Morgan v. City of Rockville, Maryland

Filing 70

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/4/2015. (kns, Deputy Clerk)

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--'FilED

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IN TilE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
COURTNEY

DEPUTY

Casc No.: GJII-13-1394

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MD, elal.

CITY OF ROCKVILLE,

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Defendants.

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ATeJlEENllELT

CLEIlK u.s. DllTIlICT CXltJRT
D1S11IICT OF MARYlAND

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v.

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This is a race discrimination
against his fonncr employer.

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MEMORANDUM

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case brought by Courtney

L. Morgan, an Alrican American.

Maryland

Director of Community

Planning and Development

Services

violations

~ 1983. This Memorandum

Opinion and accompanying

Defendants'

Motion for Summary

Judgment.

L

Morgan's

Complaint

(the "City'"). and Susan Swift
for thc City, for purportcd
Ordcr addrcss

See Loc.

ECF No. 48. A hearing is not necessary.

R. 105.6. For the reasons stated below, Defendants'
GRANTED.

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OPINION

the City of Rockville,

01'42 U.S.c.

I£CEI'IID

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PlaintifC

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~ENlEREO

MAR-4 2015 ~

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L. MORGAN,

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tmGm

is dismissed

Motion ftlr Summary

Judgmcnt

is

with prcjudice.

BACKGROUND
Morgan posted his resume on a govell1mcnt jobs website and received a call IrOln Susan

Swift of the City of Rockville
first intervicw

for an interview

was a phone interview

conducted

in April or May 20 II. ECF No. 48-2 at 4. The
by Swili and two othcr City cmployees.

No. 48-2 at 7. Swili then called Morgan to of!er him a second round intervicw.
time, Swi Ii inlormcd

Morgan of the salary rangc, job duties, and her expectations

!d. at 10. Swift also participated

in the second interview.

ECF

!d. at 6. At that
of thc position.

!d. at 12. Alier the second intcrvicw,

Switi and another City employee. Andy Gunning. went to lunch with Morgan. lei. at 13. During
the lunch. Switi indicated to Morgan that the panel "prctty much came to a consensus for the
recommendation ... [aJnd that [Morgan] was most likely going to be the person that they
supported bringing on board."' !d. at 13.
On .lune 17.2011. Switi sent a memorandum to Scott Ullery. the City Manager. She
recommended hiring Morgan as the Chief of the Inspection Services Division. ECF No. 48-6.
The yearly salary range Illr the position was approximately $71.000 to $150.000. ECF No. 48-2
at 5. Switi proposed that Morgan's yearly salary be $95.000. ECF No. 48-6. The salary was
approved and Morgan was hired. I ECF No. 48-2 at 14.
According to Morgan's deposition testimony. at the beginning of his employment. Switi
provided him with a PowerPoint presentation outlining her expectations of him. ld. at 15-16. She
also set up weekly progress meetings tllr Morgan. where she was typically present. lei. at 16.
Morgan testified that he was told the purpose of the meetings were to identity his "comfort
level[.] where [he] was with meeting with the other two supervisors[.] and how things [were]
progressing."' !d. at 17.
Matt Shanks and Robert Purkey. the fire marshal and supervisor of inspections
respectively. were in positions directly below Morgan's. ECF No. 48-2 at 19. Morgan testified
that he and these two individuals "had [their] differences."' lei. at 19. lie explained that he did not
always agree with Shanks and Purkey on how to interpret thc City Code. !d. at 19-20. Morgan
described one incident where two inspectors conducted a fire inspection: Morgan considered that
as one inspection while Shanks and Purkey considered it as two inspections. lei. at 20.

1 In Morgan's application. he indicated that his preferred salary was $80.000-85.000.
48-3.

2

ECF No.

Morgan testified that another employee. Migucll\loreno.

who is Cuban. once complained

that Purkey commented on Moreno' s accent. saying that othcrs could not understand Morcno. !d
at 22. Morgan reported thc incident to Switi and spoke to Purkey. Id at 23-24. Morgan did not
document thc incident but believcd that. if the bdulVior continucd. documcntation would have
been the next step. It!. at 23. Morgan said hc later learned of othcr incidents il1\'olving Purkey
and Shanks. He describcd one incidcnt wherc hc was told Purkcy and Shanks madc comments
about an African American's hair being "kinky" or "nappy:' Id at 22.
According to Morgan. Switi never expressed conccrn about his pcrformance. although hc
did acknowledge that Switi expresscd conccrn over the Icngth of Morgan's "plan rcview
process:' Id. at 25-26. Switi asked Morgan to compare somc of their processes with processes
used in a different jurisdiction. Id at 27. Morgan disagrccd. Id. Morgan testified that Switi also
had conccrns about his ability to usc the City's online permit system. Id. at 27-28. Morgan did
not reccive a three-month performance revicw. It!. at 31.
Regarding salary. according to the City's records. at the timc Morgan was hired. Shanks'
annual salary was $80.000 and Purkey's was $83.700. ECF No. 68-1. Division ChicI' Ronald
Wasilak's salary was $125.088.50 per year. and he was hired on Scptember 9.1996. ECF No.
68.1. Division Chief David Lcvy's salary was $117.952.85 per ycar. and he was hircd on
October 10. 2005. Id

2

Wasilak and Levy are both Caucasian. Othcr than Morgan. all division

Morgan testificd that he bdievcd Purkcy was making approximately $95.000 pCI'ycar. Shanks
was paid bctwcen $84.000 and $87.000 per ycar. and a block grant writcr subordinatc to Morgan
was earning closc to $90.000 Jlcr year. Id. at 40-41. Morgan belicvcd Wasilak's salary was close
to $130.000 per year and Levy's ycarly salary was around $125.000. ECF No. 48-2 a143-44.

2

chiefsJ had been working

for thc City sincc at least 2007. and wcrc earning betwecn $100.000

yearly. Id.

and $160.000

Morgan asscrts that. on Fcbruary
failcd him in "every conceivable
was provided
successful

performance

category'"

rating in three categories.

an acccptabic

~i
15.

rating in six catcgories;

ld. Morgan also argues that hc was tcrminated

ECF No. 68 at 4. Ilowcver.

1. 2012. stating that Morgan's

Dcfendants

Morgan's

and Swili
review

termination

Director informing

his probationary

and an unsatisfactory
on or around February

havc providcd a termination

datc would be effcctivc

2. On February 29. 2012. Swili supplied a memorandum
Resourccs

ECF No. 13 at

evaluation

to the Court. See ECF No. 69-1. It is datcd February 9. 2012 and he reccivcd a

rating in three categorics.
6.2012.

I. 2012. hc received his six-month

lettcr dated March

March 9. 2012. ECF No. 69-

to the City's Manager and Human

them why Morgan was to bc scparated

from cmployment

during

period. ECl' No. 48-7. She wrote:

The lollowing
examples and attachments
providc documcntation
of scrious
pcrformance
deficiencies
for Mr. Courtncy Morgan. as Chief of thc Inspcction
Serviccs Division. Upon his arrival. I provided him with a work program and
my goals lor him and his division. I explained that the division was vcry
competent and operated wcll but that his job would be to takc them (gradually)
to the next Icvel of improved technology and customer servicc.
I have coached him on ways to lead his tcam. gain their respcct and become
"an insider'"
I havc provided
advicc and background
on personncl
and
supervisory
issues and havc provided close supcrvision
to hclp him managc
assignments
via onc-on-one weekly mcctings ovcr the last 4 months. All of thc
following cxamplcs
arc from direct. pcrsonal intcraction
with me. his direct
supervisor.
Although Mr. Gunning has had less interaction and attcnded a fcw
of thc wcckly mcctings. some of these cxamples arc supported or supplicd by
him. Unfortunately.
no improvemcnt
in performance
is evidcnt.
and as
assignmcnts havc bccome morc complex and morc likc projects than tasks. such

Tcrrancc N. Treschuk was thc ChicI' of Police. Carlos Vargas was the Chief Iluman Resourccs
Officer. Ronald Wasilak was the Chicf of Planning. Emad Elshafei was the Chicf of Traflic and
Transportation.
Mark Charles was the Chicf of Environment Management. David Levy was the
Chicf of Long Range Planning. and Michael Wilhclm was the Chicf of Construction
Managcment. ECl' No. 68-1.

J

4

as Chapter
acceptable.

5, perfl)rmance

and project management

skills have not been

As a result of these delieieneies and the fact that these include basic skills and
knowledge of the Inspection Services Division Chief job description, he is
being dismissed during his probationary period.

Id The memorandum goes on to point out specilic examples of Morgan's deliciencies in
understanding job responsibilities and assignments. accuracy. and technical knowledge. ECF No.
48.7 at 1-3. Attached to the memorandum were several documents provided as examples of
instances where Morgan was asked to resubmit drafts of documents aller failing to follow
Swill"s direction. ECr No. 48.7 at 4-19.
After he was tenninated. Morgan complaincd of harassment and discrimination by Swill
to Carlos Vargas. thc human rcsourccs dircctor. lOCI'No. 48-4 at 6-7. Vargas informcd Morgan
that ..there was nothing he could do to help him."' Id. at 7. After his tennination. Morgan was
unemployed until April 30. 2012 whcn hc becamc employed with Montgomery County Schools
as an cngineer I'll[ an annual salary of $93.000. lOCI'No. 48.4 at 3. The City has not hired
anyone to replace Morgan. lOCI'No. 48.5 at 10.
On April 4. 2013. Morgan filed this action in the Circuit Court for Montgomery County.
Maryland claiming that the City's decision to terminate him was the rcsult of racial
discrimination in violation ofTit1e VII. See ECr No. I. On May 13.2013, the City removcd thc
case to this Court. See id. Morgan amendcd his Complaint on August 14.2013 replacing
violations of Title VII with violations 01'42 U.S.c. ~ 1983 and adding Susan Switi as a
defendant. ECF No. 13. Dcfendants liled a motion to dismiss for failure to state a claim. ECr
NO.1 O. That motion was denied on Deccmber 30. 2013. ECr No. 21. Discovery is now complete

5

and Defendants have tiled a motion for summary judgment. See ECF No. 48. For the reasons
discussed more fully below. Defendants' motion for summary judgment is granted.~
II.

STANDARD

OF REVIEW

Summary judgment is proper i I' there are no issues of material fact and the moving party
is entitled to judgment as a matter of law. CelO/ex Corp. \'. Calre/l. 477 U.S. 317. 322 (1986):
Francis ,'. Boo:::.Allen & Hamil/on. Inc.. 452 F.3d 299. 302 (4th Cir. 2(06). A matcrial fact is
one that "might affect the outcome of the suit under the governing law." Spriggs \'. Diall/oml
AII/O Glass. 242 F.3d 179. 183 (4th Cir. 2(01) (quoting Anderson \'. Liherl)' Lobb)', Inc.. 477
U.S. 242. 248 (1986)). A dispute of material fact is only "genuine" if sut1icient evidence
favoring the non-moving party exists for the trier of t~lCt o return a verdict for that party.
t
Anderson. 477 U.S. at 248. However. the nonmoving party "cannot create a genuine issue of
material fact through mere speculation or the building of one inference upon another." Beale ".
lIard)'. 769 F.2d 213. 214 (4th Cir. 1985). The Court may only rely on facts supported in the
record. not simply assertions in the pleadings. in order to fultill its "at1innative obligation ... to
prevent 'f~lCtually unsupported claims or detCnses' from proceeding to trial" Fel/)' \'. Gr(ll'eHumphreys Co.. 818 F.2d 1126. 1128 (4th Cir. 1987) (citing Celo/ex CO/]).. 4 77 U.S. at 323-24).
When ruling on a motion fiJr summary judgment. ..[tJhe evidence of the non-movant is to be
believed. and all justifiable inferences are to he drawn in his tlI\'OI"."
Andersoll. 477 U.S. at 255.
However. i I' the non-movant's statement of the facts is "hlatantly contradicted by the record. so
that no reasonable jury could believe it. the court should not adopt that \'ersion of the tacts for
the purposes of ruling on a Motion lor Summary Judgment." Sco/l \'. /larris. 550 U.S. 372.380
(2007).

~ The City also renews its motion to dismiss based on Morgan's misrepresentation of a material
t~lctin his opposition to the City's motion to dismiss. ECF No. 48-1 at 20-21.
6

III.

DISCUSSION
A. Susan Swift
Employment discrimination cases brought under 42 U.S.c. ~ 1983 are revicwed under

the same fj'amework as those brought under Title VII. Ahasiekong \'. Cif)' o{Shelh)'. 744 F.2d
1055. 1058 (4th Cir. 1984). "A plaintifT generally may defeat summary judgment and establish a
claim for race discrimination through one of two avenues of proof:' Holland \'. Wash. Homes.
/nc .. 487 F.3d 208. 213 (4th Cir. 2007). A plaintiff may defeat summary judgment by presenting
direct or circumstantial evidence that race was a motivating factor of the employer's adverse
employment action. !d at 213-14. Alternatively. without evidence that race was a motivating
factor. the plaintifT may proceed under the familiar burden-shifting framework laid out in
McDonnell DOl/glas Corp. \'. Green. 411 U.S. 792 (1973). !d at 214.
Morgan seeks to prove race discrimination by proceeding under the burden-shifting
framework. See ECI' No. 68 at 7-8. Under that framework. I'laintiffhas the initial burden to
establish a prima facie case of discrimination. See McDonuell DOl/glas Corp .. 411 U.S. at 802:
see also £\"Ims v. Technologies Applic{l/ions & Serdce Co.. 80 F.3d 954. 959 (4th Cir. 1996). If
the plaintifTproduces evidence fiJr each element of the prima facie case. the burden of production
shifts to the employcr to articulatc a "legitimatc. nondiscriminatory" rca son for its actions. See
Reeves v. Sanderson Pl/IIuhing I'rods .. /nc .. 530 U.S. 133. 142 (2000). If the employcr produces
evidencc ofa nondiscriminatory rcason for its actions. thc burdcn returns to the plaintilTto show
that ..thc cmployer's proffercd pcrmissible reason for taking an advcrsc employment action is
actually a pretext for discrimination:'

lIill \'. Lockheed Marfin Logisfics Mauagemelll. /nc .. 354

F.3d 277. 285 (4th Cir. 2004). If the plaintilTcannot produce evidence that would allow the trier
of nlct to find the employer's reasons were a pretext for discrimination. defendant is entitled to

7

summary judgment as a matter of law. Diall/ond

1".

Co/rlllia/ Life & ,.Icc. Ins. Co .. 416 F.3d 310.

320 (4th Cir. 2005). "The plaintiff always bcars thc ultimatc burden of proving that thc cmployer
intcntionally discriminatcd against h[im]." F:m/lS. 80 F.3d at 959 (citations omitted). Morgan
complains of two acts of intcntional discrimination: tcrmination and reduced compensation.
J.

Termination

To demonstratc a prima facic casc of racial discrimination with respect to tcrmination. a
plaintiff must show that "(I) he is a mcmbcr ofa protcctcd class: (2) hc suffered [ani adverse
cmployment action: (3) he was performing his job duties at a Icvcl that mct his cmploycr's
legitimate expcctations at thc timc of the adverse cmployment action: and (4) thc position
rcmaincd open or was filled by similarly qualificd applicants outside the protect cd class."
Ilolland.

487 F.3d at 214 (citing McDonnell

Doug/as Corp .. 41 I U.S. at 802).

It is undisputed that Morgan is a membcr of a protected class (hc is African American).
and suffercd an adverse cmploymcnt action (hc was terminatcd). It is also undisputed that
Morgan's fonncr position (Chief of Inspection Services) rcmains open. ECF No. 48-5 at 10. As
to the third clcment. in dctcrmining whether a plaintiff was meeting legitimate expectations. "it is
the perccption of the dccision maker which is relevant."
1".

E1"l//ls.

80 F.3d at 960-61 (quoting

SII/ith

F/ax. 6 I8 F.2d 1062. 1067 (4th Cir.1980)). Here. Morgan gave somewhat conflicting accounts

during his deposition tcstimony concerning whether Switi felt Morgan was performing his job
dutics at expectation. Whilc Morgan tcstificd that Switi ncvcr cxpresscd concern about his
performancc. ECI' No. 48-2 at 25. he also acknowledgcd that Switi did cxprcss concern to him
over thc length of Morgan's "plan rcvicw proccss." Id at 26. He also tcstified that SwiJi askcd
him to rcvicw the proccsscs of a di fferent jurisdiction and Morgan disagrccd. Id. at ?7. Morgan
furthcr tcstitied that hc was aware that SwiJi had conccrns about his inability to usc thc City's

8

online pennit system. Id. at 27-28. Hence. Morgan's "self~assessment:' particularly without
more. does not show that he was meeting his employer's legitimate expectations. Emlls. 80 FJd
at 960.961: see Pepper

I'.

Precisioll

Vall'e Corp .. 526 F. App' x 335. 33 7 (4th Cir. 2013)

(recognizing that plainti tr s "scll~serving statements regarding his job performance arc
insuflieicnt to show that he met [his employer's] legitimate performance expectations").
Even assuming that Morgan could establish a prima facie case.' Defendants have put
forth evidence ofa legitimate. nondiscriminatory reason for terminating Morgan. Specilically.
Defendants point to a memorandum that Swift authored and sent to the City Manager and
Human Resources Director on rebruary 29. 2012. In that memorandum. Swift catalogued the
reasons why Morgan was being terminated during his probationary period. See ECr No. 48.7.
She noted that Morgan was unable to satisfactorily perform discrete tasks: explained that his
project management skills were not acceptable when he was assigned project tasks that were
more complex: and provided examples of Morgan's inability to understand his job
responsibilities and assignments. his inaccuracy. and his lack of technical knowledge. Jd In
addition to describing examples. the memorandum attached emails between Morgan and Swift
showing instances where Morgan was asked to resubmit dratis of documents. Jd at 4-19.
When an employer gives a legitimate. non.diseriminatory

reason for discharging the

plaintiff: "it is not [the Court's] province to decide whether the reason was wise. fair. or even
correct. ultimately. so long as it truly was the reason for the plaintiffs termination:' De.!arnelle

, In cases where the employer proffers evidence of a legitimate reason I'lli' its adverse action in its
motion for summary judgment. "it is a common practice of the Fourth Circuit to assume. without
deciding. that the plaintiff has established a prima facie case" and move on to whether plaintitT
has produced evidence of pretext. Afalldellgl/e I'. A Dr Sec. Sys.. IlIc .. No. 09.3103.2012 WL
892621. at *16 (D. Md. Mar. 14.2012) (citing. e.g .. Hollalld. 487 F.3d at 218: HI/X \'. Cilyo(
Ne\l/lorl Ne\l's. 451 FJd 311. 314 (4th Cir. 2006): Laher \'. Han'e.\'. 438 r.3d 404, 432 (4th Cir.
2006) (en hanc)).

9

•

". Corning Inc.. 133 F.3d 293. 299 (4th Cir. 1998) (citation omittcd). To show pretexLthe
plaintiff must profter sufficient
evidence.

that the proffered

actions but were pretexts
2007) (citing Renes.

evidcnce

to allow a trier of f~lct to lind. by a preponderance

reasons for the employer's

I{)r discrimination.

of thc

actions were not the true reasons I{)r the

Lettieri ". Equl/ntlnc .. 478 F.3d 640. 646 (4th Cir.

530 U.S. at 143). Thus. plaintiff must either show that the employer's

explanation

is "unworthy

of credence

intentional

discrimination."

Moore

I'.

or otTer other evidence

that is sufficiently

probative

of

Le{ll'ill. No. 04-2819. 2007 WL 5123539. at *3 (D. Md.

Feb. 9. 2007) (citing lvlereish ,'. /Vl/lker 359 F.3d 330. 336 (4th Cir.2004))

(internal quotation

marks omitted).
Morgan faces an even steeper hill to climb here because the same individual.
and fired him. When ..the hirer and the firer arc the samc individual
employment

occurs within a relatively

exists that discrimination
employer."

Proud

1'.

short time span lollowing

was not a deternlining

Swift

and the termination

hired

of

the hiring. a strong inlerence

f~lctor f{)r the adverse action taken by the

Stone. 945 F.2d 796. 797-98 (4th Cir. 1991). It was Swifi who originally

oftered Morgan an interview.

was part of his interview

panel. recommended

that Morgan be

hired. and called Morgan to in/arm him that the City had decided to hire him. ECF No. 4-14 &
ECF No. 48-6. While Swifi may not have made the final decision to hire Morgan. the logic that
"[e]mployers

who knowingly

hire workers within a protected

targets tor charges of pretextual

group seldom will be credible

firing" applies equally to Swifi who hired Morgan in all

practical respects." See Proud. 945 F.2d at 798. While Morgan's

opportunity

to present evidence

Defendants earlier filed a Motion to Dismiss based. in part. on Proud l". Stolle. which was
denied. ECF No. 21. Morgan contended then that Swifi was not involved in his hiring. ECF No.
16 at 5. Defendants argue that because Morgan has since testified that Swift was involved in his
hiring. Dcfendants arc entitled to renew their motion to dismiss. ECF No. 48-1 at 20. Thc Court
again DENIES Defendants' Motion to Dismiss. Even if Plaintiff had acknowledged Swift's
6

10

of pretext is not foreclosed,
person within a rclatively

in most cases where the employee

was hired and lired by the same

short time span (here, six months), "such evidence "'ill not be

See hI. Such evidence has not arrived here,

forthcoming'"

Morgan argues that Swill's

articulated

reasons lor termination

for two reasons. First. Morgan argues that the lack ofa three-month
either did not want to create a paper trial of Morgan's

68 at 8-10. Second, Morgan argues that Swifl's
department

of credence

review shows that Swili

performance

or did not want to

failures because of racial animus. See lOCI' No.

give Morgan a chance to COlTect any perlormance

the human resources

sufticient

are unworthy

failure to outline the reasons Il)r termination

belore termination

is evidence of discriminatory

to

intent because

the failure to do so was against City policy, See id at 9.
Morgan's
Regardless
provided

arguments

are speculative

of whether a lormalthree-month
consistent

feedback regarding

Morgan several emailsexpressing

Delendants'

to human resourees
produced

memorandum
2. As Morgan's

timcline

in the record.

t\'lorgan was clearly

met with Morgan weekly and sent

concern over his work product. lOCI' No. 48-2 at 16,26-28
contention

bell)re terminating

documentary

containing

by the evidence

review was perllmned,

perllmnance-Switi

ECl' No. 48-7 at 4-19. As lor Morgan's
termination

and are contradicted

evidence

contradicted

her reasons Il)r

Morgan, the record refutes this timeline.

that Morgan was not terminated

the reasons Il)r termination
is "blatantly

that Swi Ii lailed to articulate

&

until atier the

was sent to human resources.
by the record'"

ECl' No. 69-

the Court is entitled to reject

il1\'olvement at the time of the Motion to Dismiss, that would not have automatically led to
dismissal. As Judge Grimm explained in the Memorandum Opinion denying Defendants' Motion
to Dismiss, "it is unclear whethcr the inlerence recognized in Prolld is applicable at the motion
to dismiss stage, where all inferences must be dr<l\\11 in lavor of the PlaintifC lOCI' No. 21 at 7.
Indeed, the Fourth Circuit in I'rolld specitically noted that ..the plainti ITstill has the opportunity
to present countervailing evidence of pretext .... ' 945 l'.2d at 798. Thus, the Court analyzes
whether PlaintilT has presented evidence to overcome the inference at the current summary
judgment stage.

II

it. See SCOll,550 U.S. at 380-81. Yet even if the memorandum was sent alier termination. there
is ample evidenee through testimony and doeuments that Switi"s reasons ftJr termination were
genuine even if she did not follow poliey in her timing of the memorandum. Swili was
eoneerned about Morgan' s performanee. expressed those eoneerns to Morgan. and provided
Morgan with his six-month review before tel111ination. ECF No. 48-2 at 16.26-28 & ECF No.
69-1. C:'l Jyachosky v. Wimer. 343 Fed. Appx. 871. 876 (4th Cir. 2(09) (finding employee failed
to show evidenee of pretext through positive performanee reviews where there was other
doeumented evidenee that she was having problems with her supervisory role). Morgan has not
presented evidenee that would ereate a dispute of Illet over whether the reasons tor his
termination were pretexts tor diserimination. As such. Morgan has not overeome the strong
inferenee ereated by Proud v. Slone that Switi's stated reasons for terminating Morgan were not
pretextual. See I'ro/ld. 945 F.2d at 797-98.7 Thus. Morgan has failed to establish a prima faeie
ease and. in the alternative, he has failed to show that his employer's reasons lor termination
were pretextual. Swift is entitled to summary judgment.
2. Compensation
"To establish a prima faeie case of raeial discrimination with respeet to eompensation. a
plaintilTmust show that [Jhe was paid less than a similarly situated individual not in h[isJ
proteeted e1ass." Coales \'. Ahheville emy. 153 F.3d 719 at *2 (4th Cir. 1998) (eiting BrinkleyOhu v. Hughes Training Inc.. 36 F.3d 336. 343 (4th Cir. 1994)). When a plaintitTbases the
diserimination entirely upon a eomparison to employees ti'OI11 utside his proteeted e1ass. like
o
Morgan does. he "must demonstrate that the eomparator was 'similarly situated' in all relevant
respeets'" Sawyers \'. Vniled Parcel Sen .. 946 F.Supp.2d 432. 442 (D. Md. 2013) a/I'd. 13-

7 Even without the Pro/ld inference. on this record. the Court would lind that PlaintitThad not
mct his burden.

12

1777,2014 WL 2809027 (4th Cir. June 23. 2014) (citations and internal quotation marks
omitted). "The similarity betwccn comparators ... must bc clearly established in order to bc
mcaningful:'

LiKhlller

1'.

Cil)' o/Wilmillgtoll.

545 F.3d 260. 265 (4th Cir. 2008).

Morgan was hired as the Chief of Inspection Serviccs and compares his starting
compensation with all other "chiefs:' While it is true that Morgan. whose staI1ing annual salary
was $95.000. was paid at least $20.000 less than all other chiefs. ECF No. 68 at 10-11. Morgan
has not presented evidence that the similarities between him and other chiefs extend beyond the
rank of"chieC'

Morgan fails to identify any information that would show ifhe and the other

chiefs had similar experience. education. duties. or qualifications. Romeo
Belhesda.

1'.

APS lIeallhCl/re

IlIc .. 876 F.Supp. 2d 577. 592 (D. Md. 2(12) ("The appropriate factors to consider in a

discriminatory compensation claim include whether the Plaintiff and those who [Jhe claims are
similarly situated had the same or substantially similar experience, education. duties. and
qualifications.") (quoting Williams

I'.

Carolillas

lIeallhCl/re Sy.\ .. Case No 3: I0-ev-232-GCM.

2011 WL 1131087. at *3 (W.D.N.C. Mar. 25. 2011»: Ilmhe

1'.

Walldel & Collermall

Techs ..

IlIc .. 23 r.3d 401 at * 4 (4th Cir. 1994) ("To establish a prima Illcie case of discriminatory

compensation an employee ... must establish that the work was substantially equal in degree of
skill. effort. and responsibility and was performed under similar conditions."). Morgan fails to
note whether his position had the same salary range as other chiefs, He also Illils to present
evidcnce that he and the other chiefs had similar responsibilities. dealt with the same supervisor.
or were subject to the same standards, /-IaJ11'ood \'. Locke, 387 r. Appx, 355. 359 (4th Cir. 2010)
("[sluch a showing would include evidence that the employees 'dealt with the same supervisor.
[were 1 subject to the same standards and ... engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the

13

employer's treatment of them for it. ... ) (quoting Mitchelll', li,/edo Hosp .. 964 F,2d 577. 583 (6th
Cir. 1992), Thus. Morgan's comparison of titles is not a meaningful one because he has not
eliminated variables. such as difTering roles. perlimnance histories. or decision-making
personnel. See Humphries \', CBOCS W.

I11C ..

474 F.3d 387. 405 (7th Cir. 2007) ("[TJhe purpose

of the similarly situated requirement is to eliminatc confounding variables. such as differing
roles. performance histories. or decision-making personnel .... ").
Looking at the little evidence presented-a
and annual salaries-some

chart revealing names. positions. hire dates.

differences are unmistakable and cut against Morgan. Morgan was a

probationary employee who was hired in 20 II while all other division chiefs had been in their
positions fiJr at least fimr years befiJre Morgan was hired. See ECI' No. 68-1: see a/so Morra//l'.
Gates. 370 Fed. Appx. 396. 396 n.1 (4th Cir. 2010) (..the two individuals identified by [plaintiffl
were not similarly-situated because there was no evidenee that they were probationary
employees at the time of their alleged misconduct."). For example. Morgan specifically identifies
the chief of police. Terrence Truschuk. and the chief of planning. Ronald Wasilak. as similarlysituated individuals. ECF No. 68 at 10-11. Mr. Truschuk was hired in 2001 and Mr. Wasilak was
hired in 1996. See ECF No. 68-1. Further. the employees are all chiefs of different divisions. and
the Court makes no large leap in concluding. for example. that the job responsibilities of the
Chief of Police are di fferent from the job responsibilities of the Chief of Inspection Services.
Thus. the evidence suggests that Morgan's starting salary cannot fairly be compared with the
salaries of other chiefs who had tenure of fimr years or more and were chiefs of different
divisions.x Given that Morgan bases his assertion of compensation discrimination completely on

Indeed. the performance review document slu)\\'s that employees were. at least partially. paid
based on performance. ECF No. 69-1. By receiving high ratings. an employee's base salary
could increase 3.5 percent or more alier the perlimnance review. lei.
8

14

comparison to chiefs outsidc his protectcd class. thc validity of Morgan's prima facic casc
depends on whether those chiefs were. in I~lct.similarly situated to Morgan. See lIaY1l'l}(}d.387
F. Appx. at 359 (..the plaintiffs havc bas cd thcir allegations completely upon a comparison to an
employcc lI'om a non-protcctcd class. and thcrcfore the validity of their prima 1~ICicasc dcpcnds
c
upon whcther that comparator is indeed similarly situatcd.") (citations omittcd). Thc cvidence is
to thc contrary. Thus. Morgan has f~liledto makc a prima f~lCic
case of discrimination based on
compensation and Swili is cntitlcd to summary judgmcnt hcrc as well."
B. Cit)' of Rock"iIIc
Under Monell \'. Dep'/ (i/Soc Sen's .. 436 U.S. 658 (1978). a municipality may be liablc
under 42 U.S.C. ~ J 983 "where thc constitutionally offcnsivc acts of city cmployees arc takcn in
furtherance of some municipal 'policy or custom .... Milligan \'. City o/Newport News. 743 F.2d
227.229 (4th Cir. 1984) (citing Monell. 426 U.S. at 694). "Plaintiffs who seek to impose liability
on local govcrnmcnts under [42 U.S.c.] ~ 1983 must provc that 'action pursuant to ofticial
municipal policy' causcd thcir injury:' Connick \'. Thompson. 131 S.C!. 1350. 1359 (20 I I)
(citing Monell. 436 U.S. at 691). Thus. if ..there arc no underlying constitutional violations by
any individual. there can be no municipal liability:' Grayson \'. Peed. 195 F.3d 692. 697 (4th Cir.

" Morgan brings this suit against Swili in hcr oflicial capacity. See ECF NO.9 at 3 ("Moreover.
the Amcndcd Complaint mcrely ... adds a Co-Dcfendant in hcr ofticial capacity as a state actor
('Susan Swift.)"). Defendants perlimctorily argue that given that Swift is bcing sued in hcr
oflicial capacity. Count I is no difTerent from a claim against the City and should bc dismissed as
duplicative. ECF No. 48-1 at 36. Morgan fails to respond to this argumcnt and has concedcd thc
issue, See Ferdinand-Dm'enport \'. Chi/dren's Guild. 742 F, Supp, 2d 772. 777 (D. Md. 20 I0)
("By her failurc to rcspond to [defendant's] argument" in a motion to dismiss ... thc plaintiff
abandons [her] claim,"): Mell/ch \" Eastem Sal', Bank. FSB. 949 F. Supp. 1236. 1247 (D. Md.
1997) (holding that failure to addrcss dcfcndant's arguments for summary judgment in
opposition brief constituted abandonment of claim). Regardlcss. this issue is moot because the
Court has dismissed Court I on its substance.
15

1999) (citing City (){Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Here, the Court has found
no underlying constitutional violation and the City is entitled to summary judgment.
IV.

CONCLUSION
For the reasons discussed above, the Court grants Defendants' motion for summary

judgment. Morgan's complaint is therefore dismissed with prejudice.

~/t-

Dated: March 4, 2015

GEORGE J. HAZEL
United States District Judge

16