Maynard v. St. Stephens Reformed Episcopal Church
MEMORANDUM. Signed by Judge William M Nickerson on 7/5/2017. (bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ST. STEPHEN’S REFORMED
Civil Action No. WMN-15-3532
Before the Court are Plaintiff Doreen Maynard’s “Motion for
Judgement upon the Pleadings,” (MJP) ECF No. 75, and a Cross
Motion for Summary Judgment (Cross Motion) filed by Defendant
St. Stephen’s Reformed Episcopal Church (Defendant or St.
ECF No. 98.
Also pending is Plaintiff’s motion to
strike declarations and many of the exhibits that Defendant
submitted with its Cross Motion.
motions are now ripe.
ECF No. 103.
All of the
Upon review of the pleadings and the
relevant case law, the Court determines that no hearing is
necessary, Local Rule 105.6, and that Plaintiff’s motions will
be denied and Defendant’s motion will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Proceeding pro se, Plaintiff brings three claims of
retaliation under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e et seq.,1 against her former
employer, St. Stephen’s.
The first claim arises out of
Plaintiff’s suspension, with pay, on October 9, 2014, and the
second claim arises out of the termination of her employment
three days later.
In her third claim, Plaintiff alleges that
Defendant continued to retaliate against her after her
termination by contacting a potential employer and interfering
with her efforts to find new employment.
While the parties
proffer different motives for the actions taken by the other,
the facts and chronology of events that led to the suspension,
termination, and contact with another employer are all well
documented and generally undisputed.
As detailed below,
Plaintiff disliked some decisions made by her supervisor,
responded to those decisions in a somewhat insubordinate manner,
proceeded to violate a workplace policy and, when it became
apparent that her job might be in jeopardy, raised an
unsubstantiated claim of discrimination so that Defendant would
be unable to terminate her employment without facing a claim of
The facts and chronology of events are as follows.
Plaintiff initially also brought claims under the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. §§ 621, et seq. The Court dismissed the ADEA claims on
May 12, 2016, after concluding that Plaintiff had failed to
exhaust her administrative remedies as to those claims. ECF
Nos. 23 and 24.
St. Stephen’s is a church located in Eldersburg, Maryland,
which operates a school for students from kindergarten through
eighth grade - the St. Stephen’s Classical Christian Academy
The St. Anselm program is a program within the school
that serves students with language-based learning differences.
John Dykes is the headmaster of SSCCA and Johanna Judy is the
Lead Teacher for the St. Anselm program.
Eric Jorgensen is the
pastor of St. Stephen’s and the Chairman of the SSCCA Board.
In September of 2013, Plaintiff was hired to work as a
part-time teacher at SSCCA in the St. Anselm program.
Judy was Plaintiff’s immediate supervisor.
As a part-time
teacher working 4 hours and 45 minutes per day, Plaintiff was
paid a salary of $15,000 for the nine month school year.
requesting that she be moved to a full-time teaching position,
Plaintiff signed a new contract on September 4, 2014, with a
salary of $22,000.
Shortly after the start of the school year,
however, in early October, Plaintiff requested that she be
returned to part-time status.
In response to Plaintiff’s decision to return to part-time
status and an increase in the number of students enrolled at
SSCCA, Dykes decided to hire another part-time teacher.
and Judy then began the process of revising the teaching
schedule to accommodate Plaintiff’s part-time status and the
addition of the new part-time teacher.
Plaintiff was not
pleased with the proposed schedule and voiced that displeasure
in a series of emails that quickly escalated in their level of
On October 7, 2015, Plaintiff emailed Dykes
and stated that, while she was “happy to hear” that a new parttime teacher would be hired, she wanted to take the opportunity
to remind Dykes that they had previously discussed Plaintiff
teaching four morning classes and the new teacher taking
Plaintiff’s afternoon classes so that Plaintiff’s hours were not
stretched out all day.
Dykes Decl., Ex. E.
She also requested
that she be included in the scheduling process.
afternoon around 1 o’clock, Plaintiff sent Dykes an email
informing him that she had shared some of her ideas for a
workable schedule with Judy and again asked to be allowed to
give input into the scheduling changes.
Id., Ex. F.
Around 4:30 in the afternoon of October 8, 2014, Dykes
responded and provided the schedule for the four classes that
Plaintiff would be teaching, a schedule which would require her
to be at the school from 9:00 to 1:40 each day.
Id., Ex. G.
About an hour later, Plaintiff responded by sending a lengthy
email to Dykes taking issue with the proposed schedule.
expressed that she was “becoming concerned” that she was not
included in the process of developing the schedule and protested
that the proposed schedule was inconsistent with her “August
offer to give up the raise you gave me in order to hire another
PT person this Fall so I could work part time in the mornings
from now on.”
Id., Ex. H at 1.
She also complained that, under
this schedule, she would have a greater teaching load than Judy.
She further complained that “there are a lot of misunderstanding
happening about my offer” and, unless they can be work out as
previously agreed upon, “it is only fair that I be given the
opportunity to consider withdrawing my offer for now and remain
working the full time hours and with the full-time pay that are
currently on my contract.”
Id., Ex. H at 2.
Dykes responded at 8:01 that evening and stated that he had
read 1/3 of the email but would not have time to read and
decipher the rest until the next week.
He also declared, that
“[t]he schedule is already set,” and that Plaintiff’s plan,
which had her coming in at 8:00 in the morning for a planning
period, instead of 9:00 to teach, was unacceptable.
Id., Ex. I.
He stated that he did not recall any discussion over the summer
where specific hours were discussed and that “[y]ou need to work
when we have work and we will do our best to get you out as
early as possible,” which, under the proposed schedule was 1:40.
Plaintiff responded by email about an hour later.
I will not agree to sign a different contract, take
less money or work any different employment terms than
the ones I have now under my current contract until
you find the time to read my emails and meet with me
to work out this misunderstanding about my August
Id., Ex. J.
She further criticized Dykes for not reading her
previous emails and considering her concerns and concluded:
Please let me know when you can find the time to meet
and discuss my offer the way I presented it to you in
August. I would appreciate it if you would read my
emails before that meeting. Thank you for your
attention to my legitimate and reasonable requests.
One hour later, at 10:01 p.m., Dykes responded:
I will speak to you tomorrow concerning your email at
12:15 sharp in my office. Understand that you will
not dictate the terms of your part time employment nor
will you give me any directive as to the way that I
must respond to you. Starting next quarter, you will
be part time if you continue to serve at SSCCA. The
tone of your email is inappropriate and will be
addressed tomorrow at 12:15.
Id., Ex. K.
Dykes copied the email to Judy and asked her to
attend the meeting the next day.
One hour later, at 10:54, Dykes sent another email.
this time, Dykes had read Plaintiff’s long email of October 7,
and responded that the option for Plaintiff to work full time
had passed and that he had approved the schedule proposed by
Judy because it serves the needs of the program.
“[w]e will discuss how you can meet our programs needs tomorrow
and if we can come to an agreement I will issue you a new
contract. . . .”
Id., Ex. L.
At 1:43 on the morning of October 9, Plaintiff emailed
Dykes and indicated that she felt uncomfortable meeting with him
alone, without a “neutral witness.”
Id., Ex. M.
to complain that the proposed schedule was inconsistent with her
August offer and concluded:
You left me no recourse but to stick with my current
contract until you could make time to read my emails
and meet with me about this matter like you did with
Johanna. I don’t believe my tone is cause for a
disciplinary meeting like you claim just because I am
asking for equal treatment in this matter.
I feel like you are retaliating against me now for
making legitimate requests and responses to your
action and decision that will adversely change the
terms of my employment and ones which I never offered
or agreed to.
Later that morning, at 6:07, Plaintiff emailed Dykes and
Judy and informed them that she was not feeling well enough to
come in and teach and requested that they find someone to cover
Id., Ex. N.
At 9:37 a.m., Plaintiff sent an email to Jorgensen
requesting “a confidential meeting with [him] as soon as
possible to file a formal complaint of discrimination,
harassment and retaliation against [Dykes and Judy].”
Decl., Ex. A.
She indicated that she would be bringing a tape
recorder to record the meeting and requested that Stanley Frey,
a member of the SSCCA Board, also be present at the meeting.
Plaintiff repeated that she believed that she was being treated
differently and, unlike Judy, was not permitted to have input
into the new schedule.
Without providing additional examples,
she opined that “[t]his is not the first time I have been
treated this way by Mr. Dykes and Johanna and have objected to
their unilateral decisions for me that affect me (and my
students) adversely and in a discriminatory way.”
Jorgensen responded one hour later that he could meet with her
at 5:00 that evening.
Jorgensen Decl., Ex. B.
At 10:45 that morning, Dykes responded to Plaintiff’s 6:07
a.m. email to him and stated that he found it “very
disappointing” that Plaintiff did not comply with SSCCA policies
and procedures which required her to find her own substitute
should she be absent from school or to telephone the Headmaster
in the case of an emergency absence when she cannot find a
Dykes Decl., Ex. O.
He then inquired:
I need to know when you plan to return to work. I
will attempt to grant your request by having a Board
member present when we meet, but you should know that
you have blown this issue way out of proportion. You
should read your email to me and ask yourself if any
subordinate should address their superior in such a
way as you have. Your allegations are unfounded and
your deluded confabulations seem bizarre to me at
best. It was your request to be part time that I was
honoring by hiring another employee. We discussed
this several weeks ago. If you had any other specific
requests they should have been made at that time.
Understand that requests are just that, they are
requests. The students in the program will dictate
the needs and hours you serve.
Dykes Decl., Ex. O.
Dykes then forwarded this email, along with Plaintiff’s
6:07 email, to Jorgensen and the other members of the SSCCA
Dykes adds an “FYI” to that forwarded email relaying
that Judy had reported to him that she had “a peaceful
environment to work in for the first time this year” and that
she “does not want to see [Plaintiff] return.”
At around noon on October 9, Plaintiff forwarded Dykes’
email to Jorgensen and instructed him to “[p]lease advice Mr.
Dykes to stop sending me harassing emails like the one below.”
Jorgensen Decl., Ex. D.
She states that:
[Dykes’] age and gender-based name calling (you’re
delusional, etc) is unacceptable to me and has created
a hostile work environment for me along with my prior
complaints, so I am asking you to add this new offense
to my prior complaints about his discriminatory
actions towards me.
. . .
His demands to know when I will return to work below
only serve to upset me more and make me afraid to come
back there and encounter his hostility with no
I need you to have this stopped immediately or I will
be forced to file a restraining order on him and that
is the last thing I want to do.
Plaintiff’s characterization of this email exchange is telling.
She states in her opposition to Defendant’s Cross Motion that,
from this exchange, it is clear that “Dykes was the one who
became agitated, confrontational, argumentative, disrespectful,
Jorgensen telephoned Plaintiff shortly after receiving this
email and left a message advising Plaintiff that “things needed
to be straightened out before you return” and that “we cannot
have ought3 in the school or the church so get back to me as soon
as you can so we can find the time to meet and, uh, see if we
can reconcile these things.”
Pl.’s Ex. 9 to MJP (Plaintiff’s
transcription of voicemail).
Plaintiff, Jorgensen, and Frey
participated in a one hour telephone call beginning at 5 o’clock
As described by Frey, Plaintiff indicated that
she was unhappy with the new schedule and voiced numerous
complaints about Dykes and Judy, yet none of those complaints
had anything to do with discrimination on the basis of age or
Frey Decl. ¶¶ 6, 7.
He relates that Plaintiff
described no instance where she was discriminated against based
upon age or gender.
Id. ¶ 7; see also, Jorgensen Decl. ¶ 10
(“not once during the conversation was Ms. Maynard able to
threatening, and retaliatory when Plaintiff would not agree to
his discriminatory breach of her contract. . . . He lost
control. He became irrational.” ECF No. 106-1 at 7-8. To the
contrary, Dykes’ email seems a somewhat measured response to an
employee trying to dictate the terms of employment to her
supervisor as well instructing her supervisor as to when and in
what manner he should respond to her terms.
“Ought” appears to be a reference to a word used in the King
James Bible in the book of Matthew: “Therefore if thou bring thy
gift to the altar, and there rememberest that thy brother hath
ought against thee; Leave there thy gift before the altar, and
go thy way; first be reconciled to thy brother, and then come
and offer thy gift.” Matthew 5:23-24 (KJV).
identify, let alone detail, a single instance of discrimination
that she suffered at the hands of [Dykes or Judy]”).
In her description of the telephone call in one of her
declarations,4 Plaintiff characterizes the telephone call as the
filing of “‘confidential’ formal complaints” of discrimination.
Pl.’s Decl. C ¶ 18.
She states that her complaints in the
were not about a scheduling or hour conflict. I filed
my complaints with them because I believe in good
faith that was I was opposing was unlawful practice by
Dykes and Judy involving a discriminatory contract
dispute that I never offered nor agreed to accept. I
complained to Frey and Jorgensen about a
discriminatory breach of my contract that involved an
income cut of $7,000 for part-time terms that favored
the needs of Johanna Judy, my younger married
coworker, who had previously informed me that my
salary was being cut because she needed all of her
salary to buy a new safer car for her stepchildren and
Pl.’s Decl. D, ¶¶ 7, 8.
Responding to Plaintiff’s suggestion that Plaintiff’s
relationship with Dykes was such that she felt the need to seek
With her reply brief in further support of her motion and in
opposition to Defendant’s Cross Motion, ECF No. 106, Plaintiff
submitted seven different declarations: one in opposition to
Defendant’s Cross Motion (Pl.’s Decl. A); one to oppose
objections raised by Defendant to Plaintiff’s exhibits (Pl.’s
Decl. G); and one in opposition to each of the five declarations
submitted by Defendant with its Cross Motion, one opposing the
Declaration of Dykes (Pl.’s Decl. B), one opposing the
Declaration of Jorgensen (Pl.’s Decl. C), one opposing the
Declaration of Frey (Pl.’s Decl. D), one opposing the
Declaration of Rory Rice (Pl.’s Decl. E), and one opposing the
Declaration of Judy (Pl.’s Decl. F).
a restraining order against him, Jorgensen informed Plaintiff
that she was suspended, with pay, and that he would be
discussing the matter with the SSCCA Board.
Shortly after this
telephone call, Plaintiff forwarded to Jorgensen the series of
emails between her and Dykes.
Jorgensen and Frey reviewed the
emails and Jorgensen had a conversation with Dykes.
that after their review of the emails and investigation of the
matter, they concluded that there was no evidence of
Instead, in their view, it was Plaintiff’s
unhappiness with the proposed schedule that was the primary
cause of the turmoil.
They further concluded that Plaintiff’s
emails were inappropriate, demanding, and disrespectful and that
Plaintiff had violated SSCCA policy in the manner that she
called out sick.5
Jorgensen and Frey relayed these conclusions
to the SSCCA Board and the Board concluded that the conflict
between Plaintiff and Dykes was creating an unhealthy
Frey and Jorgensen also state that their investigation revealed
that Plaintiff “was involved in several past work related issues
that caused strife within the School” and “ultimately found that
Ms. Maynard was the source of a great deal of tension in the
School and Church. Frey Decl. ¶ 8. The Board had previously
been made aware of some of these issues. On August 29, 2014,
Dykes forwarded to the board a series of emails relating to
Plaintiff’s complaints regarding the allocation of classroom
supplies. With those emails, Dykes related that Plaintiff “has
been a distraction in teacher training and just plain strange.
She has few social graces and does not understand her place, nor
appropriate social cues for that matter. My worse hire yet, but
she does love the kids she serves, and she is a good composition
teacher.” Frey Decl., Ex. A.
environment within the school and the church and that it would
be best if she not return to her teaching position at the
Jorgensen Decl. ¶¶ 19, 20
On October 12, 2014, Jorgensen called Plaintiff and offered
her a severance package of three weeks’ pay in exchange for her
Jorgensen then informed
Plaintiff that her employment with SSCCA was terminated.
October 15, 2014, Jorgensen sent Plaintiff the official
Jorgensen Decl., Ex L.
At the time that Plaintiff’s employment with SSCCA was
terminated, she was attending another church in the area, Mount
Airy Bible Church (MABC).
In October of 2014, she told an
attorney who also attended MABC, Michael Fleming, about her
termination by SSCCA.
While he was not an employment attorney,
he offered, as a favor, to call Jorgensen “as a Christian to a
Christian” to work out Plaintiff’s “contract breach.”
Dep. at 304.
Plaintiff stated that it was her intent to try to
work out this contract dispute “within the church arena. . . .
I actually was the one that wanted to follow Matthew 18:15 here,
you know, if a Christian – if a brother or sister wrongs you,
you go one on one, then two on one, then you take it outside the
church if they don’t listen to reason.”
Id. at 305.
called Jorgensen in early to mid-November and they had a brief
conversation about settling the matter but the settlement
discussion was unsuccessful.
In the course of that
conversation, Fleming related that he and Plaintiff attended the
same church, MABC.
On November 4, 2014, Plaintiff filed a Charge of
Discrimination with the Maryland Commission on Civil Rights
Def.’s Ex. 8.
In early December 2014, Jorgensen
learned that Plaintiff had filed the MCCR Charge and that she
intended to file a civil suit against SSCCA.
that relying on “scriptural teachings,”6 he decided to contact
the pastors at MABC “requesting that they counsel Ms. Maynard in
regards to what the scriptures teach about Christians suing
Jorgensen Decl. ¶ 27.
Jorgensen states that
he found the contact information for MABC on the church’s
website and on December 9, 2014, sent an email to the “Pastor/s”
In Defendant’s answers to interrogatories, Jorgensen explains
that the scripture teaching he was referencing was that found in
I Corinthians 6:4-8:
“Therefore, if you have disputes about such matters,
do you ask for a ruling from those whose way of life
is scorned in the church? I say this to shame you.
Is it possible that there is nobody among you wise
enough to judge a dispute between believers? But
instead, one brother takes another to court—and this
in front of unbelievers! The very fact that you have
lawsuits among you means you have been completely
defeated already. Why not rather be wronged? Why not
rather be cheated? Instead, you yourselves cheat and
do wrong, and you do this to your brothers and
Pl.’s Ex. 3, Def.’s Answer to Interrogatory No. 12.
After identifying himself as pastor of St. Stephen’s
and Chairman of SSCCA, Jorgensen wrote “I am of the
understanding that a Ms. Dee Maynard attends your church.
that is incorrect please disregard the rest of the email.”
Jorgensen Decl., Ex. M.
He then relates that Plaintiff was a
former employee of SSCCA whose employment was terminated in
October and who has expressed her intention to file a civil suit
against St. Stephen’s.
He continued, “[o]ur request is that you
graciously pastor Ms. Maynard regarding what the Scriptures
clearly teach about Christians suing Christians,” and inviting
them to telephone him “[i]f you would like to know more about
our side of this difficult situation.”
One day before Jorgensen sent that email, on December 8,
2014, Plaintiff interviewed for an after school, part-time
position that had opened up at the school that is associated
with MABA, the Mount Airy Christian Academy (MACA).
interviewed by Rory Rice, the School Administrator for MACA, and
another member of the MACA staff, Megan Harmon.
that, at the end of the interview, Plaintiff was given forms to
complete, was instructed to obtain fingerprints for a background
check, and was told that he would be contacting her references
before a hiring decision would be made.
Rice Decl. ¶¶ 6, 7.
Plaintiff states that she told Rice in the interview that she
would not receive a positive reference from Jorgensen because
they were “still in a dispute,” so she gave Rice three other
Pl.’s Decl. E ¶ 5.
In addition to his position as School Administrator for
MACA, Rice was also an Elder for MABC and, because of his
service in that role, Jorgensen’s email to the MABA pastors was
forwarded to him for consideration.
After receiving Jorgensen’s
email, Rice relates that he “felt it would be best to look into
Ms. Maynard’s situation with [Jorgensen and SSCCA]” and he spoke
He states that he never spoke with Jorgensen,
that talking to Fleming was the only investigation he undertook
regarding the dispute, and that nothing he learned from Fleming
influenced Plaintiff’s chances at being hired for the MACA
Rice Decl. ¶¶ 10, 11.
Rice states further that, as
it turned out, he was unable to offer the position to Plaintiff
because the MACA librarian, who he describes as “an existing
MACA employee who was held in high regard,” approached him and
asked him to hire her for that position, which he did.
He relates, however, that while he could not offer
Plaintiff a position at that time, he would keep her information
on file should a position arise in the future.
Id. ¶ 15.
Directly contradicting Rice’s account, Plaintiff contends
that she was offered the position during the interview and that
the offer was only rescinded because of Jorgensen’s email to
An email that Plaintiff sent to Rice four days after the
interview, however, belies that contention.
On December 12,
2014, Plaintiff sent an email to Rice in which she wrote, “I
just wanted to touch base with you and Megan about the After
School position to see if you have made a decision about it,
I . . . was informed that Megan called one of my
references, but I haven’t heard any more since then.
appreciate it if you would let me know where I stand in this
Rice Decl., Ex. A.
Rice responded that “[w]e are
finalizing the hiring process and will let you know as soon as
possible” but “decisions can take some time.”
Plaintiff’s current contention might be, she certainly did not
believe that the position was hers when she sent her email on
December 12 and Rice’s response confirmed that a decision to
hire Plaintiff had yet to be made.
Nevertheless, on January 15,
2015, Plaintiff filed a second charge with the MCCR, alleging
that Jorgensen’s December 9, 2014, email to the pastors of MABC
was an additional act of retaliation.
Def.’s Ex. 9.
On September 10, 2015, the MCCR issued its Written
Findings on both of Plaintiff’s charges.
Def.’s Exs. 10, 12.
Regarding her claims that her suspension and the termination of
her employment were retaliatory, the MCCR concluded that its
investigation revealed that Plaintiff “continuously displayed
resistance towards complying with scheduling changes, school
protocols, and administrative authority” and that her employment
was terminated “due to ‘relational conflicts’ between
[Plaintiff] and the school staff.”
Def.’s Ex. 10 at 3, 4.
MCCR concluded, “[b]ased on the evidence gathered by the
Commission staff during the investigation, it has been
determined that there is No Probable Cause to believe that
[SSCCA] retaliated against [Plaintiff].”
Id. at 6.
As for the
claim of post-termination retaliation arising out of Jorgensen’s
email to the pastors of MABC, the Commission concluded that the
“investigation was unable to yield any evidence to support
[Plaintiff’s] allegations that [SSCCA] provided an unfavorable
reference in retaliation for opposing a discriminatory activity
in the workplace.”
Def.’s Ex 12 at 5.
While the substance of the Written Finding regarding
Plaintiff’s suspension and termination clearly reflected the
Commission’s conclusion that there was no retaliation, Plaintiff
has repeatedly attempted to capitalize on what was clearly a
typographical error in the original Written Finding.
sentence in the Written Finding reads “[t]he investigation
determined that the [Plaintiff’s] termination was based on a
Def.’s Ex 10 at 5.
Plaintiff cited this
typographic error in her opposition to Defendant’s motion to
dismiss, ECF No. 11 at 5, and that prompted Defendant to ask the
MCCR to amend its Written Finding, which the MCCR did on January
Def.’s Ex. 11 (correcting that sentence to read
“[t]he investigation determined that the [Plaintiff’s]
termination was not based on a retaliatory motive”).
has continued to argue that Defendant’s request to correct this
obvious error was improper.
See, e.g., ECF No. 17 at 3 (in
referencing the correcting amendment, “[t]he bias and prejudice
The non-disclosed collusion is even more
disturbing.”); ECF No. 75 at 7 (characterizing the amended
Finding as “questionable,” “unauthorized,” and “irrelevant”).
The Equal Employment Opportunity Commission issued
Plaintiff a Right to Sue Letter on October 27, 2015, and
Plaintiff filed this action on November 20, 2015.
above, Plaintiff’s complaint is now limited to her three
retaliation claims under Title VII, arising out of her
suspension, the termination of her employment, and the posttermination contact with MABC.
Plaintiff has reiterated that
these claims are based solely on the actions of Jorgensen and
not on any conduct on the part of Dykes or Judy.
moved for summary judgment on all three claims.
II. LEGAL STANDARD
Rule 56(b) of the Federal Rules of Civil Procedure provides
that summary judgment shall be entered in favor of a moving party
when there is no genuine dispute as to any material fact, and the
moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
mandates summary judgment against a party “who fails to make a
showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear
the burden of proof at trial.”
Trial judges have an
affirmative obligation to prevent factually unsupported claims from
proceeding to trial.
Felty v. Graves-Humphreys Co., 818 F.2d 1126,
1128 (4th Cir. 1986).
Where, in a case “decided on summary judgment, there have not
yet been factual findings by a judge or jury, and [one party’s]
version of events . . . differs substantially from [the other
party’s,] . . . courts are required to view the facts and draw
reasonable inferences in the light most favorable to the party
opposing the [summary judgment] motion.”
372, 378 (2007).
Scott v. Harris, 550 U.S.
However, “[a]t the summary judgment stage, facts
must be viewed in the light most favorable to the nonmoving party
only if there is a ‘genuine’ dispute as to those facts.”
U.S. at 380.
Before addressing the merits of Plaintiff’s claims, the
Court must consider briefly Plaintiff’s Motion to Strike.
gravamen of that motion is that, while the declarations and many
of the exhibits submitted by Defendant relate to discrimination
and harassment allegedly committed by Dykes and Judy,
Plaintiff’s “retaliation claims are only against Pastor Eric
ECF No. 103 at 2.
In Plaintiff’s view, that
renders that evidence irrelevant.
As explained below, however,
in order for Plaintiff to establish that she engaged in
“protected activity” under Title VII, which is one of the
elements of a prima facie claim of retaliation, she must
establish that it was objectively reasonable for her to believe
that she was discriminated against by Dykes and Judy.
renders the evidence about Dykes and Judy’s conduct relevant to
her retaliation claims.
Plaintiff also broadly challenges much of Defendant’s
evidence as “hearsay” or as statements made “without personal
Plaintiff, however, fails to identify examples of
what specific statements she believes fall into those categories
or, when she provides examples, they are based on misrepresentations of the evidence.
For example, she complains
that “the bulk of [Jorgensen’s] Declaration is focused on his
opinion of irrelevant and unsupported hearsay complaints filed
against [Plaintiff] by [Dykes and Judy.”
ECF No. 103 at 4.
Jorgensen’s opinion, however, was largely informed by his review
of the emails that Plaintiff forward to him.
complains that Frey was not present when Jorgensen sent the
December 9, 2014, email to MABC, “so Frey has no personal
knowledge of that matter  nor is competent to witness anything
ECF No. 103 at 4.
Frey, however, makes no statement
about that email in his declaration.
Plaintiff also challenges Defendant’s submission of
pleadings from administrative proceedings and lawsuits Plaintiff
has filed against her other former employers on the grounds of
authenticity and relevance.
These documents are either in the
public record or have been otherwise authenticated.
Furthermore, as discussed below, they are relevant to whether
Plaintiff had a subjective belief that Dykes and Judy had
discriminated against her.
The Court finds nothing objectionable in Defendant’s
submissions and will deny Plaintiff’s motion to strike.
Turning to the merits of Plaintiff’s claims, Title VII
prohibits an employer from discriminating against an employee
because the employee “opposed any practice” made unlawful by
Title VII (the “opposition clause”), or “made a charge,
testified, assisted, or participated in” a Title VII proceeding
or investigation (the “participation clause”).
42 U.S.C. §
A plaintiff can prove a claim of retaliation under
Title VII using either direct evidence of retaliation or through
the McDonnell Douglas7 burden-shifting proof scheme.
motion, Plaintiff proffers that she has presented “direct”
evidence of retaliation but never specifies what that direct
evidence might be.
ECF No. 75 at 2, 4.
As this Court has
noted, “it is rare for a plaintiff to be able to point to direct
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
evidence of causation,” which is “‘something akin to an
admission from the [employer] that it took action against [the
plaintiff] because of his protected activity.’”
Mayor & City Council of Baltimore, Civ. No. 10-2835, 2013 WL
5718747 (D. Md. Oct. 17, 2013) (quoting Hobgood v. Illinois
Gaming Bd., 731 F.3d 635, 643 (7th Cir. 2013)).
There is no such
direct evidence here.
To establish a claim of discrimination using indirect
evidence under McDonnell Douglas, a plaintiff must first
establish a prima facie case of retaliation.
Douglas, 411 U.S. at 802.
A plaintiff succeeds in establishing
a prima facie case by showing: (i) “that [she] engaged in
protected activity,” (ii) “that [her employer] took adverse
action against [her],” and (iii) “that a causal relationship
existed between the protected activity and the adverse
Price v. Thompson, 380 F.3d 209, 212 (4th
The burden then shifts to the defendant to show
that its purportedly retaliatory action was in fact the result
of a legitimate non-retaliatory reason.
Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004). If the
employer makes this showing, the burden shifts back to the
plaintiff to rebut the employer's evidence by demonstrating that
the employer's purported non-retaliatory reasons “‘were not its
true reasons, but were a pretext for discrimination.’” Id.
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 143 (2000)).
The Court finds that Plaintiff’s first two claims – those
related to her three day suspension, with pay, and the
termination of her employment – fail because Plaintiff did not
engage in protected activity prior to those actions being taken
by her employer.8
An informal complaint of discrimination to
one’s employer like Plaintiff’s telephone conversation with
Jorgensen and Frey can rise to the level of protected activity
under the opposition clause.
While a plaintiff need not prove
that the underlying discriminatory conduct that she opposed was
actually unlawful, she must show that she had “a good faith,
reasonable belief that the employer was engaged in unlawful
Knott v. DeKalb County School System,
624 Fed. App’x 996, 997 (11th Cir. 2015).
“A plaintiff must not
only show that she subjectively, in good faith, believed that
her employer was engaged in unlawful employment practices, but
also that her belief was objectively reasonable in light of the
facts and record.”
Id. at 997-98.
“Unfair treatment, absent
Plaintiff’s suspension claim fails for the additional reason
that suspension, with pay, does not rise to the level of an
adverse employment action. See Cepada v. Board of Educ. of
Baltimore Co., 974 F. Supp. 2d 772, 789 n.57 (D. Md. 2013)
(“Suspension with pay, ‘pending a prompt investigation into
allegations of wrongdoing,’ is not generally considered a
materially adverse employment action.”) (quoting Jarvis v.
Enter. Fleet Servs. & Leasing Co., Civ. No. DKC 07–3385, 2010 WL
1068146, at *18 (D. Md. Mar. 17, 2010).
discrimination based on race, sex, or national origin, is not an
unlawful employment practice under Title VII.”
Id. at 998.
Plaintiff might be able to convince a jury that Dykes
treated her unfairly.
There is nothing in the record, however,
from which a jury could conclude that Plaintiff had a reasonable
belief that his failure to consult her was based on her gender.
The whole substance of Plaintiff’s complaint is that Dykes
treated Judy more favorable than Plaintiff, but Plaintiff and
Judy are both of the same gender.
Furthermore, during the
relevant time period, thirteen of the sixteen employees of SSCCA
were females - all except Dykes, Jorgensen, and one teacher.
Dyke’s Decl., Ex. R.
Under these circumstances, the fact that
Plaintiff even attempted to attach the label of gender
discrimination to her complaint is a clear indication that
Plaintiff was attempting to use the threat of a retaliation
claim to keep from being fired.
There is no more support for the reasonableness of
Plaintiff’s claim of age discrimination.
During the relevant
time period, 60% of those working at SSCCA were over 45 years of
While Plaintiff tries to characterize her
communications with Jorgensen as her complaining of “age
discrimination,” Plaintiff’s own description of the substance of
her complaint reveals that even she attributed Dykes’ actions to
considerations other than age:
I felt discriminated against when Ms. Judy and Dykes
used [Judy’s] marital status and her need for a family
car in order to justify their decision to cut my pay
in 2014 with terms I never offered nor agreed to, so
Ms. Judy could use her salary to buy a safer car for
herself and her family. Being an older, single,
childless woman, I felt discriminated against and
taken advantage of.
Pl.’s Decl. F, ¶ 14 (describing what she told the MCCR
investigator as to why she felt discriminated against).
own opinion, while noting that she is “older,” it is clear that
Plaintiff attributed Dykes’ decisions to Judy’s family status
and associated financial needs, and not to Plaintiff’s age.
In her effort to support the reasonableness of her
assertion of age related discrimination, Plaintiff asserts that
Dykes called her “derogatory” names in his email, although, in
her deposition, she could not remember what those names were.
Pl.’s Dep. at 241-243.
Plaintiff repeats that assertion
throughout her submissions but, again, without identifying what
those names might be.
The Court’s review of the email reveals
that the closest to name calling in which Dykes might have
engaged is his comment that Plaintiff’s “allegations are
unfounded and your deluded confabulations seem bizarre to me at
Dykes Decl., Ex. O.
While certainly critical of
Plaintiff’s reactions to the scheduling proposal, there is
nothing about that email that reflects discrimination based on
The Court finds parallels between this case and a recent
case before the Eastern District of New York, Brown v. Northrop
Grumman Corporation, Civ. No. 12-1488, 2014 WL 4175795 (E.D.N.Y.
Aug. 19, 2014).
In Brown, the plaintiff cited as “protected
activity” her complaint to her employer’s human resources
department about emails that she has received from her
supervisor that she believed contained “‘derogatory comment,’
‘name calling,’ or ‘inappropriate text.’”
Id. at *13.
email criticized several aspects of the plaintiff’s work product
and concluded, “To be blunt, although I like you as a person, I
find you argumentative, non-communicative and almost secretive
And you ignore direction you don't like.”
The court dismissed the plaintiff’s retaliation claims,
Plaintiff could not have reasonably believed that she
was opposing gender discrimination by complaining
Plaintiff’s retaliation claim based on opposition to age
discrimination fails for an additional reason. With the
dismissal of Plaintiff’s ADEA claims, Plaintiff’s suit is now
limited to claims under Title VII. “Title VII does not
expressly authorize retaliation claims in response to protected
activity opposing age discrimination because it only makes it
unlawful for an employer to discriminate against an employee
‘because he has opposed any practice made an unlawful employment
practice by this subchapter.’” (quoting 42 U.S.C. § 2000e–
3(a))). Cyr v. Perry, 301 F. Supp. 2d 527, 535 (E.D. Va. 2004).
Discrimination based on age is made unlawful under the ADEA, not
about the comments identified in [the emails she
forwarded to the human resources department.]
Although Plaintiff's  complaint states “[i]f I were
a man, you would not be treating me this way,” the
Court must look at the substance of her complaint, not
the terminology that she used. The comments Plaintiff
complained of constitute general workplace criticism
and carry no implication of discriminatory animus
whatsoever. Plaintiff argues that her complaints are
protected activity because she “clearly testified that
she believed she was subject to disparate treatment
based upon her gender” and that “the existence of such
testimony” requires presentation of this issue to a
jury. This argument misses the point. The test is
not whether Plaintiff had a good faith belief that a
Title VII violation occurred; it is whether Plaintiff
had a good faith, objectively reasonable belief.
Id. (internal quotations and citations omitted).10
In this case, there is a question as to whether Plaintiff
ever had a subjective good faith belief that a Title VII
Defendant notes that Plaintiff has now
filed multiple charges of discrimination and retaliation against
In 2001, Plaintiff filed a suit against her
former employer, Comcast Communications of South Florida,
bringing claims of religious discrimination and a claim that her
employer retaliated against her for bring complaints to
management about the differential treatment she suffered.
Def.’s Ex. 14.
In 2008, Plaintiff brought an administrative
Plaintiff never explicitly acknowledges that she has a burden
to establish an objectively reasonable belief but repeats only
that she “had subjective belief and good faith that what she was
opposing with Dykes was unlawful” and “[h]er complaints are
clear that she believed in good faith she suffered
discrimination.” ECF No. 106-1 at 7, 9.
charge against a former employer, the School District of Broward
County, Florida, which also included claims of retaliation.
Def.’s Ex. 15.
In 2013, Plaintiff filed an administrative
charge with the EEOC against a former employer, the Therapeutic
and Recreational Riding Center, alleging that her supervisor
treated young female employees and male employees differently
than her and called her derogatory names.
Def.’s Ex. 16.
Plaintiff has another suit currently pending in the United
States District Court for the District of Connecticut against a
former employer, the Stonington Community Center.
That action includes allegations of discrimination and
retaliation very similar to those alleged here.
This pattern of filing lawsuits might explain the language
Plaintiff used in her interactions with Jorgensen.
Plaintiff emailed Jorgensen to request a meeting, it was not to
simply tell him about her complaints about Dyke’s scheduling, it
was to “file a formal complaint of discrimination, harassment
The language she used seemed tailored to
convey that message that, if Jorgensen were to discipline her,
that SSCCA would face a claim of retalitation.
used by Plaintiff in her motion reflects that same intention.
Plaintiff argues that “it is irrelevant whether my complaints to
Jorgensen and Frey against Dykes and Judy on 10/09/14 were found
to be true or not.
I was already in ‘protected activity’ the
minute I filed them.”
ECF No. 75 at 1; see also id. at 4
(repeating her contention that once she complained of Jorgensen,
“that immediately placed me in ‘protected activity.’”).
Plaintiff’s communication with Jorgensen has all the
earmarks of a pre-emptive “opposition to discrimination” that
the Supreme Court cautioned against in Univ. of Texas
Southwestern Medical Center v. Nassar.
Consider in this regard the case of an employee who
knows that he or she is about to be fired for poor
performance, given a lower pay grade, or even just
transferred to a different assignment or location. To
forestall that lawful action, he or she might be
tempted to make an unfounded charge of racial, sexual,
or religious discrimination; then, when the unrelated
employment action comes, the employee could allege
that it is retaliation.
133 S. Ct. 2517, 2532 (2013).
The Court need not resolve, however, the question as to
whether Plaintiff subjectively believed that she was being
discriminated against, because it concludes that any belief she
may have was not objectively reasonable.
complaining to Jorgensen was not protected activity and she
fails to establish a prima facie case of retaliation related to
her suspension or the termination of her employment.
As to Plaintiff’s retaliation claim related to Jorgensen’s
email to the pastors at MABC, the Court finds that Plaintiff has
not established a prima facie case because she cannot establish
that the email resulted in an adverse employment action.11
one might question Jorgensen’s judgment in sending his December
9, 2014, email to the MABC pastors, there is nothing in the
record to indicate that it harmed Plaintiff in any way.
Contrary to Plaintiff’s current contentions, Rice had not
offered her the position and he states that Jorgensen’s email
played no role in his hiring decision.
Instead, he hired an
individual who was already employed part-time at MACA and was
looking for more hours.
Plaintiff’s efforts to create a dispute of fact on this
issue are unavailing.
In her opposition to Defendant’s motion,
Plaintiff makes the rather curious argument that
Defendant wasn’t present when the Plaintiff
interviewed with Rory Rice in order to have personal
knowledge about this matter, and it is undisputed that
Rice never made an official authenticated recording of
the interview to support his opinion that he made no
job offer. They are not competent to make such a
legal conclusion like this. It is their biased
opinion and is inadmissible.
ECF No. 106-1 at 10.
Rice, of course, was present at the
interview and Plaintiff provides no explanation as to why he
would be biased.
Plaintiff also admits that it is Rice’s
opinion that he made no job offer.
not raised in the Complaint, Plaintiff suggests in
that she “suspected Jorgensen was behind” other
opportunities. ECF No. 75 at 20. Plaintiff offers
for these suspicions.
Plaintiff correctly observes that, to prove an adverse
employment action, she need not establish that she already had
an offer of employment before Rice saw Jorgensen’s email, she
need only establish that Rice made a different decision because
of the email.
The record does not support that conclusion,
Rice stated that he gave the position to a current
member of MABC who was a “valued member of the MACA team,” “was
held in high regard,” and who approached him for the position
after Plaintiff’s interview.
Rice Decl. ¶ 12.12
attempts to re-characterize Rice’s statement as indicating that,
after receiving Jorgensen’s email, “[a]ll of the sudden, Rice
held the Plaintiff in ‘less regard’ and sees the Plaintiff as a
less ‘valuable’ church member.”
ECF No. 106-1 at 13.
statement, was not comparative and it is certainly a reasonable
business decision to expand the hours of a respected employee.
Finding no evidence that Jorgensen’s email to MABC resulted
in Plaintiff’s loss of the position at MACA, the Court concludes
that Defendant is entitled to summary judgment on Plaintiff’
third and final retaliation claim as well.
Plaintiff makes another peculiar argument in this regard. She
states that “Rice admitted that the member he hired approached
and asked Rice for the job, after he received Jorgensen’s email
on Friday 12/12/14, not the other way around.” ECF No. 106-1 at
13. That observation undermines, not supports, Plaintiff’s
For all of the above stated reasons, the Court concludes
that Plaintiff’s motion to strike and motion for judgment on the
pleadings should be denied and Defendant’s motion for summary
A separate order will issue.
William M. Nickerson
Senior United States District Judge
DATED: July 5, 2017
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?