Todd v. Prince George's County, Maryland

Filing 44

MEMORANDUM OPINION AND ORDER GRANTING 36 Defendant's Motion for Summary Judgment; DENYING 38 Plaintiff's Opposition and Crossclaim Motion for Summary Judgment; GRANTING IN PART AND DENYING IN PART 39 Defendant's Motion to Strike and for Sanctions and ENTERING judgment for costs in favor of Defendant. Signed by Judge Roger W Titus on 5/5/2015. (kns, Deputy Clerk)(c/m 5/6/15)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

JOANEY TODD,
Plaintiff,
v.
PRINCE GEORGE’S COUNTY, MD,
Defendants.

*
*
*
*
*
*
*
*
*
*
*

Civil Case No. RWT 13-cv-1776

MEMORANDUM OPINION AND ORDER
On May 2, 2013, Plaintiff Joaney Todd filed suit in the Circuit Court for Prince George’s
County, Maryland alleging discriminatory and retaliatory conduct by Prince George’s County,
Maryland (“the County”) in violation of several state and federal statutes over the course of two
years, including the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131
et seq. ECF No. 2. On June 19, 2013, the County removed the action to this Court. ECF No. 1.
Both parties now move for summary judgment as to all remaining claims, ECF Nos. 36, 38, and
the County moves to strike numerous exhibits in Todd’s filings and for sanctions, ECF No. 39.
BACKGROUND
Todd was employed with the County from November 1980 to June 2012. ECF No. 2.
Her last position was in the County’s Community Planning and Development Division,
Community Development and Services Delivery, as Project Manager/Planning/Community
Developer II. Id. ¶¶ 9, 45. On March 11, 2010, Todd sustained a foot, knee, and hip injury from
a fall at work, which she claims is the basis of her disability. Id. The injury required physical
therapy, pain medication, and corrective surgery during March 2013. Id. Todd claims that she
still experiences pain and discomfort when walking. Id.

1 

From March 11 through July 14, 2010, Todd was on disability leave due to her injury.
ECF No. 36-2, at 33. On April 30, 2010, Todd applied for an open position—the Community
Services Manager—which Todd claims the County denied in retaliation for filing an Equal
Employment Opportunity Commission (“EEOC”) complaint in August 2010. Id. at 9. Her
application was initially listed as one of the highest qualifying, but dropped during the interview
period. Id. at 10. In the end, the County chose a better qualified applicant with a higher overall
score than Todd, and who the County maintains had superior knowledge and experience
performing the job duties that the position entailed. Id. at 10–11.
On June 16, 2010, the County notified Todd that she was on leave without pay status, and
that additional paid leave would not be approved until she submitted documentation from her
physician detailing restrictions on her job duties.1 Id. at 6. The County then received conflicting
doctors’ reports regarding Todd’s ability to return to work with or without an accommodation.
Todd’s treating physician approved her to return to work with an accommodation request on
July 1, 2010, stating that she moved with “maximum difficulty using crutches” and should be
limited to sedentary duties. ECF No. 2, ¶ 27. On the other hand, Dr. Robert Smith, an
orthopedic surgeon, cleared Todd to return to work on July 8, 2010 with no restrictions, stating
Todd evidenced neither fractures nor dislocations and could perform at full duty with no
accommodations. ECF No. 36, at Ex. 1.1(k). Ultimately, Todd did not submit the required
documentation by the June 25, 2010 deadline.2 Id. at 6.
On July 14, 2010, Todd returned to work and claims that she was not provided the
accommodation requested and was assigned to tasks which required physical duties that caused

1

  The County allows “leave donations” where other employees are permitted to donate leave to sick or injured
employees once that employee has exhausted all of his/her leave. The approval of leave donations is subject to the
discretion of the employee’s division Director. ECF No. 36-2, at 6–7.  
2
Todd completed the Family and Medical Leave Request forms on August 9, 2010. ECF No. 36, Ex. 3.2.

2 

her pain. ECF No. 2, ¶ 27. In August 2010, Todd filed a charge of discrimination based on her
disability under the ADA with the EEOC, and as a result asserts the County increased her case
load for the next two months from approximately twelve to twenty-eight cases. ECF No. 36-2,
at 13.

The County maintains these increases were consistent with an overall increase in

everyone’s workload due to the new fiscal year and Todd being detailed to the Acting
Community Developer III Position. Id. at 13–14. Todd amended her EEOC complaint in
January 2011 to include a charge of retaliation—that the County reassigned her duties to other
employees and denied her a promotion because of her disability and/or in retaliation for filing an
EEOC complaint. ECF No. 2, ¶¶ 40–44.
On August 10, 2010, pursuant to her union member rights and collective bargaining
agreement, Todd filed a grievance involving the denial of leave, benefits, and acting pay.
ECF No. 36, Ex. 1.12.

Ultimately, Todd received leave donations, disability leave for

March 12 and 19 through June 30, 2010; administrative leave from July 1 through July 13, 2010;
retroactive acting pay in the amount of $435.25; 9.25 hours of personal leave; 1,725 hours of
compensatory leave; 31.25 hours of annual leave; and 63 hours of sick leave. Id. Todd
voluntarily retired from County service on June 30, 2012. ECF No. 36-2, at 18–19. Neither
party disputes that Todd’s retirement was “a normal retirement and not a disability-based
retirement,” and that Todd received all of her retirement benefits. Id.
On March 26, 2014, this Court granted partial summary judgment against Todd,
dismissing her claims under both state law, the Local Government Tort Claims Act, and for
failing to exhaust her administrative remedies regarding the discrimination/failure to
accommodate claims relating to her diabetes. ECF No. 18. As to the remaining claims, the
County moved for summary judgment on October 29, 2014, ECF No. 36, and Todd filed her

3 

opposition and crossclaim for summary judgment on November 18, 2014, ECF No. 38. On
December 2, 2014, the County filed a related motion to strike numerous documents submitted by
Todd and for sanctions. ECF No. 39.
STANDARD OF REVIEW
In evaluating a motion for summary judgment, the Court must assess whether there are
any issues of material fact and whether the moving party is entitled to judgment as a matter of
law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Francis v. Booz, Allen &

Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A dispute of material fact is “genuine” if
sufficient evidence favoring the non-moving party exists for the trier of fact to return a verdict
for that party.

Anderson v. Liberty Lobby, 477 U.S. 242, 248–49 (1986).

However, the

nonmoving party “cannot create a genuine issue of material fact through mere speculation or the
building of one inference upon another.” Beale v. Hardy, 769 F. 2d 213, 214 (4th Cir. 1986). “A
party opposing a properly supported motion for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that
there is a genuine issue for trial.’”

Bouchat v. Baltimore Ravens Football Club, Inc.,

346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)).
When ruling on a motion for summary judgment, “[t]he evidence of the nonmovant is to
be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S.
at 255. However, “if the evidence is merely colorable or not significantly probative, it may not
be adequate to oppose entry of summary judgment.” Thompson Everett, Inc., v. Nat’l Cable
Adv., 57 F.3d 1312, 1323 (4th Cir. 1995).

4 

DISCUSSION
The remaining claims in this matter and at issue in the parties’ current motions for
summary judgment, include whether there was a wrongful withholding of donated sick leave pay
and acting pay wages while on medical leave following Todd’s injury, retaliation in the form of
an increased case load after returning to work following that leave, failure to promote Todd to
open positions, and failure to provide a reasonable accommodation.
I.

Todd’s Donated Sick Leave Wages and Acting Pay Claims are Moot
The Court must first resolve the threshold issue of mootness before proceeding with

Todd’s substantive claims.

See Virginia ex rel. Coleman v. Califano, 631 F.2d 324, 326

(4th Cir. 1980) (“Federal courts have no jurisdiction to decide moot cases because of the case or
controversy requirement of Article III of the Constitution.”). Mootness applies “when the
question sought to be adjudicated has been mooted by subsequent developments.”
Flast v. Cohen, 392 U.S. 83, 95 (1968). The County carries a heavy burden when asserting
mootness and is required to demonstrate 1) there is no reasonable expectation that the alleged
violation will recur, and 2) interim relief or events have completely and irrevocably eradicated
the effects of the alleged violation. Baltimore Neighborhoods, Inc. v. LOB, Inc., 92 F. Supp. 2d
456, 461 (D. Md. 2000) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). If
both prongs are satisfied, the case is moot “because neither party has a legally cognizable interest
in the final determination of the underlying questions of fact and law.” Davis, 440 U.S. at 631.
This Court finds that the County has met its burden. A proper judicial resolution of a
case or controversy “is in the settling of some dispute which affects the behavior of the defendant
towards the plaintiff.” Rhodes v. Stewart, 488 U.S. 1, 4 (1988). Todd has not met the exception
to avoid mootness since there are no facts showing that she will continue to be subject to the

5 

same discriminatory conduct by the County. See Baltimore Neighborhoods, Inc., 92 F. Supp. 2d
at 461 (finding that a declaration of the employer’s violation of the ADA would have no effect
because the inaccessible building subject to the plaintiff’s claim closed a year before trial). In
this case, a declaration that the County violated the ADA would have no effect on the County
because Todd is no longer employed by the County, and she has already recovered the same
relief she is claiming here.
Furthermore, the Davis test requires that “the relief demanded will actually cure the
lingering effects of the alleged violation.” Id. at 462. By initiating a grievance procedure
pursuant to her union’s Collective Bargaining Agreement, Todd effectively has already received
relief identical to that which she is requesting here. See id. (stating that where the requested
declaratory judgment would only serve as an advisory opinion, the Court lacks jurisdiction to
hear plaintiff’s ADA claim). Therefore, Todd is precluded from relief in this Court regarding her
benefits, donated sick leave, and acting pay claims since she was successful in obtaining a
favorable resolution through her union grievance procedure.
II.

No Showing of Discrimination for Failure to Promote
Todd claims she was qualified for the Community Service Manager position, but was

denied the position based on her disability. In a failure to promote case, a plaintiff employee
claiming discrimination always bears the burden of proving that the employer intentionally
discriminated against her. Evans v. Technologies Applications & Service Co., 80 F.3d 954, 959
(4th Cir. 1996). Todd’s evidence falls short of that which is needed to overcome summary
judgment, revealing little, if any, direct or indirect evidence of a discriminatory motive based on
her disability.

6 

Todd does not dispute that there were five other “high ranking” individuals who applied
for the job, and Todd admits that she was not one of the highest ranking candidates after the
interview process. ECF No. 38. Todd claims that the interview process was not fair because one
of the interview panelists was “biased,” having in the past accused her of stealing a $4,000
check. Id. Paradoxically, the very same panelist who Todd claims was the source of bias
actually gave her the highest interview score out of the three panelists.

ECF No. 36.

Furthermore, even if a slight bias existed by one of the three interviewers, this Court fails to see
the connection of the “bias” stemming from the stealing incident to Todd’s disability or to the
decision not to award her the position in question.
Todd also admits that the final hiring decision is placed on the Appointing Authority, who
can choose the individual with the highest interview score or an individual who did not. Here,
the Appointing Authority used this discretion and did not choose the highest scorer, but instead
chose the employee that had the most experience within the specific employment field. The
County asserts that the hiree had served as Acting Community Services Manager, and possessed
superior knowledge and experience performing the job duties and dealing with the programs.
See Evans, 80 F.3d at 960 (holding that the employee failed to satisfy her obligation to prove
discrimination for failure to promote, where management did not consider her ready for the
supervisory position and awarded the position to the person who they found best qualified to
assume the job duties based on their prior supervisory experience). Without more, Todd has
failed to meet her burden of proving that the County intentionally discriminated against her.
III.

Todd Failed to Adequately Respond to the County’s Arguments for Dismissal
As to the rest of the claims, Todd failed to respond to the County’s arguments in her

opposition and thus abandoned those claims.

7 

See Mentch v. E. Sav. Bank, FSB,

949 F. Supp. 1236, 1247 (D. Md. 1997) (“[Todd] abandoned her . . . claim by failing to address
[it] in her opposition to [the County]’s reply brief.”). The only assertion made by Todd is that
the County’s arguments are barred by this Court’s prior ruling and they are not ripe for
consideration by the Court.
a. Claim of Disability
Hearsay or conclusory statements with no evidentiary basis cannot support or defeat a
motion for summary judgment.

Jones v. Mayor and Council of Hurlock, Md., 2012 WL

3245946, at *6 (D. Md. 2012). Todd’s “building of one inference upon another” will not create a
genuine issue of material fact. Beale, 769 F.2d at 214. See also Ennis v. National Ass’n of
Business and Educational Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995) (citing Ross v.
Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985) (“Genuineness means that
the evidence must create a fair doubt; wholly speculative assertions will not suffice.”). Rather
than answering the County’s argument that she is not disabled under the ADA, Todd merely
responds that she suffered a work related injury to her knees, foot, and right hip. Todd proffers
as evidence the fact that the dates she was on extended leave do not match up with the County’s
argument and that the County’s Human Resources Officer did not visit Todd at her home, instead
requiring Todd to travel to the office to fill out Family and Medical Leave Act forms. These are
immaterial facts that are not germane to the outcome of the case. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (finding that material facts are facts that “might affect the
outcome of the suit under the governing law”). Furthermore, even if the facts were material, the
issue of extended leave was one resolved through Todd’s union grievance.

8 

b. Reasonable Accommodation
Next, Todd argues she was denied a reasonable accommodation.

Her first

accommodation request relating to her diabetes is precluded because this Court dismissed the
claim. ECF No. 18. Todd claims her doctor’s note advising the County of her ability to perform
sedentary duties established a request for a reasonable accommodation for her knee, hip, and foot
injury. Todd requested light duty work onsite or remote work from home, which the County
ultimately denied. The denial of a request by a disabled employee can only subject the employer
to liability if there is a “causal relationship between the disability and the request for an
accommodation,” or in other words, if “the requested accommodation was necessary in order for
[her] to perform the essential functions of [her] job. Gaines v. Runyon, 107 F.3d 1171, 1175
(6th Cir. 1997) (emphasis added).
In Davis v. Lockheed Martin Operations Support, Inc., 84 F. Supp. 2d 707
(D. Md. 2000), the Court dealt with a similar issue where Davis’s doctor allowed her to return to
work but stated she would be “well-suited to work at home.” Id. at 710–11. Davis insisted she
be allowed to work from home, but her employer refused to grant this request. The Court
granted summary judgment, since Davis’s employer did not need to “grant Davis’s unsupported
requests” to work from home, and noted that employers “are not required to give employees with
a disability any accommodation they request.” Id. at 713.
Here, there was no evidence that Todd needed to work from home to perform sedentary
duties. There is also no evidence that her disability required her to work from home. Because
Todd’s work from home request was not necessary to allow her to perform essential functions of
her job, she was not denied a reasonable accommodation. In fact, the essential functions of
Todd’s position included facilitating and coordinating public meetings, consultations and

9 

workshops, assisting in the preparation of needs assessments and surveys, analyzing
socio-economic data, policies and conditions, and preparing reports and administering and
monitoring projects—all of which are sedentary in nature. ECF No. 2, ¶ 10.
c. Increased Caseload
To establish a prima facie case of retaliation under the ADA, an employee must show that
1) she engaged in protected activity, 2) her employer acted adversely against her, and 3) her
protected activity was causally connected to her employer’s adverse action. Rhoads v. F.D.I.C.,
257 F.3d 373, 392 (4th Cir. 2001). The lack of a causal connection between the increased
caseload and Todd’s filing of the EEOC Charge is where Todd’s retaliation claim fails; her
timeline simply does not add up. Pretextual actions for unlawful retaliation will not be found
where the evidence shows that the allegedly adverse action taken by the employer was made
prior to the employee’s protected activity in participating in an EEOC investigation. Hunter v.
Vilsack, 2010 WL 1257997, at *11 (D. Md. 2010). Todd’s caseload was increased to twenty-five
cases on returning to work in July 2010. The first Charge of Discrimination was filed on
August 4, 2010, which means the increase in Todd’s caseload predated the charge.
Even though the County is not required to rebut a presumption of retaliation, since Todd
did not establish the causal connection, the County has offered a legitimate nonretaliatory reason
for the increase in caseloads.

See id. (“The employer then has the burden to rebut the

presumption of retaliation by articulating a legitimate nonretaliatory reason for its actions.”).
According to the County’s business practices, all employees received an increase in their
caseloads during July 2010 due to the new fiscal year. ECF No. 36-2, at 13-14. In addition, the
second increase in Todd’s caseload in October 2010 was due to Todd’s detail to the Acting
Community Developer III position, which required an increase in duties and responsibilities. Id.

10 

Todd’s retaliation claim lacks both a causal connection in the prima facie case and does not
withstand the County’s legitimate business reason.
The Court finds that Todd has failed to produce any evidence which would allow a
reasonable jury to find in her favor. The Court also recognizes that most of the documents in
Todd’s Opposition were either not provided in discovery, not properly authenticated, or contain
impermissible legal conclusions, hearsay, attorney work product, and settlement negotiations
information. See ECF No. 38. These documents are inadmissible and shall be stricken pursuant
to Federal Rule of Civil Procedure 12(f). See S. States Rack & Fixture, Inc. v. Sherwin-Williams
Co., 318 F.3d 592, 596 (4th Cir. 2003) (detailing the factors for consideration when determining
whether a nondisclosure of evidence is substantially justified or harmless for purposes of a
Rule 37(c)(1) exclusion analysis); Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (“It is well
established that unsworn, unauthenticated documents cannot be considered on a motion for
summary judgment.”); APL Corp. v. Aetna Cas. & Sur. Co., 91 F.R.D. 10, 18 (D. Md. 1980)
(stating the test for determining inadmissible work product is “whether, in light of the nature of
the document and the factual situation in the particular case, the document can fairly be said to
have been prepared or obtained because of the prospect of litigation”); Equal Rights Ctr. v.
Archstone-Smith Trust, 251 F.R.D. 168, 171–72 (D. Md. 2008) (finding that discovery of
settlement process is not permissible under the Rules).
Accordingly, it is this 5th day of May, 2015, by the United States District Court for the
District of Maryland,
ORDERED, that Defendant’s Motion for Summary Judgment (ECF No. 36) is hereby
GRANTED; and it is further

11 

ORDERED, that Plaintiff’s Opposition of Defendant's Motion for Summary Judgment,
and Crossclaim Motion or in the Alterative, Motion for Summary Judgment (ECF No. 38) is
hereby DENIED; and it is further
ORDERED, that Defendant’s Motion to Strike and Motion for Sanctions (ECF No. 39)
is hereby GRANTED IN PART as to the motion to strike all inadmissible documents in
Plaintiff’s Opposition (ECF No. 38), and DENIED IN PART as to the motion to sanction
Plaintiff; and it is further
ORDERED, that judgment for costs is hereby ENTERED in favor of Defendant; and it
is further
ORDERED, that the Clerk is hereby DIRECTED to close this case; and it is further
ORDERED, that the Clerk is hereby DIRECTED to mail a copy of this Order to
Plaintiff and Counsel of Record.

/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE

12