Rose v. Visiting Nurse Association of Maryland, LLC (Maryland U.S.D.C.) (Not Approved for Publication)

Filed April 26, 2007--Memorandum and Order by Judge Catherine C. Blake. Not approved for publication.

Plaintiff filed this action alleging Defendant discriminated against her on the basis of her chronic anxiety in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act.

Plaintiff suffers from chronic anxiety, particularly when she drives over bridges and beltways. At the outset of her employment as a home hospice worker, she was assigned routes that did not require such travel. However, she was ultimately transferred to a route which required the type of travel that exacerbated her anxiety. Her physician wrote a recommendation that she temporarily confine her driving to city streets, to which Defendant responded by placing her on a leave of absence, until the restriction was lifted, due to a lack of accommodating substitute routes. With no activity by Plaintiff for over one year, she was terminated.

The Court granted Defendant's motion for summary judgment reasoning that Plaintiff did not have a disability within the meaning of those statutes. A plaintiff asserting a claim under either the ADA or the Rehabilitation Act must demonstrate that she had a disability according to those terms. Those statutes define a disability as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment. Plaintiff argued that her anxiety substantially limited her in the major life activity of working. The phrase "substantially limits" sets a threshold that excludes minor impairments from coverage under the ADA. An impairment substantially limits an employee's ability to work only where that employee is unable to work in a broad class of jobs. In other words, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. In the Fourth Circuit, an employee must demonstrate that because of her impairment, she was "generally foreclosed" from jobs utilizing her skills.

In the instant action, Plaintiff's evidence consisted solely of her health care provider's diagnoses. Such reports fall short of demonstrating disability within the meaning of the statutes. Plaintiff, further, was not disabled because all other evidence showed she could have used her skills to work elsewhere, e.g., a hospital, nursing home, or hospice.

Finally, Defendant did not regard Plaintiff as disabled. An employer regards an employee as disabled only where it erroneously believes that either the employee has an impairment that substantially limits a major life activity, or that the employee's actual, nonlimiting impairment substantially limits a major life activity. Where the major life activity is working, the employer must perceive the employee "to be significantly restricted in [her] ability to perform either a class of jobs or a broad range of jobs in various classes." There was no evidence here that Defendant regarded Plaintiff as substantially limited in her ability to work. Defendant's knowledge of Plaintiff's impairment, without more, does not indicate that the company regarded her as disabled. Additionally, the fact that Defendant viewed Plaintiff as incapable of performing one aspect of her job - driving to certain locations - does not mean that she was regarded as disabled.

The full opinion is available in PDF.

Metro Ready Mix, Inc. v. Essroc Cement Corp. (Maryland U.S.D.C.)(Not Approved for Publication)

Order Signed April 25, 2006--Judge Catherine C. Blake. Not approved for publication.

Metro Ready Mix, Inc. claims damages in a case arising out of contracts for the supply of cement. Metro initially filed a complaint in this court against Essroc Cement Corp. alleging breach of contract and breach of warranty; subsequently it amended the complaint to add allegations of intentional misrepresentation, intentional concealment, negligence, and negligent misrepresentation and to seek punitive damages. This ruling deals with Essroc's motion to dismiss the added claims.

Metro is in the business of supplying and placing ready mix concrete for construction jobs. Cement is a necessary ingredient in order to mix concrete, and for the years leading up to and including 2004, Metro obtained much of its cement from Essroc. In late 2004, Metro bid for, and was awarded, several large contracts for various projects all requiring high-strength concrete. At unclear times between November 2004 and March 2005, Metro and Essroc allegedly entered into oral contracts for the delivery of cement sufficient to cover Metro's needs for these projects. In December 2004 and January 2005, Metro, using cement supplied by Essroc, created concrete mix designs for its large projects. These mix designs received approval from the contractors and from independent testing agencies, certifying that the concrete met strength and other testing requirements.

Beginning in May 2005, Metro began to receive complaints about the strength of its concrete. In December 2005 and January 2006, Metro had its concrete tested, and the tests revealed that the cement supplied by Essroc was defective. As a result of the defective cement, Metro alleges that its customers began terminating their contracts and charging Metro for remedial costs caused by the problematic concrete. Because of the terminated contracts, Metro had to sell off some equipment at a loss, and pay for the cancellation of other leased equipment. Apparently Metro has since been forced to close its business.

Metro alleges that Essroc made misrepresentations inducing Metro to contract with Essroc. Metro representatives met with Essroc representatives in the fall of 2004 and early 2005. At these meetings, Metro alleges that Essroc stated it could provide Metro with the quality and quantity of cement it needed. Metro alleges that when Essroc made these assurances, however, it knew it was not capable of providing safe and suitable cement.

Metro's complaint included claims for intentional misrepresentation, intentional concealment, negligence, and negligent misrepresentation. Metro alleged that Essroc's two main plants were experiencing severe maintenance and quality control problems in the spring of 2005, which brought Essroc's cement in violation of the standards for cement manufacturing established by the American Society for Testing and Materials (ASTM). In its intentional misrepresentation claims, Metro alleges that in 2004 and February 2005, Essroc falsely represented that it was capable of supplying Metro with suitable cement that would meet ASTM standards, and did so "with actual malice, ill will, and spite towards Metro."

In its intentional concealment claim, Metro alleges that Essroc knew and did not disclose the problems at its manufacturing plants. In its negligence claim, Metro alleges that Essroc had a duty to exercise ordinary care in the production of cement, and breached that duty by selling substandard cement. Lastly, in its negligent misrepresentation claim, Metro alleges that Essroc falsely represented that the cement would be safe and suitable for Metro's needs. Essroc moved to dismiss the added claims.

As to the fraud allegations, the Court found that there appears to be no specific evidence or allegation that Essroc did not believe it could fulfill the contracts at the time they were entered or that it was attempting to deceive or defraud Metro with its representations. Thus, it dismissed Metro's claims for fraudulent misrepresentation and fraudulent concealment for failure to meet the specificity requirements of Rule 9(b). Because Metro did not proffer in its opposition or at the hearing any evidence that would support these claims, the Court ruled that no further leave to amend would be granted.

Because it found that the "application of the somewhat uncertain contours of Maryland law" pertaining to negligence and negligent misrepresentation in the context of a business dispute might be assisted by further factual development, and discovery will be proceeding on the contract claims in any event, Essroc's motion to dismiss the negligence and negligent misrepresentation claims were denied, subject to renewal if warranted as a summary judgment motion at the close of discovery.

Finally, because Metro has not alleged facts to show that Essroc acted with "actual malice," the Court dismissed any claim for an award of punitive damages.

The opinion and order are available in PDF.

Erachem Comilog, Inc. v. [United Steel Workers Union] (Maryland U.S.D.C.) (Not approved for publication)

Signed April 19, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication).

On consideration of a claim by the plaintiff ("Erachem") to vacate an arbitration award entered in favor of United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC Local 12517-04 (the "Union"), and the Union's counterclaim to affirm the award, the judge DENIED Erachem's motion, and GRANTED the Union's motion.

A member of the Union ("Cavey") was discharged by his employer, Erachem, for allegedly misrepresenting his physical condition following a knee injury at work. Pursuant to the provisions of the Union's Collective Bargaining Agreement with Erachem, the discharge decision was eventually taken to arbitration, where the arbitrator found that Erachem failed to prove it had just cause to discharge Cavey, and ordered his reinstatement.

Noting that its review of an arbitral award was "among the narrowest known to the law", the judge affirmed the arbitrator's decision, finding that the arbitrator's consideration of the unemployment and worker's compensation awards in Cavey's favor was not erroneous and only part of the support cited for the decision, nor did the discussion of Cavey's Weingarten rights, even if in error, did not form the basis for the decision and award. In sum, the judge found that Erachem had not met its "exacting burden" of showing the arbitrator had "dispensed his own brand of justice" in granting the award, and affirmed.

The Memorandum and Order are available in PDF format.

Holland v. Psychological Assessment Resources, Inc. (Maryland U.S.D.C.) (Approved for Publication)

Signed April 30, 2007--Memorandum and Order by Judge Christine C. Blake.

Dr. John Holland ("Holland") contracted with PAR in 1986 and again in 1989 to publish his career guide ("SDS"). Under the terms of the agreement, Holland transferred his rights in SDS to PAR, subject to those expressly reserved, in exchange for royalty payments based on PAR's sales of the SDS and related products. PAR created an internet version of the SDS between 1997 and 1998 and launched it on-line in September 1998 without Holland's consent. Despite Holland's continued objections to the internet version of SDS ("internet version"), PAR has maintained it on-line and attached Holland's name and biographical information to it.

Holland's intitial 1999 complaint alleged the agreement had been breached due to PAR's failure to obtain Holland's consent and to pay him proper royalties for the internet version. Holland's subsequent amendments resulted with the following claims: breach of contract (count II); breach of the covenant of good faith and fair dealing (count III); false light (invasion of privacy) (count IV); unfair and deceptive trade practices (count V); violation of the Lanham Act (count VI); and unjust enrichment/restitution (count VII). Holland further requested the court to render a declaratory judgment under the Maryland Uniform Declaratory Judgments Act regarding the breach of contract issue (count I) and the parties' rights and obligations under the contract (count VIII).

The core conflict in this case is the result of a contract that was entered into before the rise of the internet; specifically, differences between pre- and post-internet contracts and, in this case, the effect on post-internet SDS. The standard for summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. The party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of pleadings, but rather must set forth specific facts showing that there is a genuine issue for trial. The court must view the evidence in the light most favorable to the nonmovant and draw all reasonable inferences in his favor without weighing the evidence or assessing the witness' credibility. However, the court also must abide by the affirmative obligation to prevent factually unsupported claims and defenses from proceeding to trial.

Under Maryland law, contracts are interpreted objectively. A court generally interprets the terms of a written contract as a matter of law; a determination that terms are ambiguous is likewise a matter of law. Ambiguity arises when, to the perception of a reasonably prudent person in the position of the parties, the terms are susceptible to more than one meaning. To resolve ambiguity and determine the intent of the parties, a court will look to evidence from extrinsic sources. At the heart of this case is a conflict over whether Holland's consent was required prior to PAR's release of the internet version. The consent requirement only arose when PAR sought to publish and print a revised edition of the original works. "When PAR seeks to publish all test materials which incoroprate the original works, Holland must be afforded an opportunity to review and comment on the materials but his consent is not required." The court reasoned that, despite the contract's ommission of revised editions of original works, logic would dictate that PAR would wish to incorporate the most up to date material possible - revisions - into its new products, implying the existence of a category of materials other than original works - again, revisions - which PAR might seek to incorporate, thereby giving rise to a category of products incorporating revisions which is not specifically defined by the terms of the contract.

This Court was presented with two key ambiguities which required resolution in order to establish the parties' rights and responsibilities under the contract. First, the definition of "revised edition" under the contract is unclear. Second, once this definition has been established, is whether the internet version is a revised edition, in which case the consent provision of the contract is triggered. The Court accepted the parties' agreement that a revised edition is one in which the content has been substantively changed from previous editions. "Substantive" was defined as "belonging to the essence or intrinsic nature of the substance." The Court adopted "substantive change" as the basis of the understanding of "revised edition." In this instance, changes from print to internet were a substantive change because millions of people may be exposed to an abbreviated version of the test where the truncation is not offset by the presence of a counselor.

In addition to the breach of contract claim, Holland requested the Court to construe the contract and declare the parties' rights under it (count VIII). As one of the contract's central ambiguities could not be resolved, this request was denied. With respect to the breach of contract claim , Holland based his claim on an express contractual provision stating that "the parties hereto shall deal with one another fairly and in good faith." This claim should have been characterized as another ground for breach of contract rather than as a separate cause of action, which is not available. The allegations of breach of the covenant of good faith and fair dealing were thus subsumed within the breach of contract claim (count I) and did not proceed as an independent cause of action. Presenting an individual "before the public in a false light" (count III) is one variation of the more general tort of invasion of privacy. For liability to attach for a false light claim in Maryland, "(a) the false light in which the other person was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other person would be placed." If the statements on which the claim for false light is based are true, however, the "defendant in a false light case is entitled to judgment as a matter of law." In the instant case, PAR would nonetheless be entitled to summary judgment because it is not disputed that the statements on which Holland's claim is based are true. The parties agreed that Holland could not bring suit for unfair or deceptive trade practices under the Maryland Consumer Protection Act because Holland is not a consumer of the internet version but the creator of the materials on which it is based (consumer defined as "an actual or prospective purchaser, lessee, or recipient of consumer goods, consumer servces, consumer realty, or consumer credit"). The general rule is that no quasi-contractual claim (such as unjust enrichment) (count VII) can arise when a contract exists between the parties concerning the same subject matter on which the quasi-contractual claim rests. This rule is closely adhered to, and exceptions have been granted only when there is evidence of fraud or bad faith, there has been a breach of contract or mutual recission of the contract, when recission is warranted, or when the express contract does not fully address a subject matter. Holland's attempt here failed because both the agreement between the parties addressed marketing and promotion and because Holland, himself, revealed in his complaint that this claim was concerned with revenue PAR received from the internet version rather than on redressing promotional and marketing violations. Whether PAR was entitled to market the internet version depended wholly on an interpretation of the express contract between the parties. PAR was thus entitled to summary judgment on Holland's unjust enrichment claim. The Lanham Act (count VI) generally has been construed to protect against trademark, service mark or trade infrginement even though the mark or name has not been federally registered. Holland's claim does not arise in the typical context of a Lanham violation as he and PAR are not marketplace rivals but parties to a contract, the terms of which are undisputed. Holland sought to proceed under a "false endorsement" theory under which courts have found " (a) injury where the plaintiff's voices, uniforms, likenesses, published works or names were used in such a way as to deceive the public into believing that they endorsed, sponsored or approved of the defendant's product." To succeed using a false endorsement theory, the plaintiff must prove the likelihood of consumer confusion as to the origin, approval or endorsement of the project making summary judgment for the defendant appropriate where the plaintiff cannot possibly show confusion as to the source or sponsorship. As both parties acknowledge Holland's standing within the field of career testing, Holland's value of his persona seems undisputed. However, Holland's claim hinges in part on the outcome of the underlying breach of contract dispute. If Holland's consent was not required for the publication of the internet version because it was not a revised edition, his endorsement or approval of the product is contractually established and, although he may not like hte internet version, he has no legal claim that his endorsement or approval has been falsely implied. The Lanham Act turns in part on the answer as to whether there was a substantive change between the internet and print versions of SDS resulting in a revised edition and requiring consent. This answer must be presented for a jury for resolution.

The full opinion is available in PDF.

Ward v. Hammond et al. (Maryland U.S.D.C.) (Not approved for publication)

Filed March 30, 2007 --Opinion by Judge Catherine Blake

Ward, an inmate at the Western Correctional Institution ("WCI"), alleged that medical personnel at WCI had denied him medical treatment and housing for his complaints regarding knee and lower back problems related to an old automobile accident. The court considered motions to dismiss and/or for summary judgment, granting all but those pertaining to Plaintiff's claims against defendants Hammond, Van Meter, and Tessema (respectively, a nurse practitioner, nurse, and physician at WCI) for his medical treatment prior to July 1, 2005, based on a delay in providing treatment prior to that date.

The count asserted against Department of Public Safety and Correctional Services ("DPSCS") was dismissed because DPSCS is not a "person" under 42 U.S.C. § 1983 and is entitled to Eleventh Amendment immunity. Defendants CMS and PHS were dismissed because the doctrine of respondeat superior liability does not apply to § 1983 claims. The count asserted against those defendants stemmed from violations of prison directives, which the court held did not give rise to a § 1983 claim or a private right of action.

The court explained that a denial of medical care claim in violation of the Eighth Amendment required the plaintiff to prove an objectively serious medical condition and a subjective component of deliberate indifference on the part of prison officials or health care personnel. The Court determined that there was no dispute that Ward had a medical problem involving his knees relating to injuries suffered in a motor vehicle accident in the mid 1980's. The Court found a genuine dispute of material fact regarding the constitutionality of the level of care received by Ward for his orthopedic condition prior to July 1, 2005. Thus summary judgment was not granted for that time period as to the medical defendants.

The Opinion and Order are available in PDF.

Sykes v. Wicomico County (Maryland U.S.D.C.) (Not approved for publication)

Filed March 30, 2007 --Opinion by Judge Catherine Blake

Tyrone Sykes sued the defendants, Officers Phillips and Alessandrini for violations of federal and state law arising out of a scuffle during his arrest for criminal trespass in Salisbury, Maryland. In a Maryland district court trial, Sykes was found not guilty of the criminal trespass charge, after the judge found no probable cause for his arrest. The judge noted that under the common law one could resist reasonably in an unlawful arrest. In federal court Sykes alleged violations that included assault, battery, false imprisonment, false arrest, malicious prosecution, excessive force, violation of the Maryland Declaration of Rights, and violation of 42 U.S.C. § 1983.

Sykes claimed that his Fourth Amendment rights were violated because the defendants illegally searched his person after arresting him without a warrant. The court denied summary judgment on that claim because of a genuine dispute of material fact as to whether the officers had probable cause for the arrest. The court rejected summary judgment for the defendants based on qualified immunity because as stated by Syke’s version of the events, an arrest for trespass, and subsequent search, by the police without express authorization or prior agreement, and where the plaintiff articulates a plausibly legitimate reason for being on the premises, which has been acknowledged by the officer, is a constitutional violation.

Finding that the notice provisions of the Maryland Tort Claims Act do not implicate individual state employees, the court held that Sykes’s possible failure to comply with the MTCA would not bar his claim.

The defendants claimed that they were entitled to statutory immunity for the state law claims but the court rejected that as a basis for summary judgment because on the facts taken in the light most favorable to Sykes there was evidence sufficient for a jury to find actual malice, which would preclude qualified immunity. Analyzing the claims of excessive force during an arrest under the Fourth Amendment’s objective reasonableness standard and again taking the facts in the light most favorable to the plaintiff, the Court found a genuine dispute of material fact concerning whether defendants used excessive force.

With respect to the assault and battery claims, the court noted that police officials are not responsible in inflicting injury on a person being arrested, unless the officer acts with malice or gross negligence. Because there was a genuine dispute as to whether the police officers lacked probable cause in arresting Sykes for trespass, and taking the facts in the light most favorable to Sykes, the judge denied summary judgment on that basis because a jury could find malice in the defendants’ actions. On a similar reasoning, the court found summary judgment inappropriate as to the false arrest, false imprisonment, and malicious prosecution allegations.

The Opinion and Order are available in PDF.

Argiropoulos v. Kopp, et al. (Maryland U.S.D.C.)(Not approved for publication)

Decided March 26, 2007—opinion by Judge Catherine Blake

Plaintiff John Argiropoulos claimed damages on his own behalf, and on behalf of Club 10, Inc. in an action against defendants whom Argiropoulos claimed breached contracts, made fraudulent representations, breached the duty of loyalty owed to Club 10's shareholders, and were grossly negligent in the management of the club. The Court considered and granted a motion by Defendants to dismiss multiple counts of the complaint. Counts Seven through Thirteen alleged that the defendants engaged in waste, illegitimately took cash from the corporation, violated tax laws, permitted illegal activities on Club 10 premises, discriminated against customers, and generally mismanaged the corporation. The Court found that the claims alleged injuries to the corporation and would be typically appropriately brought under a derivative action. Because a suit to recover damages to a corporation can only be brought by corporation itself through a derivative action, and not by individual shareholders, the Court dismissed those counts.

In counts Fourteen through Twenty, Argiropoulos made a series of claims on behalf of the corporation in the form of a shareholder derivative action. The defendants argued that Argiropoulos did not fairly and adequately represent the interests of the shareholders or members similarly situated as required to maintain such a derivative action. Both the individual claims by Argiropoulos and his derivative claims sought significant money damages and hence, the Court reasoned, Argiropoulos and the derivative class were competing for the same pool of money, creating a conflict. The Court dismissed counts Fourteen through Twenty on the ground that Argiropoulos was not an adequate representative of the derivative class.


The opinion and order are available in PDF.

Weaver v. Schartiger (Maryland U.S.D.C.) (Not approved for publication)

Signed March 23, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication)

Upon consideration, the motion for partial summary judgment of the defendant ("Schartiger") is GRANTED except as to any claim for compensation due under the terms of the Agent Agreement, and the motion to compel of the plaintiff ("Weaver") is DENIED.

This case arose out of the termination of an Agency Agreement (the "Agreement") between Schartiger, owner of an insurance company, and Weaver, a former agent of the company. The Agreement was entered into to define the relationship of Weaver as an independent contractor working with, but not for, Schartiger, and set forth formulas for compensation, both during and after the term of the Agreement. The Agreement was to be "continuous", and contemplated annual review of the Agreement by the parties. When negotiations initiated by Schartiger to end the Agreement and move Weaver into an employee status were resisted by Weaver, Schartiger unilaterally terminated the Agreement, and Weaver filed suit.

The judge found that, under Maryland law, an employment contract without a stated duration is at will, terminable by either party, and thus Weaver's request for a declaratory judgment that the Agreement was not terminable must fail.

Likewise, Weaver's claim that she possessed an ownership interest in the business must fail, in light of explicit language in the agreement that Weaver was to be an independent contractor and that all policies and business produced were the exclusive property of Schartiger. Any implication that a provision in the Agreement that Weaver might receive 25% of the sale price of the company indicated an ownership interest was negated by the right of first refusal provision in the Agreement, which would require Weaver to pay the same price as a third-party bidder, indicating no such ownership interest.

The judge concluded that, except for any compensation due to Weaver under the Agreement, for which calculation sufficient information has already been provided, negating the need for further discovery, all her claims were denied.

The Memorandum and Order are available in PDF format.

Mercantile-Safe Deposit & Trust Company v. Chicago Title Insurance Company (Maryland U.S.D.C.) (Not approved for publication)

Signed March 20, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication)

On consideration of cross motions for summary judgment, the motion of the plaintiff ("Mercantile") is GRANTED, the motion of the defendant ("Chicago Title") is DENIED, and JUDGMENT ENTERED in favor of Mercantile.

This case arose out of the refusal by Chicago Title to pay claims made by the insured, Mercantile, under two lenders title insurance policies it had issued to cover two indemnity deed of trust ("IDOTs") granted to secure guarantees of two loans made by Mercantile to two family businesses. The guarantor and grantor of the IDOTs was the trustee named in two unrecorded qualified personal residence trusts ("QPRTs") established by the original owners of the property. The deed which transferred title to the trustee had recited in part that no party dealing with the trustee with regard to the property need inquire as to the trustee's authority or to the satisfaction of the terms of the trust documents. Neither Mercantile nor Chicago Title asked for or reviewed the trust documents.

When the loans went bad, certain of the beneficiaries under the QPRTs filed suit to dispute the validity of the IDOTs, claiming the trustee had engaged in improper self-dealing in violation of his responsibilities to the beneficiaries. Pursuant to a notice of claim from Mercantile, Chicago Title undertook to defend in the suit, without reservation of right to disclaim coverage. The trial court declared that the trustee had been without power to grant the IDOTs, since the loans were unconnected to the trusts and granting the IDOTs was inconsistent with the beneficiaries' interests. Mercantile lost on appeal, and was thus unable to foreclose on the IDOTs.

Upon Mercantile's filing of a proof of claim under the title policies with Chicago Title, counsel for Chicago Title requested access to Mercantile's records as part of its "investigation" of Mercantile's claim. Mercantile subsequently filed this suit, alleging breach of contract and asking declaratory relief.

After reviewing the standards for summary judgment, the judge noted that in Maryland, insurance policy language is not construed most strongly against the insurance company as drafter, but rather using customary, ordinary and accepted meanings of terms used. Chicago Title claimed that the claimed amounts were not covered, since the IDOTs were given to secure payments due under the guaranties, and that the guaranties were invalid for the same reason the IDOTs had been declared invalid. Even though the judge conceded that the IDOTs were clear that they secured the guaranties, she found they also "indirectly secured the underlying loan obligations," citing the common Maryland practice of using IDOTs to avoid imposition of recordation tax on the loan amount. The judge opined that "[i]nterpreting the language of the IDOT as though it secured only the unconditional guaranty agreements and not the underlying promissory notes would be to rely on a technical differentiation that ignores Maryland practice and, more importantly, contradicts the plain purpose of the IDOTs as well as the parties’ understanding of the title insurance contracts," and found that the policies secured the underlying loan obligations and that Mercantile had suffered losses covered under those policies.

In addition, the judge found that, by unconditionally accepting and continuing representation of Mercantile in the underlying and preceding litigation, Chicago Title was now estopped from disclaiming its liability, since it precluded Mercantile from obtaining independent counsel and possibly accepting offers of settlement that had been rejected by counsel provided by Chicago Title.

Chicago Title also raised several bases for exclusion of the claim, as set forth in the language of the policy. The judge had little difficulty finding that the defect here was not "created, suffered, assumed or agreed to" by Mercantile, since it had the same information available to it that was available to Chicago Title, nor had Mercantile concealed material facts about the transaction, nor had it breached the policy by refusing to produce records associated with the claim, since Chicago Title had effectively waived the requirement when it had proceeded to treat Mercantile's claim as covered throughout the litigation below without reservation of right.

Consequently, the judge entered judgment in favor of Mercantile for the policy amounts, plus prejudgment interest, but declined to award attorney fees to Mercantile.

The Memorandum and Order are available in PDF format.

Virtual Physical Center - Rockville, LLC v. Phillips Medical Systems North America, Inc. (Maryland U.S.D.C.) (Approved for publication)

Signed March 16, 2007. Opinion and Order by Judge Catherine C. Blake.

Upon consideration of cross motions for summary judgment, the motion of the defendant ("Phillips") was GRANTED and the motion of the plaintiff ("Virtual") was DENIED.

In a case arising from the failure of Virtual's "whole body" imaging business, intended to screen healthy individuals for asymptomatic and potentially life-threatening diseases by means of CT scans, Virtual filed suit against Phillips, the manufacturer of the CT machines, alleging fraud, negligent misrepresentation and breach of warranty.

Phillips countered that the statute of limitations had run on the fraud and negligent misrepresentation counts, since more than three years had passed since Virtual knew or should have known that the allegedly fraudulent or negligent representations had been known to have been false. After reviewing the sequence of events and the information of which Virtual was aware, the judge agreed, finding that Virtual's claims were time-barred.

In similar fashion, Phillips argued that Virtual's warranty claims were barred by the applicable statute of limitations, The judge agreed, finding that the alleged defect was, if anything, a design defect, and not one subject to the one-year express warranty for defects and workmanship which might have extended the implied warranty period.

Finally, Virtual argued that Phillips' counter-claim for damages for breach of contract should be limited to the date Virtual advised Phillips it had ceased operations, as being effective notice of termination of the lease agreement. The judge found, while Virtual would likely prevail on the issue, it had failed to submit confirmation that the party who instituted suit against Virtual considered the lease to have been terminated at that time, and denied Virtual's motion for summary judgment on that issue.

The Opinion and Order are available in PDF format.

Weistock v. Levin (Maryland U.S.D.C.) (Not approved for publication)

Signed March 13, 2007. Memorandum and Order by Judge Catherine C. Blake (not approved for publication).

On consideration of a motion to dismiss for lack of personal jurisdiction by the defendant ("Levin"), and the opposition to that motion by the plaintiff ("Weistock"), or in the alternative Weistock's motion to transfer the venue, the judge TRANSFERRED the case to the Northern District of Illinois.

This case arose from the allegedly negligent treatment received by Weistock's husband from Levin in the course of what proved to be fatal lung cancer. Weistock and her husband had been referred to Levin, who practiced in Illinois, for a second opinion. Opting to receive treatment form Levin, Weistock's husband traveled to and received all treatments in Illinois. Eventually, Weistock's husband succumbed to kidney failure, which Weistock claimed was a result of the cancer treatments administered by Levin without due and proper regard to the patient's preexisting condition.

Weistock brought suit in Maryland state court, and Levin had the case removed to federal court on diversity basis. On motion to add Weistock's children to the suit, Levin opposed for lack of personal jurisdiction in Maryland. Weistock claimed personal jurisdiction did exist in Maryland, or in the alternative requested that the venue be transferred to the Northern District of Illinois.

Noting that, when personal jurisdiction is challenged, the plaintiff bears the burden of proving, by a preponderance of evidence, grounds for jurisdiction. Specific jurisdiction may exist where the claim is related to or arises out of the defendant's contacts with the state, or general jurisdiction may exist when the defendant's contacts with the forum state are continuous and systematic. Weistock met the first test required under Maryland law, citing injury arising under a Maryland statute, Courts and Judicial Proceedings Article, Section 6-103(b)(1). Weistock was unable to allege at least minimum contacts between Levin and Maryland to support constitutionally reasonable jurisdiction, though, since all activities took place in Illinois, Levin had made no effort to attract patients from Maryland, and the largely passive Web site and the national television ads run by Levin were not sufficient to support even the lower general jurisdiction standard.

Rather than dismiss, though, the judge found that interests of justice compelled transfer of the case to the proper venue, where all the allegedly tortious actions took place.

The Memorandum and Order are available in PDF format.

Western World Insurance Company, Inc. v. Greene (Maryland U.S.D.C.) (Not approved for publication)

Signed March 13, 2007. Memorandum and Order and Declaration of Judgment by Judge Catherine C. Blake (not approved for publication)

On motion for summary judgment made by the plaintiff ("Western"), the judge GRANTED summary judgment in favor of Western and DECLARED the amounts due under certain insurance policies.

This case arose from a claim made by a tenant (Greene") for lead paint exposure over four years' occupancy in a residence insured by the landlord's insurance company ("Western World") in a series of four one-year policy periods. The first three years, the policy limit was $50,000 per year per occurence, while the policy limit was raised to $300,000 approximately half-way through the final year, one month after Greene had vacated the premises. Western World had offered Greene a total of $200,000, while Greene demanded $450,000, and Western World sought a declaratory judgment and summary judgment.

The judge had little difficulty finding that there was no dispute over any material fact, since the increase in policy limit in the final year did not occur until after Greene had vacated the premises, and the increase in the insurance premium was proportional to the roughly one-half year of enhanced coverage. The judge also did not find that the claim, raised for the first time on appeal, of in utero lead exposure in the last year, thus raising the total claim to $250,000, created a dispute as to a material fact. Consequently, the judge granted Western World's motion for summary judgment, and declared the policy limit for occurances prior to the endorsement date was limited to $50,000 per occurance, and thus the limit for Greene was $50,000 for that year, and $200,000 in total for all four years.

The Memorandum and Order and Declaration of Judgment are available in PDF format.

Miller v. Mandarin Homes, Ltd. (Maryland U.S.D.C.) (Not Approved for Publication)

Signed February 28, 2007 -- Memorandum Opinion by Judge Catherine C. Blake. (Not approved for publication).

Held: Plaintiffs' Motion to Modify Scheduling Order was denied, and defendants' Motion for Summary Judgment granted. Plaintiffs had not provided sufficient evidence to establish their claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA").

In this case, plaintiffs had alleged a violation of CERCLA, claiming that the developer, Mandrin Homes ("Mandrin") and agent, Champion Realty ("Champion") knew or should have known that the house sold to the plaintiffs was part of a solid and hazardous waste dump. Defendants filed a Motion for Summary Judgment claiming that plaintiffs had failed to prove (1) that a landfill existed near their property (2) that hazardous materials were released on the property, or (3) that any such release caused plaintiffs' injuries.

The Court found the affidavit of plaintiffs' expert to be speculative, using words like "consistent with," and "indicative," and "may" instead of attesting to the actual facts as being more likely so than not to a reasonable degree of professional certainty. In addition, plaintiffs' expert was not a medical doctor and was not otherwise qualified to testify to medical causation.

The Court declined to grant plaintiffs additional time to conduct discovery, finding that they had shown no good cause for such an extension.

This memorandum opinion is available in PDF

In re Excelsior, Federated and Scudder [Scudder Sub-Track] (Maryland U.S.D.C.) (Approved for Publication)

Signed February 9, 2007. Memorandum opinion by Judge Catherine C. Blake.

In a follow up to an earlier decision which was based in part on matters resolved in the earlier Janus opinion by Judge J. Frederick Motz in another branch of this litigation, the judge considered motions to dismiss after the plaintiffs filed a second consolidated amended class action complaint, which were GRANTED in part and DENIED in part.

The judge first noted that she had, in the earlier decision, adopted the reasoning and conclusions in the Janus opinion, and would not revisit those rulings. Some of the new pleadings met the test of the earlier rulings, and thus, while some of the other allegations such as "under the radar" market timing and late trading might not demonstrate the scienter necessary to prevail, the plaintiffs have stated a sufficient basis for the suit to survive against those defendants. The judge also noted that the plaintiffs had conceded that claims based upon fraudulent conduct prior to July 30, 1999 were time barred, and issues of holder standing and standing generally were dealt with or deferred in the Janus opinion, and likewise for disposition of claims under Section 36(b) of the ICA, Section 48(a), and Section 20(a) of the Exchange Act.

Claims against certain new defendants, various timers/traders, were sufficiently pled, as were the claims against three companies alleged to have engaged in late trading by use of the BAS "box". However, some of the claims against some of the new defendants were time barred, based upon the time the plaintiffs knew or should have known of the potential claims against those defendants.

Determination of standing and personal jurisdiction as to several defendants continued to be deferred, and others had their motions to dismiss denied as before. Section 10(b) claims against certain defendants (the "UBS Defendants") were found to fall short, while the Section 20(a) claims against them were not dismissed since, unlike the Section 10(b) claims, there were allegations of specific acts of wrongdoing.

The opinion is available in PDF format.

Tobacco Technology, Inc. v. Taiga International, N.V. (Maryland U.S.D.C.) (Not Approved for Publication)

Memorandum Opinion and Order Denying Motion to Dismiss pursuant to Rule 12(b)(6). Filed February 26, 2007 -- Opinion by Judge Catherine C. Blake. (Not approved for publication.)

The defendants moved to dismiss the complaint on grounds that the plaintiff's claims were time-barred and that Maryland does not recognize an omnibus cause of action for "Breach of Fiduciary Duty."

The court, sitting in diversity and applying Maryland law, resolved three questions: 1) Whether an agent's knowledge of its principal's cause of action can be imputed to the principal for the purpose of triggering the statute of limitation when the agent's interests are adverse to the principal on that matter; 2) whether a plaintiff's failure to discover a cause of action in the context of alleged active concealment of that cause of action can be decided as a matter of law upon a motion to dismiss; and 3) whether Maryland recognizes an omnibus cause of action for "Breach of Fiduciary Duty."

Held: In this case, the complaint alleged sufficient facts concerning the agent's adverse interests to preclude imputation of the agent's knowledge of the cause of action to the principal as a matter of law. In addition, the complaint alleged sufficient facts concerning the defendants' efforts to conceal the wrongdoing that the failure to discover the cause of action earlier could not be attributed to the plaintiff's lack of due diligence as a matter of law. Finally, Maryland case law supports the conclusion that while the State does not recognize a universal tort for the redress of breach of fiduciary duty, breach of an agent's duty to his principal does provide a claim for breach of fiduciary duty.

Accordingly, the court denied the motion to dismiss.

This case was the subject of a previous opinion concerning a motion to seal synopsized here.

The Court's opinion denying the motion to dismiss is available in PDF. The order is also available in PDF.

Elliott v. MD Dept of Human Resources (Maryland U.S.D.C.) (Not Approved for Publication)

Signed February 22, 2007. Memorandum Opinion and Order by Judge Catherine C. Blake. (Not approved for publication)

Upon motion by the defendants for summary judgment on the plaintiff's Title VII claims, the defendants' motion for summary judgment was GRANTED.

The plaintiff ("Elliott") is an African-American woman who was an assistant director in the Dorchester County Department of Social Services ("DCDSS") from 1997 through 2003. Beginning in 2000, her unit was subject to a number of personnel issues, including tension between Elliott and a number of her supervisees, some involving racially derogatory comments allegedly made outside of the workplace. Through a series of meetings and memoranda, the management at DCDSS attempted, with mixed success, to resolve these issues, including counseling Elliott on her management style and practices.

The DCDSS workplace experienced some significant racial tensions and incidents in 2003, leading ultimately to a series of visits from the Deputy Director of DHR's Office of Employment and Program Equity in order to conduct an investigation. He found in part that the employee morale was very low in Elliott's unit, in part due to Elliott's "heavy-handed" management style, and recommended that DCDSS management work with Elliott to improve her management skills. DCDSS management met with Elliott a number of times, and went through multiple drafts of a management action plan for Elliott to follow. Throughout the process, Elliott resisted the need for change, and late in 2003 her employment was terminated. Her responsibilities were reassigned to another member of DCDSS's management, who was also an African American woman.

After first unsuccessfully appealing her termination administratively, Elliott received a right to sue letter from the EEOC in 2005, and this suit followed, alleging discrimination on the basis of race in violation of Title VII and claiming DCDSS and DHR condoned a hostile work environment and discriminated and retaliated against her. DCDSS and DHR moved for summary judgment on all counts.

Summary judgment must be granted if there is no genuine issue as to any material fact, and the moving party is entitled to summary judgment as a matter of law. Under Title VII, when there is, as here, no direct evidence of employment discrimination, the claims are to be analyzed under the burden shifting test of McDonnell Douglass v. Green, first requiring the plaintiff to establish, by a preponderance of evidence, a prima facie case of discrimination. To do so here, the plaintiff must demonstrate she is a member of a protected class, she was performing her duties in a satisfactory manner, she was subjected to an adverse employment action, and circumstances surrounding the employment action support an inference of discriminatory intent. If this is done, the burden shifts to the employer to produce evidence of a nondiscriminatory reason for the employment action, whereupon the burden shifts back to the plaintiff to establish that the proferred nondiscriminatory reason is but a pretext for discrimination.

Defendants allege that Elliott cannot make out a prima facie case of discrimination because her responsibilities were filled by another African American woman. Elliott countered that her position was in fact not filled, but her duties were just passed on to another employee, and thus did not fall under the 4th Circuit rule enunciated in Brown v. McLean. The judge agreed that it is not always necessary to show the position was filled by someone not in the protected class, but disagreed that the failure to fill the position necessarily demonstrated the necessary prima facie case of discrimination. Even assuming such a case had been made out, the judge found that Elliott had failed to provide evidence that the defendants' reasons for her firing were merely pretextual, and granted summary judgment on the discriminatory discharge count.

Elliott also claimed her termination was in retaliation for her complaints about discrimination suffered by her and other African American employees. To succeed, she must show see had engaged in protected activity, her employer had taken adverse employment action against her, and a causal connection existed between the protected activity and the employment action. Assuming Elliott had made out a prima facie case, she again had provided no evidence that the defendants' claimed nondiscriminatory reasons were merely pretextual, but rather that the adverse employment action was in direct response to Elliott's failure to cooperate in addressing the concerns with her management style.

Under the hostile work environment count, Elliott must show that the alleged harassment was unwelcome, based on race, sufficiently severe or pervasive to alter the conditions of employment, and there was some basis for imposing liability on the employer. The harassment must be both objectively and subjectively severe and pervasive, looking to the totality of circumstances, including the frequency and severity of the discriminatory conduct, whether to conduct was phyically threatening, humiliating or a mere offensive utterance, and whether it unreasonably interferes with an employee's work perfomance. Here, the judge found the alleged incidents to be few in number, largely outside the workplace and none in her presence, and found Elliott had provided no support for the "subjective" component, that the harassment had interfered with her ability to perform her work or significantly affected her psychological well-being, and little support for holding her employer responsible, since DCDSS was not alleged to have conducted the harassment, but instead took measures to address the alleged harassment by others.

The Memorandum Opinion and Order are available in PDF.

Heffernan v. Lumbermens Mutual Casualty Co. (Maryland U.S.D.C.) (Not Approved for Publication)

Filed February 21, 2007--Opinion by Judge Catherine C. Blake. (Not approved for publication.)

In April 2003, 17-year-old Mallory Heffernan was seriously injured when the driver of the car she was in lost control and hit a truck while driving in Delaware. She survived the crash but died shortly afterwards. Ms. Heffernan's father appears to have had the use of one of the cars belonging to his employer in connection with his employment as a sales director stationed in New Jersey, but this car was not involved in the accident.

The Heffernans sued Lumbermens, claiming that the policy Lumbermens had issued to the Mr. Heffernan's employer applied to them and/or their daughter, and specifically provided uninsured or underinsured motorist coverage (collectively "UIM") applicable to the accident which killed Ms. Heffernan because Mr. McMahon was an uninsured or underinsured driver. Lumbermens moved for summary judgment, arguing that the policy was unambiguously limited to cars owned by the employer, thus no coverage exists because the car involved in the accident did not belong to the employer. The Heffernans have responded to the summary judgment motion by seeking time for discovery, and they have supported this request with an affidavit identifying specific questions they would ask a Lumbermens' representative in a deposition.

Held: The Heffernans' affidavit identifies policy ambiguities which not only support the need for discovery but preclude the court from deciding the terms of the insurance contract as a matter of the law of any state at this time. Thus, the Heffernans were permitted to conduct limited discovery as requested in their affidavit.

The Court's opinion is available in PDF. The order is also available in PDF.

Takacs v. Fiore (Maryland U.S.D.C.)(Approved for Publication)

Signed February 8, 2007. Opinion by Judge Catherine C. Blake. Approved for publication.

In her complaint, the plaintiff ("Takacs") alleged sexual harassment by one of the owners of the winery (the "Winery") where she had been employed as salesroom manager, claiming intentional infliction of emotional distress ("IIED") and violation of Title VII, and seeking damages against the owners ("Fiore"), the Winery, and the professional employer organization ("PEO") handling the Winery's human resources responsibilities. Fiore sought summary judgment on the IIED count, and the Winery and PEO sought summary judgment on the Title VII claims.

To prevail on the IIED claim, the judge noted that Takacs must be able to establish 1) conduct that is intentional or reckless, 2) conduct that is extreme and outrageous, 3) a causal connection between the wrongful conduct and the emotional distress, and 4) that the emotional distress must be severe. The judge assumed without deciding that the first three elements could be met, but was unconvinced that the fourth element was satisfied, in light of the fact that Takacs was able to continue to work, and did not allege she was unable to function on a daily basis, and consequently granted dismissal of the IIED count.

On the Title VII count against the Winery, the judge noted that it appeared that Takacs had not established that the Winery was subject to Title VII, in light of the Winery's claim that it had too few employees to meet the EEOC's numerosity requirement, but the judge provided Takacs an opportunity to clarify whether her position was that certain individuals were in fact to be counted as employees, thereby bringing the Winery under EEOC jurisdiction.

On the Title VII count against PEO, PEO challenged its alleged status as the "employer" of Takacs. The judge noted that PEO might be held liable under either "joint employer" or "integrated employer" theories, discounting the former and viewing the latter as more likely, but finding it unnecessary to determine the question, since Takacs had failed to satisfy the imputability prong of the four-part test for a hostile workplace, in that the harasser was not an employee of or controlled by PEO, and PEO was unaware of the harassment. Further, Takacs did not allege that PEO's policies regarding sexual harassment complaints were unreasonable or dispute that she had been advised of those policies, and the judge therefore granted summary judgment in favor of PEO on the Title VII count.

This opinion and order are available in PDF.

Atkins v. Winchester Homes (Maryland U.S.D.C.) (not approved for publication)

Decided January 26, 2007. Memorandum and Order by Judge Catherine C. Blake. (Not approved for publication)

Atkins, a Maryland resident of Native American national origin, filed suit against Winchester (his former employer), Weyerhaeuser Company (Winchester's parent company) and three manager/supervisors, alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e, et seq. and 42 U.S.C. §1981. All defendants moved to dismiss Atkins' amended complaint, raising both procedural and substantive arguments in support of their motions.

Atkins alleged that for years he had been subjected to daily racial harassment and that the manager/supervisors witnessed or knew of the harassment, but did nothing to prevent it. He also alleged that he was subjected to adverse actions on account of his national origin or in retaliation for asserting his civil rights. The alleged adverse actions included being called into a supervisor's office, being disciplined when a non-Native American peer was not, and ultimately being discharged.

Procedural Arguments: Atkins did not oppose Weyerhaeuser's motion, and the court dismissed all claims against Weyerhaeuser. In doing so, the court noted that Atkins did not adequately allege that Weyerhaeuser was his employer, stating that without "allegations of common management, interrelation of operations, centralized control, or degree of financial control, the mere fact of a parent-subsidiary relationship is not sufficient to sustain" an action for discrimination.

Winchester argued that the Charge of Discrimination that Atkins filed with the EEOC lacked sufficient detail to be effective and that Atkins did not provide sufficient detail until after the 300 days for filing a charge had passed. The court pointed out that the "function of a charge is to initiate the investigatory and conciliatory procedures contemplated by Title VII." Here, the initial charge contained enough information for EEOC to begin its investigation. Moreover, EEOC regulations provide that later amendments to a charge relate back to the date of initial filing.

The manager/supervisors alleged that they were not properly served within the 120-day window provided by F.R.C.P. 4(m). Process was served on a co-worker and not on the individual defendants. The defendants, however, had actual knowledge of the suit and did not assert that they were prejudiced in any way by the failure to serve them individually. For that reason, the court liberally construed the rules and declined to dismiss the suit.

Substantive Arguments: Winchester challenged Atkins' claims of disparate treatment, retaliation and harassment/hostile work environment. The court found that neither being called into a meeting with a supervisor about allegations of discrimination nor a counseling session with a supervisor arose to the level of an adverse employment action sufficient to support a claim of discrimination. Termination of employment, however, clearly was such an adverse action. As for retaliation, Atkins failed to plead sufficient facts showing that his protected activity was the cause of his termination, and too much time passed between the activity and his dismissal to establish a causal connection without such specifics. On the harassment/hostile work environment claims, the allegations that the manager/supervisors witnessed the acts harassment and that Atkins had made complaints about the acts were sufficient to impose liability on his employer.

Because Title VII does not authorize claims against individuals, the Title VII claims against the individual defendants were dismissed. In addition, the court dismissed all of the Section 1981 claims against the individual defendants, except the claims against the manager/supervisor who fired Atkins. In reaching this result, the court reasoned that the acts attributed to the other manager/supervisors did not rise to the level of adverse employment actions, but that termination of employment did. In addition, the court ruled that allegations that the manager/supervisors failed to investigate or to prevent harassment by Atkins' co-workers were not sufficient to impose liability under Section 1981.

The memorandum is available in PDF The order is also available in PDF

Toulan v. DAP Products, Inc. (Maryland U.S.D.C.)(not approved for publication)

Signed January 17, 2007 -- Opinion by Judge Catherine C. Blake (not approved for publication)

Plaintiff Toulan brought suit against her employer, DAP Products, Inc. ("DAP"), alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Equal Pay Act ("EPA"). Upon consideration of DAP's motion for summary judgment, the judge entered judgment in favor of the defendant and dismissed the case.

Toulan had alleged discrimination based upon her race (Caucasian), national origin (American) and gender (female) while working under a male supervisor of Asian Indian descent. Toulan's problems began in 2004 during a reorganization of her workplace, when she was assigned to work under the supervisor by the Vice President of Technology, also an Asian Indian male. Her initial objections were because her supervisor had the same job title, Chemist II, but Toulan and her supervisor did not work well together, and after a month she was reassigned to another supervisor. Toulan subsequently received several disciplinary warnings and negative comments, and was temporarily reassigned to another location, returning a few months later. Toulin continued to receive pay raises, and was not demoted or otherwise penalized in spite of the disciplinary actions.

Upon consideration, the judge found no direct evidence of employment discrimination, nor had Toulan established a prima facie case (a showing 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) circumstances surrounding the adverse employment action support an inference of discriminatory intent) sufficient to shift the burden to DAP to prove a non-discriminatory basis for the alleged discrimination, in that no sufficient adverse employment action was alleged.

Toulan's wage discrimination claims under Title VII and EPA also fell short, since her evidence did not amount to a showing that she received lower pay than her male co-workers for performing work substantially equal in skill, effort and responsibility under similar working conditions, since there was little evidence to support the similarity of, and evidence of a number of key differences between, the compared positions, and the ranges of compensation for male and female co-workers were co-extensive.

Toulan was also found to have failed to establish retaliatory action by DAP (in temporarily reassigning her to a less desirable location, giving her warnings and negative evaluations, requiring her to use unpaid leave after her paid leave was exhausted, and creating a hostile work environment), either by again failing to establish adverse employment actions even under the more relaxed standards applied to claims of retaliatory action, or by failing to rebut DAP's proffered non-discriminatory basis for those actions when found.

In concluding, the judge acknowledged that Toulan may have been correct in claiming the terms, conditions and privileged of her employment differed from other co-workers, but found that that such differences arose from personality differences rather than discrimination, and declined to sit as a "super-personnel department", citing Beall v. Abbott Labs.

The full opinion is available in PDF.