Butler v. Maryland Aviation Administration
Filing
39
MEMORANDUM AND ORDER granting in part Defendant Maryland Aviation Administration's 19 Motion to Dismiss as set forth; setting case planning conference. Signed by Judge Marvin J. Garbis on 8/14/12. (dass, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
VONSHEA C. BUTLER
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Plaintiff
vs.
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CIVIL ACTION NO. MJG-11-2854
MARYLAND AVIATION ADMINISTRATION*
Defendant
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*
*
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MEMORANDUM AND ORDER RE: MOTION TO DISMISS
The Court has before it Defendant Maryland Aviation
Administration’s (“the MAA”) (Amended) Motion to Dismiss
Plaintiff’s Complaint, or in the Alternative, for Summary
Judgment [Document 19] and the materials submitted relating
thereto.
The Court has held a hearing and had the benefit of
the arguments of counsel.
I.
BACKGROUND
A.
Alleged Facts1
Plaintiff Vonshea Butler (“Butler”) was employed by the MAA
from July 2006 until October 6, 2010.
During her employment,
she was sexually harassed, at different times, by two different
supervisors, both of whom had their employment terminated
1
The “facts” herein are as alleged by Plaintiff and are not
necessarily agreed upon by Defendants.
following Butler’s filing of sexual harassment complaints.
However, Butler alleges, she was subjected to a hostile work
environment and terminated in retaliation for her having
complained of the sexual harassment.
1.
Sheehan Matters
When hired by the MAA in 2006, she was assigned to work at
the Baltimore-Washington International Airport (“BWI”) under the
supervision of Steven Sheehan (“Sheehan”). “Some time”
thereafter, Sheehan commenced engaging in “inappropriate and
bizarre conduct” such as “showing up at [Butler’s] home
unannounced, at odd hours of the day and night, and would stand
outside her home.”
Compl. ¶ 18.
Butler reported the harassment by Sheehan to the Airport’s
Fair Practices Officer, Angela Martin (“Martin”), in August,
2007.
Martin conducted an investigation of the alleged
harassment and, in December 2007, concluded that Butler had not
been sexually harassed by Sheehan.
Compl. ¶ 21.
the MAA terminated Mr. Sheehan’s employment.
2.
Nevertheless,
Compl. ¶ 22.
Samuels Matters
In September 2007, a month after Butler filed her internal
complaint against Sheehan, Butler was transferred to work under
a new supervisor, Claude Samuels (“Samuels”).
2
Butler alleges that Samuels attempted to “exercise
emotional control” over Butler by affirming rumors that “‘the
Administration’” wished to fire her in retaliation for her
complaint against Sheehan, stating that Butler needed Samuels
“‘to protect her’ because she was ‘weak.’”
Compl. ¶¶ 27-29.
In March 2008, Samuels expressed an interest in seeing a
puppy that Butler had obtained and was invited to her house.
When in Butler’s home, Samuels made “crude and sexually
offensive remarks about the size of his penis.”
Compl. ¶ 33.
Butler then asked Samuels to leave her house and he did so.
Butler did not advise management about the specifics of
Samuels’ conduct.2
Instead, she made a general request for a
transfer to another supervisor in March 2008, claiming she was
“not getting along” with Samuels.
The request was not granted.
Compl. ¶ 35.
Thereafter, Samuels’ harassment of Butler escalated.
According to Butler, Samuels’ inappropriate conduct included,
but was not limited to, calling her sexual names, graphically
describing his sexual preferences to her, punching her in the
2
Butler states: “Given her legitimate concerns about
retaliation from the Airport’s senior management, Ms. Butler did
not wish to raise a major issue with respect to Mr. Samuels’
behavior. Specifically, she did not want another investigation
of a supervisor, and she did not want Mr. Samuels to face
discipline since, among other things, she feared retaliation by
the Defendant’s management if she reported another incident of
sexual harassment.” Compl. ¶ 34.
3
arms (sometimes leaving bruises), putting his finger in her
vagina, making violent3 and racial4 threats and comments towards
her, etc.
After a year of enduring this type of behavior, in March
2009, Butler attempted again to pursue her transfer request.
She stated that she wished to have the matter handled discreetly
without an investigation.
was conducted.
However, an internal investigation
Compl. ¶¶ 53, 57, 60.
As a result of the
investigation, in June 2009 Samuels’ employment was terminated
for “inappropriate, unprofessional behavior and poor judgment.”
Compl. ¶ 67.
3.
The Retaliation
In retaliation for Butler's having made sexual harassment
complaints, the MAA allegedly took a “blame the victim” attitude
and exhibited “hostility” toward Butler by forcing her to sign a
“Counseling Memorandum” and denying her renewed transfer
request.
Compl. ¶¶ 70-73.
The Counseling Memorandum, dated
3
Samuels threatened to “blow up her house and kill Ms.
Butler, her daughter and her dog,” and told her that “someone
called ‘the Butcher’ would come and get her.” Compl. ¶ 44.
4
Specifically, Samuels allegedly told Butler that she was
“trying to be white” by not having long pubic hair, and that “if
a race war started,” she “would be the first one killed” because
she had once dated a white man. Compl. ¶¶ 43, 44.
4
June 5, 2009, mandated that Butler refrain from a "laundry list"
of conduct.
Compl. ¶ 70.
Butler became aware that the investigation had been “hamfisted,” and was essentially “[a] witch hunt that was largely
designed to humiliate and intimidate [her] for raising a second
sexual harassment complaint.”
Compl. ¶ 75.
She concluded that
the investigation “was not conducted in good faith” because a
staff attorney had indiscreetly interviewed other employees, and
had produced affidavits from employees that allowed employees
who did not like Ms. Butler “to vent their grievances through
the affidavits” and some contained “false and accusatory
statements about Ms. Butler.”
Compl. ¶¶ 76-77.
Upon returning to work, Butler experienced “palpable”
tension in the office environment as a result of the
investigation into Samuels.
Compl. ¶ 81.
After a few weeks, as
a result of the investigation and the hostility it created,
Butler felt “demeaned and humiliated” at work and began to
experience “major bouts of depression,” anxiety, and panic
attacks.
Compl. ¶¶ 82, 85.
Butler’s physician wrote to the MAA in July 2009, and
requested she be reassigned to a different environment in order
to ease her symptoms.
Butler reiterated the request through
counsel, but it merely resulted in her being moved to a
different building while still performing the same job with the
5
same coworkers.
Butler subsequently took three months’ sick
leave in October 2009, in order to attend therapy.
In November 2009, Butler consented to a medical review by
the MDOT Medical Advisor, Robert Toney, M.D. (“Dr. Toney”).
However, the MAA’s H.R. Director Janine Ladzinski (“Ladzinski”)
made inappropriate comments5 to Dr. Toney prior to the medical
exam, thereby signaling to Dr. Toney the result she wished him
to reach.
Dr. Toney’s preliminary report stated that Butler
suffered from Depression, PTSD, and Anxiety Disorder, and that
she was “unable to return to work” at that time.
Compl. ¶ 99.
Dr. Toney referred Butler to Dr. Sheldon Levin (“Dr.
Levin”) for an Independent Psychological Investigation.
Dr.
Levin’s report stated:
It is this evaluator’s belief that Ms.
Butler is experiencing a degree of
depression and describes symptoms that are
suggestive of P.T.S.D. However, there is
reason to believe that Ms. Butler may have
not been an innocent victim but rather was
suggestive in presentation and reinforcing
of her Supervisors’ sexual approaches.
Motion Ex. 17 at 16.
The report recommended that the MAA
transfer Butler to a female supervisor, if possible, after an
additional 1-2 months leave.
Id.
5
Ladzinski noted that Butler had acted in a “sexually
provocative manner in the workplace” and had displayed
“disruptive and inappropriate” behavior. Compl. ¶ 94.
6
After receiving Dr. Levin’s report, Dr. Toney rendered a
second report on December 22, 2009.
In this report, he stated:
It is my opinion that Ms. Butler is unable
to return to work and perform the essential
duties of her position at this time. . . . I
do not feel that she will get to the point
that she will be able to consistently and
reliably return to her current agency.
Mot. Ex. 18 at 4.6
On May 17, 2010, Butler received an “options letter” which
outlined four possible courses of action she could take with
regard to her employment at the MAA:
1.
Apply for disability retirement,
2.
Apply to be placed on unpaid leave for
medical reasons, which would allow her
to keep her health insurance policy,
3.
Resign from her position based on her
inability to return to her job, or
4.
Select options 1 and 2 concurrently.
Butler did not accept any of the options, instead
requesting that the MAA allow her to remain on paid
administrative leave while assisting her in finding alternative
employment at another “modal agency.”7
6
Her request was denied.
The Court notes that Butler’s Complaint, which describes
both doctors’ opinions, appears to incorrectly attribute Dr.
Levin’s recommendations to Dr. Toney, who summarized Dr. Levin’s
recommendations within his report. Compare Compl. ¶ 102 with
Motion Ex. 17 at 16 and Mot. Ex. 18 at 4.
7
“Modal agency/administration” refers to “any of the
following: (1) The State Aviation Administration; (2) The
7
On September 29, 2010, Butler was notified that her
employment would be terminated effective October 6, 2010.
Her
employment was, in fact, terminated on that date.
B.
Procedural Posture
In the Complaint, Butler presents claims in three counts:
Count One: Race and gender discrimination and
hostile work environment in violation of Title
VII of the Civil Rights Act of 1964;
Count Two: Retaliation in violation of 42 U.S.C.
§ 2000e(3); and
Count Three: Discrimination and hostile work
environment in violation of Maryland Code Ann.,
State Government, §§ 20-2601 et seq.
By the instant motion, the MAA seeks dismissal of all
claims.8
II.
DISMISSAL STANDARD
A motion to dismiss filed pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
A complaint need only contain “a short and plain statement of
the claim showing that the pleader is entitled to relief, in
Maryland Port Administration; (3) The Maryland Transit
Administration; (4) The State Highway Administration; or (5) The
Motor Vehicle Administration.” Md. Code Ann., Transp. § 1-101.
8
The MAA entitles its motion as “Motion to Dismiss or
Alternatively Motion for Summary Judgment.” However, it
presents no reason why the Court should not deny the summary
judgment motion as premature.
8
order to give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.”
Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
When
evaluating a 12(b)(6) motion to dismiss, a plaintiff’s wellpleaded allegations are accepted as true and the complaint is
viewed in the light most favorable to the plaintiff.
However,
“labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Id.
A complaint
must allege sufficient facts to “cross ‘the line between
possibility and plausibility of entitlement to relief.’”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(quoting Twombly, 550 U.S. at 557).
A court is “not bound to
accept as true a legal conclusion couched as a factual
allegation.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Inquiry into whether a complaint states a plausible claim
is “a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id.
Thus,
if the well-pleaded facts contained within a complaint “do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown –
that the pleader is entitled to relief.”
Id. (quoting Iqbal,
556 U.S. at 679) (internal quotation marks omitted).
Generally, a motion to dismiss filed under Rule 12(b)(6)
cannot reach the merits of an affirmative defense.
9
Goodman v.
Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007).
It is
possible to evaluate such a motion, however, if all the facts
necessary to the affirmative defense are clearly alleged on the
face of the complaint.
Id.
But if the complaint does not
clearly reveal the existence of a meritorious affirmative
defense, it is inappropriate for the court to consider it under
a Rule 12(b)(6) motion.
Richmond, Fredericksburg & Potomac R.R.
Co. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993).
III. DISCUSSION
A.
Count One - Title VII
Title VII provides, in pertinent part:
It shall be an unlawful employment practice
for an employer—
(1) to * * * discriminate against any
individual with respect to his compensation,
terms, conditions, or privileges of
employment, because of such individual’s
race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2(a)(1).
In Count One, Butler claims that she was subject to a
hostile work environment9 by virtue of her gender.10
9
To plead a
Butler may be contending that Count One of the Complaint
includes a claim that her employment was terminated due to her
race and/or gender. If so, the contention would be baseless
inasmuch as there are no facts alleged presenting any such claim
as distinct from the retaliation claim presented in Count Two.
10
hostile work environment claim, Butler must alleged facts
rendering plausible four elements:
(1) Unwelcome conduct;
(2) Based on her sex;
(3) Sufficiently severe or pervasive to
alter the plaintiff’s conditions of
employment and to create an abusive work
environment; and
(4) Which is imputable to the employer.
Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 334 (4th Cir.
2010) (citation omitted).
The first three elements require little discussion. The
alleged actions of Sheehan and Samuels constituted unwelcome
conduct based upon Butler’s sex.
Moreover, based on Butler’s
specific factual allegations, there can be a plausible claim
that the conduct was sufficiently severe and persuasive as to
create an abusive work environment.11 However, Butler has not
pleaded facts establishing a plausible claim that the hostile
work environment to which she was subject is imputable to her
employer, the MAA.
10
Butler also contends that she was subjected to race based
discrimination but has not presented factual allegations
supporting any plausible claim based upon her race.
11
[I]n order to be actionable under the statute, a sexually
objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive
to be so.
11
Vicarious liability for the employer is appropriate where
there is “actual knowledge by the employer, or high-echelon
officials of an employer organization, of sufficiently harassing
action by subordinates, which the employer or its informed
officers have done nothing to stop.”
Faragher v. City of Boca
Raton, 524 U.S. 775, 789 (1998).
As alleged in the Complaint, when the MAA management was
made aware of the inappropriate conduct of Sheehan and Samuels,
the MAA took action to stop the conduct.
It can be appropriate to impute a hostile work environment
to an employer where “the individual charged with creating the
abusive atmosphere was . . . indisputably within that class of
an employer organization’s officials who may be treated as the
organization’s proxy.”
Id. at 789-90 (collecting cases for the
proposition that harassment by “a proprietor, partner or
corporate officer” can be imputed to the employer (quoting Katz
v. Dole, 709 F.2d 251, 255 (4th Cir. 1983)).
However, the
alleged facts do not present a plausible claim that either
Sheehan or Samuels could be considered the employer’s proxy.
Finally, harassment can be imputed to the employer when a
supervisor’s harassment has culminated in a tangible employment
action because in that scenario, “the agency relation aids in
commission of supervisor harassment.”
Burlington Industries,
Inc. v. Ellerth, 524 U.S. 742, 763 (1998).
12
“[A] tangible
employment action taken by the supervisor becomes for Title VII
purposes the act of the employer. . . .
In that instance, it
would be implausible to interpret agency principles to allow an
employer to escape liability.”
Id. at 762-63.
In the instant
case, the only alleged tangible employment action occurred in
October 2009 when Butler’s employment was terminated.
That
action was, of course, taken by the MAA, but is the subject of
Count Two and addressed in regard to that Count.
The Court further notes that, even on Butler’s factual
allegations, the MAA would be entitled to the “Faragher/Ellerth”
affirmative defense.
Faragher v. City of Boca Raton, 524 U.S.
775 (1998); Burlington Industries, Inc. v. Ellerth, 524 U.S. 742
(1998).
To establish the defense, an employer must prove:
(a) that the employer exercised reasonable
care to prevent and correct promptly any
sexually harassing behavior, and
(b) that the plaintiff employee unreasonably
failed to take advantage of any preventive
or corrective opportunities provided by the
employer or to avoid harm otherwise.
Faragher, 524 U.S. at 808; Ellerth, 524 U.S. at 765.
In determining whether an employer exercised reasonable
care to prevent and correct sexual harassment, the employer’s
“adoption of an effective anti-harassment policy” is “an
important factor,” Smith v. First Union Nat. Bank, 202 F.3d 234,
13
244 (4th Cir. 2000), however “the policy must be effective in
order to have meaningful value.”
E.E.O.C. v. Sunbelt Rentals,
Inc., 521 F.3d 306, 320 (4th Cir. 2008).
“Evidence showing that
the employer implemented the policy in bad faith or was
deficient in enforcing the policy will rebut this proof.”
Matvia v. Bald Head Island Mgmt., Inc., 259 F.3d 261, 268 (4th
Cir. 2001).
As stated by the Fourth Circuit in Spicer v. Commonwealth
of Virginia, Department of Corrections, 66 F.3d 705 (4th Cir.
1995):
When presented with the existence of illegal
conduct, employers can be required to
respond promptly and effectively, but when
an employer’s remedial response results in
the cessation of the complained of conduct,
liability must cease as well. Employers
cannot be saddled with the insurmountable
task of conforming all employee conduct at
all times to the dictates of Title VII,
irrespective of their knowledge of such
conduct or the remedial measures taken in
response to such conduct.
Id. at 711; see also E.E.O.C. v. Xerxes Corp., 639 F.3d 658, 670
(4th Cir. 2011) (“‘A remedial action that effectively stops the
harassment will be deemed adequate as a matter of law’” to
preclude an employer’s liability (citation omitted)).
As reflected in the Complaint, the MAA took action to
correct promptly upon being advised of Sheehan’s and Samuels’
sexually harassing behavior.
Indeed, as to Samuels’ behavior,
14
the MAA acted proactively to initiate an investigation even
before Butler wanted one to be conducted.
Butler unreasonably failed to utilize the mechanism the MAA
had in place for reporting and investigating instances of
harassment.
Butler contends that the implementation of the policy was
in bad faith.
According to her, the reporting and investigation
processes were “ham-fisted,” took a “blame-the-victim” attitude,
was a “meaningless sham,” and the MAA management has “an ongoing
illegal pattern and practice of discriminating against
individuals who file credible threats of discrimination against
the Airport.”12
Yet, her complaint itself reflects that twice, the MAA’s
investigation mechanism resulted in the prompt termination of
the two supervisors who had allegedly sexually harassed her.
See Compl. ¶ 22 (“Although it did not find that Mr. Sheehan had
sexually harassed Ms. Butler, the Airport terminated Mr.
Sheehan’s employment.”); Compl. ¶ 67 (“MAA completed its
investigation and determined that Mr. Samuels should be
terminated for ‘inappropriate, unprofessional behavior, and poor
judgment’”).
12
See Compl. ¶¶ 13, 30, 31, 69, 70.
15
As noted by the Supreme Court in Twombly, 550 U.S. at 555,
“labels and conclusions . . . will not do” to satisfy a
plaintiff’s obligation to provide the grounds of her entitlement
to relief in her complaint.
Butler’s claims that the MAA’s
complaint procedure was part of a pattern of discrimination and
was a sham do not provide sufficient factual allegations to
“raise [her] right to relief above the speculative level.”
Id.
Instead, Butler’s complaint reflects that the MAA took
prompt and effective remedial action to correct the harassment
upon learning of it, see Spicer, 66 F.3d at 711, and the MAA’s
remedial action was enough to “effectively stop the harassment”
by her supervisors, Xerxes, 639 F.3d at 670.13
13
As the Fourth
The Court notes that the only racial or sexual harassment
alleged in the complaint that occurred chronologically after the
termination of Samuels was the fact that when Butler returned to
work on or about June 2009, “she heard rumors that people called
her ‘the Black Widow.’” Compl. ¶ 81. A “black widow” is “an
American spider, Lactrodectus mactans, the female of which is
black with red markings, highly venomous, and commonly eats its
mate.” Collins English Dictionary (10th ed. HarperCollins
2009). Butler argues that this name-calling had a racial double
meaning. See Opp’n 15.
Because the rumored name-calling by co-workers is distinct
from the alleged abuse by Samuels that was investigated and
corrected by the MAA through his termination, this does not
contradict that the MAA corrected the harassment.
A different legal standard applies to claims of co-worker,
rather than supervisor harassment. “In a case where an employee
is sexually harassed by a coworker, on the other hand, the
employer may be liable only ‘if it knew or should have known
about the harassment and failed to take effective action to stop
it.’” Howard v. Winter, 446 F.3d 559, 565 (4th Cir. 2006)
(quoting Ocheltree v. Scollon Productions, Inc., 335 F.3d 325,
16
Circuit has noted, “Plaintiffs often feel that their employer
‘could have done more to remedy the adverse effects of the
employee’s conduct.
But Title VII requires only that the
employer take steps reasonably likely to stop the harassment.’”
Xerxes, 639 F.3d at 674 (citation omitted).
Because Butler’s complaint alleges that the MAA’s
investigations stopped the harassing conduct, the first element
of the Faragher/Ellerth affirmative defense is undisputable.
The second prong of the affirmative defense is “that the
plaintiff employee unreasonably failed to take advantage of any
preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.”
Ellerth, 524 U.S. at 765.
Faragher, 524 U.S. at 808;
“[W]hile proof that an employee
failed to fulfill the corresponding obligation of reasonable
care to avoid harm is not limited to showing an unreasonable
failure to use any complaint procedure provided by the employer,
334 (4th Cir. 2003)). As noted by the Supreme Court, “‘simple
teasing,’ offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in
the ‘terms and conditions of employment.’” Faragher, 524 U.S.
at 787-88.
Butler has not alleged that the MAA knew or should have
known that, after Samuels’ termination and Butler’s return to
the workplace, employees were engaging in name-calling with a
potentially racial double-meaning. Butler does not allege that
she reported it. She also does not allege that the rumors were
severe or pervasive enough to alter the terms or conditions of
her employment. As such, she does not plausibly state a claim
for racial discrimination based on the rumored name-calling that
took place after her return to the workplace.
17
a demonstration of such failure will normally suffice to satisfy
the employer’s burden under the second element of the defense.”
Faragher, 524 U.S. at 807-08; Ellerth, 524 U.S. at 765.
The Fourth Circuit, in Barrett v. Applied Radiant Energy
Corporation, 240 F.3d 262 (4th Cir. 2001), has discussed this
prong of the affirmative defense in depth:
“[T]he law against sexual harassment is not
self-enforcing and an employer cannot be
expected to correct harassment unless the
employee makes a concerted effort to inform
the employer that a problem exists.” An
employee’s subjective belief in the futility
of reporting a harasser’s behavior is not a
reasonable basis for failing to take
advantage of any preventive or corrective
opportunities provided by the employer.
We acknowledge that discussing such matters
as sexual harassment with company managers
often puts the harassed employee in an
awkward and uncomfortable situation.
Nevertheless, this “inevitable
unpleasantness” cannot excuse an employee
from taking advantage of her employer’s
complaint procedure. Little can be done to
correct this objectionable behavior unless
the victim first blows the whistle on it.
“[A]n employee’s subjective fears of
confrontation, unpleasantness or retaliation
thus do not alleviate the employee’s duty
under Ellerth to alert the employer to the
allegedly hostile environment.” Allowing
subjective fears to vitiate an employee’s
reporting requirement would completely
undermine Title VII’s basic policy “of
encouraging forethought by employers and
saving action by objecting employees.”
Faragher, 524 U.S. at 807; Ellerth, 524 U.S.
at 764 (emphasis added).
Id. at 268-69 (some internal citations omitted).
18
Samuels’ sexual harassment continued for a year after
Butler asked for a transfer but intentionally failed to reveal
the sexual harassment.
Butler alleges that she “did not wish to
raise a major issue with respect to Mr. Samuels’ behavior” with
the MAA management, “[g]iven her legitimate concerns about
retaliation from the Airport’s senior management.”
Compl. ¶ 34.
Thus, Butler alleges that she “remained under the supervision of
Mr. Samuels for over a year” from the time that the alleged
harassment began.
Compl. ¶ 36.
Butler also alleges that she
did not file a harassment complaint against Samuels because she
wanted to be “discreet[],” Compl. ¶ 45, and because she believed
the investigation and resolution process to be ineffective.
As discussed by the Barrett court, an employee’s subjective
fears of confrontation, unpleasantness, or retaliation do not
alleviate the employee’s duty under Ellerth to alert the
employer to the allegedly hostile environment, as a matter of
law.
See 240 F.3d at 268-69.
Because Butler’s complaint itself
reflects that Butler unreasonably failed to take advantage of
the MAA’s complaint and investigation opportunities, her
complaint satisfies the second prong of the Faragher/Ellerth
affirmative defense.
The Court thus finds that the MAA cannot, as a matter of
law, be held vicariously liable with regard to Butler’s claim of
19
hostile work environment caused by Sheehan’s and Samuels’
inappropriate conduct.
Butler also claims that the MAA created a hostile work
environment after Sheehan’s and Samuels’ sexual harassment
ceased.
Butler claims that, even after both Sheehan and Samuels
had been terminated by the MAA, the MAA employees and managers
involved with the internal investigations “continued to act in a
hostile manner” towards Butler.
Opp’n 18.
However, Butler’s
complaint is devoid of factual allegations sufficient to present
a plausible claim that the MAA management created the sort of
“sexually objectionable” hostile environment that Title VII
forbids.
See Faragher, 524 U.S. at 788.
Butler’s complaint
alleges that the MAA’s senior management “was extremely hostile
towards Ms. Butler during the meeting” and took a “‘blame the
victim for the conduct’” attitude, that the tension among her
coworkers was “palpable,” and that there were “rumors that
people called her “‘the Black Widow.’”
Compl. ¶¶ 69, 70, 81.
Butler felt that the MAA management had no desire to help her
recover or right any wrong, and H.R. Director Ladzinski
improperly inserted herself into the medical review process.
Compl. ¶¶ 83, 93.
Despite Butler’s label that the MAA management’s conduct
was “hostile” in the colloquial sense, Butler has not alleged
facts to support a plausible that the behavior of MAA management
20
in the 15 months after Samuels’ termination and before her own
was racially or “sexually objectionable.”
788.
Faragher, 524 U.S. at
The only allegation having even an arguable sexual or
racial component is the rumor that she was called “the Black
Widow” by coworkers, and Butler does not allege that she ever
notified the MAA of this name-calling by unnamed coworkers.
As the Supreme Court noted in Faragher, the “standards for
judging hostility are sufficiently demanding to ensure that
Title VII does not become a ‘general civility code.’
Properly
applied, they will filter out complaints attacking ‘the ordinary
tribulations of the workplace.’”
Id.; see also Matvia v. Bald
Head Island Mgmt., Inc., 259 F.3d 261, 269 (4th Cir. 2001)
(noting that employer’s response to post-investigation,
“ostracism and vilification” of the employee by other co-workers
was “bereft of a sexual component” and did not constitute sexual
harassment).
In sum Butler has not presented factual allegations
adequate to present a plausible claim in Count One.14
14
Because the Court concludes that Butler does not plausibly
state a claim for relief on Count One, it does not reach the
MAA’s argument that Butler’s race-based harassment claims should
be barred because her administrative charge of discrimination
focused on the sexual nature of the alleged discrimination and
thus did not provide adequate notice to the MAA that there was a
racial aspect to the charges as well.
21
B.
Title VII Retaliation Claim (Count Two)
In regard to retaliation, Title VII provides in pertinent
part:
It shall be an unlawful employment practice
for an employer to discriminate against any
of his employees * * * because he has made a
charge [under Title VII].
42 U.S.C. § 2000e-2(a)(3).
The statute permits “a person claiming to be aggrieved” to
file a charge with the EEOC alleging that the employer committed
an unlawful employment practice, and, if the EEOC declines to
sue the employer, it permits a civil action to “be brought ...
by the person claiming to be aggrieved . . . by the alleged
unlawful employment practice.”
§ 2000e–5(b), (f)(1).
In Thompson v. North American Stainless, LP, 131 S. Ct. 863
(2011), the Court stated that the reach of the retaliation cause
of action is somewhat broader than that of Title VII’s
substantive provisions:
Title VII’s antiretaliation provision
prohibits an employer from
“‘discriminat[ing] against any of his
employees’” for engaging in protected
conduct, without specifying the employer
acts that are prohibited. Burlington N. &
S.F.R. Co. v. White, 548 U.S. 53, 62
(quoting § 2000e–3(a) (emphasis deleted)).
Based on this textual distinction and our
understanding of the antiretaliation
provision’s purpose, we held that “the
antiretaliation provision, unlike the
substantive provision, is not limited to
discriminatory actions that affect the terms
22
and conditions of employment.” Id. at 64.
Rather, Title VII’s antiretaliation
provision prohibits any employer action that
“well might have dissuaded a reasonable
worker from making or supporting a charge of
discrimination.” Id. at 68 (internal
quotation marks omitted).
Id. at 868.
Thus, the discriminatory conduct prohibited by the
retaliation provision is not limited to “ultimate employment
decisions.”
Burlington N. & S.F.R. Co. v. White, 548 U.S. 53,
67 (2006).
“The antiretaliation provision protects an individual not
from all retaliation, but from retaliation that produces an
injury or harm.”
Id.
“[A] plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.”
omitted).
Id. at 68 (internal quotation marks
This standard is an objective one, and does not take
into account “a plaintiff’s unusual subjective feelings.”
Id.
at 68-69.
The retaliation claim does not turn on “‘the nature of the
discrimination that led to the filing of the charge,’” but is
“tied to the challenged retaliatory act, not the underlying
conduct that forms the basis of the Title VII complaint.”
Id.
This is because, “[b]y focusing on the materiality of the
challenged action and the perspective of a reasonable person in
23
the plaintiff’s position, we believe this standard will screen
out trivial conduct while effectively capturing those acts that
are likely to dissuade employees from complaining or assisting
in complaints about discrimination.”
To establish her retaliation claim, Butler must prove
1.
She engaged in protected activity;
2.
The MAA has taken an action against her that a
reasonable employee would have found materially
adverse; and
3.
That action had a causal connection to the
protected activity.
See U.S. E.E.O.C. v. Lockheed Martin Corp., 444 F. Supp. 2d 414,
418 (D. Md. 2006) (citing White, 548 U.S. at 68); see also
Holland v. Wash. Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007).
1.
Protected Activity
“[A]n employee’s complaint constitutes protected activity
when the employer understood, or should have understood, that
the plaintiff was opposing discriminatory conduct.”
Burgess v.
Bowen, 466 F. App’x 272, 282 (4th Cir. 2012).
To satisfy the first element, Butler has alleged that she
1.
Reported the allegedly harassing conduct of Sheehan,
her first supervisor, to the Airport’s Fair Practices
officer in August 2007;
2.
Complained of Samuels’ conduct in March 2009, which
initiated a workplace violence investigation; and
24
3.
In April 2009 she submitted a formal charge of
discrimination to the Maryland Commission on Human
Relations.
Although the MAA argues that only the submission of the
formal complaint in April 2009 would be protected activity, for
dismissal purposes, the Court finds that Butler has alleged
facts establishing a plausible claim that her internal
complaints against Sheehan and Samuels would constitute
protected activity.
2.
Materially Adverse Retaliatory Action
Butler alleges that the MAA took the following retaliatory
actions against her:
1.
The MAA conducted its two investigations in bad faith,
with a “blame the victim” attitude, and generally
acted in a callous, hostile, and intimidating manner;
2.
Samuels’ harassing conduct was itself retaliatory,
because he confirmed Butler’s suspicious that the MAA
management wanted to retaliate against her, and preyed
on her insecurities;
3.
The MAA refused Butler’s requests to quietly resolve
her complaint against Samuels through a transfer;
4.
The MAA placed Butler on Administrative Leave while it
conducted its investigation;
5.
The MAA conducted the investigation in such a way that
it poisoned the work atmosphere against Butler,
causing her to experience major bouts of depression;
6.
The MAA failed to grant Butler a transfer to a
different division;
25
7.
The MAA attempted improperly to influence the decision
of State Medical Examiner Toney.
8.
The MAA ultimately terminated Butler’s employment in
October 2010.
Certainly, Butler cannot maintain a viable retaliation
claim based on each and every one of listed contentions.15
However, the latter one, the termination of her employment, is a
materially adverse employment action.
3.
Causation
The crux of Butler’s retaliation claim is that the MAA’s
“blame the victim” investigation caused her emotional distress,
causing her to be unable to perform her job functions resulting
in the termination of her employment.
The MAA argues that Butler’s termination, which took place
more than 15 months after the investigations ended with Samuels’
termination, was not close enough in time to infer that it was
caused by her protected activity.
See Clark County Sch. Dist.
v. Breeden, 532 U.S. 268, 273-74 (2001) (holding that the
15
For example, it is not plausible to base a retaliation
claim on Samuels’ conduct. Under the statutory structure, the
“underlying conduct that forms the basis of the Title VII
complaint” is distinct from the “retaliatory act.” See White,
548 U.S. at 68-69. Moreover, the retaliation provisions of
Title VII protect an employee from retaliatory acts by the
employer. 42 U.S.C. § 2000e–3(a); Thompson, 131 S. Ct. at 868.
As discussed above, Samuels’ conduct cannot be considered that
of the employer.
26
temporal proximity must be “very close” and that an action taken
20 months after a protected activity suggests, by itself, no
causality at all).
But this position ignores Butler’s factual
allegation that the act of the MAA’s ongoing animosity towards
her caused her depression, which led to the termination.
Therefore, Butler has adequately alleged the third element
of her retaliation claim.
4.
Legitimate Reason for Discharge
The MAA contends that it cannot be held liable for Butler’s
ultimate termination because it had a legitimate
nondiscriminatory reason for her termination, i.e. that she was
not adequately performing her job.
However, Butler contends
that it was the MAA’s retaliatory actions that caused her
inability to perform her duties adequately.
Of course, when the
pertinent record before the Court includes more than the
allegations in the Complaint, the MAA may well have a valid
defense.
However, the retaliation claim is not subject to
dismissal if, as it must, the Court assumes the truth of the
factual assertions in the Complaint.
C.
Count Three - Maryland Fair Employment Practices Act
The Maryland’s state-law analogue to Title VII, Maryland’s
Fair Employment Practices Act (“FEPA”), Md. Code. Ann., State
27
Gov’t § 20-601 et seq., prohibits substantive discrimination by
employers, as well as retaliation against employees who have
opposed discrimination or who have participated in any
investigation or proceeding into discrimination.
Id. § 20-606.
This Court agrees with the decisions holding that FEPA is,
essentially, a state counterpart of Title VII, neither adding to
nor subtracting from a plaintiff's rights in any way material to
the instant case.
“Title 20 of the Maryland State Government
Article is essentially the state law analog to Title VII.”
Barnes v. ISG Sparrows Point, LLC, 2011 WL 4596058, at *1 n.4
(D. Md. Sept. 30, 2011) (citing Haas v. Lockheed Martin Corp.,
914 A.2d 735, 742 n.8 (Md. 2007)).
“Maryland courts routinely
look to Title VII cases to determine the scope of liability
under Title 20.”
Bishop v. Bd. of Educ. of Calvert Co., 2011 WL
2651246, at *9 (D. Md. July 5, 2011).
Butler argues that FEPA is not coextensive with Title VII,
because “FEPA actually provides additional and broader
protections to Ms. Butler.”
Opp’n 39.
This is so, according to
Butler, because Governor Martin O’Malley has issued an Executive
order entitled “Code of Fair Employment Practices” that applies
to state employees.
See Md. Code Regs. 01.01.2007.16 (2007).
According to Butler, this Executive Order imposes an “underlying
‘fairness’ requirement.”
Opp’n 39.
Butler argues that “the
Complaint demonstrates that the Agency clearly has not followed
28
a ‘zero tolerance’16 policy with respect to employment
discrimination.
If it had, Ms. Butler would not have been
subjected to years of improper conduct by her supervisors.”
Opp’n 40.
Also, “the Agency has not implemented the Governor’s
requirements that the Agency promptly investigate and resolve
complaints17 . . . . the Agency’s investigations in this case
were a sham that actually exacerbated the mental and emotional
trauma suffered by Ms. Butler.”
Id.
Finally, “the Complaint
demonstrates that the Agency’s conduct towards Ms. Butler was
completely unfair.”
Id.
However, there appear to be no published cases interpreting
whether Executive order 01.01.2007.16 expands protection to
state employees for all employer conduct that could be
considered “unfair” in the broad sense.
Moreover, the Court
concludes that, based on the language and structure of the
Executive Order, such an interpretation is not reasonable and
would create an absurd result.
16
“Cabinet officials and other heads of departments or units
are expected to lead by example in promoting fair employment
practices and this Administration’s policy of zero tolerance for
employment discrimination.” Md. Code Regs. 01.01.2007.16. Art.
I(H).
17
“It is the policy of this Administration that all
complaints of discrimination or other unfair employment
practices be thoroughly investigated and promptly resolved, as
appropriate.” Md. Code Regs. 01.01.2007.16. Art. II(A).
29
Article I of Executive Order 01.01.2007.16 sets forth, in
parts A through E, the unfair employment practices that are
prohibited by the “Equal Employment Opportunity Program in State
Government.”18
18
These sections, together, provide broader
In relevant part:
A. All personnel actions concerning any employee
or applicant for employment in the Executive
Branch will be taken on the basis of merit and
fitness, and without regard to:
(1) Age;
(2) Ancestry;
(3) Color;
(4) Creed;
(5) Gender identity and expression;
(6) Genetic information;
(7) Marital status;
(8) Mental or physical disability;
(9) National origin;
(10) Race;
(11) Religious affiliation, belief or
opinion;
(12) Sex; or
(13) Sexual orientation.
B. All personnel actions concerning any skilled,
professional or management service employee and
any special appointee designated by the Secretary
of Budget and Management, or any applicant for
employment in those services or in comparable
positions in an independent personnel system in
the Executive Branch, shall be without regard to
political affiliation, belief or opinion.
C. Discrimination against or harassment of
employees on the basis of any reason prohibited
by law is not permitted.
D. Retaliation against any employee who opposes
discrimination or participates in an EEO
investigation is not permitted.
30
protections for state employees than do FEPA and Title VII,19 but
cannot plausibly be interpreted to extend protection to any
employer conduct considered “unfair” in the colloquial sense.
Because Executive Order 01.01.2007.16 does not broaden the
protections provided by FEPA as they relate to this case, and
because FEPA is otherwise coextensive with Title VII as it
relates to sexual harassment and racial discrimination, the
Court concludes that Count Three shall be dismissed as it
relates to Butler’s hostile environment harassment claim, but
survives dismissal as it relates to her retaliation claim.
D.
Timeliness
The Court is dismissing Count One, rendering moot the
timeliness issues as to that Count.
The Court is not certain of
the precise timeliness issues, if any, the MAA is presenting
with regard to regard to Count Two, particularly in light of the
E. Retaliation against an individual because of
their refusal to submit to a genetic test or make
available the results of a genetic test is not
permitted.
Md. Code Regs. 01.01.2007.16. Art. I(A)-(E).
19
For example, Title VII does not provide protection for
discrimination on the basis of sexual orientation, see 42 U.S.C.
§ 2000e-2, however, FEPA does, see Md. Code. Ann., State Gov’t §
20-606. The Executive order further extends that protection to
“Gender identity and expression,” and also requires personnel
actions to be taken on the basis of “merit and fitness.” Md.
Code Regs. 01.01.2007.16. Art. I(A).
31
two-year period of limitations provided by FEPA.
Therefore, the
denial of dismissal of Count Two is without prejudice to the
MAA’s right to file a motion seeking dismissal that clearly
presents a timeliness contention.
E.
Sovereign Immunity
The Court is dismissing Count One, rendering moot the
sovereign immunity issue as to that Count. The Court is not
certain of the damages that Butler is seeking in regard to Count
Two or if the MAA is presenting a sovereign immunity defense as
to any aspect of the Count.
Under the circumstances, the case shall proceed on Count
Two, the MAA may utilize discovery to ascertain what damages
claims are being made by Butler and may assert any defense,
including sovereign immunity that may be pertinent to Butler's
damage claims.
32
IV.
CONCLUSION
For the foregoing reasons:
1.
Defendant Maryland Aviation Administration’s
Motion to Dismiss Plaintiff’s Complaint, or in
the Alternative, for Summary Judgment [Document
19] is GRANTED IN PART.
2.
All claims in Count One are dismissed.
3.
All claims in Count Three based upon claims in
Count One are dismissed.
4.
Count Two and claims in Count Three based on
Count Two remain pending.
5.
Plaintiff shall arrange a case planning telephone
conference to be held by August 31, 2012.
SO ORDERED, this Tuesday, August 14, 2012.
/s/__________
Marvin J. Garbis
United States District Judge
33
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