Allen v. Bd. of Educ. for Prince George's Cnty.

BRENDA ALLEN v. BOARD OF EDUCATION FOR PRINCE GEORGE'S COUNTY

No. 1752

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

January 25, 2021

Circuit Court for Prince George's County

Case No. CAL18-22868

UNREPORTED

Arthur, Leahy, Woodward, Patrick L. (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellant, Brenda Allen ("Ms. Allen"), appeals from the dismissal of her amended complaint filed against the appellee, Board of Education for Prince George's County, Maryland ("Board"), in the Circuit Court for Prince George's County.

Prior to filing the underlying complaint, Ms. Allen filed an administrative appeal before the Board following her termination from her employment as Director of Purchasing and Supply Services in June, 2016. Rather than pursue this action, Ms. Allen filed a "Complaint/Action for Writ of Mandamus" in the Circuit Court for Prince George's County that included one count under 42 U.S.C. § 1983, and alleged, among other things, that Ms. Allen was discriminated against and denied a "full pre and post-termination due process hearing." The circuit court granted the Board's motion to dismiss the mandamus action with prejudice on May 11, 2017.

On June 30, 2017, Ms. Allen filed another complaint in the United States District Court for the District of Maryland. This complaint contained the same statement of facts as the complaint for writ of mandamus. In addition to one count under 42 U.S.C. § 1983, the federal complaint also included counts alleging wrongful discharge, defamation per se, and a claim under Maryland Code, State Personnel and Pensions Article, (1993, 2015 Repl. Vol., 2016 Supp.), §§ 5-301-314 ("Maryland Whistleblower Law"). On November 28, 2017, the federal court granted the Board's motion to dismiss on the grounds that the claims were barred by the doctrine of res judicata, and even if they were not so barred, the court would not exercise jurisdiction over the merits of the case under the abstention doctrine.

Following the dismissal of her claims for the second time, Ms. Allen initiated a third lawsuit—the underlying action—on July 2, 2018. In her third complaint against the Board,Ms. Allen alleged wrongful discharge, defamation per se, and retaliation based on the same set of operative facts alleged in the prior federal court and state mandamus actions. Almost one year later, after receiving a Notice of Contemplated Dismissal, Ms. Allen filed the operative amended complaint on June 3, 2019. On October 11, 2019, following a hearing, the circuit court granted the Board's motion to dismiss and entered an order dismissing the amended complaint with prejudice because Ms. Allen's claims were barred by res judicata. Ms. Allen timely appealed and presents four questions for our review, which we have rephrased and consolidated as follows:¹

I. Did the trial court err in dismissing Ms. Allen's claims as barred by res judicata?

II. Were Ms. Allen's wrongful discharge, discrimination, and retaliation claims barred for failure to exhaust administrative remedies?

III. Was Ms. Allen's defamation claim barred by the statute of limitations?

We hold that the circuit court did not err in dismissing Ms. Allen's amended complaint because it was barred by the doctrine of res judicata. While our determination under the doctrine of res judicata is dispositive, Ms. Allen's claims are also barred because she failed to exhaust her administrative remedies, and her defamation per se claim is also barred under the applicable statute of limitations.

BACKGROUND

Employment History²

On September 26, 2011, Brenda Allen was made the Acting Director of Purchasing and Supply Services for Prince George's County Public Schools ("PGCPS"). After working with PGCPS for six or seven months, Ms. Allen interviewed for the permanent position of Director of Purchasing and Supply Services on May 25, 2012. Three days later, on May 28, 2012, a member of the administration informed Ms. Allen that she was not selected for the position. Ms. Allen alleges that the individual explained that she was not selected because she did not have "school facing."³

On June 11, 2012, the permanent position was reposted with the instruction that previous candidates need not re-apply. Despite this instruction, Ms. Allen attempted to re-apply but was informed that the posting had closed early. Soon thereafter, Ms. Allen became aware that the position had been transferred to another department and filled by another female minority candidate who had previously applied.

On October 22, 2012, Ms. Allen submitted a letter to the Human Resources Department, requesting additional information about the selection process and the qualifications of the other candidates. Ms. Allen did not receive a response.

The position was reposted in December 2012. Ms. Allen applied again and was interviewed on March 25, 2013. During this time, Ms. Allen served as Acting Director and avers in her amended complaint that she was informed that "she was doing a great job" and "would eventually get the appointment."

Despite this assurance, the position of Director of Purchasing and Supply Services was offered to, and accepted by, another minority candidate in 2013. In response, Ms. Allen filed a complaint of employment discrimination with the Equal Employment Opportunity Commission and another with the Maryland Commission of Human Rights.⁴ After Ms. Allen filed the complaints, the successful candidate stopped serving as Director of Purchasing and Supply Services, and Ms. Allen was promoted to the position. Ms. Allen then withdrew her complaints with the Equal Employment Opportunity Commission and the Maryland Commission of Human Rights.

Ms. Allen continued to serve in the position of Director of Purchasing and Supply Services until she received a letter of termination on June 27, 2016, effective July 2, 2016, "on the grounds of incompetence." The letter was issued pursuant to the Board of Education Policy No. 4200. The policy stated in pertinent part:

II. Matters Pursuant to Section 6-202 of the Education Article

A. Upon the recommendation of the Superintendent, the Board of Education (the Board) may suspend or dismiss an employee for immorality, misconduct, insubordination, incompetency, or willful neglect of duty.

Upon finding of just cause, the Superintendent shall communicate in writing to the employee:

1. A short and plain statement of the charges made by the Superintendent against the employee;

2. A concise statement of Superintendent's recommendation(s) to the BOE affecting the employee's employment status;

3. A statement of the legal authority for the Superintendent's actions and recommendations; and,

4. A statement of the time limit for requesting a hearing before the Board.

Just prior to receiving the letter, Ms. Allen and the chief financial officer of PGCPS, Ray Brown, had a serious disagreement about a contract award. Specifically, Ms. Allen alleged that Mr. Brown ordered her to approve a contract and award it to a specific vendor. Ms. Allen asserted that she refused to sign off on the contract because it was three million dollars higher than the other bids, and that her refusal resulted in hostility from Mr. Brown and others.

On June 27, 2016, Ms. Allen filed a Notice of Appeal to the Board and requested that she be placed on administrative leave pending review of her termination.⁵ On July 2, 2016, Ms. Allen was escorted from her office at the close of business in front of staff. Ms. Allen alleges that after being physically escorted from the premises, she received phone calls from staff informing her that they were told that she was fired for accepting "kickbacks" from vendors after awarding them contracts. On September 2, 2016, Ms. Allen's counsel sent the Board the following letter:

Please be advised that this office represents [Ms. Allen], in the Appeal of her June 27, 2016, termination of employment.

I have called your office on several occasions to inquire about the status of this appeal to no avail. As you are aware, Ms. Allen has a protected property interest in her job/employment as a government employee, which entitles her to a federal constitutional claim for procedural due process that sounds under 42 U.S.C. § 1983.

* * *

It is imperative that I hear from your office no later than September 30, 2016, or suit will be filed in the Maryland Federal District Court.

On October 4, 2016, the Board sent Ms. Allen a letter notifying her of the appeal process. In its letter, the Board stated that the Notice of Appeal was delivered on June 29, 2016. The letter further stated, in pertinent part:

Please be advised that the Board has decided it will consider this appeal following the submission of documents, affidavits, and if the Board deems such to be necessary, oral arguments by both parties. Consequently, you are requested to present all factual information that you wish the Board to consider through sworn affidavit(s) and submission of relevant documents, together with any legal argument you maintain is in support of your position.

Such materials, with sufficient copies for each member of the Board of Education should be submitted to the Board of Education of Prince George's county . . . within (30) thirty days of your receipt of this letter[.]

After receipt of all materials, the Board will determine if it deems it necessary to schedule oral arguments before it renders a final decision. If such determination is made, you will be informed of the specific date and time for the scheduling of oral arguments.

(Emphasis added). Ms. Allen requested an extension of time to provide the requested information. The Board extended the deadline to December 5, 2016.

On December 5, Ms. Allen did not submit affidavits or supporting documents;...