaliation claim simply because she cannot rely on the "temporal nexus theory" to establish causation. In cases where the temporal proximity between the protected activity and the allegedly retaliatory conduct is not "very close," courts may look to the intervening period for other evidence of retaliatory animus" which "may be used to establish causation." Letteri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007) (citations omitted). Viewing the Complaint in its entirety, see Tellabs, Inc. v. Makor Issues Rights, Ltd., 551 U.S. 308, 322 (2007) (holding that a court must "consider the complaint in its entirety" when ruling on a Rule 12(b)(6) motion to dismiss), the Court finds that at least two events occurred between Plaintiff's filing of the EEO charge and Plaintiff's receipt of the October 13, 2006, performance evaluation that might give rise to a showing of retaliatory animus: Defendant's attempt to transfer Plaintiff out of the Academy on July 3, 2006, and Defendant's successful involuntary transfer of Plaintiff out of the Academy on October 10, 2006. Furthermore, Plaintiff alleges that her performance evaluation was issued by Mr. Gross, the supervisor against whom she filed her internal EEO complaint. This allegation also creates an inference that Defendant harbored retaliatory animus against Plaintiff. Moreover, the parties, in their briefs, suggest that the attempted transfer was held in abeyance pending the outcome of the investigation of Plaintiff's involvement in the Cheating Incident, but that Plaintiff was involuntarily transferred out of the Academy shortly after the investigation concluded. Accordingly, the Court finds that Plaintiff has sufficiently plead a claim for retaliation at this stage of the litigation, and will therefore allow Plaintiff to proceed on this claim.
3. Plaintiff's Retaliation Claim Based Upon Three Step III Disciplinary Charges
Plaintiff also claims that the three Step III disciplinary charges filed against her on October 18, 2006, November 2, 2006, and November 16, 2006, were in retaliation for filing an internal EEO complaint on June 30, 2006. Plaintiff does not allege any direct evidence of retaliatory intent. Instead, she appears to argue that retaliation can be inferred from the proximity between her internal EEO complaint and her receipt of the disciplinary charges. The Court disagrees. The earliest disciplinary action she alleges was in retaliation occurred on October 18, 2006 — more than three months after she filed her EEO complaint. The remaining two disciplinary actions took place on November 2, 2006 and November 16, 2006 — more than four months after Plaintiff filed her EEO complaint. Because more than three months passed between the protected activity and the alleged adverse actions, no presumption of causality can be established as to them. See, e.g., Pascual, 193 Fed. App'x at 233 (three-to-four month period too long to establish causation); Tolley v. Health Care Retirement, No. 96-2094, 1998 U.S. App. LEXIS 866, at *11 (4th Cir. Jan. 21, 1998) (holding that the single fact that the plaintiff was discharged four months after engaging in protected activity is insufficient to support a claim for retaliation); Causey v. Balog, 162 F.2d 795, 803 (4th Cir. 1998) (citing with approval Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (holding that four-month nexus was too weak to justify an inference of causation)); see also Popo v. Giant Foods LLC, 675 F. Supp. 2d 583, 590-91 (D. Md. 2009) (finding that "[t]he proximity between [the plaintiff's] June 2003 internal complaint and his October 2003 termination [was] . . . insufficient to establish a causal connection between the two events").
Plaintiff additionally fails to allege a claim of "recurring retaliatory animus" that would establish the necessary causal link. However, in viewing the Complaint in its entirety, the Court believes that several events took place between Plaintiff's filing of the internal EEO complaint and her receipt of the October 18, 2006, disciplinary charge that might give rise to a showing of recurring retaliatory animus, namely the attempted transfer on July 3, 2006, the successful involuntary transfer on October 10, 2006, and the allegedly negative performance evaluation given to Plaintiff on October 13, 2006.
With respect to the disciplinary charges brought against Plaintiff on November 2, 2006, and November 16, 2006, Plaintiff appears to claim that these charges were also in retaliation for her filing a charge of discrimination with the EEOC on October 20, 2006. To the extent that Plaintiff has alleged this claim, the Court will allow her to proceed. As stated previously, the Court may infer a causal connection where the alleged adverse action occurs "very close" to the filing of the EEOC charge. Here, Plaintiff filed her EEOC charge on October 20, 2006, and Defendant received notice of the charge on October 30, 2006. Defendant then brought disciplinary charges against Plaintiff on November 2, 2006 and November 16, 2006. This short lapse of time is sufficient to establish prima facie causation. See Webb v. Md. Dep't of Health Mental Hygiene, No. 04-387, 2006 U.S. Dist. LEXIS 71135, at *34 (D. Md. Sept. 14, 2006) (temporal proximity of "just over one month" sufficient to establish the element of causation). Therefore, the Court finds that Plaintiff alleged an actionable claim for retaliation under Title VII for the three Step III disciplinary charges.
4. Retaliation Based upon Transfer out of the Academy on October 10, 2006
Finally, Plaintiff purports to assert a claim of retaliation for her involuntary transfer out of the Academy on October 10, 2006. Defendant contends that Plaintiff has failed to establish the existence of a causal connection because her "transfer occurred six months after the Cheating Incident and three months after she filed her internal charge of discrimination." (Doc. No. 7 at 13.) To be sure, Plaintiff does not allege that the transfer was in retaliation for her alleged involvement in the Cheating Incident, but rather that it was in retaliation for her EEO filing on June 30, 2006. Thus, the issue is whether there was a causal connection between the protected activity and the asserted adverse action.
As in the situations discussed above, Plaintiff cannot establish a causal connection based upon temporal proximity, as the alleged adverse action (the involuntary transfer) took place more than three months after the protected activity. However, Plaintiff purports to allege a claim of "recurring retaliatory animus" to establish the necessary causal link. Specifically, Plaintiff asserts that Defendant "continued its efforts to transfer [Plaintiff] and ultimately forced her to involuntarily transfer out of the Academy . . . on October 10, 2006." (Compl. ¶ 30-31; see also Pl. Opp. Mot. at 4; Doc. No. 7, Ex. 1.17 (EEOC Determination).) The Court finds this allegation sufficient to draw a "reasonable inference" of the existence of "recurring retaliatory animus" between when the period when filed her EEO complaint and when she was transferred out of the Academy on October 10, 2006.
In sum, Defendant's motion to dismiss Count III will be denied, and the Court will allow Plaintiff's retaliation claim to proceed on the four grounds discussed above. It should be noted that in denying Defendant's motion to dismiss Plaintiff's retaliation claims, the Court is not making an ultimate finding that Plaintiff's claims will prevail. Instead, at this early stage in the litigation, where there has been no discovery and in construing the facts in the light most favorable to Plaintiff, the Court finds that Plaintiff has presented sufficient facts to survive a Rule 12(b)(6) motion to dismiss.
E. Plaintiff's Hostile Work Environment Claim (Count IV)
In Count IV, Plaintiff asserts a claim for hostile work environment based upon her gender. Specifically, Plaintiff alleges that she began to experience gender-based harassment at the Academy in 2005 and that the "harassment came in the form of failure to thoroughly investigate complaints made by [Plaintiff], disciplining [Plaintiff] for charges that were previously dismissed, and planting false evidence that would question and undermine [Plaintiff's] competence and integrity." (Compl. ¶ 65.) To sufficiently plead a claim for hostile work environment, Plaintiff must show: (1) that she was harassed "because of" her "sex"; (2) that the harassment was unwelcome; (3) that the harassment was sufficiently severe or pervasive to create an abusive working environment; and (4) that some basis exists for imputing liability to the employer. See Smith, 202 F.3d at 234.
The fact that Plaintiff's hostile work environment claim is based in part on acts that allegedly occurred in August 2005 is not fatal to her claim. The Supreme Court held in Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), that "the incidents comprising a hostile work environment are part of one unlawful employment practice, the employer may be liable for all acts that are part of this single claim." Id. at 118. Therefore, "a Title VII plaintiff seeking to recover for a hostile work environment claim can recover for acts occurring beyond [the 300-day period], as long as at least a portion of the hostile work environment occurred within the relevant limitations period." Wang v. Metro Life Ins. Co., 334 F. Supp. 2d 853, 867 (D. Md. 2004) (citing White v. BFI Waste Serv., LLC, 375 F.3d 288, 292-93 (4th Cir. 2004)).
Here, Plaintiff has made no factual showing that the alleged actions took place based on her gender. To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face," meaning that the Court could draw "the reasonable inferences that the defendant is liable for the conduct alleged." Iqbal, 129 S. Ct. at 1940 (internal quotations and citation omitted). Conclusory allegations that Defendant subjected Plaintiff to a hostile work environment "because of her gender" are insufficient to state a claim when the facts of the Complaint do not support the conclusory allegation. See Eastern Shore Mkts., Inc. v. J.D. Assocs., Ltd. Pshp., 213 F.3d at 180 (in reviewing a 12(b)(6) motion, "we need not accept the legal conclusions drawn from the facts"); Bass v. E.I. DuPont de Nemours Co., 324 F.3d 761, 765 (4th Cir. 2003) (noting that the proper inquiry at the motion to dismiss stage is whether the alleged facts, construed liberally, state a plausible claim for relief). Because there is no basis in the Complaint to conclude that Plaintiff was subjected to a hostile work environment based on her gender, the Court will dismiss Count IV. In so doing, the Court will grant Plaintiff leave to amend her Complaint to allege the necessary facts to support her claim for hostile work environment.
D. CONCLUSION
In summary, the Court believes that Plaintiff has failed to adequately plead her claims for disparate treatment on the basis of race and sex with respect to her transfer out of the Academy on October 20, 2006 and Defendant's alleged failure to investigate. Therefore, the Court will dismiss Plaintiff's disparate treatment claims alleged in Counts I and II with leave to amend. Additionally, the Court believes that, as a matter of law, Plaintiff has failed to sufficiently plead an actionable claim for discriminatory discipline on the basis of race or sex. Therefore the Court will dismiss Plaintiff's discriminatory discipline claims alleged in Counts I and II, with prejudice.
Furthermore, as to Plaintiff's discriminatory reassignment claims alleged in Counts I and II, the Court believes that Plaintiff has sufficiently alleged these claims. Accordingly, the Court will deny Defendant's Motion to Dismiss Plaintiff's discriminatory reassignment claims alleged in Counts I and II.
As to Plaintiff's Count III, the Court believes that Plaintiff has sufficiently alleged actionable claims for retaliation. Therefore, the Court will deny Defendant's Motion to Dismiss as to Count III.
Lastly, the Court believes that Plaintiff has failed to adequately plead a claim for hostile work environment. Therefore, the Court will dismiss Plaintiff's hostile work environment claim alleged in Count IV with leave to amend.
For the foregoing reasons, the Court GRANTS Defendant's Motion to Dismiss as to Plaintiff's claims for disparate treatment claims in Counts I and II, and Plaintiff's hostile work environment claim in Count IV, with leave to amend. Additionally, the Court GRANTS Defendant's Motion to Dismiss as to Plaintiff's discriminatory discipline claims in Counts I and II, with prejudice. The Court also DENIES Defendant's Motion to Dismiss as to Plaintiff's discriminatory reassignment claims in Counts I and II, and Plaintiff's retaliation claims in Count III. A separate Order shall follow.