Fordyce v. Prince George's County Maryland

Filing 15

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/25/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JILL FORDYCE
:
v.

:

Civil Action No. DKC 13-0741

:
PRINCE GEORGE’S COUNTY MARYLAND
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this employment
discrimination case is the motion for summary judgment filed by
Defendant Prince George’s County, Maryland (ECF No. 12).

The

issues have been fully briefed, and the court now rules, no
hearing being deemed necessary.

Local Rule 105.6.

For the

following reasons, Defendant’s motion for summary judgment will
be granted in part and denied in part.
I.

Background1
This case involves a number of employment discrimination

claims,

including

retaliation

and

hostile

work

environment,

brought by Plaintiff Jill Fordyce (“Plaintiff” or “Ms. Fordyce”)
against

her

Department

employer,

(“County

the

Police

Prince

George’s

Department”).

County
Ms.

Police

Fordyce

is

employed as an Administrative Assistant and has worked with the

1

Unless otherwise noted,
construed in the light most
nonmoving party.

the facts outlined here
favorable to Plaintiff,

are
the

County Police Department since 2005.
A.

Plaintiff’s
Claims

Previous

Discrimination

and

Retaliation

In 2007, Ms. Fordyce, an African-American woman, who at
that time held the title of Administrative Assistant II, applied
for and was denied a promotion to an Administrative Assistant
III position.

In October 2007, she complained to Police Chief

Melvin High and the Police Department’s EEO coordinator that she
was experiencing discrimination based on race, sex, and national
origin. On December 5, 2007, Ms. Fordyce filed a discrimination
claim

against

the

County

Police

Department

through

Equal Employment Opportunity Commission (“EEOC”).

the

U.S.

On December

10, 2007, the County Police Department suspended Ms. Fordyce’s
supervisory duties.

On February 6, 2008, Ms. Fordyce then filed

a second EEOC complaint alleging retaliation.
she

was

informed

by

the

County

Police

Two days later,

Department’s

Internal

Affairs Division that she was under investigation for criminal
misconduct

and

theft,

allegations

that

the

Department received through an anonymous letter.

County

Police

(ECF No. 1-3 ¶

23).
About one year later, on March 10, 2009, Ms. Fordyce and
the County Police Department reached a settlement through the
EEOC.

As part of the settlement, Ms. Fordyce was promoted to

the position of Administrative Assistant III, given the title of

2

Uniform Crime Reporting Director, and received a fifteen percent
pay increase.
B.

Plaintiff’s Current
Environment Claims

Retaliation

and

Hostile

Work

In April 2010, Police Chief Roberto Hylton transferred Ms.
Fordyce

from

Department’s

the

Records

Homeland

Management

Security

Division

Division

Fusion

to

the

Police

Center.

Ms.

Fordyce was supposed to report to Lieutenant Devore, a member of
Fusion Center management, and supervise Sergeant Hughes.
Ms. Fordyce alleges that prior to her arrival at the Fusion
Center, management incited the staff against her by advising
them that they should avoid her because she had filed prior EEOC
complaints and was a “troublemaker.”

(ECF No. 13, at 3).

She

learned this from her coworker, Corporal Tanya Brooks (“Cpl.
Brooks”).

(ECF No. 13-1, at 2).

Ms. Fordyce alleges that upon

her arrival at the Fusion Center the staff and Lieutenant Devore
refused to speak to her.

(ECF No. 13-5, at 3).

She also

contends that she was not given a job title or job description
in her new role, staff meetings were scheduled for days when she
was out of the office, the staff was not informed that she was
in

their

chain

of

command,

and

Sergeant

Hughes

reporting to Lieutenant Devore rather than to her.

continued

(Id.).

On June 30, 2010, Ms. Fordyce was allegedly involved in an
incident with Cpl. Brooks, a police officer whom Ms. Fordyce

3

supervised.
stating

Cpl. Brooks emailed Chief Hylton on July 2, 2010,

that

while

she

was

assisting

another

coworker,

Ms.

Quanetta West, Ms. Fordyce stepped in between her and Ms. West
and advised her to return to her desk and finish her work.

Cpl.

Brooks noted that she ignored Ms. Fordyce and continued talking
with Ms. West.

Cpl. Brooks reported that “Ms. Fordyce then

grabbed [her] by the arm and tried to force [her] to [her]
desk.”

(ECF No. 13, at 3-4).

On July 1-2, 2010, Fusion Center management learned of the
incident and began to investigate the matter.
6-7).

(ECF No. 13-7, at

At a meeting held on July 12, 2010, Lieutenant Devore

informed Cpl. Brooks that the matter with Ms. Fordyce could be
handled

in

several

investigation
mediation.

with

ways:

an

possible

EEOC

complaint,

an

internal

charges,

or

through

criminal

(ECF No. 13-7, at 7).

Cpl. Brooks chose to pursue

an internal investigation with possible criminal charges.
Hylton

interrupted

Lieutenant

Devore’s

this
plan

meeting,
to

pursue

and
an

after

internal

Chief

learning

of

investigation

against Ms. Fordyce, insisted that the matter be handled through
mediation.

Chief Hylton then conducted a mediation between Cpl.

Brooks

Ms.

and

Fordyce.

Cpl.

Brooks

initially

accused

Ms.

Fordyce of grabbing and pushing her, which Ms. Fordyce denied.
By the end of the mediation, “[Cpl.] Brooks agreed that it was

4

only a touch, however she [had] felt ‘disrespected’ by [Ms.
Fordyce].”

(ECF No. 13-7, at 6).

After hearing statements from Cpl. Brooks and Ms. Fordyce,
Chief Hylton spoke privately with Cpl. Brooks.

Cpl. Brooks

informed him that she did not want to continue the mediation and
instead wanted to continue the investigation.

Chief Hylton told

Cpl.

Cpl.

Brooks

Fordyce,

and

to

“let

Fusion

it

go”

Center

and

then

told

management

Devore) that the “matter was closed.”

(including

Brooks,

Ms.

Lieutenant

(ECF No. 13-7, at 7-8).

On July 15, 2010, Plaintiff was subjected to a disciplinary
action
Cpl.

by

Lieutenant

Brooks

and

Devore

received

regarding
written

her

confrontation

counseling

from

with
him,

instructing her “not to enter the Fusion Center or have any
direct integration with any of its staff.”

(ECF No. 1-3 ¶ 43).

In addition, on July 19, 2010, a formal investigation against
Plaintiff was initiated and Lieutenant Meredith Bingley (“Lt.
Bingley”) was assigned as the investigator.

(ECF No. 13-7, at

6).
On July 30, 2010, Plaintiff filed a complaint with the
County Police Department’s EEO coordinator alleging retaliation
and hostile work environment.

(ECF No. 13-5).

5

She met with the

EEO Coordinator on August 3, 2010,2 to discuss her complaint.
The

next

Security

day,

Deputy

Division,

Chief

Magaw,

transferred

Reporting Unit (“TRU”).

who

oversaw

Plaintiff

to

the
the

Homeland
Telephone

Plaintiff alleges that at the time of

her transfer the TRU had been non-operational since 2008.
also

contends

that

her

new

office

was

in

a

“storage

She
room

containing broken furniture and equipment” and that she did not
have a land-line telephone, desktop computer, or any staff to
supervise.

(ECF No. 13, at 4-5).

The TRU became operational

again in February 2011, but Plaintiff contends that from August
2010 until that time she had “nothing to do, no place to work,
and no staff to supervise.”

(Id. at 5).

Plaintiff filed another EEO complaint.

On October 1, 2010,

(Id.).3

Lt. Bingley, who was assigned to investigate the incident
between Cpl. Brooks and Ms. Fordyce, interviewed “all pertinent
Witnesses” between July 20, 2010 and August 24, 2010.
13-7, at 8).

(ECF No.

Ms. Fordyce, however, was not interviewed until

December 22, 2010.

(Id. at 8-9).

Assistant State’s Attorney,

Joeday Newsom, screened the case on September 17, 2010.
No. 13-7, at 8).

(ECF

On December 13, 2010, he issued a letter to

2

Plaintiff either met with the EEO coordinator on August 2
or August 3, 2010. (See ECF No. 13-9, at 4, and ECF No. 13, at
4).
3

Plaintiff either filed this EEO complaint on October 1 or
October 4, 2010. (See ECF No. 13-9, at 5, and ECF No. 13, at 5).
6

Lt. Bingley, declining to prosecute Plaintiff for her actions
involving Cpl. Brooks.

(ECF No. 13-3).

His letter states that

there was not a reasonable chance of convicting Ms. Fordyce of
second degree assault “due to the brevity of the contact, level
of force used[,] and absence of injury.”

(Id.; ECF No. 13-7, at

10).
On December 14, 2010, Ms. Fordyce received initial notice
from the County Police Department that it had pursued criminal
prosecution against her for the June 30, 2010 incident involving
Cpl. Brooks, but that the State’s Attorney of Prince George’s
County had declined to pursue the charge.

(ECF No. 13, at 5).

That same day, Ms. Fordyce also received notice that she was
under internal investigation by the County Police Department for
her actions on June 30, 2010.

(ECF No. 13-9, at 7).

Ms.

Fordyce was then interviewed by Lt. Bingley on December 22,
2010.
On March 25, 2011, Plaintiff received a Final Notice of
Disciplinary Action from Interim Chief of Police, Mark Magaw,
who

formerly

oversaw

the

Homeland

ordered her transfer to the TRU.

Security

Division

and

had

The notice informed Plaintiff

that the County Police Department was taking disciplinary action
against her for three charges:

(1) Unbecoming Conduct based on

second degree assault; (2) Making a False Statement to Major
McManus; and (3) Making a False Statement to Lt. Bingley.
7

(ECF

No. 13-8, at 1-2).
County

Police

subsequently

As part of the disciplinary action, the

Department

reduced

to

fined

Plaintiff

$1,100,

and

was

paychecks at a rate of $50 per pay period.
C.

$1,600,

which

was

from

her

deducted

(Id. at 2).

Procedural History

On April 7, 2011, Plaintiff filed Discrimination Charge No.
846-2011-48369

with

the

U.S.

Equal

Employment

Opportunity

Commission (“EEOC”) against the County Police Department.
No. 1-3 ¶ 55).

(ECF

On February 6, 2013, the EEOC issued Plaintiff a

Notice of Right to Sue letter.

(ECF No. 13, at 8).

On March 11, 2013, Plaintiff filed a five count complaint
against

Defendant.4

complaint

allege

The

first

“Retaliatory

three
Hostile

counts
Work

violation of Title IX, Title VI, and Title VII.

of

Plaintiff’s

Environment”

in

Counts IV and V

of the complaint allege “Retaliation” in violation of Title 20
of the State Government Articles of the Maryland Code and Prince
George’s County Code § 42(a) and §§ 2-186 and 2-222.

Plaintiff

seeks a declaratory judgment and damages.
On September 27, 2013, Defendant filed a motion for summary
judgment.

(ECF

October 11, 2013.
25, 2013.

No.

12).

Plaintiff

(ECF No. 13).

opposed

the

motion

on

Defendant replied on October

(ECF No. 14).

4

Defendant’s motion for summary judgment requests that
counts I through VI be dismissed, but Plaintiff’s complaint only
contains five counts.
8

II.

Standard of Review
A motion for summary judgment will be granted only if there

exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

(1986).

The moving party bears the burden of showing that there

is no genuine dispute as to any material fact.

242,

250

However, no

genuine dispute of material fact exists if the nonmoving party
fails to make a sufficient showing on an essential element of
his or her case as to which he or she would have the burden of
proof.

Celotex, 477 U.S. at 322–23.

Therefore, on those issues

on which the nonmoving party has the burden of proof, it is his
or her responsibility to confront the summary judgment motion
with an affidavit or other similar evidence showing that there
is a genuine issue for trial.
Summary judgment is appropriate under Federal Rule of Civil
Procedure Rule 56(a) when there is no genuine dispute as to any
material

fact,

and

the

moving

party

is

plainly

judgment in its favor as a matter of law.
Liberty

Lobby,

Inc.,

the

Supreme

Court

In

entitled

to

Anderson v.

explained

that,

in

considering a motion for summary judgment, the “judge’s function
is not himself to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for
9

trial.”

477 U.S. at 249 (1986).

A dispute about a material

fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”

Id.

Thus,

“the judge must ask himself not whether he thinks the evidence
unmistakably favors one side or the other but whether a fairminded jury could return a verdict for the [nonmoving party] on
the evidence presented.”

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”

Matsushita Elec.

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

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence

in

support

The mere existence of a “scintilla” of
of

the

non-moving

party's

case

is

sufficient to preclude an order granting summary judgment.

not
See

Anderson, 477 U.S. at 252.
A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

10

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
III. Analysis
A.

Title VI Claim (Count II)

Defendant argues that it is entitled to summary judgment on
the Title VI claim because Plaintiff did not show that she was
an intended beneficiary of federal funds received by the County
government under the American Recovery and Reinvestment Act of
2009.
Section 601 of Title VI of the Civil Rights Act of 1964
prohibits

discrimination

on

the

basis

of

“race,

color,

or

national origin . . . under any program or activity receiving
Federal
statute’s

financial

assistance.”

definition

of

“Program

42
or

U.S.C.

§ 2000d.

activity”

includes

The
“a

department . . . or other instrumentality of a State or of a
local government[.]”

42 U.S.C. § 2000d-4a(1)(A).

Courts have

interpreted Section 601 of Title VI as providing a private right
of action to enforce claims of intentional discrimination and
retaliation.

Peters v. Jenney, 327 F.3d 307, 318-19 (4th Cir.

2003); Alexander v. Sandoval, 532 U.S. 275, 280-83 (2001).
Employment discrimination claims brought under this Act are
limited by Section 604 of Title VI, which does not authorize
suits against an employer unless the “primary objective of the
Federal financial assistance [received by the employer] is to
11

provide employment.”

42 U.S.C. § 2000d-3.

The United States

Court of Appeals for the Fourth Circuit treats Section 604 “as
an element of a litigant’s cause of action.”

Rogers v. Bd. Of

Educ. Of Prince George’s Cnty., 859 F.Supp.2d 742, 748-49 (D.Md.
2012); Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420-21 (4th
Cir. 2005)(noting that plaintiff failed to allege facts in his
complaint to show that defendant received federal funds or that
“providing
aid”).

employment

is

a

primary

objective

of

the

federal

Accordingly, to survive a motion for summary judgment

under Section 604 of Title VI, a litigant must provide facts to
show

that:

(1)

the

employer

received

federal

financial

assistance for the primary purpose of providing employment, or
(2)

the

employment

discrimination

was

against

beneficiary of the federal financial assistance.
Libbie

Rehab.

Ctr.,

Inc.,

590

F.2d

87,

89

a

primary

Trageser v.

(4th

Cir.

1978),

overruled on other grounds by Consol. Rail Corp. v. Darrone, 465
U.S. 624, 631-36 (1984); see Reynolds v. School District No. 1,
Denver,

Colorado,

(affirming

district

Defendants

because

grant

Defendant

69

F.3d

court’s
Plaintiff

received

was

1523,

1531-32

(10th

grant

of

summary

failed

to

show

“intended

Cir.

1995)

judgment

how

primarily

for

the

federal

to

provide

employment and not simply to fund various school programs or
enrichment activities”).

12

Plaintiff alleges that Defendant is a recipient of federal
financial

assistance,

Justice

has

stating

that

the

Prince

provided

“[t]he

U.S.

George’s

Department
County

of

Police

Department with millions of dollars under the American Recovery
and Reinvestment Act of 2009.” (ECF No. 1-3 ¶ 4).
maintains

that

“Prince

George’s

County

Police

She also
Department

received stimulus funds for the [express] purpose of creating
jobs and maintaining existing ones.”

(Id.) (emphasis added).

Defendant argues that Plaintiff is not an intended beneficiary
of federal funds received by the County government, and that
Plaintiff’s job is not funded by any federal monies received
under ARRA.
the mark.

(ECF No. 12, at 11).

Defendant’s arguments miss

Plaintiff does not allege that she is an intended

beneficiary of the federal funds, and Title VI does not require
a litigant to show that her job was directly funded by federal
monies.

Trageser, Inc., 590 F.2d at 89.

Judge Messitte’s analysis in Rogers v. Board of education
of Prince George’s County is instructive.
54.

859 F.Supp.2d at 752-

In that case, Judge Messitte denied the Defendant’s motion

for summary judgment because a genuine dispute existed as to
whether Defendant’s receipt of federal grants (under two funds
of the American Recovery and Reinvestment Act (“ARRA”)) was for
the primary purpose of providing employment.

Id.

Here too

there is a genuine dispute of material fact about whether the
13

County Police Department received federal funds under the ARRA
stimulus funds for the primary purpose of providing employment.
See Rogers, 859 F.Supp.2d at 751 (“Having found that § 604’s
‘primary objective’ requirement is a component of Plaintiffs’
Title VI claims, it is for a jury, not the Court, to ultimately
decide whether each Plaintiff has established this among other
elements

of

their

Title

VI

claims.”).

Accordingly,

summary

judgment will be denied as to the Title VI claim.
B.

Title IX Claim (Count I)

Plaintiff asserts retaliation claims under Title IX against
Defendant.

Defendant argues that the Title IX claim does not

apply to it because it is not an educational institution and
does

not

administer

federal

education

programs

or

receive

educational funding.
Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681 et seq., prohibits discrimination on the basis of sex in
“any education program or activity receiving Federal financial
assistance[.]”

20 U.S.C. § 1681(a) (emphasis added); see also

Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 635-36 (1984)
(noting

that

the

Supreme

Court

has

construed

Title

IX’s

educational “program or activity” language as “limit[ing] the
ban

on

discrimination

federal funds”).

to

the

specific

program

that

receives

The Fourth Circuit has held that “[a]n implied

private right of action exists for enforcement of Title IX . . .
14

employment discrimination [claims] on the basis of gender by
educational institutions receiving federal funds.”

Preston v.

Virginia ex rel. New River Cmty. Coll., 31 F.3d 203, 205-06 (4th
Cir. 1994) (emphasis added).

The statute defines “Educational

institution” as “any public or private . . . school, or any
institution of vocational, professional, or higher education.”
20 U.S.C. § 1681(c).
Although

the

statute

by

its

plain

language

applies

to

recipients of federal funding, the recipient must also be an
“education

program

or

activity.”

20

U.S.C.

§ 1681(a).

Plaintiff cannot recover under Title IX as she has not provided
any evidence whatsoever that Defendant is a federally funded
educational institution.

Therefore, summary judgment will be

granted to Defendant on the Title IX claim.
C.

Title VII Claims (Count III)

Defendant argues that Plaintiff cannot establish a prima
facie Title VII case for several reasons.

First, she cannot

show that Defendant took materially adverse employment actions
against her in order to establish retaliation.

Second, she

cannot show that Defendant’s conduct was sufficiently severe and
pervasive to create a hostile work environment.
Title VII of the Civil Rights Act prohibits status-based
discrimination based on an employee’s personal characteristics
such as “race, color, religion, sex, or national origin,” 42
15

U.S.C. § 2000e-2(a); Univ. of Texas Sw. Med. Ctr. v. Nassar, 133
S.Ct. 2517, 2525 (2013).

It also prohibits retaliation by the

employer against employees who engage in a protected activity.
Id.

Protected activity includes opposing “unlawful employment

practice[s][under]

this

subchapter”

or

“ma[king]

a

charge,

testif[ying], assist[ing], or participat[ing] in . . . [a Title
VII]

investigation,

proceeding,

or

hearing[.]”

42

U.S.C.

§ 2000e-3(a).
To

survive

a

motion

for

summary

judgment,

a

plaintiff

making Title VII claims must provide evidence of intentional
discrimination, which includes acts of retaliation, through one
of two avenues of proof:
that

retaliation

(1) direct or circumstantial evidence

motivated

the

employer’s

adverse

employment

decision, or (2) the McDonnell Douglas “pretext framework” that
requires

a

plaintiff

to

show

that

“employer’s

proffered

permissible reason for taking an adverse employment action is
actually a pretext for [retaliation].”

Hill v. Lockheed Martin

Logistics Management, Inc., 354 F.3d 277, 284-85 (4th Cir. 2004)
(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Under the McDonnell Douglas framework, once the plaintiff
meets its initial burden of establishing a prima facie case for
retaliation, “the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the adverse employment
action.”

Hill, 354 F.3d at 285.
16

Once the employer meets this

burden of production, “the burden shifts back to the plaintiff
to prove by a preponderance of the evidence that the employer’s
stated reasons ‘were not its true reasons, but were a pretext
for discrimination.’”

Id. (quoting Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 143 (2000)).

“The final pretext

inquiry merges with the ultimate burden of persuading the court
that

[the

plaintiff]

has

been

the

victim

of

intentional

discrimination, which at all times remains with the plaintiff.”
Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294
(4th Cir. 2010) (internal quotations omitted).
1.

Retaliation

Under the first step of the McDonnell Douglas framework,
Plaintiff must establish a prima facie case of retaliation under
Title

VII

by

showing

that:

(1)

she

engaged

in

a

protected

activity, (2) in response, her employer acted adversely against
her, and (3) the protected activity was causally connected to
the adverse action.

Holland v. Washington Homes, Inc., 487 F.3d

208, 218 (4th Cir. 2007).

“The antiretaliation provision [of

Title VII] protects an individual not from all retaliation, but
from retaliation that produces an injury or harm.”

Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006).

Unlike

for discrimination claims, a plaintiff need not establish an
“ultimate employment decision” to make a prima facie case of
retaliation.

James v. Booz-Allen & Hamilton, Inc., 368 F.3d
17

371, 375-76 (4th Cir. 2004).

Rather, she must show a materially

adverse employment action, meaning that the “employer’s actions
must be harmful to the point that they could well dissuade a
reasonable

worker

discrimination.”

from

making

or

supporting

a

charge

of

Burlington, 548 U.S. at 57, 67-68 (emphasis

added) (describing this determination as an objective standard
from

the

viewpoint

employment

action

of
is

a
a

reasonable

employee).

discriminatory

act

“An

which

adverse

adversely

affect[s] the terms, conditions, or benefits’ of the plaintiff’s
employment.”

James,

368

F.3d

at

375

(internal

quotations

omitted).
[T]he mere fact that a new job assignment is
less appealing to the employee, however,
does not constitute an adverse employment
action.
A reassignment can only form the
basis of a valid Title VII claim if the
plaintiff can show that the reassignment had
some significant detrimental effect. Absent
any decrease in compensation, job title,
level of responsibility, or opportunity for
promotion, reassignment to a new position
commensurate with one’s salary level does
not
constitute
an
adverse
employment
action[.]
Id. at 376 (internal quotation and citation marks omitted).
a.

Materially Adverse Employment Actions

Defendant contends that Plaintiff has not met her burden
under the McDonnell Douglas framework, because she has not shown
that the County Police Department took adverse employment action

18

against her.5

Plaintiff counters that Defendant took several

materially adverse employment action against her, including: (1)
transferring her to the TRU, and (2) instituting a criminal
prosecution and disciplinary action against her which resulted
in a fine of $1,100.
i. Transfer to the TRU
Although a transfer to “a new job assignment [that] is
subjectively less appealing to the employee is not [by itself] a
‘materially adverse’ employment action[,]” James, 368 F.3d at
375, courts have found that a new job assignment with reduced
supervisory duties or diminished responsibility can constitute
an adverse employment action.

See Czekalski v. Peters, 475 F.3d

360, 364 (D.C. Cir. 2007) (noting that a lateral transfer can
constitute an adverse employment action if it results in the
withdrawal

of

“reassignment
(internal

an

with

employee’s
significantly

quotations

and

“supervisory
different

citations

duties”

or

responsibilities”

omitted));

Kessler

v.

Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 206-07 (2d
Cir. 2006) (stating that a transfer is an adverse employment
action

if

it

[plaintiff’s]

causes

a

“radical

work”

(internal

change

in

quotations

nature
and

of

the

citations

omitted)).
5

Defendant has not challenged Plaintiff’s establishment of
the first (engaging in a protected activity) or third
(causation) elements of retaliation.
19

Defendant

argues

that

Plaintiff’s

transfer

was

not

an

adverse employment action because she maintained the same title
and supervisory duties in the TRU.

(ECF No. 12, at 20-21).

Defendant admits that the TRU was undergoing renovations when
Plaintiff arrived, but states that just because “Plaintiff may
not

have

liked

her

new

job

assignment

or

initial

work

environment [this] is not a basis for maintaining a retaliatory
adverse employment action[.]”
Plaintiff
employment

counters

action,

(Id. at 21).

that

because

her

the

TRU

transfer
“had

was

been

an

adverse

non-operational

since 2008” and she had “nothing to do, no place to work, and no
staff to supervise” from August 2010 until January 2011.
No.

13-1,

at

3).

She

provided

evidence

showing

that

(ECF
her

transfer resulted in withdrawal of her supervisory duties for at
least a period of time, and a change in the nature and amount of
work she was given.

(Id.).

Plaintiff has provided sufficient

evidence to create a material dispute of fact with regard to
whether

her

transfer

to

the

TRU

was

an

adverse

employment

action.
ii.

Disciplinary Action

Plaintiff alleges that the criminal charges and internal
investigation arising from the June 30, 2010 incident with Cpl.
Brooks that resulted in a formal disciplinary action and fine of
$1,100

constituted

an

adverse

employment

20

action.

Defendant

maintains that it was not the County Police Department that
instituted the criminal charges, but Cpl. Brooks.
at 8-9).

(ECF No. 14,

Defendant also states that Plaintiff “did not suffer

any economic loss.”

(ECF No. 12, at 22).

Defendant’s arguments are unavailing.

Plaintiff’s evidence

shows that the fine resulting from her disciplinary action was
deducted directly from her paychecks.

(ECF No. 13-1, at 4).

Because the fine reduced Plaintiff’s compensation, it can be
considered an adverse employment action.

Cf. James, 368 F.3d at

376 (“[A]bsent any decrease in compensation, job title, level of
responsibility, or opportunity for promotion, reassignment to a
new

position

commensurate

with

one’s

salary

level

does

not

constitute an adverse employment action[.]” (internal quotations
omitted)).
prosecution

Furthermore,
can

courts

constitute

[an]

have

noted

adverse

that

“malicious

employment

action.”

Berry v. Stevinson Chevrolet, 74 F.3d 980, 986 (10th Cir. 1996);
Beckham v. Grand Affair, Inc., 671 F.Supp. 415, 419 (W.D.N.C.
1987).

The

pursuit

of

criminal

charges

and

internal

investigations of Plaintiff, when the allegations were largely
unsupported as discussed infra, may also constitute an adverse
employment

action,

whether

these

charges

were

instigated

on

behalf of the Police Department or Cpl. Brooks.
At
whether

minimum,
these

there
actions

is

a

were

genuine

dispute

materially
21

of

adverse

fact

as

to

employment

actions, such that they would dissuade a reasonable employee
from filing an EEO complaint.
both

her

transfer

to

the

against

her

by

instituted

Burlington, 548 U.S. at 68.
TRU

and

the

Defendant,

disciplinary

Plaintiff

has

For

action
met

her

burden of showing a prima facie case of retaliation.
b.

Legitimate, Nondiscriminatory Reasons & Pretext

Defendant

argues

that

it

proffered

legitimate,

non-

retaliatory reasons for the alleged adverse employment actions
it took against Plaintiff.

First, the County Police Department

maintained that it transferred Ms. Fordyce to the TRU because
“the altercation she engaged in [with Cpl. Brooks] had affected
the Plaintiff’s ability to work in the Fusion Center with the
employee she had assaulted, as well as with others.”
12-2 ¶ 10).

(ECF No.

Second, the County Police Department stated that it

had instituted an internal investigation against Plaintiff and
fined her “in accordance with the police department’s written
policy

for

[internal]

complaints

complaining employee’s desires.”
the

McDonnell

legitimate,

Douglas

framework,

nondiscriminatory

and

in

accordance

with

(ECF No. 12, at 20).
once

reasons

the
for

Defendant
its

the

Under
offers

actions,

the

burden shifts back to Plaintiff to show “by a preponderance of
the

evidence

that

the

employer’s

reason

is

false

[retaliation] was the real reason for the decision.”

and

that

Thomas v.

Autumn Woods Residential Health Care Facility, 905 F.Supp. 414,
22

420 (E.D. Mich. 1995) (citing St. Mary’s Honor Center v. Hicks,
509 U.S. 502 (1993)).
Defendant

next

argues

that

Plaintiff

has

not

met

her

ultimate burden under the McDonnell Douglas framework of showing
by

a

preponderance

of

the

evidence

that

Defendant’s

nondiscriminatory reasons for its actions were only a pretext
for

its

retaliatory

motives.

Plaintiff

contends

that

Defendant’s reliance on the June 30, 2010 incident with Cpl.
Brooks as a reason for her transfer and disciplinary action is a
pretext,

which

investigation

of

is

evident

from

the

incident.

the

(ECF

No.

Department’s
13,

at

20).

own
“A

plaintiff may demonstrate pretext by showing ‘such weaknesses,
implausibilities,

inconsistencies,

incoherencies,

or

contradictions in the employer's proffered legitimate reasons
for its action that a reasonable factfinder could rationally
find them unworthy of credence.’”.
F.3d

1201,

1206

(10th

Cir.

Pastran v. K-Mart Corp., 210

2000)

(internal

quotations

and

citations omitted)).
Plaintiff has provided detailed information on the sequence
of events surrounding her transfer and disciplinary action that
provide insight into Defendant’s tacit motives.

Plaintiff has

alleged that from her first day at the Fusion Center, management
“incited the staff against her” and avoided her because of her
prior EEOC complaint.

(ECF No. 13, at 3).
23

Cpl. Brooks told

Plaintiff that Captain Patel had “told the Fusion Center’s staff
that [she] had filed prior EEO complaints and [] described [her]
has a troublemaker.”

(ECF No. 13-1 ¶ 11).

Only several months

after her arrival, after a single disagreement with a coworker
involving allegations of assault that were dispelled after a
preliminary investigation,6
a new unit.

management transferred Plaintiff to

Plaintiff was transferred by management, who had

labeled her as a “troublemaker” and had avoided her since she
began working at the Fusion Center.

She was transferred despite

the Chief’s instructions to drop the matter (ECF No. 13-7, at 79), and merely five days after Plaintiff filed an EEO complaint.
(ECF No. 13, at 4; ECF No. 13-5).

Based on this evidence, a

reasonable jury could find by a preponderance of the evidence
that

Defendant’s

articulated

reasons

were

a

pretext

for

management’s real motive for her transfer, retaliation.
As for the internal investigation of Plaintiff, this is
not

the

first

instance

in

which

Defendant

has

launched

an

internal investigation against Plaintiff following Plaintiff’s

6

On July, 12, 2010, after a mediation session between
Plaintiff and the aggrieved coworker, the coworker admitted that
Plaintiff had not grabbed her by the arm, but that “it was only
a touch, however she felt ‘disrespected’ by [Plaintiff].” (ECF
No. 13-7, at 7-9).
The only eyewitness to the disagreement
stated on July 21, 2010, that Plaintiff had merely “placed a
hand on Ms. Brooks’s arm” in an effort to get her to return to
her desk and that “[i]t was not a forceful grab.” (ECF No. 134, at 1-2).
24

filing of an EEOC complaint.7

(ECF No. 1-3 ¶ 23).

most

Lt.

recent

pertinent

investigation,

Witnesses”

but

did

not

Bingley
bother

During the

interviewed

to

take

“all

Plaintiff’s

statement until after she had already submitted her report to
the Assistant State’s Attorney.

(ECF No. 13-7, at 8).

After

reviewing Lt. Bingley’s report, the Assistant State’s Attorney
found

that

there

was

not

a

reasonable

chance

of

convicting

Plaintiff of second degree assault “due to the brevity of the
contact, level of force used[,] and absence of injury.”
ECF No. 13-7, at 10).
the

County

Police

(Id.;

But upon receiving this determination,

Department

still

decided

to

pursue

a

disciplinary action against Ms. Fordyce (ECF No. 13-9, at 7), a
decision that was made shortly after she had filed her second
EEO complaint.
1206

(noting

employee’s

(ECF No. 13, at 4-5); see Pastran, 210 F.3d at
that

complaint

“[c]lose
and

the

temporal

proximity

adverse

employment

between
action

the
is

a

factor in determining whether the employer’s proffered reason is
a pretext for retaliation.”).
Plaintiff’s strongest evidence that Defendant’s reasons are
pretextual is the report filed by Lt. Bingley regarding her
investigation of Plaintiff.

(ECF No. 13-7).

7

Lt. Bingley’s

In February 2008, the County Police Department launched an
internal investigation against Plaintiff, based on allegations
of “criminal misconduct” from an anonymous letter, shortly after
Plaintiff had filed an EEOC Charge of Discrimination on December
5, 2007. (ECF No. 1-3 ¶¶ 20, 23).
25

findings are at best contradictory, and at worst evidence of the
County

Police

Department’s

ill-will

towards

Plaintiff.

For

example, Plaintiff was fined $1,000 for unbecoming conduct based
on

second

Assistant

degree
State’s

assault,
Attorney

when
had

committed second degree assault.8
13-3).

both

found

Lt.
that

Bingley

and

the

Plaintiff

had

not

(ECF No. 13-7, at 10; ECF No.

Even if Defendant was acting in accordance with its

internal policy in pursuing the internal investigation against
Plaintiff, Defendant could not genuinely believe that it was
justified in fining Plaintiff based on allegations that were
unsupported by the investigator’s own report.

See Pastran, 210

F.3d at 1206 (noting that in determining pretext, a court must
consider

“not

whether

employee

engaged

in

the

employer

misconduct,

but

was

right

whether

to

that

think

the

belief

was

genuine or pretextual” (internal quotations omitted)).
A reasonable jury could find by a preponderance of the
evidence that Defendant’s true motivation for instituting the
internal investigation, disciplinary action, and fine against

8

Lt. Bingley sustained charge #2 against Plaintiff for
Unbecoming Conduct for second degree assault, while at the same
time finding that charge #1 for second degree assault was
unfounded—both second degree assault charges were based on the
same evidentiary standard, preponderance of evidence. (ECF No.
13-7, at 10). Furthermore, Plaintiff was charged twice for what
was in essence the same “false” statement, in which she alleged
that she had not aggressively grabbed Cpl. Brooks, a statement
that was verified by the only witness to the event, Quanetta
West. (Id.; ECF No. 13-4, at 1-2).
26

Plaintiff

was

to

retaliate

against

Plaintiff

for

filing

EEO

complaints and for being a “troublemaker,” rather than to act in
accordance with its internal policy and Cpl. Brooks’s wishes.
Plaintiff

has

met

her

burden

under

the

McDonnell

Douglas

framework of showing by a preponderance of the evidence that
Defendant’s proffered reasons for its actions were a pretext for
retaliation.

Thus,

Defendant

is

not

entitled

to

summary

judgment on Plaintiff’s Title VII retaliation claims.
2.

Retaliatory Hostile Work Environment

Defendant argues that Plaintiff has not met her burden of
establishing

a

prima

facie

case

of

retaliatory

hostile

work

environment, because the incidents of retaliation alleged in her
complaint are not severe or pervasive as to alter the conditions
of her employment and create an abusive atmosphere.9
Retaliation

claims

under

Title

VII

can

be

based

on

an

employer’s retaliatory creation of a hostile work environment.
Von

Gunten

v.

(“Retaliatory

Maryland,

243

harassment

can

F.3d

858,

constitute

869

(4th

adverse

Cir.

2001)

employment

action.”), overruled on other grounds by Burlington, 548 U.S. at
67-68.
facie

To survive summary judgment, Plaintiff must show a prima
case

employer's

for

retaliation,

adverse

actions

including
amount

9

to

evidence
a

that

hostile

her
work

In
Defendant’s
motion
for
summary
judgment,
it
mischaracterizes Plaintiff’s claim as hostile work environment
based on sex and race discrimination.
(ECF No. 12, at 25-26).
27

environment.10
2011).

The

Thorn v. Sebelius, 766 F.Supp.2d 585, 600 (D.Md.
Supreme

Court’s

decision

in

Burlington

Northern

suggests that a plaintiff can establish retaliation under this
theory as long as the employer’s creation of a hostile work
environment amounts to a materially adverse employment action.
548 U.S. at 68.
meaning

that

Materiality is an objective determination,

“[a]cts

that

carry

a

significant

risk

of

humiliation, damage to reputation, and a concomitant harm to
future employment prospects may be considered adverse actions,
although

a

mere

inconvenience

or

an

responsibilities[] will not suffice.”

alteration

of

job

Reinhardt v. Albuquerque

Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1133 (10th Cir. 2010)
(internal quotations omitted).
A

hostile

work

environment

under

Title

VII,

requires

a

plaintiff to show that the harassment was “sufficiently severe
or pervasive to alter the conditions of [] employment and []
create an abusive atmosphere[.]”
733,

745-46

(4th

Cir.

2006).

Baqir v. Principi, 434 F.3d
The

10

“standard

for

proving

an

If the adverse employment action is creation of a hostile
work environment, the plaintiff must also show enough evidence
that “a reasonable jury [could] conclude that the harassment was
(1) unwelcome, (2) based on [a protected activity], (3)
sufficiently severe or pervasive to alter the conditions of her
employment and create an abusive atmosphere, and (4) imputable
to [the employer].”
E.E.O.C. v. Cent. Wholesalers, Inc., 573
F.3d 167, 174-75; see also Thorn, 766 F.Supp.2d at 600-01
(applying the hostile work environment factors to a claim of
retaliatory hostile work environment).
28

abusive

work

environment

because

the

standard

is

is

intended

designed

to

to

be

a

filter

very
out

high

one

complaints

attacking ‘the ordinary tribulations of the workplace.’”

Wang

v. Metro. Life Ins. Co., 334 F.Supp.2d 853, 864 (D.Md. 2004).
“Courts usually only allow hostile work environment claims to
proceed where the [harassment] is near constant, oftentimes of a
violent or threatening nature, or has impacted the employee's
work

performance.”

Tawwaab

v.

Va.

Linen

Serv.,

Inc.,

729

F.Supp.2d 757, 777 (D.Md. 2010).
In Plaintiff’s opposition to Defendant’s motion for summary
judgment, she alleges that her employer took several actions in
response to her filing internal EEO complaints that support her
retaliatory hostile work environment claim, including:

(1) on

August 4, 2010, Deputy Chief Magaw transferred her to the TRU
after she had made an EEO complaint on July 30, 2010 (ECF No.
13,

at

16-17);

Department

(2)

notified

on

December

her,

that

14,
it

2010,
had

the

County

pursued

a

Police

criminal

prosecution against her and that it would pursue an internal
investigation against her after she made an EEO complaint on
October 1, 2010 (ECF No. 1-3 ¶¶ 47, 50, 52); (3) on March 25,
2011, the County Police Department notified her that it was
fining her $1,600 as a part of the disciplinary action against
her for the incident involving Cpl. Brooks (ECF No. 13, at 1718).
29

Although these incidents may constitute materially adverse
employment actions, supporting individual claims of retaliation,
under the totality of circumstances they are not “sufficiently
severe

or

pervasive”

to

create

Baqir, 434 F.3d at 745-46.
occurred

months

apart,

a

hostile

environment.

The incidents cited by Plaintiff

thus,

failing

constant retaliation by Defendant.
777.

work

to

show

a

pattern

of

Tawwaab, 729 F.Supp.2d at

In addition, none of Defendant’s direct acts (the transfer

and disciplinary action) or the consequences of these actions
(working

in

a

less

appealing

division

and

paying

a

fine)

involved violence or threats towards Plaintiff or created an
abusive
acts

environment;

(transferring

exercised

in

a

instead,

and

a

prima

civil

facie

were

disciplining

nondiscriminatory reasons.
showing

they

manner

an

and

standard,
employee),

facially

managerial
which

supported

were
by

Plaintiff has not met her burden of
case

of

retaliatory

hostile

work

environment, and thus, Defendant is entitled to summary judgment
on this claim.
D.

State Law Claims (Counts IV and V)

Defendant argues that Plaintiff’s retaliation claims under
state law (counts IV and V) are barred because of her failure to
comply

with

Maryland’s

Local

Government

Tort

(“LGTCA”), Md. Code Ann., Cts. & Jud. Proc. § 5-304.

30

Claims

Act

Section 503(b) of the LGTCA provides that “an action for
unliquidated
government

damages

or

its

may

not

employees

be

brought

unless

the

against

notice

a
the

of

local
claim

required by this section is given within 180 days after the
injury.”

Cts. & Proc. § 5-304(b).

Notice is required to be

given in writing, delivered in person or by certified mail, and
must state the “time, place, and cause of the injury.”
304(b)-(c).

For

notice

be

must

attorney.”

claims

against

“given

to

George’s

county

the

Prince

solicitor

Id. § 5-

County,
or

the

county

Id. § 5-304(c).

“[T]he

LGTCA

creates

a

procedural

obligation

plaintiff must meet in filing a tort action.

that

a

A plaintiff must

. . . satisfy the notice requirement strictly or substantially,
[and

must]

also

plead

such

satisfaction

requirement] in his/her complaint.”
420 Md. 670, 694 (2011).

[of

the

notice

Hansen v. City of Laurel,

The purpose of the notice requirement

is to “furnish the municipal body with sufficient information to
permit it to make an investigation in due time, sufficient to
ascertain the character and extent of the [plaintiff’s] injury
and

[the

municipality’s]

it[.]”

Grubbs

(1972).

In

v.

Prince

instances

responsibility
George’s

where

a

in

connection

County,

267

Md.

plaintiff

has

not

318,

with
321

strictly

complied with the notice requirement, but where the purpose of
the notice provision is nonetheless satisfied, Maryland courts
31

have found that substantial compliance is sufficient to satisfy
the statute.

Faulk v. Ewing, 371 Md. 284, 299 (2002); Williams

v. Maynard, 359 Md. 379, 390 (2000).
Substantial

compliance

requires

“some

effort

[by

the

plaintiff] to provide the requisite notice and, in fact, it must
be provided, albeit not in strict compliance with the statutory
provision.”

Moore

Additionally,

v.

Norouzi,

substantial

371

compliance

Md.

154,

171

requires

(2002).

that

“the

relationship between the person or entity in fact notified and
the person or entity that the statute requires be notified was
so close . . . that notice to one effectively constituted notice
to the other[,]” Ransom v. Leopold, 183 Md.App. 570, 584 (2008),
thereby providing “the unit or division with the responsibility
for

investigating

. . .

actual

tort

knowledge

claims
[of

against
the

that

local

information

§ 5-304(b)(2)] within the statutory period[.]”

government

required

by

Moore, 371 Md.

at 154.
Here, Plaintiff failed strictly or substantially to comply
with the notice requirement of § 5-304, by failing to take any
affirmative steps to notify Prince George’s County Attorney of
her claims within 180 days of the occurrences from which her
claims arose.
Defendant

Md. Code. Ann., Cts. & Jud. Proc. § 5-304(b)-(c).

provided

an

Affidavit

of

Kristine

R.

Beck,

an

administrative aid in the Office of the Prince George’s County
32

Attorney, who affirmed that she checked the office records and
that Plaintiff had not provided the County with any notice of
her claims.

(ECF No. 12-4).

Additionally, the complaint does

not mention any actions taken by Plaintiff to notify the County
Attorney of the time, place, or cause of her injury.
If

a

plaintiff

fails

substantially

to

comply

with

the

notice requirement, such as here, a court may still hear the
suit

“upon

defendant

motion
can

and

for

affirmatively

good
show

cause
that

prejudiced by lack of required notice[.]”
Jud. Proc. § 5-304(d).

shown[,]”
its

“unless

defense

has

the
been

Md. Code Ann., Cts. &

A plaintiff demonstrates good cause by

showing that she has prosecuted her claim with the “degree of
diligence that an ordinarily prudent person would have exercised
under the same or similar circumstances.”

Moore, 371 Md. at 169

(quoting Heron v. Strader, 361 Md. 258, 271 (2000)).

Plaintiff

has not demonstrated good cause in this case.
Plaintiff has provided no evidence to counter Defendant’s
argument that she had failed to give proper notice, nor did she
show evidence of good cause for failing to substantially comply
with § 5-304’s requirements.

Because Plaintiff has not complied

33

with § 5-304 of the LGTCA, Defendant is entitled to judgment as
a matter of law on counts IV and V.
IV.

11

Conclusion
For the foregoing reasons, Defendant’s motion for summary

judgment will be granted in part and denied in part.

Summary

judgment will be granted for Defendant on all of the claims,
except Plaintiff’s claims for retaliation under Title VI and
Title VII.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

11

Defendant also contends that Plaintiff’s state law claims
are barred because they were not filed within the two year
statute of limitations provided by Title 20 of the Maryland
Code’s State Government Article § 20-1202(c), and because
Plaintiff failed to exhaust administrative remedies for these
particular claims by cross-filing her EEOC claim with the Prince
George’s County Human Relations Commission.
(ECF No. 12, at
14).
The merits of these additional arguments will not be
reached considering that the state law claims are barred by
Plaintiff’s failure to satisfy § 5-304 of the LGTCA.
34