William Harden v. Wicomico County, Maryland
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:09-cv-01123-WMN Copies to all parties and the district court/agency. [998617948].. [10-1734]
Appeal: 10-1734
Document: 35
Date Filed: 06/23/2011
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1734
WILLIAM HARDEN,
Plaintiff – Appellant,
v.
WICOMICO COUNTY, MARYLAND; DOUGLAS C. DEVENYNS,
Defendants – Appellees,
v.
JACK KAVANAGH, Director,
Movant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William M. Nickerson, Senior District
Judge. (1:09-cv-01123-WMN)
Argued:
May 10, 2011
Decided:
June 23, 2011
Before WILKINSON and SHEDD, Circuit Judges, and David C. NORTON,
Chief United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Wilkinson and Judge Norton joined.
ARGUED: Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC,
Salisbury, Maryland, for Appellant.
Kevin Bock Karpinski,
KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, for
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Appellees.
ON BRIEF: Ashley A. Bosché, COCKEY, BRENNAN &
MALONEY, PC, Salisbury, Maryland, for Appellant.
Victoria M.
Shearer, KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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SHEDD, Circuit Judge:
William Harden appeals the district court’s order granting
summary
judgment
in
favor
Maryland (“the County”).
of
his
employer,
Wicomico
County,
For the reasons set forth below, we
affirm.
I.
We view the evidence in the light most favorable to Harden,
the non-moving party.
Cir.
2006)
(en
Laber v. Harvey, 438 F.3d 404, 415 (4th
banc).
Harden
was
the
Internal
Affairs
Investigator at the Wicomico County Detention Center (“WCDC”).
In this position, he performed background checks on potential
employees, screened inmate grievances, performed drug and gang
investigations, and investigated security threats.
In March of
2007, Reverend Parrot, the father of a WCDC inmate, told Harden
that the WCDC’s Director, Douglas Devenyns, was “sleeping with
his staff.”
Based
upon
this
information,
Harden
interviewed
several
WCDC staff members and then approached County Executive Richard
Pollitt regarding Devenyns’ alleged sexual harassment of Jean
Murry, a former nurse for a WCDC medical vendor.
At Pollitt’s
direction, Harden conducted an investigation into the alleged
sexual harassment and wrote a confidential report dated April 4,
2007 (“the Report”).
After reading the Report, Pollitt found
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nothing
improper
Date Filed: 06/23/2011
in
Devenyns’
Page: 4 of 10
actions.
On
March
6,
2008,
Pollitt formally instructed Harden to cease his investigation of
Devenyns.
From May 2008 through July 2008, Harden engaged in a series
of actions that eventually led to his termination.
He posted
information from the Report on his internet blog and mailed a
copy of the Report to a member of County Council.
failed
to
attend
a
training
workshop,
sent
an
He also
insubordinate
email to the police, broke into Devenyns’ secretary’s desk, and
refused to cooperate with, or follow the instructions of, the
Chief of Security, who was his supervisor.
In addition, in June
2008, Harden filed an EEOC complaint against both Devenyns and
the WCDC’s Deputy Director.
On
August
insubordination,
12,
2008,
failure
the
to
obey
WCDC
lawful
fired
Harden
orders,
for
unauthorized
disclosure of confidential information, unauthorized use of or
damage to County property, and making malicious or irresponsible
statements to other officials.
While
Harden’s
position
of
appeal
Internal
was
Harden appealed his termination.
pending,
Affairs
the
Investigator
WCDC
abolished
because
of
the
budget
cuts.
In February 2009, following the hearing, the Wicomico
County
Personnel
Board
reinstated
Harden
because
it
believed
progressive, corrective discipline might have prevented Harden
from
committing
the
violations
4
for
which
he
was
terminated.
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Harden returned to work at the WCDC in March 2009 as a Support
Services Coordinator in charge of inmate grievances.
Harden’s
pay
and
leave
remained
the
same,
he
Although
had
fewer
supervisory powers and was reinstated as a Grade 18 employee
rather
than
a
Grade
20
employee
on
the
County’s
employment
scale.
In
response
to
the
terms
of
his
reinstatement,
Harden
brought this case alleging causes of action for retaliation in
violation of 42 U.S.C. § 2000e-3(a) as well as interference with
his
First
Amendment
freedom of speech.
rights
to
petition
the
government
and
The district court entered summary judgment
in favor of Wicomico County on all three counts after concluding
that
Harden
failed
to
establish
a
prima
facie
case
for
retaliation and failed to establish sufficient evidence of a
violation of his First Amendment rights. 1
II.
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
1
The district court held that, as a matter of law, Harden
did not have a cause of action for violation of his First
Amendment right to freedom of speech because Harden did not
engage in speech protected by the First Amendment.
Harden did
not address this issue in his appellate briefs.
Therefore,
Harden has abandoned that claim on appeal.
See Tucker v.
Waddell, 83 F.3d 688, 690 (4th Cir. 1996).
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movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a).
(1986)
See also, Celotex Corp. v. Catrett, 477 U.S. 317, 322
(finding
summary
judgment
appropriate
“after
adequate
time for discovery and upon motion, against a party who fails to
make
a
showing
sufficient
element
essential
district
court’s
to
to
that
order
establish
party's
granting
the
case[.]”).
summary
existence
We
of
review
judgment
de
an
the
novo.
Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en
banc).
Harden argues that the district court erred in holding that
he
failed
to
establish
a
prima
facie
pursuant to 42 U.S.C.A. § 2000e-3(a).
case
for
retaliation
To establish a prima
facie case for retaliation, Harden must prove: “(1) that [he]
engaged in protected activity, (2) that an adverse employment
action was taken against [him], and (3) that there was a causal
link between the protected activity and the adverse employment
action.”
Laughlin v. Metro. Washington Airports Auth., 149 F.3d
253, 258 (4th Cir. 1998).
case
encompasses
activities:
proceeding,
two
The first element of a prima facie
distinct
participation
and
engaging
in
by
a
categories
complainant
oppositional
of
in
a
protected
Title
activities
attention to an employer’s discriminatory activities.
to
VII
bring
Harden
alleges that the County retaliated against him for engaging in
both types of activity, but we agree with the district court
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that
Harden
Date Filed: 06/23/2011
fails
to
establish
Page: 7 of 10
a
prima
facie
case
for
retaliation under either category.
A.
First, Harden alleges that he participated in a protected
activity.
“Activities
that
outlined in the statute:
(3)
assisting;
or
(4)
participating
proceeding,
Laughlin,
F.3d
definition,
Harden
at
participation
are
(1) making a charge; (2) testifying;
investigation,
149
constitute
or
in
hearing
259.
any
under
Pursuant
established
the
manner
first
to
in
Title
this
element
an
VII.”
statutory
of
a
prima
facie case — that he participated in a protected activity by
filing his June 2008 EEOC complaint.
Harden has also produced sufficient facts to establish the
second
prong
of
a
materially
adverse
reasonable
prima
facie
action.
“[A]
employee
would
have
case,
that
plaintiff
found
the
he
must
suffered
show
challenged
that
a
a
action
materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)(internal citation marks omitted).
When Harden returned to work after suspension without pay, he
was
not
reinstated
as
the
Internal
Affairs
Investigator.
Although he continued to receive the same salary and leave time,
he had fewer supervisory powers and became a Grade 18 employee
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Date Filed: 06/23/2011
rather than a Grade 20 employee.
Page: 8 of 10
The Supreme Court has found
that reassignment to a less desirable job after a period of
suspension without pay can amount to material harm.
Id. at 70-
71.
However, Harden failed to satisfy the third prong of the
prima facie analysis -- he did not provide evidence of a causal
link
between
reinstatement
reassigned
to
his
to
filing
a
his
of
less
prior
the
EEOC
desirable
position
complaint
and
his
Harden
was
not
termination
was
job. 2
after
his
reversed because the position of Internal Affairs Investigator
had
been
abolished
suspension.
position
because
Thus,
because
of
his
for
budgetary
Harden
was
former
retaliation.
placed
position
Harden
reasons
has
no
in
during
a
Harden’s
less
desirable
longer
simply
existed,
failed
to
not
offer
evidence sufficient to show the needed causal connection.
2
Because Harden filed his EEOC complaint anonymously, the
district court held that Harden failed to demonstrate a causal
link between the filing and Harden’s treatment.
However,
because there is evidence that some people at WCDC discovered
that Harden had filed the complaint, we affirm the district
court on the basis of its alternative finding -- that Harden’s
prior position of Internal Affairs Investigator no longer
existed.
See Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.
1993) (“In reviewing the grant of summary judgment, we can
affirm on any legal ground supported by the record and are not
limited to the grounds relied on by the district court.”).
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B.
Second,
Harden
alleges
that
he
engaged
in
oppositional
activity intended to bring attention to what he believed to be
Devenyns’ sexual harassment of female employees when he mailed a
copy of the Report to a member of County Council and posted
information from the Report on his online blog.
“To qualify as
opposition activity an employee need not engage in the formal
process
of
adjudicating
a
discrimination
claim.
Opposition
activity encompasses utilizing informal grievance procedures as
well as staging informal protests and voicing one’s opinions in
order
to
bring
activities.”
omitted).
attention
149
Laughlin,
We
use
a
to
an
F.3d
balancing
employer’s
at
test
259
to
discriminatory
(internal
determine
citations
whether
employee has engaged in protected oppositional activity.
“balance the
purpose
of
the
Act
to
protect
persons
an
We
engaging
reasonably in activities opposing . . . discrimination, against
Congress’
equally
manifest
desire
not
to
tie
the
hands
of
employers in the objective selection and control of personnel.”
Id. (internal citation marks omitted).
Thus, in Laughlin, we found that an employee did not engage
in protected oppositional activity when she removed sensitive
personnel
documents
supervisor’s desk.
relating
to
We explained:
9
another
employee
from
her
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When we apply the balancing test to the facts of this
case, we easily conclude that the employer’s interest
in
maintaining
security
and
confidentiality
of
sensitive personnel documents outweighs Laughlin’s
interests in providing those documents to LaSauce [the
other employee]. Laughlin’s reaction to the situation
was
disproportionate
and
unreasonable
under
the
circumstances. . . . The MWAA [the employer] had a
reasonable and significant interest in preventing the
dissemination of confidential personnel documents. . .
.
Title
VII
was
not
intended
to
immunize
insubordinate, disruptive, or nonproductive behavior
at work.
Laughlin, 149 F.3d at 260 (internal citations omitted).
As
in
protecting
interest
Therefore,
activity,
Laughlin,
we
confidential,
in
exposing
Harden
and
he
did
find
that
sensitive
Devenyns’
not
cannot
the
County’s
records
alleged
engage
establish
in
a
interest
outweighs
sexual
protected
prima
in
Harden’s
harassment.
oppositional
facie
case
of
retaliatory discharge for sending the Report to the member of
County Council or posting information from the Report online. 3
III.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment in favor of the County.
AFFIRMED
3
Harden also argues that the retaliation against him
interfered with his right to petition the government. However,
because there was no improper retaliation against Harden, this
claim also fails.
10
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