Angelini v. Davis, et al
Filing
85
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 6/2/2020. (ols, Deputy Clerk)
Case 1:17-cv-02354-ELH Document 85 Filed 07/28/20 Page 1 of 56
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STEVEN ANGELINI,
Plaintiff
v.
Civil Action No. ELH-17-2354
BALTIMORE POLICE
DEPARTMENT,
Defendant.
MEMORANDUM OPINION
In this employment discrimination case, plaintiff Steven Angelini, a police officer with the
Baltimore City Police Department (“BPD”) since 2006, has sued his employer, claiming that he
has experienced a sustained campaign of harassment and retaliation that began after he reported a
homophobic incident in October 2012. ECF 1.1 The Second Amended Complaint (ECF 49),
which is the operative complaint, contains two counts: “Sexual Harassment, Sex Discrimination
and Retaliation,” in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended,
42 U.S.C. § 2000e et seq. (Count One); and invasion of privacy (Count Two). In the text of Count
One, plaintiff asserts: “Plaintiff’s sex and his complaints of sexual harassment and retaliation were
motivating factors in Defendants’ decision to treat Plaintiff differently and subject him to a hostile
work environment.” ECF 49, ¶ 103.
Following discovery, the BPD moved for summary judgment, pursuant to Fed. R. Civ. P.
56. ECF 66. The motion is supported by a memorandum of law (ECF 66-1) (collectively, the
“Motion”), and thirty exhibits. ECF 66-4 to ECF 66-35.2 Angelini has abandoned his claims for
1
Plaintiff also sued Kevin Davis in his official capacity as Commissioner of the BPD.
Davis is no longer the Commissioner, however. Plaintiff dismissed Davis from the suit in
November 2017. ECF 8.
Case 1:17-cv-02354-ELH Document 85 Filed 07/28/20 Page 2 of 56
sex discrimination and invasion of privacy, but he opposes summary judgment as to his hostile
work environment and retaliation claims.
See ECF 77 (Opposition); ECF 77-1 (Memorandum)
(collectively, the “Opposition”). Plaintiff has also submitted forty exhibits. ECF 77-3 to ECF 7740. The BPD has replied. ECF 81 (“Reply”).
The Motion is fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6.
For the reasons that follow, I shall grant the Motion.
I.
Background3
A. Factual Contentions4
Plaintiff was born in Baltimore City and raised by his parents, Salvatrice and Nello
Angelini. See ECF 77-39 (Angelini Deposition) at 4, Tr. 14, 16-17. Today, Angelini resides in
Baltimore County with his wife and teenage daughter. Id. at 4, Tr. 14-15. He identifies as
heterosexual. Id. at 16, Tr. 64.
In 2006, Angelini joined the BPD as a Police Officer Trainee. See ECF 78-2 (Redacted
BPD Personnel Kardex). Shortly after completing his training, plaintiff was assigned to the
“Northwestern District.” Id. He served there from June 2007 until November 2008, when he was
transferred to the “Violent Crimes Impact Division” (“VCID”), where he conducted covert
counter-narcotics operations. See id.; ECF 77-39 at 7, Tr. 26-29. Although plaintiff enjoyed
Per the Court’s Order of January 17, 2020 (ECF 80), exhibits ECF 66-26, ECF 66-27,
ECF 66-29, ECF 66-30, and ECF 66-31 are sealed.
2
As discussed, infra, in considering a motion for summary judgment, the court “view[s]
the evidence in the light most favorable to the non-moving party and draw all reasonable inferences
in that party’s favor.” Cybernet, LLC v. David, 954 F.3d 162, 168 (4th Cir. 2020); see Pryor v.
United Air Lines, Inc., 791 F.3d 488, 495 (4th Cir. 2015); News & Observer Publ’g Co. v. Raleigh–
Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010).
3
The Court cites to the electronic pagination, which does not always correspond to the page
number imprinted on the submissions.
4
2
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working at VCID, he began to feel “burnt out.” ECF 77-39 at 8, Tr. 32. Plaintiff requested a
transfer and was moved to the “Southeastern District” (the “SED”) in February 2010. See ECF
78-2; ECF 77-39 at 8, Tr. 30-33. It is undisputed that, prior to plaintiff’s transfer to the SED, he
had no workplace issues. See ECF 67-1 at 2; ECF 77-1 at 2.
Sometime in 2011, Major William Davis asked Angelini to select a fellow officer to serve
in a specialized unit within the SED. ECF 77-39 at 9, Tr. 36. Plaintiff selected Officer Daniel
Quaranto. Id.; see ECF 77-3 (Quaranto Deposition) at 3, Tr. 7-9. From the work in that specialized
unit, plaintiff received several commendations, including Officer of the Month and Baltimore
Ravens NFL game tickets. See id. at 5, Tr. 14. During this assignment, which lasted approximately
one year, plaintiff was directly supervised by Sergeant Kenneth Williams. ECF 77-39 at 9-10, Tr.
37-38; see ECF 77-3 at 6, Tr. 18.
In January 2012, Angelini discovered that his father was bisexual and was having an
extramarital affair with another man. See ECF 77-39 at 11, Tr. 41-45. As Angelini recounted at
his deposition, he would often visit his parents while on patrol because they lived in the SED. Id.
at 11, Tr. 44. One day, while plaintiff was at the front door of his parents’ house, he peered through
a window and saw his father engaging in oral sex with another man. Id. at 11, Tr. 45; see also
ECF 77-3 at 5, Tr. 16-17. Plaintiff was “devastated” to learn of the affair and was “shocked” and
“hurt” by what he observed. ECF 77-39 at 11, Tr. 45.
The parties dispute the extent to which the sexuality of plaintiff’s father became a topic of
conversation among BPD officers serving in the SED. Plaintiff maintains that his father’s exboyfriend began to stalk and harass his father, resulting in the police being called to the Angelini
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household “multiple times.” ECF 77-39 at 13, Tr. 52; see ECF 77-1 at 3 n.2.5 Angelini testified
that shortly after the police were called to his parents’ house, he was approached by a BPD officer
in the station parking lot, who asked if his parents lived in the area. ECF 77-39 at 13, Tr. 51. The
officer allegedly “said that [his] mom and dad ha[d] a[n] issue going on,” and plaintiff responded
that he did not want to discuss the matter. Id. at 13, Tr. 53. Angelini maintains that his father’s
sexuality was a topic of water cooler conversation. See id. at 14, Tr. 54-55.
Other BPD officers acknowledged knowing of incidents involving Angelini’s father.
Officer Quaranto testified that he responded to the Angelini family household and created a police
report detailing damage to the vehicle belonging to plaintiff’s father. ECF 77-3 at 5, Tr. 15-16.
Sergeant Ettice Brickus, who served in the SED at the relevant time, recalled overhearing officers
discussing a domestic disturbance involving Angelini’s father and another man. ECF 77-38
(Brickus Deposition) at 6, Tr. 18. And, Sergeant Derwin Jackson, who also served in the SED,
testified that he had heard that Angelini’s father was gay or bisexual. ECF 77-23 (Jackson
Deposition) at 49.
With the exception of the interaction in the station parking lot, plaintiff could not recall a
BPD officer mentioning his father. ECF 77-39 at 14, Tr. 54. In the same vein, Officer Quaranto
testified that he never overheard other officers discussing Angelini’s family. ECF 77-3 at 5, Tr.
17. And, although Sergeant Brickus heard other officers discuss a domestic disturbance, she
clarified that the officers were discussing the day’s service calls and there was “nothing unusual”
about the conversation. ECF 77-38 at 15, Tr. 57.
Plaintiff claims, however, that he became the subject of sexually offensive ridicule. See
Plaintiff’s counsel avers that the paramour was convicted in Maryland court for conduct
involving Angelini’s father. ECF 77-1 at 3 n.2. However, because the individual’s record was
later expunged, plaintiff’s counsel did not submit exhibits pertaining to the paramour. Id.
5
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ECF 49, ¶ 15. Plaintiff testified that “sometime between 2011 and 2012” a penis and balls along
with the words “Baby Dick” were drawn in the dust covering the front hood of the police vehicle
that he shared with Officer Quaranto. ECF 77-39 at 89, Tr. 356-57. Then, on October 2, 2012,
one of the bathroom stalls in the men’s locker room in the SED station was marked with graffiti
that said “Angelini + Quaranto R HOMO’S!!” See id. at 15, Tr. 59-61; see ECF 67-4 (Graffiti
image); ECF 67-5 (10/2/2012 Command Investigation Report); ECF 66-7 (10/3/2012 Complaint).
Upon seeing the image, plaintiff went “straight to” Sergeant Williams and “immediately” reported
that he was disturbed. ECF 77-39 at 15, Tr. 60.
Sergeant Williams opened an investigation concerning the graffiti. See ECF 67-5. In a
“Command Investigations Report” dated October 4, 2012, Sergeant Williams wrote that after
receiving Angelini’s complaint, he went to the bathroom, photographed the graffiti, and then
colored over it with a marker. Id.; see ECF 67-6 (Crossed-out graffiti). Sergeant Williams further
reported that Officer Angelini “stated he did not want to write . . . an administrative report and he
felt this action was childish on the behalf of the person who composed it.” Id.
Plaintiff acknowledges that he initially told Sergeant Williams that there was no need to
investigate the incident. ECF 77-39 at 16, Tr. 63; see ECF 77-7 (Angelini Affidavit), ¶ 5. He
recalls that Sergeant Williams told him that the graffiti was “not a big deal” and “just guys doing
what they do.” ECF 77-39 at 15, Tr. 60; see id. at 16, Tr. 63. In response, Angelini told Sergeant
Williams: “[Y]ou know what sir, don’t even worry about it. Don’t even—don’t even—don’t worry
about it. Don’t worry about it. I’m—I don’t care anymore. Don’t worry about it. Don’t do an
investigation. Don’t do nothing.” Id. at 16, Tr. 63. Angelini explained that he hesitated to pursue
the incident because he feared retaliation. ECF 77-39, at 17, Tr. 66-68.
However, the next day, October 3, 2012, Angelini completed a “Form 95” documenting
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the incident. See ECF 67-7 (10/3/2012 Form 95). According to plaintiff, a Form 95 is simply a
means to record an event and can be created “for any reason.” ECF 77-39 at 35, Tr. 140-41. In
the Form 95, Angelini stated that he “didn’t want to write a 95 because [he] didn’t want to make a
big ordeal out it” and “because [he] feared that [he] would be retaliated against.” ECF 67-7.
However, plaintiff felt that the graffiti was “offensive.” He wrote: “The comment ‘homo’ effects
[sic] me personally.” Id.
In the Form 95, plaintiff requested a transfer to another district pending the investigation.
Id. The same day, plaintiff completed a “Request for Transfer Form 70” (a “Form 70”). See ECF
77-4 at 1. Plaintiff explained that he made the request because he “didn’t feel welcome at Southeast
anymore.” ECF 77-39 at 17, Tr. 68-69.
BPD’s Equal Opportunity & Diversity Section (“EODS”) investigated plaintiff’s
complaint, which culminated in a report issued on November 21, 2012. ECF 67-9 (11/21/2012
EODS Report). According to the Report, an EODS investigator spoke with Officers Angelini and
Quaranto and Sergeant Williams but could not ascertain who was responsible for the graffiti. ECF
67-9 at 1. Therefore, “[b]ased on the lack of evidence and witness testimony,” EODS closed the
case. Id. However, the EODS investigator recommended that EEO policies “be reiterated during
roll call training to prevent further calamity.” Id.
Plaintiff maintains that he never received a copy of the Report, and he “adamantly disputes
that an investigation was actually conducted . . . .” ECF 77-1 at 4. Plaintiff testified, ECF 79-37
at 27, Tr. 108: “EOD[S] never came out to the district and did an investigation and asked people.
I’ve seen other investigations done before. They never came out and spoke to anyone. They never
came out and asked individuals to write 95s anonymously. They never went upstairs to the
bathroom stall to get a good look at what happened. How can Sgt. Williams just put a cross over
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it, a magic marker? Why not take time to paint it, a comment like that?”
In addition to filing a Form 95, Angelini arranged to meet with an EODS investigator. The
meeting was scheduled to take place at BPD headquarters on October 5, 2012, at approximately
3:30 pm. See id. at 16, Tr. 63-65; see id. at 18, Tr. 70-71. Plaintiff, who was on light desk duty at
the time, was scheduled to work from 3:00 p.m. to 11:00 p.m. that day. Id. at 18, Tr. 72. Angelini
arrived at the SED station in time for roll call, which occurred at approximately 2:30 p.m. Id.
Following roll call, Sergeant Brickus approached Angelini and asked him “why [he] was
not dressed.” Id. at 21, Tr. 82; see ECF 77-38 at 16, Tr. 59-60. Because Angelini was on desk
duty, he was required to dress in “court attire,” i.e., dress pants and a dress shirt or polo shirt. Id.
at 21, Tr. 72, 82-83; see ECF 77-38 at 16, Tr. 60. Plaintiff does not remember what he was wearing
on October 5, 2012, but does not dispute that his shirt did not qualify as court attire. Id. at 21, Tr.
83-84. Sergeant Brickus recalls that Angelini was wearing a “very small T-shirt.” ECF 77-38 at
16, Tr. 60.
In response to Sergeant Brickus’s question, plaintiff stated that he had an appointment with
EODS and that he might be immediately transferred to a different district. ECF 77-39 at 21, Tr.
85. At that point, according to plaintiff, Sergeant Brickus commented that the shirt he was wearing
was “showing of [his] pecs,” id., which Angelini took to mean that he was “showing off [his]
muscles.” Id. at 22, Tr. 87. Although plaintiff was bothered by the comment, he did not say
anything to Sergeant Brickus. Id. at 22, Tr. 87-88. Sergeant Brickus instructed Angelini to report
to her after his EODS appointment, and plaintiff replied that if he was sent back to the SED he
would change into his uniform to work the front desk. See id. at 21, Tr. 86; id. at 23, Tr. 92-93.
Sergeant Brickus does not dispute that she commented on Angelini’s shirt. ECF 77-38 at
16, Tr. 60. But, according to Sergeant Brickus, her comment “had nothing to do with [Angelini]
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going to [EODS].” Id. at 7, Tr. 22. She testified, id.: “He was inappropriately dressed for work
and I did make a joke with him about the way he was dressed, and we had joked together in the
past so I didn’t think it was anything wrong, of course, at the time to make that type of joke about
his shirt being too small.” Sergeant Brickus testified that she did not think her comments were
offensive because she and Angelini had “shared and engaged in jokes . . . in the past” and had
“often cut up and would share laughs.” Id. at 16, Tr. 61. She recalled that plaintiff had laughed at
the joke, and she said: “[T]here was nothing that led me to believe that, you know, there were any
issues or that he had an issue with the joke.” Id. at 16-17, Tr. 61-62.
Plaintiff then left the station and headed to the parking lot to hitch a ride to BPD
headquarters for his EODS appointment. ECF 77-39 at 24, Tr. 94. As he exited the building,
Angelini passed by Sergeant Brickus and several other fellow officers, one of whom said, “I like
your shirt.” Id. Plaintiff testified: “And then people started laughing. And I continue walking.
And I hear [Sergeant] Brickus say, comment to me, oh, Angelini is going down to [EODS] to go
show off his muscles down there. And everybody starts laughing” Id. at 24, Tr. 94-95.
Angelini testified that Sergeant Brickus’s comment made him feel like a “snitch” because
she “pretty much told everybody I was going down” to EODS. Id. Plaintiff then heard Sergeant
Brickus say, “oh, I better be careful he’s going to file a complaint on me down there,” which
prompted laughing among the other officers. Id.
Plaintiff proceeded to meet with “Sergeant Cumbo,” an EODS investigator. Id. at 24, Tr.
96. While there, plaintiff completed a “Discrimination Complaint Form,” identifying “offensive
writing of sexual orientation” as the basis for his complaint. ECF 67-10 (Form 210). According
to plaintiff, he also recounted Sergeant Brickus’s comments to Sergeant Cumbo, telling Sergeant
Cumbo that Sergeant Brickus put him “on blast” and “made fun of my pecs . . . .” ECF 77-39 at
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24, Tr. 97. Despite plaintiff’s request for a transfer, Sergeant Cumbo informed plaintiff that he
had to return to work at the SED. Id. at 25, Tr. 98-99.
When plaintiff returned to the SED, he changed clothes and then went to see Sergeant
Brickus. Id. at 25, Tr. 99. According to plaintiff, Sergeant Brickus asked him why he felt that the
graffiti was offensive and why he was “making a big deal” out of the incident. Id. at 25, Tr. 99100. When Angelini responded that it was “not her business,” she replied: “The major doesn’t
want this downtown. I can’t believe you met -- went downtown with it. You could have kept it inhouse.” Id. at 25, Tr. 100. Plaintiff told Sergeant Brickus that her comments were “offensive” and
she mocked him in front of his “peers.” Id. at 100-01. She responded that she was only joking.
Id. at 101.
Plaintiff claims that after lodging his complaint with EODS, he was singled out for
retaliatory discipline by his supervisors. See ECF 77-1 at 7-16; ECF 77-7, ¶ 13. Plaintiff avers
that Sergeant Brickus began to “pick on” him about his clothing while he was on light duty from
October to December 2012. ECF 77-39 at 31, Tr. 122. For instance, plaintiff recalled that
Sergeant Brickus once observed that his pants were wrinkled and asked him if he had “ever heard
of an iron?” Id.
The next alleged act of retaliation centers around a parking space at the police station. See
ECF 49, ¶¶ 23-26. It is undisputed that parking at the SED station was difficult. See 77-3 at 10,
Tr. 35 (Quaranto agreeing that parking was difficult); ECF 77-23 at 50 (Jackson characterizing the
parking as “inadequate”); ECF 77-37 (Brokus Deposition) at 10, Tr. 35 (Brokus agreeing that
parking can be terrible); ECF 77-38 at 8, Tr. 28 (Brickus describing “issues” with parking). A
memorandum addressed to BPD personnel in the SED, dated November 8, 2012, directed staff not
to park in marked spaces unless authorized. ECF 67-13. However, plaintiff maintains that officers
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routinely parked in marked spaces, without incident. See ECF 77-7, ¶ 24; see ECF 77-10 (images
of vehicles in the SED parking lot).
On January 17, 2013, plaintiff parked his vehicle in a space designated for the
Neighborhood Services Unit (“NSU”) of the SED. ECF 77-39 at 31-32, Tr. 124-26. Although
Angelini was not assigned to NSU, plaintiff parked in the space because he could not find another
parking space. See id. at 34, Tr. 134. Shortly after plaintiff entered the station and before roll call,
Sergeant Brickus approached him and instructed him to move his vehicle immediately and then
complete a Form 95, explaining why he parked in the space reserved for Sergeant Venera Drennon.
Id. at 34, Tr. 135.
Sergeant Brickus testified that Sergeant Drennon approached her that morning and was
“upset” because Angelini had previously parked in her designated space and Sergeant Drennon
had spoken with him about it. ECF 77-38 at 8, Tr. 26-27. She told Sergeant Drennon that she
would have Angelini move his vehicle, and Sergeant Drennon asked her to have Angelini author
a report as to why he parked in a marked space after being asked not to do so. Id. at 8, Tr. 27.
Upon being ordered to move his vehicle, plaintiff asked Sergeant Brickus if she was
serious. ECF 77-39 at 34, Tr. 135. When it became apparent that she was, Angelini told her that
he would move his vehicle, but that if he had to write an administrative report, then he would like
to be “formally charged through the department for parking [his] vehicle there.” Id. According to
Angelini, Sergeant Brickus “became irate,” and he walked away from her because he was “tired
of being picked on.” Id. Sergeant Brickus followed Angelini and ordered him to report to the shift
commander’s office. Id. at 34, Tr. 137; see ECF 77-38 at 8, Tr. 28. When he arrived, Sergeant
Drennon, Sergeant Brickus, and the shift commander, Sergeant James Brokus, “shut the door on
[him].” ECF 77-39 at 34, Tr. 137. Plaintiff asked them why he was being picked on. Id. Plaintiff
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recalls that they replied that he wasn’t being singled out and told him to move his car. Id. at 3435, Tr. 137-38.
Angelini stated during his deposition that he was upset because he felt like Sergeant
Brickus was “[p]icking” on him. Id. at 37, Tr. 146. He believes that the directive to write a Form
95 “was personal” because he had “never seen [Sergeant Brickus] ask anyone else that parked int
those spots to write a 95 or heard of anybody writing a 95 for parking in an inappropriate spot.”
Id. at 36, Tr. 144. Yet, when asked why he sought to be formally charged with misconduct,
Angelini testified that he thought it might get the attention of “downtown” and result in his transfer
to another district. Id. at 36-37, Tr. 145-46.
Plaintiff does not remember raising his voice. Id. at 37, Tr. 37. But, he acknowledges that
he “speak[s] loud” and that “[s]ome people take offense to that.” Id. at 37, Tr. 147. In contrast,
Sergeant Brickus testified that when she asked Angelini to move his car, plaintiff “raised his voice,
banged the table, he was just very aggressive even the way that he spoke.” ECF 77-38 at 18, Tr.
67. According to Sergeant Brickus, Angelini continued this behavior during and after she ordered
him to move his vehicle, and then proceeded to engage in a “heated argument” with Sergeant
Drennon in which he was “very aggressive . . . . disrespectful and unprofessional” to her. Id. at
10, Tr. 36.
Following the incident, Sergeant Brokus filed a Form 95, detailing his interaction with
Angelini. See ECF 67-15 (1/18/2013 Brokus Form 95). In the Report, he stated that when
Sergeants Drennon and Brickus instructed Angelini not to park in the NSU parking space, he
replied “Charge Me” because they were out to get him. Id. at 1. Sergeants Brickus and Drennon
filed a Command Investigations Report, in which they wrote that after Sergeant Brickus instructed
Angelini to move his car, he “began to scream ‘Charge me! Charge me then!’” ECF 67-14
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(1/17/2013 Report). In the Report, they characterized Angelini’s behavior as “disrespectful and
insubordinate.” Id.
Angelini, too, filed a Form 95 detailing the incident. He wrote: “I feel that Sgt Drennon
along with Sgt. Brickus do not like me and are out to get me.” ECF 67-18 (1/17/2013 Angelini
Form 95) at 1. He asserted that Sergeant Drennon did not like him because she once told plaintiff
he was a “sneaky” officer and should not apply to the NSU, and because he once wrote a Form 95
against Sergeant Williams, who was dating Sergeant Drennon. Id.; see also ECF 77-3, at 33, Tr.
130. As for Sergeant Brickus, plaintiff explained that she “made an inappropriate comment to
[him] about going to EEOC in front of [his] peers,” specifically: “‘Hey Angelini nice shirt! Are
you going to [EODS] to show off your pecs?’” ECF 67-18 at 2.
The next day, January 18, 2013, Captain Kimberly Burrus suspended Angelini’s police
powers and placed him on administrative duty. See ECF 67-16. Plaintiff testified that he used
vacation days to stay home and avoid working the front desk. ECF 77-39 at 39, Tr. 157. A
“suspension hearing” was held on January 29, 2013, after which it was decided that plaintiff should
remain on administrative duty. See ECF 67-17 at 2. Plaintiff was reinstated to full duty on
February 2, 2013. See ECF 77-39 at 43, Tr. 171. On February 18, 2013, plaintiff filed a Form 70
to transfer to another district, listing “hostile work environment and fear of retaliation” as the basis
for his request. ECF 77-4 at 2; see id. at 3.
Next, plaintiff complains that Sergeant Brickus retaliated against him by not publicly
recognizing him for seizing several firearms. See ECF 49, ¶¶ 30-34; ECF 77-1 at 9-10. While on
patrol in March 2013, plaintiff and Officer Quaranto were dispatched to a call for “someone
shooting a shotgun in their backyard.” ECF 77-3 at 11, Tr. 39; ECF 77-39 at 48, Tr. 190. The
officers encountered an armed suspect and ordered him to drop his gun. When the suspect did not
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respond, Angelini fired at the suspect, killing him. Angelini and Officer Quaranto recovered drugs,
a shotgun, a handgun, and two assault rifles from the suspect. ECF 77-3 at 11, Tr. 39.
According to plaintiff, when a BPD officer recovers guns, the officer customarily receives
public praise. ECF 77-39 at 48, Tr. 191. For instance, the officer’s name is put on “a board called
a gun board” that hung in the station’s hallway, or the officer might receive a service coin or letter
of commendation. Id. at 48, Tr. 191-92. After the shooting, Angelini’s name was placed on the
“gun board,” but he did not receive a letter or any awards. Id. Further, plaintiff claims that he
later learned that Sergeant Brickus made a comment at roll call that his “shooting was bad.” Id. at
49, Tr. 195; see ECF 77-7, ¶ 31. When asked about this, Officer Quaranto commented that the
receipt of awards at BPD was “hit or miss” and that it was “common” for good police work to go
unrecognized. ECF 77-3 at 12, Tr. 44.
Plaintiff renewed his request to transfer to another district on April 23, 2013. ECF 77-4 at
4. The request was denied, but plaintiff was moved to a different shift in the SED. See ECF 7739 at 63, Tr. 211. Sergeant Derwin Jackson became plaintiff’s supervisor. Id. Angelini hoped
that the new shift would allow for a “new start.” ECF 77-7, ¶ 36. But, he alleges that the retaliation
continued. See ECF 49, ¶ 38.
On June 29, 2013, plaintiff fainted from heat exhaustion. According to plaintiff, Major
Davis personally gave him permission to wear a short-sleeve uniform and to cover his arm tattoos
with skin-colored arm bands. ECF 77-39 at 57, Tr. 228. While on patrol on June 29, 2013,
Sergeant Brokus encountered plaintiff wearing a short-sleeve shirt and ordered him to change into
a long-sleeve uniform. Id. at 57, Tr. 229; see ECF 77-37 at 12, Tr. 43. Although it is unclear from
the record, it appears that plaintiff complied. Plaintiff believes that this order was an act of
retaliation. ECF 49, ¶ 41; ECF 77-5, ¶ 38. Later that day, plaintiff overheated and was taken to
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the hospital. See ECF 77-16 (6/29/2013 Mercy Medical Center Records).
Plaintiff was placed on light duty. ECF 77-39 at 58, Tr. 231-33. And, he requested vacation
for the afternoon of July 4, 2013. Id. at 60, Tr. 238. However, Sergeant Brokus told plaintiff that
his schedule had changed and he should expect to work into the evening on July 4 duty. See id. at
60, Tr. 239. When plaintiff pushed back, he claims that Sergeant Brokus sent a squad car to his
house and had the officer transport Angelini to Mercy Hospital for a medical evaluation. Id. at 62,
Tr. 248. As a result, plaintiff spent the holiday waiting in the emergency room at Mercy Hospital.
See id. at 60, Tr. 249. The same day, Angelini completed another Form 70, asking “to be
transferred ASAP due to my hostile work environment” and alleging that he was being “harassed
for some unknown reason.” ECF 77-4 at 9.
According to Sergeant Brokus, he directed another officer to go to plaintiff’s home on July
4th and transport him to the hospital “because it sounded like he was sick . . . .” ECF 77-37 at 13,
Tr. 53. Sergeant Brokus maintained at his deposition that he had an officer transport Angelini
because he did not want Angelini to “hurt himself on the way over to the hospital.” Id. at 13, Tr.
52.
Plaintiff completed yet another Form 70 on July 4, 2013. ECF 77-4 at 9. However, plaintiff
avers that his request was torn up by Captain Burrus. See id. at 10. Captain Burrus does not dispute
that she tore up some of Angelini’s transfer requests. ECF 77-12 (Burrus Deposition) at 10, Tr.
36-37.
The next purported incident of discrimination is rooted in plaintiff’s failure to turn in a
police report in a timely manner. See ECF 49, ¶ 46. On July 25, 2013, Angelini responded to a
call for service and thereafter authored a police report about the incident. ECF 77-39 at 66, Tr.
264-65. Although the report was complete, Angelini did not turn in the report at the end of his
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shift because when he arrived at the station, he did not see anyone from his shift who would receive
the report. Id. Instead, plaintiff kept the police report on his thumb drive. Id.
According to the BPD, Angelini’s actions were contrary to protocol, which requires
officers to leave completed police reports either with an immediate supervisor, another member of
the officer’s shift, or on the shift supervisor’s desk. See id. at 65-66, Tr. 261-62. Angelini
maintains that he did not submit the report on July 25 because he only saw Sergeant Brickus and
she had made clear that she would not accept his reports. Id. at 66, Tr. 265. Further, plaintiff
testified that he did not leave the report unattended because he “feared it would be misplaced as
some reports have been in the past.” Id.; see also ECF 67-19 (7/28/2013 Angelini Form 95). That
said, Angelini was unable to recall a time when one of his reports was misplaced. ECF 77-39 at
67, Tr. 267.
Plaintiff was off from work for the next two days. When plaintiff returned to work on July
28, 2013, he asked Sergeant Jackson if he had received any emails about plaintiff’s application to
join the BPD’s specialized weapons and tactics team (the “SWAT” team). Id. at 67, Tr. 269; see
also ECF 77-24 (7/31/2013 Angelini Form 95). Sergeant Jackson rebuffed his request, saying that
he did not monitor Angelini’s emails. ECF 77-39 at 68, Tr. 271-72. When Angelini was checking
his emails following roll call, Sergeant Jackson asked why there was an unfiled police report on
his desk dated July 25. See ECF 77-24 at 1; see also ECF 77-39 at 68, Tr. 272-73.
Sergeant Jackson then told plaintiff to report to Lieutenant Charles Williams’s office to
discuss the tardy report. See ECF 77-24 at 1. According to plaintiff, Lieutenant Williams told
him to make sure that, in the future, his reports were turned in the same day. Id.; see ECF 77-39
at 69, Tr. 274. At the direction of Sergeant Jackson, plaintiff returned to his cubicle to edit and
submit the report. While doing so, plaintiff overheard Sergeant Jackson tell Sergeant Brokus that
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Angelini had accused him of leaving the station early on July 25. ECF 77-39 at 69, Tr. 274-75.
Plaintiff maintains that he never said this and that Sergeant Jackson lied to Sergeant Brokus in
order to “start more trouble.” Id. at 70, at 278. At that point, Sergeant Brokus responded to
Sergeant Jackson: “‘Fck that mother Fcker. He’s a Fcking liar.’” ECF 77-24 at 3.
Sergeant Brokus then walked past Angelini, at which point plaintiff told Sergeant Brokus
that his comment was not appreciated. Id. Plaintiff testified that Sergeant Brokus then “[g]ot in
[his] face with his finger” and “began berating me, screamed at and yelling at me.” ECF 77-39 at
69, Tr. 275; see also ECF 77-24 (7/31/2013 Angelini Form 95) (describing Sergeant Brokus as
“very angry and hostile”).
Sergeant Jackson recalled Sergeant Brokus cursing at Angelini. See ECF 77-23 at 89. And,
Sergeant Brokus acknowledged during his deposition that he and Angelini got into an argument,
during which he pointed at Angelini and called him a “fcking liar.” ECF 77-37 at 18, Tr. 67.
But, he maintains that he was “about 12 feet” away from Angelini. Id. Sergeant Brokus recounted
that after he called Angelini a liar, Angelini “started to hold his [own] chest” and “kept saying,
Stop assaulting me” and “I can’t breathe . . . .” Id.
Plaintiff began to hyperventilate. Id. at 69, Tr. 276. Lieutenant Williams then emerged
from his office and told plaintiff that he was being put on medical leave. Id.; see ECF 77-37 at 18,
Tr. 67-68. An ambulance was called, and Angelini was transported to the hospital for an
evaluation. See ECF 77-39 at 69, Tr. 277; ECF 77-25 (7/28/2013 BCFD Incident Report).
Following this incident, Angelini was placed on medical suspension for one day. See ECF 77-39
at 70, Tr. 279; see ECF 66-22 (7/28/2013 Suspension Form). Plaintiff completed yet another Form
70 on July 28, 2013. See ECF 77-4 at 12.
As further evidence of retaliation, plaintiff claims that his BPD supervisors concealed that
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he was selected for SWAT tryouts. See ECF 49, ¶ 49; ECF 77-1 at 29. The SWAT team is a
selective unit which hosts practice tryouts, actual tryouts, and then SWAT school for candidates
who pass the tryout. See ECF 77-19 (Coughlin Deposition) at 3, Tr. 8. Only a quarter of the
candidates who try out for SWAT earn a spot on the SWAT team. Id. at 3, Tr. 9. To participate
in the SWAT tryout, an officer must attend a day-long training event. Id. And, an officer must
obtain permission from his supervisors before trying out for the SWAT team. Id. at 4, Tr. 13.
On June 14, 213, plaintiff requested to participate in the tryouts scheduled for July 29,
2013. See ECF 77-20 (7/2013 Emails). And, on July 1, 2013, Lieutenant Mark Howe, the
Commanding Officer of BPD’s SWAT team, issued a memorandum to the Deputy Commissioner
of the Neighborhood Patrol Bureau requesting that selected individuals, including Angelini,
participate in SWAT tryouts. See ECF 77-21. However, plaintiff did not receive the order
detailing him to the SWAT team tryout for July 29. See ECF 77-39 at 108, Tr. 432. As a result,
plaintiff did not attend and was marked absent. See ECF 77-22.
According to Sergeant Brokus, the order would have been addressed to plaintiff’s
immediate supervisor, who was Sergeant Jackson at the time. ECF 77-37 at 19, Tr. 72. When
asked if he received a communication concerning Angelini’s SWAT tryout, Sergeant Jackson
stated, ECF 77-23 at 70: “I do not have any recollection of any notification as it pertains to Officer
Angelini of any SWAT tryouts.”
On August 8, 2013, plaintiff was transferred to the “Northeastern District” (the “NED”).
ECF 78-2; see ECF 77-39 at 72, Tr. 287-88. Plaintiff contends that his superiors in the SED sought
to sully his reputation in his new district. He claims that Sergeant Mark Rutkowski, his first
supervisor at the NED, told him that his previous supervisors had recommended that he be
supervised for 30 days. See id. at 75, Tr. 299-300. Sergeant Rutkowski confirmed at his deposition
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that when Angelini was transferred his paperwork contained a notation recommending “early
intervention,” including monitoring. ECF 77 at 27 at 4, Tr. 10. According to Sergeant Rutkowski,
this notification is “nothing punitive” and can be triggered for being involved in several accidents
in one year or failing to appear for court. Id. Further, plaintiff points out that Major Richard
Worley, who was stationed in the NED at the time, testified that hat he was told by someone “that
[Angelini] got kicked out of the Southeast District.” ECF 77-5 at 9, Tr. 30. It is undisputed that
plaintiff was never placed on probation while at the NED.
Although plaintiff had relocated to a new district, he maintains that he has continued to
face retaliation from his former supervisors from the SED. See ECF 49, ¶ 54; EF 77-1 at 16-18.
Specifically, plaintiff claims that he has been repeatedly targeted by the BPDs’ Internal Affairs
Department (“IAD”) for discipline. ECF 49, ¶¶ 58, 64-66.
On December 10, 2014, IAD charged plaintiff with violating the BPD code of conduct for
being “rude and/or discourteous” while processing evidence at the BPD’s Evidence Control Unit
on January 9, 2014. ECF 67-23 at 2. Following a hearing held on May 12, 2015, Angelini, who
was represented by counsel throughout the administrative process, agreed to accept the
recommended punishment of a four-day suspension without pay. Id. at 8.
Plaintiff was again disciplined in August 2017 for his behavior during the pursuit of a
juvenile. In September 2016, Sandra Goldthorpe, the Chief of the Evidence Review Unit for the
State’s Attorney’s Office for Baltimore City, contacted IAD, requesting that it review footage from
a body worn camera capturing Angelini making inappropriate comments to a juvenile defendant
during an arrest that occurred on August 3, 2016. See ECF 67-24 at 2. The IAD subsequently
charged plaintiff in February 2017 with violating the BPD’s conduct of conduct. Id. at 6-9.
Following a hearing, plaintiff was issued a letter of reprimand and ordered to attend de-escalation
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training. Id. at 19-20, 23.
In June 2017, IAD charged plaintiff with being discourteous to a civilian during a traffic
stop on May 26, 2017. See ECF 67-27 (Sealed) at 28. For his conduct, the BPD issued Angelini
a letter of reprimand. Following an IAD investigation, the charges were sustained on January 23,
2018. See id. at 18-24.
In January 2018, Angelini was charged by IAD with engaging in inappropriate behavior
while attending Level 1 Crash Investigation School between March 6 and 10, 2017. See ECF 6726 (Sealed) at 1-12. In particular, plaintiff was accused of making rude comments, missing blocks
of instruction, and texting during class. See id. Plaintiff elected to proceed to a hearing board, and
the case is still pending. See ECF 77-39 at 95, Tr. 379.
Further, plaintiff claims that he was harassed by BPD’s former counsel in this litigation,
Assistant City Solicitor Colin Glynn. ECF 49, ¶ 80; ECF 77-1 at 21.6 On April 5, 2018, Glynn
sent materials exchanged during discovery, including the depositions of Angelini and his wife, to
IAD regarding possible misconduct by Angelini. See ECF 77-34 (4/5/2018 Emails) at 2; ECF 6728. Specifically, the investigation concerned whether Angelini improperly disclosed sensitive law
enforcement information during the course of this litigation. Sergeant Williams was included on
the email. Id. Ultimately, the charges were not sustained and the IAD closed the case on April 2,
2019. See ECF 67-28.
Plaintiff is “100 percent” convinced that these investigations constitute retaliation. See id.
at 95, Tr. 379-80. He posits that these investigations were directed or influenced by Sergeants
Williams and Brokus, who transferred to the IAD sometime in 2015 or 2016. See ECF 77-1 at 16-
6
Plaintiff asserts in ECF 49, ¶ 80 that Glynn is a former Assistant City Solicitor. Glynn
moved to withdraw as the BPD’s counsel on January 2, 2019. ECF 37. The Court granted the
motion the same day. ECF 38.
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17; ECF 77-37 at 21, Tr. 78-81. Plaintiff points out that in 2016, Sergeant Williams supervised
IAD Detective Robert Cornejo, who investigated one of plaintiff’s cases. See ECF 77-28 at 5, Tr.
15. Detective Cornejo testified that he was unaware that Sergeant Williams previously supervised
Angelini. Id. at 5, Tr. 16. However, Detective Cornejo also testified that Sergeant Williams “did
not add or remove any information” that Cornejo “put in through [his] investigation.” Id. at 5, Tr.
15.
B. Procedural History
On April 24, 2014, plaintiff filed a Charge of Discrimination (the “Charge”) with the
Baltimore Community Relations Commission and the Equal Employment Opportunity
Commission (“EEOC”). ECF 67-1 (4/24/2014 Charge) at 5. Plaintiff checked the boxes for
“Retaliation” and “Continuing Action,” and he identified October 3, 2012, as the start of his
discrimination. Id. In the narrative portion of the Charge, plaintiff stated, id. at 5-6:
I began working for the above employer on May 4, 2006, as a Police Officer.
I have been sexually harassed in October 3, 2012, from an incident that occurred at
a family member’s home. I have received sexually [sic] graffiti written in the men’s
restroom about me [and] another officer and some had been written on my official
service vehicle. I reported it to Internal Affairs on October 3, 2012 and I filed an
internal EEO complaint. No one has responded to my complaints. I have also
requested on several occasions to be transferred to another district starting from
October 2012 and my requests were denied due to the hostile work environment.
On February 18, 2013, my transfer request was approved but no one informed of
the approval. On April 21, 2013, I submitted several more requested [sic] because
of the harassment had gotten worst [sic], in the form of suspensions, hostile work
environment, not receiving awards or citations for outstanding work and my
requests for a transfer were not being acknowledge [sic] without any reason given.
In April 2013, I was switched to a new section and placed on a different shift for
safety purposes. On June 26, 2013, I requested a meeting with upper management
to discuss the events that were happening to me and my request was denied without
a reason given. Finally, on July 28, 2013, I submitted another request for a transfer
and rewrote my reason for transferring and it was granted. I was transferred to a
new district in March 2014, and I feel that because of my past complaints, my work
environment there has become hostile and unfair. I found out that there were several
statements in my file for insubordination from my old district, which I did not know
about until I got to my new district.
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On March 21, 2016, plaintiff, through attorney Jack Ryan Terziu and the Law Offices of
Terziu & Bennett, filed a Voluntary Petition for Bankruptcy Protection under Chapter 7, in the
Bankruptcy Court for the District of Maryland. ECF 67-32 (the “Petition”); ECF 67-33 (History).
At the time, plaintiff’s complaint with the EEOC was pending. Of relevance here, plaintiff did not
disclose his pending EEOC Charge as an asset in the Petition. Instead, plaintiff marked “no” in
response to the question included in the Petition as to whether he had any “claims against third
parties, whether or not you have filed a lawsuit or made a demand for payment.” Id. at 14. The
bankruptcy court issued an Order of Discharge on June 29, 2016. Id. at 62.
On May 18, 2017, plaintiff received a right-to-sue letter from the EEOC. ECF 1-1. This
suit followed on August 16, 2017. ECF 1.
Additional facts are included, infra.
II.
Legal Standards
A. Summary Judgment
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate
only “if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24
(1986); see also Cybernet, LLC v. David, 954 F.3d 162, 168 (4th Cir. 2020); Variety Stores, Inc.
Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th Cir. 2018); Iraq Middle Mkt. Dev. Found v.
Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017). To avoid summary judgment, the nonmoving party
must demonstrate that there is a genuine dispute of material fact so as to preclude the award of
summary judgment as a matter of law. Ricci v. DeStefano, 557 U.S. 557, 585-86 (2009);
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); see also
Gordon v. CIGNA Corp., 890 F.3d 463, 470 (4th Cir. 2018).
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The Supreme Court has clarified that not every factual dispute will defeat a summary
judgment motion. “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly supported motion
for summary judgment; the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is
“material” if it “might affect the outcome of the suit under the governing law.” Id. at 248.
There is a genuine issue as to material fact “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id.; see CTB, Inc. v. Hog Slat, Inc., 954 F.3d 647,
658 (4th Cir. 2020); Variety Stores, Inc., 888 F.3d at 659; Sharif v. United Airlines, Inc., 841 F.3d
199, 2014 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On
the other hand, summary judgment is appropriate if the evidence “is so one-sided that one party
must prevail as a matter of law.” Anderson, 477 U.S. at 252. But, “the mere existence of a scintilla
of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on
which the jury could reasonably find for the plaintiff.” Id.
“A party opposing a properly supported motion for summary judgment ‘may not rest upon
the mere allegations or denials of [her] pleadings,’ but rather must ‘set forth specific facts showing
that there is a genuine issue for trial.’” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,
522 (4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)), cert. denied, 541 U.S. 1042 (2004); see
also Celotex, 477 U.S. at 322-24. And, the court must view all of the facts, including reasonable
inferences to be drawn from them, in the light most favorable to the nonmoving party. Ricci, 557
U.S. at 585-86; Matsushita Elec. Indus. Co., 475 U.S. at 587; accord Hannah P. v. Coats, 916 F.3d
327, 336 (4th Cir. 2019); Variety Stores, Inc., 888 F.3d at 659; Gordon, 890 F.3d at 470; Lee v.
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Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th
Cir. 2013).
The district court’s “function” is not “to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249;
accord Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in
considering a summary judgment motion, the court may not make credibility determinations.
Wilson v. Prince George’s Cty., 893 F.3d 213, 218-19 (4th Cir. 2018); Jacobs v. N.C. Admin.
Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499
F.3d 345, 352 (4th Cir. 2007). Therefore, in the face of conflicting evidence, such as competing
affidavits, summary judgment ordinarily is not appropriate, because it is the function of the factfinder to resolve factual disputes, including matters of witness credibility. See Black & Decker
Corp. v. United States, 436 F.3d 431, 442 (4th Cir. 2006); Dennis v. Columbia Colleton Med. Ctr.,
Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). That said, “a party’s ‘self-serving opinion . . . cannot,
absent objective corroboration, defeat summary judgment.’” CTB, Inc., 954 F.3d at 658-59
(quoting Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004)). In other words,
“[u]nsupported speculation is not sufficient to defeat a summary judgment motion.” Felty v.
Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987); accord Harris v. Home Sales Co.,
499 F. App’x 285, 294 (4th Cir. 2012).
B. Title VII Generally
The Second Amended Complaint contains claims for sex discrimination, hostile work
environment, and retaliation, based on Title VII. ECF 49, ¶¶ 99-106.
Title VII prohibits an employer, inter alia, from discriminating against “any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of such
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individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2. The Supreme
Court has referred to discrimination based on one of these five characteristics as “status-based
discrimination.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 351 (2013).
Title VII also bars retaliation based on an employee’s opposition to conduct made unlawful
by Title VII, or for participation in a Title VII investigation or proceeding. 42 U.S.C. § 2000e–3;
see e.g., Perkins v. Int’l Paper Co., 936 F.3d 196, 213 (4th Cir. 2019); Ray v. Int’l Paper Co., 909
F.3d 661, 666 (4th Cir. 2018); Netter v. Barnes, 908 F.3d 932, 937 (4th Cir. 2018); Strothers v.
City of Laurel, 895 F. 3d 317, 326-27 (4th Cir. 2018); DeMasters v. Carilion Clinic, 796 F.3d 409,
416 (4th Cir. 2015); Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 298 (4th Cir. 2015) (en
banc); Freeman v. Dal-Tile Corp., 750 F.3d 413, 420 (4th Cir. 2014). The purpose of Title VII's
antiretaliation provision is to “[m]aintain[] unfettered access to statutory remedial mechanisms”
for employees who fear reprisal. Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997). Thus, an
employer violates Title VII by taking an adverse employment action against an employee because
that employee exercised his rights under Title VII.
In addition to prohibiting discrete acts of discrimination, Title VII prohibits “the creation
or perpetuation of a discriminatory work environment.” Vance v. Ball State Univ., 570 U.S. 421,
426 (2013). An actionable hostile work environment exists when “‘the workplace is permeated
with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter
the conditions of the victim's employment and create an abusive working environment.’” Boyer–
Liberto, 786 F.3d at 298 (citation omitted).
Before filing suit under Title VII, however, a plaintiff must exhaust administrative
remedies. See Patterson v. McLean Credit Union, 491 U.S. 164, 181 (1989) (private sector
employees), superseded on other grounds by 42 U.S.C. § 1981(b); Brown v. Gen. Servs. Admin.,
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425 U.S. 820, 832 (1976) (federal employees); see also McCray v. Md. Dep’t of Transp., 662 F.
App’x 221, 224 (4th Cir. 2016). To do so, a plaintiff must file a “charge” of discrimination with
the EEOC or an appropriate state or local agency within 180 days of “the alleged unlawful
employment practice occurred.” 42 U.S.C. § 2000e–5(e)(1); Williams v. Giant Food Inc., 370
F.3d 423, 428 (4th Cir. 2004). This period is extended to 300 days in a deferral state, such as
Maryland. See Garnes v. Maryland, RDB-17-1430, 2018 WL 276425, at *4, n.8 (D. Md. Jan. 3,
2018); Valderrama v. Honeywell Tech. Sols., Inc., 473 F. Supp. 2d 658, 662 n.4 (D. Md. 2007),
aff'd, 267 F. App’x 256 (4th Cir. 2008).
However, exhaustion under Title VII is not jurisdictional. See Fort Bend Cty. v. Davis,
___ U.S. ___, 139 S. Ct. 1843, 1846, 1850 (2019). Rather, it is a “claim-processing rule[] that
must be timely raised to come into play.” Id. at 1846.
In general, at trial a plaintiff may establish discrimination or retaliation under Title VII
through two avenues of proof. See Thomas v. Delmarva Power & Light Co., 715 F. App’x 301,
302 (4th Cir. 2018) (per curiam) (discussing discrimination), abrogated on other grounds by Univ.
of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013); EEOC v. Navy Fed. Credit Union, 424 F.3d
397, 405-06 (4th Cir. 2005) (discussing retaliation). The plaintiff’s first avenue is to offer “‘direct
or indirect’” evidence of discrimination under “‘ordinary principles of proof.’” Burns v. AAFMcQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (citation omitted). The plaintiff’s second avenue
is to follow the burden-shifting approach first articulated by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Young v. United Parcel Serv., Inc., 569
U.S. 206, 228-29 (2015) (construing the Pregnancy Discrimination Act); Guessous v. Fairview
Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016) (discussing the McDonnell Douglas
framework).
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As indicated, these avenues of proof pertain to trial. At this juncture, reference to these
methodologies merely serves to inform a court’s evaluation of a motion for summary judgment.
See Haynes v. Waste Connections, Inc., 922 F.3d 219, 223 (4th Cir. 2019) (recognizing that a Title
VII plaintiff may avoid summary judgment by proceeding under the framework established in
McDonnell Douglas Corp); Pettis v. Nottoway Cty. Sch. Bd., 592 F. App’x 158, 160 (4th Cir. 2014)
(stating that a plaintiff asserting racial discrimination “may avoid summary judgment by proceeding
under the burden-shifting framework established in McDonnell Douglas”).
The McDonnell Douglas proof scheme is “a procedural device, designed only to establish
an order of proof and production.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 521 (1993)
(emphasis omitted). Notably, “the McDonnell Douglas test is inapplicable where the plaintiff
presents direct evidence of discrimination.” Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,
121 (1985). Under the McDonnell Douglas approach, the “‘ultimate burden of persuading the trier
of fact that the defendant intentionally discriminated against the plaintiff remains at all times with
the plaintiff.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (quoting
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)); see also Westmoreland v. TWC
Admin. LLC, 924 F.3d 718, 726 (4th Cir. 2019); Hoyle v. Freightliner, LLC, 650 F.3d 321, 336
(4th Cir. 2011).
If the plaintiff chooses to proceed at trial under the McDonnell Douglas approach, the
plaintiff must first establish a “prima facie case of discrimination.” Merritt v. Old Dominion
Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010); see Abilt v. Cent. Intelligence Agency, 848
F.3d 305, 315 (4th Cir. 2017). Although the precise formulation of the required prima facie
showing will vary in “different factual situations,” McDonnell Douglas, 411 U.S. at 802 n.13, the
plaintiff is generally required to show that the employer took adverse action against an applicant
“under circumstances which give rise to an inference of unlawful discrimination.” Burdine, 450
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U.S. at 253.
To establish a prima facie claim of discrimination under McDonnell Douglas, the plaintiff
must demonstrate “‘(1) membership in a protected class; (2) satisfactory job performance; (3)
adverse employment action; and (4) different treatment from similarly situated employees outside
the protected class.’” Goode v. Cent. Va. Legal Aid Soc., Inc., 807 F.3d 619, 626 (4th Cir. 2015)
(citation omitted); see also Matias v. Elon Univ., 780 F. App’x 28, 31 (4th Cir. 2019). Similarly,
to establish a prima facie case of retaliation under McDonnell Douglas, a plaintiff must present
facts that establish “(1) that [he] engaged in a protected activity; (2) that [his] employer took an
adverse employment action against [him]; and (3) that there was a causal link between the two
events.” Navy Fed. Credit Union, 424 F.3d at 405-06; see also Boyer-Liberto, 786 F.3d at 281.
If a plaintiff establishes a prima facie case of unlawful discrimination or retaliation, “a
presumption of illegal discrimination arises, and the burden of production shifts to the employer”
to produce evidence of a legitimate, non-discriminatory reason for its adverse employment action.
Hoyle, 650 F.3d at 336; see Reeves, 530 U.S. at 142; Hurst v. District of Columbia, 681 F. App’x
186, 189-90 (4th Cir. 2017) (per curiam). “If the defendant carries this burden of production, the
presumption raised by the prima facie case is rebutted.” Burdine, 450 U.S. at 255. In that
circumstance, “the McDonnell Douglas framework—with its presumptions and burdens—is no
longer relevant,” and “simply drops out of the picture.” St. Mary’s Honor Ctr., 509 U.S. at 51011. The plaintiff must then prove, by a preponderance of evidence, “that the [employer’s]
proffered reason was not the true reason for the employment decision” and that the plaintiff “has
been the victim of intentional discrimination.” Burdine, 450 U.S. at 256; see also Reeves, 530
U.S. at 143; St. Mary’s Honor Ctr., 509 U.S. at 516-20; Adams v. Trs. of Univ. of North CarolinaWilmington, 640 F.3d 550, 560 (4th Cir. 2011) (“[I]n demonstrating the Defendants’ decision was
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pretext, [plaintiff] had to prove ‘both that the reason was false, and that discrimination was the real
reason.’”) (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995)) (emphasis
in original).
Conversely, if the defendant does not submit evidence of a legitimate basis for its actions,
the factfinder may “infer discriminatory animus because experience has proved that in the absence
of any other explanation it is more likely than not that those actions were bottomed on
impermissible considerations.” Furnco Const. Corp. v. Waters, 438 U.S. 567, 579-80 (1978).
And, if the defendant fails to meet the burden of producing “evidence which, taken as true, would
permit the conclusion that there was a nondiscriminatory reason for the adverse action,” then “the
court must award judgment to the plaintiff as a matter of law.” St. Mary’s Honor Ctr., 509 U.S.
at 509 (emphasis in original). This is because a legal presumption of intentional discrimination has
been established. Id. at 510 n.3; see Burdine, 450 U.S. at 255 n.8 (“[T]he allocation of burdens
. . . is intended progressively to sharpen the inquiry into the elusive factual question of intentional
discrimination.”).
III.
Discussion
At the outset, the BPD raises a host of threshold defenses to plaintiff’s suit, including
judicial estoppel, statute of limitations, administrative exhaustion, and state sovereign immunity.
ECF 66-1 at 20-27. In particular, defendant argues that Angelini’s failure to disclose his EEOC
Charge during his bankruptcy proceedings precludes him from pursuing Title VII claims against
the BPD. See id. at 20-23. The BPD also argues that plaintiff’s suit is untimely because it is
predicated on the October 2012 graffiti incident, but he did not file his EEOC Charge until April
2014. Id. at 23-26. And, the BPD contends that plaintiff has not exhausted his sexual harassment
claim, because it is not within the scope of his Charge. Id. at 26-27. Further, the BPD maintains
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that state sovereign immunity bars plaintiff’s claim for invasion of privacy. Id. at 33-35.
On the merits, the BPD argues that Angelini cannot establish a claim for sex discrimination.
See id. at 27-28. In addition, defendant asserts that there are no triable issues as to plaintiff’s hostile
work environment because he has not shown that he was subject to unwelcome conduct or that
such conduct was based on his membership in a protected class. Id. at 28-30. The BPD also
maintains that there is no genuine issue of material fact regarding Angelini’s retaliation claim
because he has, at most, adduced evidence of petty slights and annoyances, not actionable adverse
actions. See id. at 30-33.
Plaintiff failed to respond to defendant’s challenges to his sex discrimination claim. Thus,
he has abandoned that claim. See, e.g., Blanch v. Chubb & Sons, Inc., 124 F. Supp. 3d 622, 641
(D. Md. 2015); Mentch v. E. Sav. Bank, FSB, 949 F. Supp. 1236, 1247 (D. Md. 1997). And,
plaintiff expressly jettisons his invasion of privacy claim. ECF 77-1 at 2. However, plaintiff
strenuously argues that his hostile work environment and retaliation claims are viable and that he
has raised triable issues of fact as to these claims, so as to preclude summary judgment. Id. at 2434.
A. Affidavits
As a preliminary matter, in its Reply the BPD urges the Court to disregard Angelini’s
Affidavit of January 5, 2020 (ECF 77-7) as a sham affidavit. ECF 81 at 3. In this regard, the BDP
argues that the Angelini Affidavit is “riddled with contradictions” and “flatly contradicts”
plaintiff’s earlier sworn testimony. Id. Further, the BPD asserts that the Court should strike the
affidavits of Ed Gordon (ECF 77-35), a retired BPD police officer who served with plaintiff, and
Francis Charles Davidson (ECF 77-30), a retired BPD officer who does not know anyone in the
case, on the ground that these witnesses were not previously disclosed and lack “first-hand
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knowledge as to the allegations at issue in this case.” ECF 81 at 7. I turn first to Angelini’s
Affidavit.
The “sham affidavit rule” was articulated by the Second Circuit in Perma Rsch. & Dev.
Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969). There, the court considered an affidavit in
which Perma’s president averred that a representative of Singer had told him that Singer never had
any intention of performing on the contract at issue in the case. See id. at 577. At summary
judgment, Perma advanced the affidavit, recounting this conversation as evidence of Singer’s
fraud. However, Perma’s president had not previously mentioned the alleged conversation in four
days of deposition testimony, even though he had been directly questioned as to any evidence he
possessed of Singer’s intention not to perform the contract. Id. The Second Circuit affirmed the
trial court’s award of summary judgment to the defendant, stating that the trial court “could
properly conclude that the statement made in the affidavit was less reliable than the contradictory
statements in the deposition, and that it did not raise a triable issue of fraud.” Id. (internal citation
omitted). It reasoned: “If a party who has been examined at length on deposition could raise an
issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would
greatly diminish the utility of summary judgment as a procedure for screening out sham issues of
fact.” Id. at 578.
The Fourth Circuit adopted the rationale of Perma in Barwick v. Celotex Corp., 736 F.2d
946, 960 (4th Cir. 1984), reasoning that a “genuine issue of material fact is not created where the
only issue of fact is to determine which of the two conflicting versions of the plaintiff’s testimony
is correct.” Later, in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), the Supreme
Court provided the following formulation of the sham affidavit rule, stating, id. at 806: “[A] party
cannot create a genuine issue of fact sufficient to survive summary judgment simply by
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contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly
contradicts that party’s earlier sworn deposition) without explaining the contradiction or
attempting to resolve the disparity.”
The Fourth Circuit has since reaffirmed that a party “may not avoid summary judgment by
submitting contradictory evidence” with regard to earlier assertions. Williams v. Genex Servs.,
LLC, 809 F.3d 103, 110 (4th Cir. 2015). It reiterated that allowing a party to do so would “‘greatly
diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’”
Id. (citing Barwick, 736 F.2d at 960).
Notably, “‘[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.’” Okoli v. City of
Baltimore, 648 F.3d 216, 231 (4th Cir. 2011) (quoting Anderson, 477 U.S. at 255). In order to
avoid infringing upon the province of the fact finder, application of the sham affidavit rule at the
summary judgment stage must be carefully limited to situations involving flat contradictions of
material fact. What the Ninth Circuit said in Van Asdale v. Int’l Game Tech., 577 F.3d 989, 99899 (9th Cir. 2009) (internal citation and quotation marks omitted), is salient:
[T]he inconsistency between a party’s deposition testimony and subsequent
affidavit must be clear and unambiguous to justify striking the affidavit. Thus, the
non-moving party is not precluded from elaborating upon, explaining or clarifying
prior testimony elicited by opposing counsel on deposition [and] minor
inconsistencies that result from an honest discrepancy, a mistake, or newly
discovered evidence afford no basis for excluding an opposition affidavit.
Defendant has not identified any irreconcilable conflicts between the Angelini Affidavit
and plaintiff’s deposition testimony. To the extent that the BPD argues that the Affidavit “relies
heavily on rumors and lacks any personal knowledge,” see ECF 81 at 4, these purported flaws bear
on the admissibility of the averments. But, hearsay does not implicate the sham affidavit rule.
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The only conflict that the BPD identifies between the Affidavit and plaintiff’s deposition
concerns whether plaintiff had personal knowledge that anyone at the BPD knew of his father’s
sexuality. Id. at 3. In the Affidavit, plaintiff states: “I struggled with making the complaint because
my family’s history had become fodder for the rumor mill of the SED and because I feared
retaliation from BPD.” ECF 77-7, ¶ 4. According to defendant, this averment clashes with the
following deposition testimony, ECF 77-39 at 13-14, Tr. 53-54:
Mr. Glynn (BPD counsel): Did Officer Kamberger indicate to you that he had any
knowledge about your father’s sexual orientation at that time?
Angelini: He just basically said that your mom and dad has a [sic] issue going on.
And at that time, I stopped him and said I didn’t want to speak to him anymore
about it.· It’s a private matter.
Glynn: Are you aware of any other involvement between the Southeast District
police officers and your parents other than the two – the one incident you just
described with Sgt. Kamberger – or Officer Kamberger, I’m sorry?
Angelini: The best of my recollection at this time, I don’t – I don’t know if they
called any other times without my knowledge. I don’t know.
Glynn: Other than Officer Kamberger, did any other officers ever approach you in
2012 to speak to you about your parents?
Angelini: No, sir.
Glynn: Did any other officers ever approach you and speak to you about your
father's sexuality?
Angelini: No, sir.
Glynn: Did you personally over – observe or overhear communications by other
BPD employees about your father's sexuality?
Angelini: No, sir.
Glynn: Were you told by other people that other BPD employees were discussing
your father's sexuality?
Angelini: No, sir.
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But, this testimony reveals that at least one officer, Officer Kamberger, knew about
Angelini’s family issues. Further, the BPD overlooks other deposition testimony that aligns with
plaintiff’s Affidavit. Plaintiff testified that his family’s history was well known because “the
police were called multiple times” to his parents’ house. ECF 77-39 at 13, Tr. 52. And, Angelini
testified that he “observed things” that led him to believe that his family’s circumstances were the
subject of office gossip. Id., Tr. 55.
Many of the concerns identified by the BPD could provide fertile ground for crossexamination of Angelini. Ultimately, a jury may not find plaintiff’s testimony credible. But, the
statements with which defendant takes issue are not so in tension with plaintiff’s deposition as to
warrant application of the sham affidavit rule.
In contrast, in assessing the Motion, I shall not consider the Gordon Affidavit and the
Davidson Affidavit. As noted, Gordon is a retired police officer who served with Angelini in the
SED. ECF 77-35. In his Affidavit, Gordon recalls that supervisors were “critical” of the quality
of Angelini’s shooting in March 2013, and that during his time at the BPD he “heard” various
rumors concerning Angelini. Id. Davidson, who served in the BPD from 1996 through 2015,
describes the culture of the BPD in his Affidavit. ECF 77-30.
Defendant moved to strike the Gordon Affidavit on the ground that plaintiff did not
disclose his identity during discovery. ECF 81 at 6. To be sure, the failure to disclose a witness
may preclude the consideration of an affidavit at summary judgment. Fed. R. Civ. P. 37(c)(1); see
So. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 596 (4th Cir. 2003).
However, the BPD has not provided the Court with plaintiff’s answers to its interrogatories, and
the Court cannot rely on the BPD’s word that Gordon was never disclosed.
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However, the BPD also asserts that the Court should disregard the Gordon Affidavit
because it is predicated on hearsay. ECF 81 at 6. “Hearsay is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Fed. R. Evid. 801(c). A review of the information contained in the Gordon
Affidavit reveals many averments that constitute hearsay. For example, Gordon states that
although he “did not know of any allegations in the South District . . . [he] did hear Angelini was
the subject of various rumors.” ECF 77-35, ¶ 5. And, he states that he “heard an additional rumor
about Angelini after [he] transferred to Internal Affairs.” Id. ¶ 9. But, other averments are based
on Gordon’s personal knowledge, such as his statement that he knew Angelini and believed him
to be “a good, hard working police officer.” See, e.g., id. ¶ 8. As such, the Court will not strike
the entire Gordon Affidavit, but it will disregard those statements premised on impermissible
hearsay. See, e.g., Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996).
I shall disregard the Davidson Affidavit, albeit for a different reason. Davidson, who
worked as a BPD officer from 1996 to 2015, acknowledges that he “do[es] not personally know
any of the persons involved in the above captioned case.” ECF 77-30, ¶ 9. Rather, Davidson’s
averments concern BPD’s policies, specifically “the inconsistent application of departmental
policies and procedures pertaining to the issuing, investigating and/or resolving of internally
generated grievances or complaints.” Id. ¶ 17. Such opinion testimony is premature at this
juncture, however. Pursuant to the Court’s Scheduling Order, expert discovery was deferred until
after the resolution of dispositive motions. ECF 44 at 2. Therefore, I shall disregard the Davidson
Affidavit as improper expert testimony.
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B. Judicial Estoppel
The BPD invokes the doctrine of judicial estoppel. It contends that because plaintiff did
not disclose his EEOC Charge during his bankruptcy proceedings, he is foreclosed from pursuing
Title VII claims against the BPD. ECF 66-1 at 20-23.
“‘Judicial estoppel precludes a party from adopting a position that is inconsistent with a
stance taken in prior litigation.’” Minnieland Priv. Day Sch., Inc. v. Applied Underwriters Captive
Risk Assurance Co., Inc., 867 F.3d 449, 457 (4th Cir. 2017) (quoting John S. Clark Co. v. Faggert
& Frieden, P.C., 65 F.3d 26, 28 (4th Cir. 1995)); see Martineau v. Wier, 934 F.3d 385, 393 (4th
Cir. 2019); Zinkand v. Brown, 478 F.3d 634, 638 (4th Cir. 2007). An equitable doctrine, judicial
estoppel is “designed to ‘protect the integrity of the judicial process by prohibiting parties from
deliberately changing positions according to the exigencies of the moment.’” Martineau, 934 F.3d
at 393 (quoting New Hampshire v. Maine, 532 U.S. 742, 749-50 (2001)); see Folio v. City of
Clarksburg, 134 F.3d 1211, 1217 (4th Cir. 1998) (observing that judicial estoppel “exists to
prevent litigants from playing ‘fast and loose’ with the courts”).
Given its equitable nature, judicial estoppel should be applied cautiously. See Faggert &
Frieden, 65 F.3d at 29 (instructing that “courts must apply the doctrine with caution”); accord
Thomas v. FTS USA, LLC, 193 F. Supp. 3d 623, 639 (E.D. Va. 2016) (observing that judicial
estoppel is an “‘extraordinary remed[y] to be invoked when a party’s inconsistent behavior will
otherwise result in a miscarriage of justice’”) (citation omitted). In the Fourth Circuit, judicial
estoppel is appropriate only where: “(1) the party sought to be estopped must be seeking to adopt
a position that is inconsistent with a stance taken in prior litigation; (2) the position sought to be
estopped must be one of fact rather than law or legal theory; (3) the prior inconsistent position
must have been accepted by the court; and (4) the party sought to be estopped must have
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intentionally misled the court to gain unfair advantage.” Minnieland, 867 F.3d at 458 (internal
quotation marks and citation omitted); see Martineau, 934 F.3d at 393. This is a fact-intensive
inquiry. See Martineau, 934 F.3d at 394. In the context of this case, the inquiry intersects with
bankruptcy law.
To initiate the federal bankruptcy process, the debtor must disclose in his bankruptcy
petition a “schedule of assets and liabilities.” 11 U.S.C. §§ 521(a)(1)(B)(i), 541(a)(1); see also
Thomas, 193 F. Supp. 3d at 639. The petition requires a debtor to list “all personal property of the
debtor of whatever kind,” and property of a bankruptcy estate compromises “all legal or equitable
interests of the debtor in property as of commencement of the case.” 11 U.S.C. § 541(a)(1). This
definition has “‘uniformly been interpreted to include causes of action,’” including those not yet
filed. Logan v. JKV Real Estate Servs. (In re Bogdan), 414 F.3d 507, 512 (4th Cir. 2005) (citation
omitted); see Martineau, 934 F.3d at 388; Calafiore v. Werner Enters., Inc., 418 F. Supp. 2d 795,
797 (D. Md. 2006) (observing that courts have interpreted § 541(a)(1) to include causes of action
that could be brought by the debtor).
Therefore, a debtor has an obligation to reveal all potential legal claims upon the initiation
of bankruptcy proceedings. See Thomas, 193 F. Supp. 3d at 639; Calafiore, 418 F. Supp. 2d at
797; In re USinternetworking, Inc., 310 B.R. 274, 282 (Bankr. D. Md. 2004). Further, the debtor’s
duty to disclose his property is a continuing one, meaning the debtor is required to disclose all
potential causes of action throughout the duration of the bankruptcy proceedings. See Martineau,
934 F.3d at 397; Thomas, 193 F. Supp. 3d at 639; Calafiore, 418 F. Supp. 2d at 797;
USinternetworking, 310 B.R. at 282; see also 11 U.S.C. § 1306(a)(1).
“Judicial estoppel has often been applied to bar a civil law suit brought by a plaintiff who
concealed the existence of the legal claim from creditors by omitting the lawsuit from his
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bankruptcy petition.” Whitten v. Fred’s, Inc., 601 F.3d 231, 241 (4th Cir. 2010), abrogated on
other grounds by Vance, 570 U.S. 421; see also Martineau, 934 F.3d at 393-94 (expounding on
judicial estoppel in the context of a lawsuit following bankruptcy); Calafiore, 418 F. Supp. 2d at
797 (same). Indeed, “where a debtor fails to list a potential claim in a bankruptcy petition—or
fails to amend that petition when the claim becomes known—the doctrine of judicial estoppel
could potentially bar the debtor from bringing that claim in a later proceeding.” Calafiore, 418 F.
Supp. 2d at 797.
Of relevance here, courts in the Fourth Circuit have found that failure to disclose a pending
EEOC charge during bankruptcy proceedings may estop a plaintiff from asserting a Title VII claim
against an employer. See Smith v. Bishop Gadsden Episcopal Ret. Cmty., 2017 WL No. 2:16-cv03113-DCN, 4923733 (D.S.C. Oct. 31, 2017); Robertson v. Flowers Baking Co. of Lynchburg,
LLC, No. 6:11-cv-00013, 2012 WL 830097 (W.D. Va. Mar. 6, 2012), aff’d, 474 F. App’x 242 (4th
Cir. 2012); Vanderheyden v. Peninsula Airport Comm’n, No. 4:12cv46, 2013 WL 30065 (E.D. Va.
Jan. 2, 2013); Brockington v. Jones, No. 4:05-cv-3267, 2007 WL 4812205 (D.S.C. Nov. 28, 2007);
Thomas v. Palmetto, No. 3:05-cv-17, 2006 WL 2623917 (D.S.C. Sept. 11, 2006), aff’d, 234 F.
App’x 166 (4th Cir. 2007).
There is no genuine dispute that the first three factors of the Fourth Circuit’s judicial
estoppel test are satisfied here. Although plaintiff filed his Charge with the EEOC on April 14,
2014, he did not mention it in his bankruptcy petition, filed on March 21, 2016. See ECF 67-32
(Sealed) at 14. Indeed, plaintiff concedes in his Affidavit that he never mentioned the EEOC
Charge during his bankruptcy proceedings. ECF 77-7, ¶ 86 (“When filing my bankruptcy petition,
I did speak with my attorney about this case and he advised that it should not be included.”).
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Therefore, the only question is whether plaintiff omitted the potential claim from his bankruptcy
petition in order to manipulate the legal process. See Calafiore, 418 F. Supp. 2d at 798.
As noted, “judicial estoppel applies only when ‘the party who is alleged to be estopped
intentionally misled the court to gain unfair advantage,’ and not when ‘a party’s prior position was
based on inadvertence or mistake.’” Martineau, 934 F.3d at 393 (emphasis in Martineau) (quoting
Faggert & Frieden, 65 F.3d at 29); see also King v. Herbert J. Thomas Mem’l Hosp., 159 F.3d
192, 196-97 (4th Cir. 1998).
Notably, the Fourth Circuit recently admonished against a
presumption of bad faith merely because the debtor had knowledge of the potential claim but did
not disclose it. Martineau, 934 F.3d at 394. Such a presumption could “‘give the civil defendant
a windfall.’” Id. (citation omitted). Rather, the Court instructed that the applicability of judicial
estoppel “depends on the ‘specific factual context[]’ of a case, rather than ‘any general
formulation’ or ‘inflexible’ rule or standard.” Id. (bracket in original and citation omitted). In
other words, the analysis is case-specific and knowledge of a potential undisclosed claim is not
synonymous with intent to manipulate the judicial system. Id.
Angelini acknowledges that he knew his Charge was not listed as an asset on his Petition.
ECF 77-1 at 27. But, he maintains that the omission does not indicate bad faith because he had no
motive to conceal the Charge. That is so, plaintiff contends, because damages for personal injuries
are shielded from creditors under Maryland law. Id. Specifically, plaintiff cites to Md. Code,
§ 11-504(b)(2) of the Courts and Judicial Proceedings Article (“C.J.”). ECF 77-1 at 27. It provides
that “money payable on the event of sickness, accident, injury or death of any person, including
compensation for loss of future earnings . . . .”
Judge Blake addressed this issue in Calafiore, 418 F. Supp. 2d 795. There, the plaintiff,
who was injured in an automobile accident in 2001, filed a negligence suit against the driver and
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his employer in 2004. Id. at 796. In response, the defendants asserted that the plaintiff’s claims
were barred by judicial estoppel because he failed to disclose the potential claim as an asset during
bankruptcy proceedings that took place in 2003. Id. As is the case here, the plaintiff in Calafiore
admitted that he discussed the potential claim with his bankruptcy counsel, but he argued that
judicial estoppel was inapplicable because he lacked motive to conceal his negligence claim. Id.
at 799.
Judge Blake agreed with the plaintiff, “but only partially.” Id. She observed that the
federal bankruptcy code permits states to opt out of the federal exemption schedule and that
Maryland had done so by specifically exempting from a creditor’s reach money recovered for
injuries. See id. (citing C.J. § 11-504(b)(2)). Canvassing case law on Maryland’s personal injury
exemption, Judge Blake concluded that courts distinguish between damages for pain and suffering
and loss of future earnings, which are exempt under C.J. § 11–504(b)(2), and damages for lost
wages, prepetition medical expenses, injuries to property, and punitive damages, which are not
exempt. See id. at 799-801.
Given Maryland’s special exemption, Judge Blake deemed it appropriate to adopt a
Solomonic approach. See id. at 800 n.8 (acknowledging that judicial estoppel can bar an entire
claim but finding “no reason why the doctrine cannot be used to bar the plaintiff from seeking
some forms of money damages but not others”). She reasoned: “To the extent any aspects of the
plaintiff's plea for damages fall into nonexempt categories, he did have a motive to conceal.
Accordingly, it would be reasonable to find [the plaintiff] judicially estopped from seeking
nonexempt forms of damages for his personal benefit, but permit him to seek those items of
damages that would have been exempt under § 11-504(b)(2).” Id. at 799-800. Ultimately,
“because the exact nature of the plaintiff’s damages claim has not been presented to the court,”
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Judge Blake denied the defendants’ motion without prejudice to the right to assert the defense at a
later stage in the litigation. Id. at 802.
I am persuaded by Judge Blake’s reasoning in Calafiore. Applied here, Angelini may be
estopped from recovering certain damages.
For instance, in his answers to defendant’s
interrogatories, Angelini claimed that his damages included “an injury to credit standing, including
filing for bankruptcy in 2015” as well as the loss of vacation and the loss of earnings. See ECF
67-31 (Sealed) at 3. Because these damages are nonexempt, plaintiff may have had a motive to
conceal them. But, plaintiff also identified damages that may fall within Maryland’s injury
exemption, including “Mental anguish,” “Loss of enjoyment of life,” and “nightmares, night
terrors & insomnia.” Id. at 2-3. It follows that judicial estoppel, an equitable tool designed to
prevent gross abuses of the judicial process, does not sanction the wholesale dismissal of plaintiff’s
suit.
Moreover, applying the totality-of-circumstances inquiry that Martineau demands, the
Court cannot conclude at this juncture that Angelini acted with bad faith. The BPD contends that
plaintiff acted with bad faith because he did not disclose his pending EEOC Charge at the time of
his bankruptcy and now counts his bankruptcy as part of the damages for which he seeks recovery
in this case.
And, unlike in Martineau, Angelini never moved to reopen his bankruptcy
proceedings to amend his Petition following the initiation of this case. Compare Martineau, 934
F.3d at 396. On the other hand, plaintiff avers that his counsel informed him that he did not have
to disclose his Charge and that his damages would be exempt from creditors under Maryland law.
Accordingly, because there is a genuine dispute of material fact as to plaintiff’s mental state, the
Court cannot dismiss plaintiff’s suit based on judicial estoppel.
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C. Statute of Limitations
In addition to judicial estoppel, the BPD posits that plaintiff’s suit is time-barred.
According to the BPD, plaintiff’s suit rests entirely on his father’s homosexual incident and the
graffiti incident, both of which occurred in 2012. ECF 66-1 at 23. According to the BPD, any
incident that occurred before June 28, 2013, falls outside of Title VII’s 300-day limitations period,
because plaintiff did not file his Charge until April 24, 2014. Id. at 25. Therefore, the BPD asserts
that because “the 2012 incidents were never properly administratively exhausted in the first place,
Plaintiff’s retaliation claims which ‘relate back’ to these 2012 claims must be dismissed.” Id. at
26 (emphasis in original).
In response, plaintiff counters that events that occurred prior to June 28, 2013, can support
plaintiff’s hostile environment claim under the continuing violation doctrine. ECF 77-1 at 28-29.
And, plaintiff contends that the Court can consider untimely retaliatory acts as context when
evaluating his retaliation claim. Id. at 30.
A court may only consider Title VII claims that fall within the applicable limitations period.
Therefore, I begin with the issue of administrative exhaustion. See Gilliam v. S.C. Dep’t of
Juvenile Justice, 474 F.3d 134, 139 (4th Cir. 2007). As noted, as a prerequisite to filing suit,
plaintiff was required to file a charge of discrimination with the EEOC or the comparable fair
employment practices agency in Maryland, within 300 days of the alleged unlawful employment
practice. 42 U.S.C. § 2000e–5(e)(1); see Gilbert v. Freshbikes, LLC, 32 F. Supp. 3d 594, 605 (D.
Md. 2014).
The Fourth Circuit has admonished that the exhaustion requirement is not “simply a
formality to be rushed through so that an individual can quickly file his subsequent lawsuit.”
Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir. 2005). Rather, administrative exhaustion
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advances the complementary goals “of protecting agency authority in the administrative process
and promoting efficiency in the resolution of claims.” Stewart v. Iancu, 912 F.3d 693, 699 (4th
Cir. 2019) (internal quotation marks and alterations omitted); see also Balas v. Huntington Ingalls
Indus., Inc., 711 F.3d 401, 406-07 (4th Cir. 2013).
“Any discrete acts of discrimination that occurred prior to the applicable period are
procedurally barred and cannot be used as a basis for recovery.” Gilliam, 474 F.3d at 139. This
includes discrete acts that are related to acts alleged in timely filed charges. See id. In contrast,
under the continuing violation doctrine, a Title VII plaintiff may obtain recovery for discriminatory
acts that otherwise would be time-barred so long as another act fell within the limitations period
and the acts are part of an ongoing pattern of discrimination. See id. at 140; see also Guessous, 828
F.3d at 222; Agolli v. Office Depot, Inc., 548 F. App’x 871, 874-75 (4th Cir. 2013).
The Supreme Court clarified the applicability of the continuing violation doctrine to Title
VII claims in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). In Morgan,
the plaintiff sued Amtrak under Title VII, alleging that he had been subjected to various discrete
discriminatory and retaliatory acts, and had additionally experienced a racially hostile work
environment throughout his employment. Id. at 104. Plaintiff filed a charge with the EEOC,
alleging that he was “‘consistently harassed and disciplined more harshly than other employees on
account of his race.’” Id. at 105. However, many of the alleged discriminatory events that plaintiff
complained of took place outside of Title VII’s 300-day time period for filing a charge with the
EEOC. Id. at 106. Amtrak filed a motion for summary judgment as to all of the events that took
place outside of the filing period, which the district court granted. Id.
The Ninth Circuit reversed, applying the continuing violation doctrine. Id. at 106-07. That
court determined that a plaintiff may sue on claims that were filed with the EEOC outside of the
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period established by Title VII if the claims were part of a series of related acts; some of the acts
took place within the limitations period; and the plaintiff shows that there is a systematic policy or
practice of discrimination, part of which operated within the limitations period. Id. at 107. The
Ninth Circuit determined that each of plaintiff’s three Title VII claims (i.e., discrimination, hostile
work environment, and retaliation) was sufficiently related to the post-limitations conduct to
establish a continuing violation. Id. at 107-08.
The Supreme Court reversed the Ninth Circuit, in part. With respect to plaintiff’s claims
for discrete discriminatory and retaliatory acts, the Court stated that a party “must file a charge
within either 180 or 300 days of the date of the act or lose the ability to recover for it.” Id. at 110.
The Court explained that “discrete discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges.” Id. at 113. And, “[e]ach discrete
discriminatory act starts a new clock for filing charges alleging that act.” Id. The Court went on
to define actions that qualify as discrete, stating, id. at 114:
Discrete acts such as termination, failure to promote, denial of transfer, or refusal
to hire are easy to identify. Each incident of discrimination and each retaliatory
adverse employment decision constitutes a separate actionable “unlawful
employment practice.” Morgan can only file a charge to cover discrete acts that
“occurred” within the appropriate time period.
However, the Morgan Court affirmed the Ninth Circuit as to plaintiff’s claim for hostile
work environment. Id. at 115. The Court observed that, unlike discrete acts, hostile work
environment claims occur “over a series of days or perhaps years . . . .” Id. And, the Court observed
that, with respect to hostile work environment claims, “a single act of harassment may not be
actionable on its own.” Id. Thus, as to hostile work environment claims, the Supreme Court
concluded, id. at 117: “It does not matter, for purposes of [Title VII], that some of the component
acts of the hostile work environment fall outside the statutory time period.” The Court continued,
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id.: “Provided that an act contributing to the claim occurs within the filing period, the entire time
period of the hostile environment may be considered by a court for the purposes of determining
liability.”
In light of Morgan, the alleged retaliatory and harassing acts that occurred before June 28,
2013, are time-barred for the purpose of plaintiff’s retaliation claim. Thus, plaintiff must adduce
retaliatory acts occurring after that date in order to survive summary judgment. On the other hand,
the continuing violation doctrine applies to Angelini’s hostile work environment claim. As in
Morgan, 536 at 120-21, “the pre- and post-limitations period incidents involved the same type of
employment actions, occurred relatively frequently, and were perpetrated by the same managers.”
Therefore, the Court may consider conduct that occurred prior to June 28, 2013, when assessing
plaintiff’s hostile work environment claim.
The upshot is that plaintiff’s claims are not time-barred, although his retaliation claim is
cabined by Title VII’s statute of limitations.
D. Hostile Work Environment
Count One of the Second Amended Complaint is captioned “Sexual Harassment, Sex
Discrimination and Retaliation.” ECF 49-2 at 19. Plaintiff alleges, inter alia, that the BDP
“subjected him to sexual harassment,” in violation of Title VII. Id. ¶ 100. But, the title of the
claim does not control. It is the content that is central. And, plaintiff expressly asserts, id. ¶ 103
(emphasis added): “Plaintiff’s sex and his complaints of sexual harassment and retaliation were
motivating factors in Defendants’ decision to treat Plaintiff differently and subject him to a hostile
work environment.” Moreover, the BPD does not contend that it lacked notice of such a claim.
Indeed, the record reflects otherwise.
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According to the BPD, plaintiff’s hostile work environment claim is without merit. ECF
66-1 at 28-30. Defendant argues that Angelini’s claim fails because he cannot show that any
unwelcome conduct was based on a protected status. Id. at 29. Further, the BPD contends that
none of plaintiff’s allegations cross the threshold from a stressful work environment to a hostile
one. Id. at 29-30. In response, Angelini posits that he has established a claim for “retaliatory
hostile work environment” that must go before a jury. See ECF 77-1 at 30.
A hostile environment exists “[w]hen the workplace is permeated with ‘discriminatory
intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter the conditions of
the victim’s employment[.]’” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citations
omitted). The Fourth Circuit, like other circuits, has recognized that a claim of retaliatory hostile
work environment is a distinct cause of action. See Von Gunten v. Maryland, 243 F.3d 858, 869
(4th Cir. 2001) (“Retaliatory harassment can constitute adverse employment action . . . .”),
overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68
(2006); Thorn v. Sebelius, 766 F. Supp. 2d 585, 600 (D. Md. 2011), aff’d, 465 F. App’x 274 (4th
Cir. 2012); see also Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (collecting circuit
decisions).
To establish a claim of retaliatory hostile work environment, a plaintiff must show that
“‘(1) he experienced unwelcome harassment; (2) the harassment was [in retaliation for protected
conduct]; (3) the harassment was sufficiently severe or pervasive to alter the conditions of his
employment and to create an abusive atmosphere; and (4) there is some basis for imposing liability
on the employer.’” Wells v. Gates, 336 F. App’x 378, 387 (4th Cir. 2009) (alteration in Wells)
(quoting Baqir v. Principi, 434 F.3d 733, 745-46 (4th Cir. 2006)); see Pueschel v. Peters, 577 F.3d
558, 564-65 (4th Cir. 2009); Goldstein v. Univ. of Md., CCB-18-2376, 2019 WL 4467035, at *10
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(D. Md. Sept. 17, 2019); Clarke v. DynCorp Int’ l LLC, 962 F. Supp. 2d 781, 790-91 (D. Md.
2013).
Hostile work environment claims may involve “a series of days or perhaps years . . . .”
Morgan, 536 U.S. at 115. Thus, for a hostile work environment claim, “[i]t does not matter, for
purposes of [Title VII], that some of the component acts of the hostile work environment fall
outside the statutory time period.” Id. at 117. “Provided that an act contributing to the claim
occurs within the filing period, the entire time period of the hostile environment may be considered
by a court for the purposes of determining liability.” Id.
The First element, unwelcome conduct, “is not a high hurdle.” Strothers, 895 F.3d at 328.
The Fourth Circuit has explained that “an employee can demonstrate that certain conduct is
unwelcome simply by voicing [his] objection . . . .” Id. at 328-29. Moreover, “the nature of the
conduct may indicate whether or not the conduct is unwelcome.” Id. at 329.
To satisfy the second element, “the employer must have taken the adverse employment
action because the plaintiff engaged in a protected activity.” Dowe v. Total Action Against
Poverty, 145 F.3d 653, 657 (4th Cir. 1998) (emphasis in original); see also Perkins, 936 F.3d at
214. “At the prima facie stage, a plaintiff does not have to show that ‘their protected activities
were but-for causes of the adverse action.’” Perkins, 936 F.3d at 214 (quoting Strothers, 895 F.3d
at 335). But, the plaintiff must still make “some showing” of causation, such as demonstrating
that the “‘employer either understood or should have understood the employee to be engaged in
protected activity’” and that “‘the employer took adverse action against the employee soon after
becoming aware of such activity.’” Perkins, 936 F.3d at 214 (quoting Strothers, 895 F.3d at 335).
As to the third element, a hostile work environment exists under Title VII when the
“‘workplace [is] permeated with discriminatory intimidation, ridicule, and insult . . . .’” Boyer-
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Liberto, 786 F.3d at 281 (some quotations and citation omitted) (quoting Jordan v. Alt. Res. Corp.,
458 F.3d 332, 339 (4th Cir. 2006)); see Harris, 510 U.S. at 21; Nnadozie v. Genesis HealthCare
Corp., 730 F. App'x 151, 158 (4th Cir. 2018). The Fourth Circuit has stated that the plaintiff must
allege that “the environment would reasonably be perceived, and is perceived, as hostile or
abusive.” Boyer-Liberto, 786 F.3d at 277 (citing Harris, 510 U.S. at 22).
The “severe or pervasive” requirement has both subjective and objective components.
Harris, 510 U.S. at 21-22; see EEOC v. Cent. Wholesalers Inc., 573 F.3d 167, 175 (4th Cir. 2009).
Thus, “[w]hether the environment is objectively hostile or abusive is ‘judged from the perspective
of a reasonable person in the plaintiff’s position.’” Boyer-Liberto, 786 F.3d at 277 (quoting Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)); see Irani v. Palmetto Health, 767 F.
App’x 399, 416 (4th Cir. 2019); Nnadozie, 730 F. App’x at 158. However, the plaintiff does not
need to demonstrate that the work environment is “psychologically injurious.” Id.; see Harris,
510 U.S. at 21-22.
Notably, “viable hostile work environment claims often involve repeated conduct . . .
because, ‘in direct contrast to discrete acts, a single act of harassment may not be actionable on its
own.’” Boyer-Liberto, 786 F.3d at 277 (quoting Morgan, 536 U.S. at 115-17); see Irani, 767 F.
App’x at 416. But, “an ‘isolated incident[]’ of harassment can ‘amount to discriminatory changes
in the terms and conditions of employment,’ if that incident is ‘extremely serious.’” Boyer-Liberto,
786 F.3d at 277 (alterations in original) (citation omitted).
The Court stated in Boyer-Liberto, 786 F.3d at 278 (citation omitted): “In measuring the
severity of harassing conduct, the status of the harasser may be a significant factor—e.g., a
supervisor’s use of [a racial epithet] impacts the work environment far more severely than use by
co-equals.” See also EEOC v. Fairbrook Med. Clinic, P.A., 609 F.3d 320, 329 (4th Cir. 2010)
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(“When evaluating the context in which harassment takes place, we have often focused on the
‘disparity in power between the harasser and the victim.’”) (citation omitted); Jennings v. Univ. of
N.C., 482 F.3d 686, 697 (4th Cir. 2007) (en banc) (“Any age disparity between the harasser and
his victim is also relevant to gauging whether there was a hostile or abusive sexual environment.”).
However, the “‘[m]ere utterance of an . . . epithet which engenders offensive feelings in an
employee’ does not sufficiently affect the conditions of employment to implicate Title VII.”
Boyer-Liberto, 786 F.3d at 277 (quoting Harris, 510 U.S. at 21) (other citations omitted). And,
“simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the terms and conditions of employment.” Faragher v. City
of Boca Raton, 524 U.S. 775, 788 (1998) (internal quotation marks and citations omitted); see also
Boyer-Liberto, 786 F.3d at 294. Similarly, “complaints premised on nothing more than ‘rude
treatment by [coworkers]’, ‘callous behavior by [one’s] superiors,’ or ‘a routine difference of
opinion and personality conflict with [one’s] supervisor, are not actionable under Title VII.’”
EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306, 315-16 (4th Cir. 2008) (internal citations omitted);
see Nnadozie, 730 F. App’x at 161-62. Indeed, Title VII does not constitute “a general civility
code.” Oncale, 523 U.S. at 80.
The determination as to “severe and pervasive” is not, and “‘by its nature cannot be, a
mathematically precise test.’” Boyer-Liberto, 786 F.3d at 277 (quoting Harris, 510 U.S. at 22).
Moreover, “[n]o single factor is dispositive, as [t]he real social impact of workplace behavior often
depends on a constellation of surrounding circumstances, expectations, and relationships which
are not fully captured by a simple recitation of the words used or the physical acts performed.”
Sunbelt Rentals, 521 F.3d at 315 (quoting Harris, 510 U.S. at 23, and Oncale, 523 U.S. at 81-82)
(internal citations and quotation marks omitted). The objective determination requires the court to
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“‘look[] at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its
severity; whether it [was] physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interfere[d] with [the] employee’s work performance.’” Parker v. Reema
Consulting Servs., Inc., 915 F.3d 297, 304 (4th Cir. 2019) (quoting Harris, 510 U.S. at 23).
Viewing the facts in the light most favorable to plaintiff, he has failed to raise a genuine
issue of material fact that he was subjected to a retaliatory hostile work environment. To be sure,
there is no dispute that Angelini engaged in a protected activity when he met with EODS on
October 5, 2012, to report homophobic graffiti scrawled on a bathroom stall at the SED station.
See Netter, 908 F.3d at 937 (identifying participation in an investigation as a protected activity).
That is so, even if plaintiff does not identify as homosexual. See Strothers, 895 F.3d at 327
(observing that Title VII’s anti-retaliation provision applies so long as the employee has an
objectively reasonable belief that a Title VII violation has occurred). And, it is uncontested that
Angelini subjectively perceived his work environment to be abusive. See ECF 77-4 (repeatedly
requesting to transfer districts because of “hostile work environment”); ECF 77-39 at 95, Tr. 37980 (stating that he believes “100 percent” that IAD investigations are retaliatory). But, plaintiff’s
retaliatory harassment claim falters for two independent reasons.
First, plaintiff has failed to provide any evidence that establishes a causative link between
his protected activity and the purportedly adverse actions of his superiors. As noted, to establish
the requisite causation under Title VII, the plaintiff must show that the retaliation “would not have
occurred in the absence of the alleged wrongful action or actions of the employer.” Nassar, 570
U.S. at 360; see Perkins, 936 F.3d at 214; Irani, 767 F. App’x at 421. In other words, Title VII
requires the plaintiff to show that the “protected activity was a but-for cause of the alleged adverse
action by the employer.” Nassar, 570 U.S. at 362.
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At the summary judgment stage, the plaintiff need not conclusively establish causality, but
he must put forth some “evidence from which a reasonable factfinder could conclude that a causal
connection exists between the protected activity and the adverse action.” Dowe, 145 F.3d at 657.
Notably, because “an employer cannot take action because of a factor of which is it unaware, the
employer's knowledge that the plaintiff engaged in a protected activity is absolutely necessary to
establish the third element of the prima facie case.” Id.; see also Villa v. CavaMezze Grill, LLC,
858 F.3d 896, 901 (4th Cir. 2017) (“If an employer . . . never realized that its employee engaged
in protected conduct, it stands to reason that the employer did not act out of a desire to retaliate for
conduct of which the employer was not aware.”).
Ordinarily, there must exist “some degree of temporal proximity to suggest a causal
connection.” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 501 (4th
Cir. 2005). Therefore, a “‘lengthy time lapse between the [defendant’s] becoming aware of the
protected activity and the alleged adverse . . . action’” often “‘negates any inference that a causal
connection exists between the two.’” Id. (citation omitted). Indeed, a lapse of two-and-a-half
months between the protected activity and an adverse action “is sufficiently long so as to weaken
significantly the inference of causation,” although it does not preclude the plaintiff from
establishing causation. King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003).
Angelini has not raised a triable issue as to whether any of the allegedly harassing conduct
that he endured was because he met with EODS on October 5, 2012. The parking incident, which
marks the first alleged retaliatory incident, did not occur until January 17, 2013—more than three
months after plaintiff’s meeting. The altercation with Sergeant Brokus occurred in July 2013, and
the first administrative charge lodged against Angelini by the IAD did not arise until January 2014.
Thus, the timeline of events undermines, rather than supports, the notion that these acts have any
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connection to plaintiff’s EODS meeting. Compare Foster v. Univ. of Md.-E. Shore, 787 F.3d 243,
250 (4th Cir. 2015) (finding that causation was established where employee was terminated one
month after complaining about retaliatory behavior). And, even putting aside temporal issues,
other causation problems abound.
Although it is not disputed that Sergeant Brickus knew of plaintiff’s EODS meeting, no
reasonable juror could find that her directive that Angelini move his car from Sergeant Drennon’s
parking space and complete a Form 95 was because of plaintiff’s Title VII activity. It is undisputed
that parking at the SED was an issue. Indeed, before this incident, the BDP circulated a memo to
officers instructing that they not park in marked spaces, without authorization. See ECF 67-13.
Accordingly, Sergeant Brickus’s instruction to Angelini to move his car was eminently reasonable.
Further, plaintiff has offered no evidence to rebut Sergeant Brickus’s testimony that
Sergeant Drennon asked her to direct Angelini to write the Form 95 to explain why he parked in
her space, despite her having previously addressed the matter with him. See ECF 77-38 at 8, Tr.
26-27. And, notably, there is no evidence that Sergeant Drennon knew of Angelini’s protected
activity. Moreover, plaintiff expressly invited his superiors to charge him with misconduct, with
the hope that it might facilitate his transfer to another district. ECF 77-39 at 36, Tr. 145.
As a result, a reasonable juror could not find that when Captain Burris placed plaintiff on
administrative duty on January 18, 2013, it was in retaliation for plaintiff’s meeting with EODS.
The other asserted instances of retaliatory harassment similarly cannot be tied to plaintiff’s
oppositional conduct. Plaintiff claims that Sergeant Brokus caused him to suffer heat stroke on
June 29, 2013, and ruined his July 4th holiday by ordering plaintiff to submit to a medical
examination. See ECF 77-7, ¶ 38. Further, he alleges that Sergeant Jackson withheld his SWAT
team invitation, causing him to miss the try out. See id. ¶ 41. And, Angelini claims that he was
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verbally assaulted by Sergeant Brokus on July 28, 2013. See ECF 77-39 at 69, Tr. 275. But,
nothing in the record suggests that either Sergeant Brokus or Sergeant Jackson knew of plaintiff’s
discrimination complaint. Therefore, the fact finder could not, on this record, reasonably infer that
Sergeants Brokus and Jackson acted with retaliatory animus. See Dowe, 145 F.3d at 657.
Likewise, plaintiff’s contention that the IAD investigations constitute retaliation rest on
nothing more than his own speculation. See ECF 77-39 at 95, Tr. 379-80. Indeed, the only fact
that plaintiff marshals to support his argument that he was persecuted by the IAD is that Sergeant
Williams, who supervised him in the SED in 2012, managed the detective who conducted one of
Angelini’s IAD investigations. See ECF 77-1 at 33. This hardly suggests that the IAD targeted
plaintiff, especially given the paucity of evidence that Sergeant Williams disapproved of plaintiff
reporting the graffiti in 2012 and Detective Cornejo’s testimony that Sergeant Williams did not
influence his investigation of Angelini.
Ultimately, plaintiff’s contentions concerning the IAD investigations rest on his conjecture.
Absent corroboration from facts in the record, Plaintiff’s belief that he was targeted is insufficient
to create a genuine dispute of material fact. Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.
2013); accord Settle v. Baltimore County, 34 F. Supp. 2d 969, 999 (D. Md. 1999) (finding the
plaintiff’s subjective belief that the employer was racially motivated was insufficient, in the
absence of articulable facts showing a “racial nexus”), aff’d sub nom. Harris v. Earp, 203 F.3d
820, (4th Cir. 2000) (per curiam).
Even if plaintiff sufficiently demonstrated causation as to the various retaliatory
allegations, he has failed to show that “‘a reasonable person in the plaintiff's position’ would have
found the environment objectively hostile or abusive.’” Sunbelt Rentals, 521 F.3d at 315 (citation
omitted). As noted, the Supreme Court has “made it clear that conduct must be extreme to amount
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to a change in the terms and conditions of employment . . . .” Faragher, 524 U.S. at 788. The
facts, construed in plaintiff’s favor, do not come close to establishing that he experienced an
objectively hostile work environment.
Angelini complains that he was the subject of taunts or cursing, such as Sergeant Brickus
ribbing him about his wrinkled pants or Sergeant Brokus yelling at him and accusing him of lying.
But, teasing and personality clashes are different in kind and degree from an employment
atmosphere that is “permeated with discriminatory intimidation, ridicule, and insult.” Harris, 510
U.S. at 21; accord Sunbelt Rentals, 521 F.3d at 315 (observing that rude treatment is not actionable
under Title VII). Indeed, the picture painted by the evidence is that of an emotionally charged
workplace exacerbated by plaintiff’s own temperament. See High v. Comm'r, Soc. Sec., SAG-183334, 2019 WL 5209613, at *9 (D. Md. Oct. 16, 2019) (“A hostile work environment cannot be
shown by establishing ‘callous behavior by [one’s] superiors,’ or ‘a routine difference of opinion
and personality conflict with [a plaintiff’s] supervisor.’”) (citations omitted). And, notably, none
of these comments referenced plaintiff or his father’s sexuality.
Regardless, courts have declined to find a hostile work environment under similar or even
more egregious circumstances. Cf. Hopkins v. Balt. Gas & Elec. Co., 77 F.3d 745, 753 (4th Cir.
1996) (positioning a magnifying glass over a plaintiff's crotch and giving him a congratulatory kiss
at his wedding receiving line was “tasteless and inappropriately forward” but not sufficiently
severe or pervasive); McLaurin v. Verizon Md., Inc., JKB-14-4053, 2015 WL 5081622, at *4 (D.
Md. Aug. 26, 2015) (holding that the plaintiff did not allege an actionable hostile work
environment claim despite allegations that one co-worker called the plaintiff a “bitch,” another coworker “urinated in front of her,” and a supervisor “cursed” at her); Holleman v. Colonial Heights
Sch. Bd., 854 F. Supp. 2d 344, 353 (E.D. Va. 2012) (supervisor frequently grabbing plaintiff’s arm
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and cursing her out in front of faculty and students was not hostile work environment); Khoury v.
Meserve, 268 F. Supp. 2d 600, 614 (D. Md. 2003) (no hostile work environment despite one
occasion when supervisor “yelled at Plaintiff, told her she was incompetent, pushed her down in
her chair, and blocked the door to prevent Plaintiff from leaving while he continued to yell at her”),
aff’d, 85 F. App’x 960 (4th Cir. 2004).
Nor does the parking incident support plaintiff’s claim of hostile work environment. For
starters, Angelini was merely asked to move his car and write a Form 95. It was only after he
invited his superiors to charge him with insubordination that he got his wish. And, although
Angelini was placed on administrative duty, it had no impact on his pay or benefits. Likewise,
however slighted plaintiff felt by not receiving accolades from Sergeant Brickus for excellent
police work or his supervisor’s repeated refusals to acknowledge his transfer requests, these events
are neither threatening nor humiliating, and they did not affect Angelini’s ability to perform his
job. See Perkins, 936 F.3d at 214 (evidence that black employees were assigned worse shifts and
subject to more stringent enforcement of workplace rules than white employees did not amount to
a hostile work environment). Similarly, plaintiff’s reliance on the matter of the SWAT tryout also
fails, as it did not impinge on plaintiff’s ability to perform his job. See id. (granting summary
judgment on a hostile work environment claim despite evidence that black employees were denied
promotions); Dortch v. Cellco P’ship, 770 F. App’x 643, 645-46 (4th Cir. 2019) (finding that the
plaintiff did not plausibly allege hostile work environment claim where supervisor investigated
her work and placed her on a performance improvement plan). Therefore, these matters do not
give rise to a genuine dispute of material fact in regard to a hostile work environment claim.
As to disciplinary actions against plaintiff, the BPD provided the Court with the IAD
reports for each disciplinary action. ECF 67-23; ECF 67-24; ECF 67-26. This information reveals
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that those matters were not the product of retaliation. See Walls v. Lowe’s Home Ctrs., LLC, 789
F. App’x 852, 855 (11th Cir. 2019) (holding that being subjected to “legitimate work place
investigations” did not constitute a hostile work environment).
Angelini maintains that “expert testimony is required to render any opinion regarding the
propriety or impropriety of BPD’s internal investigation process.” ECF 77-1 at 33. But, plaintiff
does not challenge the facts underlying the incidents that led to the investigations. In other words,
he does not dispute that he made impertinent remarks to a juvenile suspect in August 2017 or
behaved improperly during Crash Investigation School. Instead, he appears to posit that his
conduct was not deserving of the IAD’s attention, when measured against the actions of other BPD
officers, citing the BPD’s notorious Gun Trace Task Force scandal. See id. The conduct of other
officers does not, however, generate a material dispute of fact as whether the investigations
concerning plaintiff were retaliatory.
In sum, the record reveals much smoke, but no fire. That is, although plaintiff points to a
plethora of workplace incidents, none of them can be linked to his EODS meeting in October 2012.
And, in any event, none rise to the level of objectively severe harassment. Accordingly, I shall
grant summary judgment to the BPD as to plaintiff’s claim for retaliatory hostile work
environment.
E. Retaliation
To establish a claim of retaliation under Title VII, a plaintiff must show “(1) that [h]he
engaged in protected activity, (2) that the employer took a materially adverse action against [him]
and (3) there is a causal connection between the protected activity and the adverse action.” Evans
v. Int’l Paper Co., 936 F.3d 183, 195 (4th Cir. 2019); see Strothers, 895 F.3d at 327; Smyth-Riding
v. Sci. Eng’g Servs., LLC, 699 F. App'x 146, 151 (4th Cir. 2017); Okoli, 648 F.3d at 223; Navy
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Fed. Credit Union, 424 F.3d at 405-06. The plaintiff must establish retaliation, either by direct
evidence “or by proving that any non-retaliatory justification for the [adverse action] was
pretextual.” Netter, 908 F.3d at 938; see Foster, 787 F.3d at 249.
For the same reasons that plaintiff’s hostile work environment claim cannot survive
summary judgment, his retaliation claim also fails. See, e.g., Jackson v. Md. Dep’t of Commerce,
JKB-19-1693, 2020 WL 551914, at *8 n.6 (D. Md. Feb. 4, 2020) (finding that the plaintiff’s
retaliatory hostile work environment claim faltered for the same reasons as her retaliation claim).
Here too, plaintiff has not adduced facts sufficient to create a causative link between any of the
allegedly retaliatory incidents and his meeting with EODS in 2012. Therefore, a reasonable juror
could not find that plaintiff has established the third element of a prima facie case of retaliation.
It follows that defendant is entitled to summary judgment as to plaintiff’s retaliation claim.
IV.
Conclusion
For the foregoing reasons, I shall grant the BPD’s Motion (ECF 76).
An Order follows, consistent with this Memorandum Opinion.
Date: June 2, 2020
_______/s/______________
Ellen L. Hollander
United States District Judge
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