Halim v. Duke et al

Filing 88

MEMORANDUM. Signed by Judge William M Nickerson on 9/30/13. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

AHMAD HALIM
v.
BALTIMORE CITY BOARD OF
SCHOOL COMMISSIONERS
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Civil Action No. WMN-11-2265

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MEMORANDUM
Plaintiff was born in 1950, is a practicing Muslim, and is
of Egyptian national origin.

He was employed by Defendant

Baltimore City Board of School Commissioners as an untenured
math teacher but his contract was not renewed after the 20092010 academic year.

Plaintiff alleges that he was harassed

during the course of his employment and that the reason
Defendant did not renew his contract was his race, color,
religion, age, and national origin.
motion for summary judgment.

Defendant has filed a

ECF No. 73.

Plaintiff responded

with a pleading that he captioned as a “Motion to Overrule
Defendant Motion for Summary Judgment and Plaintiff Motion for
Summary Judgment.”

ECF No. 78.

Plaintiff also filed a Motion

to Strike the Deposition Transcripts.

ECF No. 75.

For the

reasons that follow, the Court will grant Defendant’s motion and
deny the motions filed by Plaintiff.
I. FACTUAL AND PROCEDURAL BACKGROUND

In its motion, Defendant sets out the following facts,
supported by admissible evidence.

Plaintiff entered an

employment contract with Defendant which was signed on, and made
effective as of, September 2, 2008.1

For the 2008-2009 academic

year, he was assigned to Patterson Senior High School as a math
teacher.

While he did not formally request a religious

accommodation, he was permitted to leave the school on Friday
afternoons to attend prayer services, even though other teachers
were not permitted to leave the school grounds.

On Friday, May

8, 2009, Patterson’s Principal, Laura D’Anna, prepared a letter
informing Plaintiff that he would be reassigned to another
1

Plaintiff had been previously employed by Defendant for the
last half of the 2006-2007 academic year. While so employed,
Plaintiff was assaulted by a student in March 2007 and alleges
that the attack was on account of his Muslim faith. In May of
2007, Defendant informed Plaintiff that his employment contract
would not be renewed for the 2007-2008 academic year. Plaintiff
filed a charge of discrimination with the EEOC related to this
attack and discharge and, after mediating the charge, entered
into a settlement agreement under which he received a payment
equal to what would have been his full pay for the 2007-2008
academic year had he not been terminated. In the context of a
dispute over Plaintiff’s entitlement to unemployment benefits
for the 2007-2008 academic year, it was determined by an
Administrative Law Judge that Plaintiff’s settlement award was
not back-pay (which would have disqualified Plaintiff for
unemployment benefits), but rather, was “more in line with a
settlement of a claim for damages.” Pl.’s Ex. 9 at 2. Because
Plaintiff, by accepting this settlement award, fully waived,
settled, and released all claims related to the 2007 incident,
the 2007 incident and the settlement do not impact Plaintiff’s
current claims. Furthermore, while under the terms of the
settlement agreement Plaintiff was reinstated as a teacher, it
expressly stated that it was “not a guarantee of future
continued employment” nor “an automatic grant of tenure.” Pl.’s
Ex. 8, Confidential Settlement Agreement and Release, ¶ 7.
2

school for the 2009-2010 academic year due to restrictions in
her budget.

Def.’s Ex. B.

The letter informed that the

transfer was no reflection on Plaintiff’s performance or
dedication, but simply a result of the budgetary process.
After preparing the letter, D’Anna attempted to locate
Plaintiff to give him the letter, but was unable to do so.2

She

telephoned Plaintiff at 2:25 p.m. and he stated that he was
returning to the school but, by 3:45 p.m., he had not done so.
See id. (handwritten notation on letter).

Plaintiff avers that

Principal D’Anna did not pay him for that day.

Pl.’s Aff. ¶ 29.

On May 22, 2009, Principal D’Anna sent Plaintiff a
certified letter regarding his failure to report to work for the
entire week of May 18-22, 2009.

Def.’s Ex. C.

On June 11,

2009, D’Anna sent Plaintiff another memo stating that when she
reviewed the teacher attendance records on Wednesday, June 10,
2009, for the week of June 8 through June 12, Plaintiff
improperly had already signed in for the entire week.

Def.’s

Ex. D.
For the 2009-2010 academic year, Plaintiff was assigned to
the Excel Academy.

Plaintiff’s position at Excel, like his

position at Patterson, was not tenured and he did not have
seniority at Excel.

At Excel, Plaintiff did formally request an

2

Apparently, at Patterson, Plaintiff was not assigned a
particular class or classroom but would be asked to assist
particular students or classes as needed.
3

accommodation so that he could attend Friday prayers during his
lunch time.

Def.’s Ex. F.

That request was forwarded to

Defendant’s internal EEO Manager, Allyson Huey, and on October
8, 2009, Huey informed Plaintiff by letter that his request was
granted.

Def.’s Ex. H.

She explained, however, that this

accommodation was based upon Plaintiff’s current assignment and
schedule and that, should his assignment and/or schedule change,
the accommodation might need to be further reviewed to determine
if continuing the accommodation would create an undue burden
upon the educational process.

Id.

Plaintiff was instructed

that, should his assignment change, he should contact Huey so
that the accommodation could be re-evaluated.

Plaintiff

acknowledges that he was allowed to attend Friday prayers while
assigned to Excel.
Because of a surplus of math teachers at Excel, Plaintiff
was transferred to the Francis Scott Key Elementary/Middle
School in March of 2010.

Although Plaintiff failed to contact

Huey to have his accommodation re-evaluated, he continued to
leave the school to attend Friday prayers while at Francis Scott
Key.

Plaintiff testified, however, that there was one occasion

when he was not permitted to leave for Friday prayers.

On this

particular Friday, he was scheduled for an observation during
the same time that he would have been out of the building and
was not permitted to go to Friday prayers.
4

Pl.’s Dep. at 68.

On April 26, 2010, Defendant’s Chief Human Capital Officer
sent Plaintiff a letter informing him that his contract would
not be renewed for the 2010-2011 school year.

Def.’s Ex. E.

Shortly thereafter, on April 30, 2010, Plaintiff was evaluated
by the Principal of Francis Scott Key and received an
unsatisfactory evaluation.

Def.’s Ex. K.

On November 8, 2010, Plaintiff filed a Charge of
Discrimination with the Baltimore Community Relations Commission
in which he stated he had been “subjected to continuing
incidents of verbal harassment based on [his] national origin
and religion, in which he was called a terrorist, a bomber,
etc.”

Def.’s Ex J.

The “bomber” allegation relates to an

incident in March 2009 while Plaintiff was assigned to Patterson
High School.

Plaintiff testified that, as he was walking into

the library, he overheard another teacher say “bomber, bomber,
bomber, bomber.”

Pl.’s Tr. at 36.

In his deposition, Plaintiff

acknowledged that he was never called a “terrorist,” but he
inferred that meaning from the teacher’s use of the word
“bomber.”

Id. at 72.

Plaintiff testified that, on another

occasion, after the school had received a bomb threat, a student
asked him what the school’s telephone number was.

Id. at 38.

In a related accusation, Plaintiff testified that, on one
occasion where “there was a bomb threat or there was like
terrorist activity nationwide,” a police officer with the school
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system parked his vehicle behind Plaintiff’s car, blocking him
in.

Id. at 40.
In his Charge, Plaintiff also complains that he was

“unexpectedly transferred in March 2010,” and not given a proper
classroom in which to tutor students.

Def.’s Ex. J.

In

addition, he mentions that he was not permitted to attend Friday
prayers on March 26, 2010, because of the formal observation and
suggests that, because of that observation, his contract was not
renewed.

Id.

He alleges that “[y]ounger, non-Muslim teachers

were not subjected to the same treatment” as he was.

Id.

Proceeding pro se, Plaintiff filed this action on August
16, 2011, alleging violations of Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. (Title VII),
and the Age Discrimination in Employment Act of 1967, as
amended, 29 U.S.C. §§ 621 et seq. (ADEA).

Discovery in this

action proved somewhat problematic and the case was referred to
Magistrate Judge Stephanie Gallagher for resolution of all
discovery disputes.

In one ruling, Judge Gallagher referred to

Plaintiff’s discovery responses as “woefully deficient,” and as
“provid[ing] almost no substantive information.”
1 and n.1.

ECF No. 43 at

In another, she awarded attorney’s fees to Defendant

based upon Plaintiff’s unjustified nondisclosure of discovery
and “myriad rules violations.”

ECF No. 48 at 2.

In yet another

ruling, she awarded further monetary sanctions based upon
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Plaintiff’s “repeated disregard for the rules and orders of this
Court.”

ECF No. 59 at 2.

After a considerable extension of time, discovery has now
closed and the parties have filed the pending cross motions for
summary judgment.3
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

A genuine

dispute remains “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.

The only facts

that are properly considered “material” are those that might
affect the outcome of the case under the governing law.

Id.

The party moving for summary judgment has the burden of
demonstrating the absence of any genuine issue of material fact.
Fed. R. Civ. P. 56(a); Pulliam Inv. Co. v. Cameo Props., 810
F.2d 1282, 1286 (4th Cir. 1987).
When considering a motion for summary judgment, the court
views all facts and makes all reasonable inferences in the light

3

While Plaintiff has captioned his pleading as a cross motion,
it more closely resembles a simple opposition to Defendant’s
motion. For example, Plaintiff begins his argument by stating,
“[a]n employee can take a discrimination case to a jury by
showing . . . .” Pl.’s Mot. at 2.
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most favorable to the non-moving party.

Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

The

nonmoving party, however, must show that specific, material
facts exist to create a genuine, triable issue.

Id.; see also

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

A non-

moving party “cannot create a genuine issue of fact through mere
speculation or the building of one inference upon another.”
Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)

Also, a

plaintiff cannot proceed to trial without “any significant
probative evidence tending to support the complaint.”

First

Nat'l Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–
89 (1968).

On those issues for which the non-moving party will

have the burden of proof, it is his or her responsibility to
oppose the motion for summary judgment with affidavits or other
admissible evidence specified in the rule.

Fed. R. Civ. P.

56(c); Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315–16 (4th
Cir. 1993).

Evidence submitted both in support of and in

opposition to a motion for summary judgment must be admissible
and based on personal knowledge.

Celotex, 477 U.S. at 323–24;

Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991). If a
party fails to make a showing sufficient to establish the
existence of an essential element on which that party will bear
the burden of proof at trial, summary judgment is proper.
Celotex, 477 U.S. at 322–23.

A court has an affirmative duty to
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prevent factually unsupported claims and defenses from
proceeding to trial.

Felty v. Graves–Humphreys Co., 818 F.2d

1126, 1128 (4th Cir. 1987).
III. DISCUSSION
While the Complaint would appear to also assert a hostile
work environment claim and a failure to accommodate claim,
Plaintiff’s motion focuses almost exclusively on his
termination, asserting disparate treatment claims premised on
his belief that his contract was not renewed for the 2010-2011
school year because of his religion, national origin, and/or
age.

See Pl.’s Mot. at 9-13.

Plaintiff only discusses the

elements of those claims in his pleadings.

Nevertheless, the

Court will briefly consider his hostile environment and failure
to accommodate claims.
Those incidents that even arguably could give rise to a
hostile environment claim, the “bomber” comment, the student’s
question about the school’s phone number, and the police officer
blocking his car on one occasion, all took place at Patterson
High School.

Plaintiff left Patterson in June of 2009.

Plaintiff did not file a Charge of Discrimination until November
2010.

To exhaust his administrative remedies under Title VII or

the ADEA, a plaintiff must file his Charge of Discrimination
within 300 days of the alleged unlawful practice.
§ 2000e-5(e)(1) and 29 U.S.C. § 626(d).
9

See 42 U.S.C.

Plaintiff missed that

deadline by several months.

Even were the Court to consider

these incidents and Plaintiff’s allegation regarding poor
classroom space he was provided, these allegations would not
rise to the level of a hostile work environment.

See EEOC v.

Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008) (noting
that harassment must be “sufficiently severe or pervasive to
alter the conditions of [his] employment and create an abusive
working environment” and that the Fourth Circuit has recognized
that this is a “high bar”).
To the extent that Plaintiff is asserting a failure to
accommodate his religious practices, he would need to establish
that:
1) He has a bona fide religious belief that conflicts
with an employment requirement;
2) He informed the employer of his belief; and
3) He was disciplined for failure to comply with the
conflicting employment requirement.
Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1019 (4th Cir.
1996).

The record indicates that Defendant accommodated

Plaintiff’s desire to attend Friday prayers on all but one
occasion.

On that day, his presence was needed so that a

performance evaluation could be completed.

While the employer

has a reasonable duty to accommodate an employee’s religious
beliefs, it is not an absolute duty to eliminate all conflict.
EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 313-14
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(4th Cir. 2008).

Here, the record reflects that Defendant

reasonably accommodated Plaintiff’s request to attend Friday
prayers.
Turning to Plaintiff’s primary claims, to establish a
discrimination claim under either Title VII or the ADEA based
upon Defendant’s decision not to renew his contract, Plaintiff
would need to establish: 1) his membership in a protected class;
2) qualification for the position; 3) an adverse employment
action; and 4) the existence of circumstances giving rise to an
inference of discrimination based on a protected category.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142
(2000).

To meet that fourth element, Plaintiff asserts in his

motion that, after his employment was not renewed, Defendant
“continued to seek applicants with similar qualifications” from
outside the class.

Pl.’s Mot. at 9, 11, 12.

Plaintiff also

repeatedly asserts that discrimination is established because he
was “the most qualified math teacher” at each of the schools in
which he taught and, yet, his contract was not renewed.
The fault with Plaintiff’s arguments is that they are not
supported by any admissible evidence.

The only evidence in the

record addressing the qualification of Plaintiff relative to
other teachers is his own testimony in his deposition4 and in his

4

Plaintiff has moved to strike his own deposition testimony
based upon the fact that he did not waive his right to read and
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affidavit.

That testimony is nothing more than Plaintiff’s

subjective evaluation of his and his former co-worker’s
qualifications.
For example, in his affidavit, he states, “I was the most
qualified Math teacher at the four schools I taught at.”
Aff. § 26.5

Pl.’s

He acknowledges that this comparison of his

qualifications with those of other teachers is “based upon his
own knowledge,” id. ¶ 39, but complains that he was unable to
present other evidence because Defendant refused to produce it
in discovery.

As noted above, the discovery process in this

action was prolonged and somewhat problematic and Magistrate
Judge Gallagher was actively and ably involved that process.

It

appears that Plaintiff may have initially requested some of the
information that he now complains he was not given.

See ECF No.

31 at 3 (Judge Gallagher’s June 20, 2012, Memorandum discussing
Plaintiff’s document request for “[p]ersonnel files for all Math
Teachers in [the Baltimore City Public School System (Grades 712)”).

When asked for support for this request, Plaintiff

simply responded, “Plaintiff believes the files contain
sign his deposition. Plaintiff subsequently made minor, nonmaterial corrections to the transcript, but, as Defendant notes,
he did not sign the errata sheets. ECF No. 84-1. Given the
lack of materiality of Plaintiff’s corrections, the motion to
strike will be denied.
5

Plaintiff also avers, without evidentiary support, that he “has
more senioritis [sic] than some” of the other math teachers.
Pl.’s Aff. ¶ 37. The Court assumes Plaintiff meant, seniority.
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information related to his allegations.”

Id. at 4.

Finding

that reason insufficient, Judge Gallagher denied Plaintiff’s
motion to compel an answer to that request.

Id.

Plaintiff did

not challenge that ruling and cannot do so now.6
Plaintiff made similar subjective observations in his
deposition.

When asked about the teachers at the Excel Academy,

Plaintiff testified, “I feel I am the most qualified math
teacher in the whole Baltimore City Public Schools.

I feel that

most of the teachers there, they don’t have teaching
certificates, if you will, they don’t have the background and
the knowledge as I do.”

Pl.’s Dep. at 34.

When asked about the

lack of certification, he responded, “[m]y feeling is that they
did not have teaching certificates.
may be right, I may be wrong.”

That is my impression.

Id. at 36.

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When asked about the

teachers at Francis Scott Key, Plaintiff first opined that
“[a]ll of them” did not have teaching certificates, but when
asked why he believed that, he modified his response to “the
majority of them” did not have certificates.

Id. at 58.

When

asked to identify a particular teacher who he believed was not
certified, he proffered, “I’m guessing, the people who come from
the Philippines.”

Id.

Plaintiff also acknowledged that he had

6

The Court notes that Plaintiff was represented by counsel
during at least part of the discovery process.
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no knowledge of which teachers were or were not tenured.

Id. at

69.
It is clear from Plaintiff’s testimony that he has no
actual knowledge of the qualifications, certifications, or
seniority of the other teachers at the schools in which he
taught.

His subjective opinion of those teachers is based on

nothing more than guesses, feelings, impressions, and perhaps,
his own stereotypes.

Plaintiff cannot defeat Defendant’s

summary judgment motion by sole resort to his subjective
evaluation of his own superiority to those outside his class.
Plaintiff does proffer one additional form of evidence,
i.e. copies of less than a dozen civil complaints filed by other
employees of Defendant alleging various forms of discrimination.
Pl.’s Ex. 15.

These complaints allege discrimination on the

basis of gender, race, disability, and religion.7

Plaintiff

suggests that Defendant “is not a Clean employer, due to the
quantum of discrimination cases filed in this court against this
defendant.”

Pl.’s Mot. at 12 (emphasis in original).

These

complaints are simply allegations of discrimination, not proof
of discrimination and offer no support for Plaintiff’s claims.

7

In the religious discrimination complaint, the plaintiff
alleged discrimination based upon her Christian faith.
14

Finding that Plaintiff has offered no evidence in support
of his claims, the Court will grant summary judgment in favor of
Defendant.

A separate order will issue.

________/s/__________________________
William M. Nickerson
Senior United States District Judge
DATED:

September 30, 2013

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