Ivy v. Board of Education of Baltimore County (Maryland U.S.D.C.) (Not approved for publication)

Signed April 30, 2007. Memorandum and Order by Judge J. Frederick Motz (not approved for publication).

In a case filed pro se by a former employee ("Ivy") against her former employer ("Board of Education"), upon consideration of the Board of Education's motion for summary judgment, the judge GRANTED the motion, finding that Ivy had presented no evidence to support her claims of race, religious, age and disability discrimination.

The Memorandum and Order are available in PDF format.

McClintick v. Leavitt (Maryland U.S.D.C.) (Not approved for publication)

Signed March 26, 2007. Opinion and Order by Judge Richard D. Bennett.

Memorandum and Opinion granting summary judgment in part.

Held: 1) A federal employee can seek relief for employment discrimination only by asserting causes of action under Title VII.

2) Not being nominated for a discretionary merit-based award may constitute an adverse employment action actionable under Title VII if the plaintiff can show that such a determination represents a decision on permanent pay status.

Facts: Plaintiff, white male, worked for U.S. Dept. Health and Human Services. His direct supervisor was an African-American female. In 2004, the Plaintiff was not nominated for a so-called Quality Step Increase ("QSI"). QSI's are awards given for sustained performance of high quality that significantly exceeds an acceptable level of competence. The Plaintiff had been nominated to receive a QSI for 2003, and had received other merit-based awards, when he was previously supervised by a different supervisor, who was Caucasian.

The Plaintiff sued, alleging that he did not receive a QSI for 2004 because of racial discrimination and retaliation for filing an earlier discrimination charge. The Plaintiff alleged four causes of action: Count I - race discrimination (Title VII), Count II - race discrimination (§1981); Count III - retaliation for participating in protected activity (Title VII); Count IV - retaliation in violation of §1981.

The Defendant moved to dismiss for failure to state a claim or, in the alternative, for summary judgment. The Court dismissed Counts II and IV because they were based upon §1981, a cause of action not available to Plaintiff, a federal employee. The Court denied the motion as to Counts I and III, finding that the Plaintiff had alleged sufficient facts to state a cause of action.

A full copy of the opinion is available in PDF format.

Tarquini v. Superior Products, Inc. (U.S.D.C.)(Not Approved for Publication)

Filed March 12, 2007 – Memorandum Opinion by Judge James K. Bredar

Plaintiff Tarquini, a former sales representative for Defendant Superior Products, brought this suit for wrongful discharge and violation of federal, Maryland and Virginia equal pay acts, violation of the Maryland Wage Payment Collection Act, breach of contract, and violations of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.

In response to Superior’s Motion for Summary Judgment, the Court found that Tarquini’s claims based on Title VII and the Equal Pay Act alleging gender-based wage discrimination were not time-barred to the extent that a jury could find the violations willful (which extends the limitations period to three years). Tarquini’s sexually hostile environment claim also was not time-barred because, under the “continuing violation” doctrine, a letter terminating Ms. Tarquini within the statutory time period could serve as an act contributing to the alleged hostile environment, thereby allowing acts outside the limitation period to be brought in to support the claim.

The Court also denied summary judgment for Superior as to Tarquini’s retaliatory discharge claim. Although the Judge considered it undisputed that Tarquini was an at-will employee, other terms of her employment could permit Tarquini's claims based on breach of contract and violation of the Maryland Wage Payment Collection Act, so summary judgment on those issues also was dened.

The Court granted summary judgment as to Tarquini’s ADA claims after finding that she had not sufficiently demonstrated that she had a disability under the ADA. Finally, the Court granted summary judgment as to abusive discharge, since it is a judicial exception to create a remedy where none exists by statute and, in this case, Tarquini had statutory remedies available.

The full opinion is available in PDF as is the Order.

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.

McGrath-Malott v. State of Maryland (Maryland U.S.D.C.) (Not Approved for Publication)

Signed February 23, 2007. Memorandum opinion by Judge Richard D. Bennett. (Not approved for publication.)

The plaintiff ("McGrath-Malott") was formerly a deputy sheriff for Washington County, and had brought an employment discrimination suit against the State of Maryland ("the State"), the Washington County Board of County Commissioners ("the County"), the Washington County Sheriff's Office ("the Sheriff's Office") and the Washington County Sheriff ("the Sheriff") in his individual and official capacities, alleging violation of Title VII, 42 U.S.C. Section 1983, and the Maryland Declaration of Rights, and claiming wrongful discharge, based upon alleged sexual advances and comments made by the Sheriff and subsequent adverse employment actions.

After being transferred against her wishes in April, 2003, McGrath-Malott was placed on sick leave due to a temporary mental health condition and remained on leave through that summer. In July, 2003, she filed a charge of discrimination with the EEOC, alleging gender discrimination, and in August 2003 the EEOC issued a right to sue letter, having been unable to determine whether discrimination had taken place.

In September 2003, having exhausted all sick leave, McGrath-Malott requested a temporary modified work assignment or leave without pay, and in October 2003 she was first placed on leave without pay, then her employment was terminated after she had exhausted all available vacation, sick and FMLA leave and had not indicated when, if ever, she would be able to return to work. In January 2005, McGrath-Malott filed an amended charge with the EEOC, which found reasonable cause to believe the Sheriff's Office had violated Title VII but was unable to reach a resolution with the Sheriff's Office. This suit followed in April 2006. The County, the State and the Sheriff each filed motions to dismiss and for summary judgment.

McGrath-Malott first argued that, because the defendants had attached documents to their briefs, the motions to dismiss must be treated as ones for summary judgment instead, as noted in Talbot v. U.S. Foodservice, Inc. The judge noted that, in the Fourth Circuit per Am. Chiropractic v. Trigon Healthcare, there is an exception if the documents were integral to and explicitly relied on in the complaint and the plaintiff does not challenge its authenticity. Here, though some of the documents submitted met the Am. Chiropractic test, others did not, so defendants' motions to dismiss would be treated instead as motions for summary judgment.

The County moved to dismiss based on its allegation that both the Sheriff and McGrath-Malott were employees of the State, and not the County. After reviewing settled law on the matter, the judge agreed, and granted summary judgment in favor of the County on all counts.

The Sheriff's Office had not filed a motion to dismiss, but the State had noted in its brief that the Sheriff's Office was in fact not a legal entity, and thus could not be sued. The judge agreed, and dismissed all counts against the Sheriff's Office.

The State moved to dismiss all counts, while the Sheriff had moved to dismiss only the Title VII sex discrimination and retaliation counts and the abusive discharge count. The judge granted summary judgment on the Title VII counts in favor of the Sheriff in his individual capacity, but allowed the case to proceed against the Sheriff in his official capacity.

Since McGrath-Malott had not presented any direct evidence of employment discrimination, the judge noted that she must satisfy the three-step burden-shifting test by first establishing a prima facie case of discrimination, then the defendants must produce evidence of a legitimate, non-discriminatory reason for the adverse employment actions, whereupon the plaintiff must prove that the proffered reasons were but a pretext. McGraff-Malot claimed she was not promoted, not given the same leave as her male colleagues, and was eventually fired. Although the motivation for these actions was not clear from the record, there were clearly genuine issues of material fact, and the judge denied the State's and the Sheriff's motions on the disparate treatment claims.

The judge then found that, even though McGrath-Malott had not specifically used the terms "hostile environment" or "sexual harassment" in her EEOC filings, she had included sufficient factual references to the harassment and retaliation, and thus she had exhausted her administrative remedies before filing suit on both the hostile work environment and retaliation claims.

The State moved to dismiss the Section 1983 claim against it, since it was not a "person" under the meaning of the statute. The judge agreed, and granted summary judgment to the State on that count.

On the Maryland Declaration of Rights and wrongful discharge counts, the judge found that the State and the Sheriff had immunity under the Eleventh Amendment, making McGrath-Malott's failure to follow the requirements of the Maryland Tort Claims Act moot, and granted summary judgment in favor of the State and the Sheriff on those counts.

The opinion is available in PDF format.

Henderson v. Gilbert (Maryland U.S.D.C.) (Not Approved for Publication)

Filed February 20, 2007--Opinion by Judge J. Frederick Motz. (Not approved for publication.)

Henderson brought this pro se employment discrimination action against Defendants Anne Arundel County Board of Education ("the Board"); John Gilbert, the foreman of operations for Anne Arundel County Schools; Walter George, the supervisor of operations for the Anne Arundel County Schools; and Sue Torr, who served as principal of Solley Elementary School ("Solley"). Other claims in the case had previously been dismissed. Here, the Court granted the Defendants' Motion for Summary Judgment as to the remaining three claims: Aalleged violation of Article 24 of the Maryland Declaration of Rights by all defendants; alleged violations of Title VII by the Board; and alleged federal constitutional violations by the individual defendants asserted under 42 U.S.C. 1983 and 1985(3).

The instant action arises from the denial of the promotion and from suspensions imposed on Henderson while he was employed as the Chief Custodian at Solley on three separate occasions. He alleged discrimination based upon his race and he also claimed that he was retaliated against after he filed his EEOC complaint.

The Title VII Claims Against the Board. Held: Henderson has not been able to establish a prima facie case for race discrimination because he has not been able to identify any employee of Solley--or the Board more broadly--who had similar work performance issues but received less severe discipline.

The Maryland Constitutional Claim Against All Defendants. Held: This claim fails for the same reasons as does Henderson's Title VII claims. Furthermore, the individual defendants are protected by a qualified privilege since the "facts establish that the individual defendants did not act with malice or gross negligence." Here, the term "malice" was defined as the "[intentional performance of] an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff."

The Federal Constitutional Claims Against Individual Defendants. Held: This claim fails for the same reasons as does Henderson's Title VII claims. Furthermore, the Court held that the individual defendants did not play a role in the decision-making process leading to Henderson's failure to be promoted.

A copy of the opinion and order is available in PDF.

Valderrama v. Honeywell Technology Solutions, Inc. (Maryland U.S.D.C.)(Approved for publication)

Decided February 14, 2007--Opinion by Chief Judge Benson Everett Legg (approved for publication)

Valderrama, a pro se litigant, sued Honeywell Technology Solutions, Inc. ("HTSI"), claiming violations of Title VII of the Civil Rights Act of 1964 (retaliation, national origin discrimination and sex discrimination) and state law tort claims arising out of an alleged violation of her privacy. After extensive discovery, HTSI moved for summary judgment. The Court granted the motion and dismissed all counts of the complaint.

In order to maintain a Title VII action, a Maryland plaintiff must file a charge of discrimination with the EEOC or with the Maryland Commission on Human Relations within 300 days of the discriminatory act. Typically, complainants use an EEOC form document to file a charge. Valderrama, however, did not use the EEOC form. Instead, she offered a copy of an EEOC Intake Questionnaire as evidence that she timely filed the necessary charge of discrimination.

The Court, noting that the 4th Circuit has never precisely ruled on whether such a questionnaire is sufficient to satisfy the timeliness requirement, compared the contents of Valderrama's questionnaire with the definition of a charge. Quoting EEOC regulations, the Court stated: "a charge should contain 'a clear and concise statement of facts, including pertinent dates, constituting the alleged unlawful employment practices.' [Citation omitted.] At a minimum, the charge must be 'sufficiently precise to identify the parties, and to describe generally the action or practices complained of.'" If a document other than a charge meets this standard and is intended to trigger the machinery of Title VII enforcement, it will suffice to meet the timeliness requirement. Valderrama's allegations in the questionnaire that unidentified persons had made comments about her, however, were insufficient to constitute a timely charge.

The Court considered Valderrama's other claims, found them all lacking in factual support, and dismissed all of them, including the state law claims. The Court retained jurisdiction of the state law claims for the express purpose of dismissing them, noting that allowing the claims to be refiled in state court would be wasteful, "... because they would inevitably be dismissed as unfounded."

The full opinion is available in PDF.

E.E.O.C. v. EMS Innovations, Inc. (Maryland U.S.D.C.)(Not Approved for Publication)

Decided February 12, 2007 - Memorandum Opinion by Judge Richard D. Bennett (not approved for publication)

EEOC brought a complaint against EMS Innovations, Inc. ("EMS"), alleging that EMS engaged in sexual harassment against at least six employees in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§2000e, et seq.). EMS moved to dismiss, arguing that the Complaint failed to state a claim because EMS was not an "employer" covered by Title VII and that the EEOC failed to plead its claim with sufficient specificity. Because EMS relied upon material outside the record to support its motion, the court treated the motion as one for summary judgment under Rule 56.

Liability under Title VII only attaches to an "employer," being "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year . . . ." 42 U.S.C. § 2000e(b). EMS submitted unauthenticated personnel records with its motion to support the assertion that it employed fewer than 15 persons. It later filed affidavits with its reply to EEOC's opposition to the motion. Noting that so far there had been no opportunity for discovery in the case and that EEOC had requested an opportunity to conduct discovery, the court declined to grant summary judgment on this basis. The court also pointed out that unauthenticated records are not sufficient to support a motion for summary judgment and that EEOC had not had an opportunity to respond to the affidavits filed by EMS because they were filed with the reply and not with the original motion.

On the specificity issue, the court found that the Complaint "contain[ed] almost no facts." EEOC, however, had requested leave to file an amended complaint. Rather than dismissing the case, the court granted leave to amend with instructions to organize the amended complaint "by counts and to allege the relevant facts with sufficient particularity."

The full opinion is available in PDF.

Cureton v. Cianbro Corp. (Maryland U.S.D.C.)(not approved for publication)

Signed January 30, 2007. Opinion and Order by Judge J. Frederick Motz (not approved for publication)

On motion for reconsideration of the judge's earlier dismissal and for leave to amend the complaint, the judge noted that, in the Fourth Circuit (per the Bass case which interpreted the Supreme court decision in Swierkiewicz), an earlier judgment may be amended to accommodate an intervening change in controlling law, to account for new evidence not available at trial, or to correct a clear error of law or prevent manifest injustice, but not to raise arguments which could have been raised prior to the issuance of the judgment. By contrast, Cureton here only urged the judge to follow a more liberal interpretation of Swierkiewicz, which position had been considered and rejected by the judge in making the original decision. The court also found no reason to grant leave to amend the complaint, since Cureton had been aware of Bass' more restrictive pleading requirements from the very beginning, and in any event the proffered amended complaint still fell far short of the required standard.

This Opinion and Order are available in PDF format. The Court's earlier opinion dismissing the case is here.

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

Jacob v. Didlake (Maryland U.S.D.C.)(not approved for publication)

Decided January 19, 2007 – Opinion by Judge Deborah Chasanow (not approved for publication)

In this employment discrimination case, the Court considered Defendant Didlake Corporation’s motion for summary judgment.

Plaintiff Ronni Jacob sued Didlake for employment discrimination and a hostile work environment based on her disability from muscular dystrophy, diabetes, and certain cognitive disabilities. Prior to terminating Jacob, Defendant Didlake had sent her a memorandum documenting that she had been verbally warned on multiple occasions about several work related issues. Jacob subsequently requested certain accommodations for her disability. She was terminated after evaluation for those accommodations had begun, but before they were completed.

The Court considered but could not resolve whether certain duties for which the Plaintiff had sought accommodation were essential. Ultimately, however, the Court concluded that regardless of whether those duties were essential, the uncontroverted evidence showed that Didlake had provided reasonable accommodation. The Court further concluded that conflicting evidence produced by Jacob on the existence of a hostile work environment was insufficient to create a triable issue of fact on that issue. Thus the Court granted summary judgment to Didlake on those issues.

On the issue of whether Jacob was subjected to disparate terms and conditions of employment, the Court determined that that some evidence revealed that Jacob was not meeting some of Didlake’s undeniably legitimate expectations. Other evidence, however, suggested that Jacob’s inability to meet additional physical expectations may also have been considered in the decision to terminate her. Therefore summary judgment for Didlake on that issue was denied.

The full opinion is 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.

Rodriguez v. Gutierrez (Maryland U.S.D.C.)(not approved for publication)

Decided December 29, 2006--Opinion by Judge Catherine C. Blake (not approved for publication)

Pro se complaint against Secretary of the U.S. Department of Commerce alleging discrimination based on race and national origin in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§2000e, et seq.

The Plaintiff alleged a hostile work environment claim under Title VII. To prevail on a hostile work environment claim, a plaintiff must show that: 1) the conduct in question was unwelcome, 2) the harassment was based on race, 3) the harassment was sufficiently pervasive or severe to create an abusive working environment, and 4) that some basis exists for imputing liability to the employer. The Court dismissed this claim because the Plaintiff did not allege that her harassment was based on race, and because her alleged harassment was not sufficiently pervasive or severe to create an abusive working environment.

The Plaintiff did allege that her supervisor made alleged statements that she did not like Mexicans and did not want the Plaintiff to speak Spanish. However, these incidents occurred in 1998 or 1999. The Plaintiff did not contact an EEO counselor about the events until six or seven years later. She was required to contact an EEO counselor within 45 days of an alleged discriminatory act. Thus, her claim was time-barred.

While a claim alleging a hostile work environment claim will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice, the supervisor's statements are not properly linked to the other, timely acts of discrimination and harassment alleged by the Plaintiff for several reasons:

[The supervisor] allegedly told [the Plaintiff] that she didn't like Mexicans in 1998-1999, and [the Plaintiff] did not begin to suffer the alleged harassment from co-workers until 2003. In the time period between 1999 and 2003, [the Plaintiff] alleges no harassment occurred. Second, [the supervisor's] harassment occurred while she was supervising [the Plaintiff] in CTMS, while [the Plaintiff's] co-workers allegedly harassed her while she was working in SASB. Although [the Plaintiff] directly worked with [the supervisor] in CTMS, [the supervisor] was not [the Plaintiff's] direct supervisor while [she] worked in SASB, and [the Plaintiff] does not allege that she worked on a regular basis with [the supervisor] in SASB. Third, there is no allegation that [the supervisor's] statements are related in any way to [the Plaintiff's] co-workers' harassment. . . .Thus, [the supervisor's] 1998-1999 statements are not part of the same "unlawful employment practice" alleged against [the] co-workers, and are time-barred.

The claim was dismissed without leave to amend.

The full opinion is available in PDF. The order is available here.

Haas v. Lockheed Martin (Ct. of Appeals)

Decided January 9, 2007--Opinion by Judge Glenn T. Harrell, Jr.

Respondent had employed Petitioner in Montgomery County as a human resources specialist since 1998. Following a corporate restructuring, Petitioner applied for a newly created human resources position with Respondent in April 2001, said new position to subsume many or most of Petitioner's prior professional duties of employment. Respondent did not extend an offer to Petitioner for that new position, and notified Petitioner in writing on October 9, 2001 that Petitioner would be laid off effective October 23, 2001, which date indeed became Petitioner's last day of work with Respondent.

Petitioner filed suit against Respondent in the Circuit Court for Montgomery County on October 23, 2003 for alleged discrimination on the grounds of disability under Md. Ann. Code, Art. 49B, Sec. 42(b), a Maryland statute specific to Montgomery County, said discrimination alleged to have occurred on the basis of Petitioner's Attention Deficit Disorder. Respondent moved for summary judgment, citing the two-year limitations provision in that statute. The Circuit Court granted summary judgment and the Court of Special Appeals affirmed.

The Court of Appeals ("the Court") reversed and remanded the case to the Court of Special Appeals with instructions to reverse the Circuit Court's grant of summary judgment and to remand the case to the Circuit Court for further proceedings.

In its opinion, the Court held that the two-year limitations period from the date of "discharge" - an undefined term - ran not from the date of discovery of an impending discharge or of a notice of such discharge, but from the actual discharge upon cessation of employment. The Court noted that this view was a minority view among the states with largely similar statutes, but cited a number of grounds for the ruling including the rule's bright-line simplicity for the benefit of employers, employees and courts and the furtherance of the remedial purpose of the statute in sustaining meritorious claims. The Court rejected the so-called "Ricks/Chardon" majority rule dating a discharge to the date of notice thereof, due to that rule's potential to interfere with possible conciliation and to propagate unripe suits.

In dissent, Judge Battaglia opined that the discriminatory act of discharge prohibited under section 42(b) is, in fact, the decision to discharge the employee, rather than the termination of employment itself. Judge Battaglia noted that an employee suffers harm upon the very notice of discharge, not merely later on her last date of employment, and that the federal employment statutes which section 42(b) and similar Maryland statutes mimic calculate the date of discharge for limitations from the date of notice. Judge Battaglia cited as a policy ground for her view the benefit to employees of a longer grace period in which to find new employment and to continue to receive benefits before the last date of employment; calculating the limitations period from the last date of employment would discourage employers from extending such benefits and grace periods. Judge Raker joined in part A of the dissenting opinion expressing the foregoing grounds.

In part B of the dissenting opinion, Judge Battaglia cited the "discovery rule" applied to many Maryland statutes of limitations and urged that the calculating "discharge" from the date of notice of discharge would be consistent with that principle.

The full text of the opinion and dissent can be found here in PDF.

Hart v. Winter (Maryland U.S.D.C.)(not approved for publication)

Decided December 21, 2006--Opinion by Judge Deborah K. Chasanow (not approved for publication)

Plaintiff filed a formal administrative complaint of discrimination with the EEOC alleging he was denied the position of Executive Housekeeping Officer due to racial discrimination and reprisal for having previously filed an equal employment opportunity complaint. Plaintiff received his EEOC decision on October 20, 2004 finding no discrimination and advising him that he had 90 days after receipt of the decision to file a civil action. Plaintiff affirmed receipt of the EEOC letter by October 24, 2004.

On February 17, 2005, the EEOC issued an errata letter to the plaintiff stating in its entirety:

The above captioned decision did not correctly list all of complainant's rights on appeal. A new decision with the corrected language, including complainant's right to request reconsideration, is attached. Please note that the applicable filing period for complainant to request reconsideration begins to run five days after receipt of this revision.

This correction in no way alters the substantive findings of the decision.

The decision attached to the errata notice was dated October 20, 2004, the same date as the original decision.

On January 27, 2005, 94 days after the initial limitations period began, the plaintiff filed his appeal. The civil action was filed in the U.S. District Court for the District of Columbia.

Defendant filed an a motion to dismiss for untimeliness, a motion to dismiss or transfer for improper venue or, in the alternative, for summary judgment pursuant to Rule 56. The U.S. District Court for the District of Columbia transferred the case on May 8, 2006 to the U.S. District Court for Maryland, stating that it was for the Maryland Court to decide whether plaintiff's case was timely filed.

Plaintiff argued that his complaint was timely filed because the EEOC reissued its final decision via the February 17, 2005, errata letter. However, the language the plaintiff relied on specified "the applicable filing period for complainant to request reconsideration begins to run five days after February 17[,2005]." However, the 90 day limitation period to file suit in federal court beings to run after receipt of a final EEOC decision.

The Court found that, had the plaintiff requested reconsideration, his limitations period to file an appeal in the district court would have restarted once the EEOC issued its decision on his request for reconsideration. Because the plaintiff did not exercise his right to request a reconsideration, the errata notice had no impact on the limitations period to file a judicial appeal. The appeal was thus filed untimely.

Equitable tolling is not appropriate here because the EEOC decision on October 20 adequately advised plaintiff of his right to bring suit in federal court. The reissued decision could not have misled plaintiff during the initial 90 day period because it was not issued until long after the period elapsed and, in fact, after plaintiff filed suit.

The full opinion is available in PDF.

Braxton v. Domino's Pizza, LLC (Maryland U.S.D.C.)(not approved for publication)

Decided December 21, 2006--Opinion by Judge Richard D. Bennett (not approved for publication)

Employment discrimination case alleging, inter alia, numerous violations of 42 U.S.C. §§2000e, et seq. and 42 U.S.C. §1981, as well as breach of contract and tort claims based on the law of the State of Maryland. Among the claims were a count asserting a cause of action for negligent supervision and a count claiming wrongful discharge, i.e., that the plaintiff's discharge violated Maryland public policy. The Court granted the defendant's motion to dismiss as to these claims.

1. In order to prove a cause of action for either negligent hiring, supervision or retention, a plaintiff must establish that her injury was caused by the tortious conduct of a coworker, that the employer knew or should have known by the exercise of diligence and reasonable care that the coworker was capable of inflicting harm of some type, that the employer failed to use proper care in selecting, supervising or retaining that employee, and that the employer's breach of its duty was the proximate cause of the Plaintiff's injuries. Because negligent supervision claims "existed at common law" in Maryland, such claims therefore "may only be predicated on common law causes of action." Claims for racial discrimination under 42 U.S.C. §1981 did not exist at common law. Thus, the plaintiff's claim for negligent supervision must fail.


2. To sustain a claim for wrongful discharge, the employee must show that (1) he was discharged; (2) the basis for his discharge violates some clear mandate of public policy; and (3) there is a nexus between the employee’s conduct and the employer's decision to fire the employee. See Wholey v. Sears Roebuck & Co., 803 A.2d 482, 489 (Md. 2002). Whether public policy considerations constitute a clear mandate of public policy is a
   question of law. Id. at 487 (citations omitted). Plaintiff's contention that she was improperly terminated for complaining that her supervisor failed to adequately address security concerns in connection with the conduct of a former employee does not jeopardize a clear mandate of public policy.

The full opinion is available in PDF.

Cole v. Anne Arundel County Brd of Education (Maryland U.S.D.C.)(not approved for publication)

Decided November 30, 2006--Opinion by Judge Catherine C. Blake (not approved for publication)

To recover for tortious interference with business relationships, the plaintiff must prove that defendant’s conduct was independently wrongful or unlawful, i.e., that the defendant's conduct in interfering with contract or business relations was accomplished through "improper means.” Independent "improper means," included "violence or intimidation, defamation, injurious falsehood or other fraud, violation of the criminal law, and the institution or threat of groundless civil suits or criminal prosecutions in bad faith."

In a free speech/retaliation claim, a burden rests on the plaintiff to show that the speech involved a matter of "public concern," that the plaintiff was deprived of a valuable benefit, and that but for the protected speech, the government would not have taken the retaliatory action. It is not a matter of "public concern" when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances.

Transfers and reassignments that do not constitute firings or suspensions typically have not been held to implicate a property interest to which, with respect to government employees, due process rights attach.

To establish a prima facie case of discriminatorily motivated demotion, a plaintiff must prove: 1) that she is a member of a protected class, 2) that she was demoted, 3) that at the time of the demotion she was performing her job at a level that met her employer's legitimate expectations, and 4) "ordinarily," that she was replaced by someone of comparable qualifications who was not a member of the protected class.

A plaintiff's unsubstantiated beliefs that defendant treated her unfairly and that race and national origin formed the basis of her termination are not sufficient to rebut the defendant's proof of a nondiscriminatory reason.

The full opinion is available in PDF.