Byington (Kennedy) v. NBRS Financial Bank

Filing 31

MEMORANDUM AND ORDER granting 26 Motion of NBRS for Summary Judgment. Signed by Judge George Levi Russell, III on 7/26/13. (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Chambers of
George L. Russell, III
United States District Judge

101 West Lombard Street
Baltimore, Maryland 21201
410-962-4055

July 26, 2013
MEMORANDUM TO COUNSEL RE:

Janet E. Byington (Kennedy) v. NBRS Financial Bank
Civil Action No. GLR-12-705

Dear Counsel:
Pending before the Court is Defendant NBRS Financial Bank’s (“NBRS”) Motion for
Summary Judgment. (ECF No. 26). The Court, having reviewed the pleadings and supporting
documents, finds no hearing necessary pursuant to Local Rule 105.6 (D.Md. 2011). For reasons
outlined in detail below, NBRS’ Motion will be granted based upon Byington’s failure to
demonstrate any genuine issues of material fact for trial.
From January 1981 until February 2009, NBRS employed Plaintiff Janet E. Byington
(Kennedy) in various capacities. (Compl. ¶¶ 3-4). At the time of her termination, Byington held
the position of Customer Service Representative at NBRS’ Havre de Grace branch. (Compl. ¶¶ 45). During her tenure at NBRS, Byington concurrently served as the primary caregiver of her son
who, at age three months, was diagnosed with cerebral palsy and declared blind. (Compl. ¶ 6).
Byington served in this concurrent position from July 1984 until her son’s passing in November
2010. (Id.) Byington’s role as the primary caregiver for her son required that she utilize a
substantial amount of leave. In 2008, the time period relevant to this action, Byington used 296
hours of paid leave (24 hours of which were borrowed from 2009), 32 hours of short term disability,
and 16 hours of leave under the Family Medical Leave Act (“FMLA”). (Def.’s Mot. Summ. J.
[“Def.’s Mot.”] Ex. 4, ECF No. 26-6; Byington Dep. 94:6-96:7, May 9, 2013, ECF No. 26-7).
Despite using this leave, NBRS never denied Byington’s leave requests. (Byington Dep. 96:8-10,
141:18-21). Moreover, Byington received an “above average” rating on her annual performance
evaluation, which resulted in a salary increase. (Def.’s Mot. Exs. 10-11).
On February 13, 2009, Byington wrote a check in the amount of $425 from the NBRS bank
account she shared with her son and immediately deposited it into a separate account that Byington
also owned. (Def.’s Mot. Ex. 17, at 4; see also Ex. 18). The $425 was immediately credited to
Byington’s account. At the time she wrote the check, however, the account Byington shared with
her son only had a balance of thirteen cents. (Def.’s Mot. Ex. 17, at 4; Ex. 21). Byington
facilitated the transaction by asking the Head Teller, Lisa Simon, to complete it for her. (Byington
Dep. 41:9-45:9; Simon Dep. 25:6-14, May 7, 2013, ECF No. 26-21). Because Byington’s position
was above Simon’s, however, Byington had to use her personal code to override the transaction.
(Byington Dep. 45:20-48:5; Simon Dep. 25:14-26:3). When NBRS discovered the transaction on
February 26, 2009, it conducted an investigation into the matter and determined that Byington
violated several company policies. (Def.’s Mot. Ex. 17, at 4-6). NBRS terminated Byington’s
employment the next day on the basis of check kiting. (Id. at 6; Compl. ¶ 15). Byington maintained
that her transaction constituted a proper use of NBRS’ overdraft policy and that NBRS terminated
her for the leave she utilized to care for her son. (Compl. ¶ 15; Byington Dep. 133:16-20).

On June 25, 2009, Byington filed an administrative charge with the Equal Employment
Opportunity Commission (“EEOC”) alleging discrimination on the basis of associative disability
and retaliation. (Compl. Ex. 1, at 2). The EEOC issued Byington a Right to Sue letter on
December 7, 2011. (Id. Ex. 2). On February 6, 2012, Byington filed the pending action in the
Circuit Court for Cecil County, Maryland, alleging violations of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. (2012); the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. §§ 621 et seq. (2012); the Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12101 et seq. (2012); and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§
2601 et seq. (2012); as well as various tort claims. On March 6, 2012, NBRS removed the action to
this Court and filed a Motion for Partial Dismissal or, in the alternative, for Partial Summary
Judgment. (ECF Nos. 5-6). The Court granted NBRS’ Motion for Partial Dismissal on October 10,
2012, which resulted in the dismissal of Byington’s ADEA and tort claims, as well as any ADA
claims that preceded August 2008. (ECF Nos. 12-13). NBRS now moves for summary judgment
on the remaining claims, which consists of the portion of Byington’s ADA claim that covers August
2008 through February 2009, and her FMLA claim.
Under Federal Rule of Civil Procedure 56, the Court must grant summary judgment if the
moving party demonstrates that there is no genuine issue as to any material fact, and that the
moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In reviewing a motion
for summary judgment, the Court views the facts in a light most favorable to the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment
is properly made and supported, the opposing party has the burden of showing that a genuine
dispute exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
Rule 56(c) requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by
the depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
NBRS avers that Byington’s ADA claim must fail because the actions she cites in support of
the claim are either susceptible to dismissal for lack of subject matter jurisdiction, based on
speculation, related to Byington’s past use of leave, fail to identify similarly situated comparators,
and fail to establish pretext. Moreover, as to the FMLA claim, NBRS avers that Byington failed to
state a prima facie case of retaliatory treatment, due to her inability to satisfy the causal element,
and that she failed to establish pretext. In her Opposition, Byington only addresses NBRS’ pretext
arguments. Byington’s approach is mystifying given her need to establish a prima facie case under
the ADA and FMLA before the Court can even address the pretext issue. Byington’s conclusory
statement that she “can establish that she was subject to harsher evaluation, to harsher standards,
that no investigation of the basis for her termination occurred prior to her termination, . . . and the
‘proferred non-discriminatory reason’ is . . . merely a pretext” (Pl.’s Opp’n to Def.’s Mot. Summ. J.
at 3, ECF No. 29) is insufficient. Rule 56 requires non-movants to identify specific facts in the
record that show there is a genuine dispute for trial. Fed.R.Civ.P. 56(c)(1); see also Matsushita, 475
U.S. at 587. Byington has failed to make such a showing. Indeed, Byington’s failure to address
NBRS’ arguments regarding the sufficiency of her ADA and FMLA claims in opposition to a
motion for summary judgment constitute an abandonment of both claims. See Mentch v. E. Sav.
Bank, FSB, 949 F.Supp. 1236, 1247 (D.Md. 1997). Notwithstanding Byington’s abandonment, the
Court finds that Byington cannot establish a prima face case under either statute based upon the
record in this matter.
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As to the ADA claim, Byington alleges that NBRS intentionally discriminated against her
based on her associative disability by subjecting her to harsher evaluations, issuing written letters
and verbal admonitions, and failing to fire Simon for her participation in the check kiting incident.
Byington further avers that NBRS terminated her for using leave to care for her son. The ADA
“prohibits employers from taking adverse employment action because of the known disability of an
individual with whom the qualified individual is known to have a relationship or association.”
Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 214 (4th Cir. 1994) (citation and internal
quotation marks omitted). As a preliminary matter, Byington’s claims of harsher evaluations are
not supported by the record which shows Byington has received an “above average” rating since
2006 and that her work has been commended. (Def.’s Mot. Ex. 24). The record is also void of any
genuine issues of material fact as to whether the alleged written letters and verbal admonitions were
motivated by Byington’s association with her son. (See, e.g., Byington Dep. 70:4-75:7, 80:4-14).
Furthermore, as to the termination, any action based upon Byington’s past use of leave does not
constitute discrimination based upon Byington’s associative disability. See Tyndall, 31 F.3d at 214.
Similarly, Byington’s FMLA retaliation claim struggles to present causal connection
between Byington’s use of leave in August 2008 and her termination. When temporal proximity is
the sole basis of establishing the requisite causal connection in a FMLA retaliation claim, a
substantial lapse in time between the protected activity and termination belies any inference of a
causal connection between the two. See Pascual v. Lowe’s Home Ctrs., Inc., 193 F.App’x 229, 233
(4th Cir. 2006). Here, six months elapsed between Byington’s FMLA leave and her termination.
Moreover, Byington only used sixteen hours of FMLA leave, which is miniscule compared to the
300 plus hours of paid and unpaid leave she used by December 2008. Byington also received an
above average rating on her performance evaluation after the FMLA request, which resulted in a
pay increase, and acknowledged that NBRS always granted her leave requests notwithstanding the
amount of leave she expended. NBRS also employed Byington for twenty-five years while she
cared for her son. These actions do not support an inference of termination based upon Byington’s
use of sixteen hours of FMLA leave. See Moticka v. Weck Closure Sys., 183 F.App’x 343, 353
(4th Cir. 2006) (“[T]the inference of retaliatory motive is undercut . . . by the favorable treatment
[plaintiff] received from July 2000 until her termination.”).
Accordingly, NBRS’ Motion for Summary Judgment (ECF No. 26) is GRANTED.
Judgment is entered in favor of NBRS against Byington. Despite the informal nature of this
memorandum, it shall constitute an Order of the Court, and the Clerk is DIRECTED to docket it
accordingly. The Clerk is also DIRECTED to CLOSE this case.

Very truly yours,
_______/s/______________
George L. Russell, III
United States District Judge

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