Schmidt et al v. The Town of Cheverly, Maryland
Filing
47
MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 8/30/2016. (jf3s, Deputy Clerk)
FILED
U S DISTRICT COURT
IN THE UNITED STATES DISTRICT COURISTRICT OF MARYLAND
FOR THE DISTRICT OF MARYLAND
Southern Division
nib AUG 30 A 10: 0t4
CLERK'S OFFICE
AT CREE_NBELT
FRANCIS K. SCHMIDT, et al.,
Y
Plaintiffs,
V.
Case No.: GJH-13-3282
THE TOWN OF CHEVERLY, MD.,
Defendant.
MEMORANDUM OPINION
This is a retaliation case brought by Francis Schmidt ("Ofc. Schmidt") and his wife
Donna Schmidt (collectively, "Plaintiffs"), against Ofc. Schmidt's former employer, the Town of
Cheverly, Maryland ("Defendant"). Ofc. Schmidt alleges that he was retaliated against because
he exercised his rights under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §
2000e et seq., the Prince George's County Human Relations Ordinance, Prince George Cty Code
§2-185 et seq , the Maryland Fair Employment Practices Act ("FEPA"), I Md. Code Ann., State
Gov't § 20-601 et seq., the Maryland Worker's Compensation Statute, Md. Code Ann., Lab. &
Empl. § 9-1105 et seq., and the Law Enforcement Officer's Bill of Rights ("LEOBR"), Md
Code, Public Safety, § 3-101 el seq. Additionally, Plaintiffs allege the common law tort of loss of
consortium.
Defendant's Motion for Summary Judgment, ECF No. 39, came before the Court for a
hearing on June 30, 2016. See Loc. R. 105.6 (D. Md. 2016). For the reasons that follow,
Defendant's Motion for Summary Judgment is granted in part and denied in part.
I In his Amended Complaint, Plaintiff refers to alleged violations of the "Maryland Human Rights Act," hut he cites
to the Maryland Fair Employment Practices Act, Md. Code Ann., State Gov't § 20-601.
I.
BACKGROUND2
Having previously addressed in some depth the relevant facts when the Court considered
Defendant's earlier Motion to Dismiss, or Alternatively, Motion for Summary Judgment, the
Court will not repeat that discussion here. See ScJuni& v. Town of Cheverly. Md., No. GJH-133282, 2014 WL 4799039 (D. Md. Sept. 25, 2014) ("Schmid/ F'). Rather, the Court will only
summarize those facts necessary to resolve the present motion.
Defendant, the Town of Cheverly, is a municipal government entity located in Prince
George's County, Maryland. ECF No. 4 ill 3. Ofc. Schmidt was employed as a police officer by
Defendant from sometime in 2008 until August 2012. ECF No. 42-1 ¶ 1. At all times relevant to
this action, Chief Harry Robshaw had authority with regard to Cheverly Police Personnel
policies. ECF No. 42-1 at 1; ECF No. 39-29 112. In December 2008, Chief Robshaw "shoved a
pool cue" under Mrs. Schmidt's dress at a Christmas party. ECF No. 42-3 ¶ 5. Mrs. Schmidt did
not initially report the incident for fear that Chief Robshaw would retaliate against her husband.
ECF No. 4 ¶ 15; Ea' No. 42-2 ¶ 4.
On September 29, 2011, Ofc. Schmidt suffered a hernia while at work. ECF No. 42-1 ¶
13. Due to the hernia and required surgery, he was unable to work from September 30. 2011 until
November 28, 2011. Id. at 1J 14. During this time period, Chief Robshaw told Sergeant Edmund
Gizinski: "As FOP [Fraternal Order of Police] Representative I am going to give you a head[s]
up ... Frank filed a worker's comp claim. Frank is out of leave so me and the Town
Administrator are going to terminate Frank." ECF No. 42-5 if IS; see also ECF No. 4 ¶37. This
message was conveyed to Ofc. Schmidt shortly thereafter by another police officer. ECF No. 425 ¶ 17.
2
In reviewing Defendant's Motion, the facts are construed in the light most favorable to the non-it-loving party and
all justifiable inferences have been drawn in the non-moving party's favor. Ricci v. DeStclano, 557 U.S. 557, 58586 (2009).
2
Mrs. Schmidt filed a "charge of discrimination'with the Prince George's County I4uman
Relations Commission (the "PGCHR Commission-) on November 15, 2011;ECF No. 42-12.
She alleged that Chief Robshaw sexually harassed her on several occasions beginning in
December 2009. Id. On November 29, 2011 Ofc. Schmidt filed his own Charge of
Discrimination with the PGCHR Commission asserting discrimination based on disability as
well as retaliation. ECF No. 42-13. He stated that he suffered a work-related injury, namely, a
hernia, that Chief Robshaw did not permit others to donate paid leave, that he had been aiding
his wife in her sexual harassment complaints, and that he heard that the Chief was not going to
permit him to return to work because of his wife's actions. Id.
When Ofc. Schmidt returned to work on December 5, 2011, he was informed that
Defendant was investigating whether Ofc. Schmidt was involved in and failed to report a hit and
run accident in the summer of 2011. ECF No. 39-31. In April 2012, Ofc. Schmidt was suspended
based on the hit and run allegations. ECF No. 42-1 if 35. When Ofc. Schmidt was eventually
permitted to return to work, he was often not allowed to enter the building, and at one point, was
assigned menial tasks. Id at ¶ 36.
According to several police officers, during staff meetings between 2008 and 2011. Chief
Robshaw regularly stated that he would punish anyone who attempted to exercise their right to
report unfair or unlawful practices by him or the police department. ECF No. 42-4 at ¶ 8; .see
also ECF No. 4. ¶ 11-12. He further stated that he would "stack the trial board"—the entity
responsible for handling internal disciplinary actions
and would seek to "terminate- any such
employees. ECF No. 42-4 IN 8-9.
A hearing before a trial board was held in July 2012 on a total of 26 charges relating to
the damage to the police car and Ofc. Schmidt's alleged failure to report the accident involving
3
the police vehicle. ECF No. 39-26 at 1. The trial board found Ofc. Schmidt guilty of making
false statements to investigators and failing to disclose damage to the car. ECF No. 39-26 at 1314. The trial board recommended a 40 hour suspension, a $1,000 fine and removal from the
police car take home program. ECF No. 39-26 at 20. On August 28, 2012, Chief Robshaw
increased the punishment and terminated Ofc. Schmidt's employment. ECF No. 39-27 at 5.
Chief Robshaw indicated that he considered Ofc. Schmidt's past job performance and the entire
record of the hearing in making his decision. ECF No. 39-27 at 1. Additionally, in consultation
with the State Attorney's Office, Chief Robshaw found that because there had been a
determination that Ofc. Schmidt had been deceitful, testimony he gave in court on police matters
would be discredited, meaning that he could no longer fulfill his duties. Id at 2.
On September 21,2012, the PGCHR Commission dismissed Ofc. Schmidt's November
29, 2011 charge of discrimination. ECF No. 13-10. The EEOC adopted the PGCHR
Commission's determination and sent Ofc. Schmidt a right-to-sue letter on May 15. 2013. ECF
No. 13-12. Meanwhile, Ofc. Schmidt filed another charge of discrimination on October 2,2012
(after he was terminated in August 2012) alleging that he was retaliated against for filing the
November 29, 2011 charge. ECF No. 42-14. He contended that because he filed the charge in
November 2011, he was (1) given a written warning for violation of department policy on
January 24, 2012; (2) suspended from police duty from April 2012 until August 2012; (3)
reassigned to the Code and Photo Enforcement Unit; and (4) terminated on August 13, 2012.3 Id.
Plaintiffs initiated this action on August 22, 2013 in the Circuit Court for Prince George's
County, Maryland. ECF No. 1. On November 4,2013 Plaintiffs filed an Amended Complaint to
reflect receipt of the second-right to sue letter that they received from the EEOC regarding the
October 2, 2012 discrimination charge. ECF No 4. On November 4,2013, Defendant filed a
3
Plaintiff appears to concede that his termination was actually effective August 28, 2012. ECF No. 42 at 13.
4
Notice of Removal to this Court. ECF No. 1. On September 25, 2014 the Court issued an Order
granting in part and denying in part Defendant's Motion to Dismiss or Alternatively, Motion for
Summary Judgment.4 See Schmidt I. 2014 WL 4799039.
Following discovery. Defendant filed the presently pending Motion for Summary
Judgment. ECF No. 39. Subsequently, Plaintiff filed an Opposition motion, ECF No. 42. and
Defendant filed their reply, ECF No. 43. On June 30, 2016, the Court heard oral argument on the
motion.
STANDARD OF REVIEW
Summary judgment is appropriate if "materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations ... ,
admissions, interrogatory answers, or other materials," Fed. R. Civ. P. 56(c), show that there is
"no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
party moving for summary judgment bears the burden of demonstrating that no genuine dispute
exists as to material facts. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.
1987). If the moving party demonstrates that there is no evidence to support the non-moving
party's case, the burden shifts to the non-moving party to identify specific facts showing that
there is a genuine issue for trial. See Celotex. 477 U.S. at 322-23. A material fact is one that
"might affect the outcome of the suit under the governing law." Spriggs v. Diamond Auto Gloss,
242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
4 Specifically, the Court granted Defendant's Motion to Dismiss as to Count One (Family Medical Leave Act
Reprisal) and Plaintiff's request for punitive damages. The Court also dismissed in part Counts III and V (Wrongful
Discharge and Worker's Compensation Retaliation) merging the counts so that Plaintiff's claims were only based on
violations of the Maryland Worker's Compensation Act. Finally, the Court denied Defendant's Motion as to Count
Two (Equal Employment Opportunity ("EEO-) Reprisal) and Count IV (Harm to Marital Unit). See Schmidt 1, 2014
WL 4799039.
5
(1986)). A dispute of material fact is only "genuine" if sufficient evidence favoring the nonmoving party exists for the trier of fact to return a verdict for that party. 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 v. Hardy, 769 F.2d 213, 214
(4th Cir. 1986). The Court may only rely on facts supported in the record, not simply assertions
in the pleadings, in order to fulfill its "affirmative obligation . . . to prevent 'factually
unsupported claims or defenses' from proceeding to trial." Felty v. Grave-Humphreys Co., 818
F.2d 1126, 1128 (4th Cir. 1987) (quoting Ce/olex. 477 U.S. at 324-25). When ruling on a motion
for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor." Anderson, 477 U.S. at 255.
III. DISCUSSION
A. Count II: Equal Employment Opportunity ("EEO") Reprisal
In his Amended Complaint, Plaintiff alleges that Chief Robshaw retaliated against him
for exercising his rights under Title VII, FEPA and the Prince George's County Human
Relations Ordinance by: (1) participating in the investigation of his wife's sexual harassment
claim, and (2) complaining of his disability, namely, the hernia he suffered on September 29,
2011. 5
1. Participation in Mrs. Schmidt's Sexual Discrimination Complaint
Title VII prohibits employment discrimination based on "race, color, religion, sex, or
national origin," 42 U.S.C. § 2000e-2(a), and its anti-retaliation provision serves to "prevent[ ]
an employer from interfering (through retaliation) with an employee's efforts to secure or
5 Ofc. Schmidt also appears to allege a discrimination claim under a hostile workplace theory, asserting that Chief
Robshaw's comments to him about his wife constituted harassment. However, while potentially a more viable Title
VII claim than his other discrimination allegations, it ultimately is also dismissed both because it was not pled in the
Amended Complaint and Ofc. Schmidt did not file charges with the EEOC alleging a hostile workplace.
6
advance enforcement of the Act's basic guarantees." Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 63, (2006); 42 U.S.C. § 2000e-3(a). To properly state a prima facie claim of
retaliation under Title VII, a plaintiff must demonstrate three elements: "(I) he engaged in a
protected activity, (2) his employer acted adversely against him, and (3) the protected activity
was causally connected to the adverse action." Clarke v. DynCorp
LLC, 962 F. Supp. 2d
781, 789 (D. Md. 2013) (citations omitted).
Plaintiff's primary allegation of Title VII retaliation is that he was discriminated against
because of his participation in his wife's sexual discrimination complaint. This claim fails
because Plaintiff does not present any evidence regarding the first element, engagement in
protected activity.
Title VII's retaliation provision protects employees who oppose "not only employment
actions actually unlawful under Title VII but also employment actions [he on she reasonably
believes to be unlawful." Bayer-Liberia v. Fontainebleau Corp., 786 F.3d 264, 282 (4th Cir.
2015). Claims based on participation in an investigation related to a Title VII claim have also
been judged under the same reasonable belief standard. See e.g. Allen v. Ohio Dep't of Job &
Family Servs., 697 F. Supp. 2d 854, 894 (S.D. Ohio 2010); Johnson v. Univ. of Cincinnati, 215
F.3d 561, 582 (6th Cir. 2000). Thus, the question before the Court is whether Ofc. Schmidt could
reasonably believe that sexual discrimination against his wife, who was not an employee of the
Cheverly Police Department, could constitute an employment discrimination claim under Title
VII..
Although a retaliation claim may lie in the case of "third-party retaliation.- the cases that
have allowed such claims involved cases where both the person filing the discrimination
complaint and the person adversely affected were employees or former employees of the same
company. See, e.g, Thompson y N. Am. Stainless, LP, 562 U.S. 170, 178 (2011) (holding that an
employee who was terminated after his fiancée filed a charge of discrimination had standing to
sue employer for retaliation where his fiancée was employed by the same company). By contrast,
in Reece v. Pocatello/Chubbuck School District No. 25, a public school teacher claimed he was
retailed against in violation of Title VII for reporting female students' allegations of sexual
harassment by the school principal. 713 F. Supp. 2d 1222, 1225 (D. Idaho 2010). In granting the
school district's motion for summary judgment, the Court stated that the Plaintiff could not
"establish he held a reasonable belief that Title VII had been violated- because "Title VII only
proscribes discrimination against an individual with respect to his compensation, terms.
conditions, or privileges of employment." Id, at 1333 (emphasis added). The Court went on state
that Plaintiffs "good faith belief the students were covered under Title VII is not enough; it must
also be reasonable" and Plaintiff "could not have reasonably believed that Ile had opposed an
unlawful employment practice by reporting sexual harassment claims made by students, who
clearly are not employees of the District—no matter how broadly Title VII is construed." Id.
Here, as in Reece, it was not reasonable for Ofc. Schmidt to believe that his participation
in the sexual discrimination complaint of his spouse, who was not an employee of the Cheverly
police department, created an actionable violation under Title VII.6 Thus, he was not engaged in
protected Title VII activity and Defendant is entitled to summary judgment on this claim.
Plaintiff also raises identical state law claims under FEPA and the Prince George's
County Human Rights Ordinance.' As other judges in this district have noted, these state statutes
While participation rather than oppositional activity has been held to give broader protections, see Laughlin v.
Metro. Washington Airports Meth., 952 F. Supp. 1129, 1133 (F.D. Va. 1997), aff'd, 149 F.3d 253 (4th Cir. .
6
1998)("while the `participation' clause covers a narrower range of activities than the other, it gives those activities
stronger protection than the 'opposition' clause provides."), nothing in the Court's research indicates that that would
extend to providing protection for claims that are not reasonably covered under Title VII.
7 Ofc. Schmidt's claims arising under the Prince George's County Code are best analyzed as violations of Md. Code
Ann., State Gov't § 20-1202, which allows for a separate cause of action for violations of Country code, with the
8
are to be interpreted consistently with Title VII. See Finkle v. Howard Cty.. Md., 12 F. Supp. 3d
780, 784 (D. Md. 2014) ("EEPA is the state law analogue of Title VII and its interpretation is
guided by federal cases interpreting Title VII"); Bryan v. Prince George's Cty., Md., No. CIV.A.
DKC 10-2452, 2011 WL 2650759, at *8 (D. Md. July 5, 2011), affd, 484 F. App'x 775 (4th Cr.
2012)(noting that Prince George's County Code prohibition on employment discrimination
tracks the language of Title VIPs similar prohibition and explaining that Maryland courts look to
Title VII when evaluating state discrimination claims). Thus, for the same reasons that Ofc.
Schmidt's Title VII claim fails, his state law claims regarding the same conduct also fail.
2. Retaliation Based on Claim of Disability
Ofc. Schmidt also alleges that Defendant retaliated against him for filing a charge of
discrimination based on disability. ECF No. 42 at 19-21; see also ECF No. 4 I 111-15. Insofar
as Ofc. Schmidt argues that any alleged retaliation occurred based on an assertion of his rights •
under federal law, his claim must fail. Disability is not a protected class under Title VII, which
only protects employment discrimination based on "race; color, religion, sex, or national origin,"
42 U.S.C. § 2000e-2, and Ofc. Schmidt did not allege retaliation based on an assertion of his
rights under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112 ei seq., which
protects against employment discrimination based on disability, in his Amended Complaint.
Ofc. Schmidt does allege, however, retaliation for complaining of his disability in
violation of FEPA and the Prince George's County Human Relations Ordinance, which do
prohibit discrimination based on disability. See ECF No. 4 ¶ 111-15. Since Ofc. Schmidt has
shown a genuine dispute of material fact regarding this claim of retaliation, the Defendant's
motion for summary judgment is denied as to these claims.
relevant county code being Prince George's County Code § 2-185 et seq. Prince George's County Code is available
online at littps:11www.
code. comil ibrarynniliprince _george's cou Iyicodes/code_o Lord inances.
9
As a preliminary matter, Defendant argues that Ofc. Schmidt's claims under the Prince
George's County Human Relations Ordinance must fail as neither Ofc. Schmidt or his wife were
residents of Prince George's County during the events in question. See ECF No. 39-2 at 28.
Although Defendant cites to § 2-185 of the Prince George's County Code, which explains that
the purpose of the Human Relations Commission is to eliminate discriminatory practices in the
"areas of housing, employment, law enforcement, education, public accommodations,
commercial real estate, and any other facets of the lives of its citizens where such practices may
be found to exist," the law does not state that residency is a requirement to bring a suit. Prince
George Cty Code §2-185 (2016). Therefore, the Prince George's County Code applies to Ofc.
Schmidt.
Turning to the merits of his claim, the language in the Prince George's County Code
defines a physical handicap as an impairment which "substantial[ly] limits one or more.. major
life activities", Prince George Cty Code §2-186(d)(14.1), and, thus, tracks the language in the
ADA defining a disability as "a physical or mental impairment that substantially limits one or
more major life activities of such individual." 42 U.S.C. § 12102(1)(A). Furthermore, Maryland
courts have "traditionally [sought] guidance from federal cases in interpreting Maryland's
FEPA." Eubanks. v. Mercy Med. Cir., Inc., No. CV WDQ-15-513, 2015 WI_, 9255326, at *7 (D.
Md. Dec. 17, 2015). Thus, federal court discussion regarding claims of hernias, such as the one
suffered by Plaintiff, as disabilities is relevant to the determination of Plaintiff's state law claims.
The ADA's retaliation provision specifies that "[n]o person shall discriminate against any
individual because such individual ... made a charge ... under this chapter." 42 U.S.C. §
I2203(a). "To establish a prima facie retaliation claim under the ADA, a plaintiff must prove (1)
he engaged in protected conduct (2) he suffered an adverse action, and (3) a causal link exists
10
between the protected conduct and the adverse action. Reynolds v. Am. Nal. Red Cross, 701
F.3d 143, 154 (4th Cir. 2012). "When those elements are satisfied, the burden shifts to the
employer to rebut the presumption of retaliation by articulating a legitimate non-retaliatory
reason for its actions. If the employer satisfies that burden, the plaintiff must demonstrate that the
proffered reason is a pre-text for forbidden retaliation." Coursey v. Univ. of Maryland E. Shore,
577 F. App'x 167, 175 (4th Cir. 2014)(internal quotations and citations omitted).
Ofc. Schmidt's filing of an EEOC complaint on October 2,2012 alleging retaliation for
his November 29, 2011 complaint regarding disability discrimination satisfies the first element
of his claim. ECF No. 42-14. Defendant argues that Ofc. Schmidt's hernia is not recognized as a
disability under the ADA, ECF No. 39-2 at 20, and until recent years Defendant's position was
•clearly supported by relevant case law. See Lundberg v. Burlington N & Santa Fe Ry. Co.. No.
CIV.01-2286(DWF/JSM), 2003 WL 21402605, at *5 (D. Minn. June 17. 2003)(holding that
Plaintiffs hernia condition was not sufficient to render her disabled under the ADA). However.
Defendant's argument fails to take into account the 2008 Amendments to the ADA and the
subsequent case law that has developed since that time. As the Fourth Circuit recently noted, the
"ADA Amendments Act (ADAAA) was intended to make it easier for people with disabilities to
obtain protection under the ADA. The regulation clarifies that the primary object of attention in
cases brought under the ADA should be whether covered entities have complied with their
obligations and whether discrimination has occurred, not whether the individual meets the
definition of disability." Jacobs v. N.C. Admin. Office of the Courts. 780 F.3d 562. 572 (4th Cir.
2015) (internal quotations and citations omitted). Specifically, under the ADAAA. "the term
'substantially limits' [is to be] interpreted and applied to require a degree -of functional limitation
11
that is lower than the standard for 'substantially limits' applied prior to the ADAAA." 29 C.F.R.
§ 1630.2(j) (iv)).
The issue of whether or not a hernia may qualify as a disability under the ADA, and
parallel state laws, after the 2008 amendments is now an open question, with several federal
district courts finding that it does qualify. See e.g. Bob-Aktunuel v. Chipo(le Mexican Grill, Inc.,
10 F. Supp. 3d 854, 881 (N.D. Ill. 2014)(finding that Plaintiffs hernia constituted a disability that
substantially limited the major life activity of lifting); Butler v. BTC Foods, Inc., No. CIV.A. 120492, 2014 WL 336649, at *4 (E.D. Pa. Jan. 30, 2014)(holding that Plaintiff established for
purposes of summary judgment a material question as to whether he was disabled because of
hernia surgery). However, at least one federal court has found that it still does not qualify. See
Brodzik v. Contractors Steel, Inc., 48 F. Supp. 3d 1183, 1189 (N.D. Ind. 2014)(finding that
Plaintiff did not allege that his hernia was anything more than a one-time occurrence and thus not
a substantial limitation in a major life activity). "Importantly, a plaintiff is not required to prove
the conduct he opposed was actually an ADA violation. Rather, he must show he had a 'good
faith belief the conduct violated the ADA." Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 154
(4th Cir. 2012)(internal citations omitted). Given the lack of clarity in the law, Ofc. Schmidt
could reasonably believe that a hernia was covered under the ADA, and therefore, the FEPA and
the Prince George's County Code. Thus, he was engaged in what he reasonably believed was
protected activity and Ofc. Schmidt has established the first element of his prima facie case. In
addition, Ofc. Schmidt easily establishes the second element of his prima facie case, adverse
action, since it is uncontested that he was terminated on August 28, 2012. ECF No. 39-27 at 5.
The remaining dispute therefore is whether or not Ofc. Schmidt can satisfy the third
element of the prima facie case by establishing a causal link between his protected activity, filing
12
an EEOC discrimination claim, and the adverse action, his termination. The Court finds that at
this juncture he has at least raised a genuine dispute of fact as to this issue. Ofc. Schmidt has
submitted sworn affidavits from three officers, along with an affidavit and deposition testimony
from Ofc. Schmidt himself stating that Chief Robshaw regularly made statements during staff
meetings between 2008 and 2011 that conveyed the message that he would punish anyone who
attempted to exercise their right to report unfair or unlawful practices by him or the department.
ECF No. 42-1 atl; ECF No. 42-3 at 2; ECF No. 42-4 at 2; ECF No. 42-5 at 2. Furthermore,
according to these officers, Chief Robshaw explained that he appointed the trial board members
and would make sure that any officer who challenged him never worked in law enforcement
again. Id. Moreover, a short time after Ofc. Schmidt filed his November 29, 2011 charge, two
officers heard Chief Robshaw say, in reference to Ofc. Schimdt, either "find some way to get rid
of that mother fucker" or "find something to get rid of that mother fucker." ECF No. 42-4 at 3;
ECF No. 42-5 at 3. These statements are direct evidence to support a prima facie case of
causation.
Defendant makes several arguments to challenge Plaintiff's causation claims. First,
Defendant contends that "the absence of temporal proximity" between the EEOC filing and Ofc.
Schmidt's termination negates Ofc. Schmidt's claim since Ofc. Schmidt filed his first EEOC
complaint in November 2011 and was not fired until August 2012. ECF No. 39-2 at 23. But this
ignores the fact that the investigation against Ofc. Schmidt, which would culminate in his
eventual August 2012 termination, began the moment he returned to work on December 5, 2011.
ECF No. 39-31.
Defendant next argues that because the Plaintiffs have alleged multiple theories for his
termination, including that his termination was in retaliation for supporting his wife's sexual
13
harassment charges and his pursuit of worker's compensation benefits, Ofc. Schmidt cannot
• establish but-for causation. ECF No. 39-2 at 24; see also Kern v. S. Baltimore Gen. Hasp.. 66
• Md. App. 441, 447-48, 504 A.2d 1154 1157 (1986)(holding that employee must prove that the
sole reason for their discharge was their filing of a worker's compensation claim to prevail on a
claim of wrongful discharge under Maryland's Worker's Compensation Act). However, the
assertion of multiple wrongfitl reasons for termination does not mean that Plaintiffs causation
argument fails. See Ford v. Rigidply Rafters, Inc., 999 F. Supp. 647, 650 (D. Md. 1998)(rejecting
argument that employer could avoid liability since plaintiff alleged that his termination was in
violation of both Title VII and the Maryland Worker's Compensation Act.)
Finally, Defendant argues that Chief Robshaw has a legitimate, non-discriminatory
reason for firing Ofc. Schmidt — that is that Ofc. Schmidt had been untruthful to an investigator
in the LEOBR proceedings and the Chief was concerned about the impact that would have on the
Department's reputation and the Prince George's County State's Attorney's Office's ability to
prosecute cases involving Ofc. Schmidt. ECF No. 39-27 at 3-5. In response, Ofc. Schimdt has
submitted sworn affidavits from two of his fellow officers alleging that the investigation itself
was a pre-textual retaliation for Ofc. Schmidt's allegations. ECF No. 42-4 at 4; ECF No. 42-5 at
4. As the Supreme Court has stated, "VIII appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the employer is dissembling to cover up
a discriminatory purpose." Reeves v. Sanderson Plumbing Prod., Inc.. 530 U.S. 133, 147 (2000).
Ofc. Schimdt also argues that Chief Robshaw's decision to impose a more severe punishment
than the trial board recommended was also in retaliation for Ofc. Schmidt's assertion of his
rights. ECF No. 42 at 13.
14
Presented with this conflicting evidence, a reasonable fact finder could find that Ofc.
Schmidt's filing of an EEOC claim based on his disability was a but-for cause of Defendant's
adverse actions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) ("the judge must
ask himself not whether he thinks the evidence unmistakably favors one side or the other but
whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented").
Thus, Defendant's motion for summary judgment is denied as to Ofc. Schmidt's state law based
disability retaliation claims.
B. Count III: Wrongful Discharge8
In Count III of the Amended Complaint, Plaintiff asserts a claim under the common law
tort of wrongful discharge, alleging that he was terminated in retaliation (a) for exercising his
right to file a worker's compensation claim under the Maryland Worker's Compensation Statute
and (b) for exercising his rights under the Law Enforcement Officer's Bill of Rights ("LEOBR").
See ECF No. 4 fl 128-140. Even assuming that Plaintiff could establish a prima facie case of
wrongful discharge, both of these claims are barred by governmental immunity.
The right to governmental immunity is "deeply ingrained in Maryland law and may not
be waived in the absence of express or implied statutory authority." Williams v. Prince George's
Oy., MD, 157 F. Supp. 2d 596, 603 (D. Md. 2001) (internal quotations and citations omitted).
This right can be invoked by local governments, including municipalities such as Defendant.9 Id.
In general, a municipality's right to immunity encompasses immunity from "direct tort liability
arising from the exercise of governmental functions." Hoffinan v. Baltimore Police Dept!, 379 F.
Supp. 2d 778, 790 (D. Md. 2005)(dismissing wrongful discharge claim against the City of
8 As mentioned previously, in his original complaint, Plaintiff also filed a separate claim for "Worker's
Compensation Retaliation" in Count V. The Court merged the claims together in Schmidt I See Schmidt I, 2014 W1_,
4799039.
" In Defendant's "Disclosure of Affiliations and Financial Interest' counsel certifies that the Town of Cheverly
.
Maryland is a "municipal corporation." See ECF 11 at 1.
15
Baltimore). Governmental functions have been held to include "personnel actions", id., and "the
operation of a police force." Williams v. Prince George's Cly., MD, 157 F. Supp. 2d 596, 604 (D.
Md. 2001).
The Local Government Tort Claims Act ("LGTCA"), Md. Code Ann., Cts. & Jud. Proc.
§§ 5-301-304, in turn, "requires the government to assume financial responsibility for a
judgment against its employee by abolishing that immunity the government may have had
against responsibility for the acts of its employees." Khawctja v. Mayor & City Council. Lily of
Rockville, 598 A.2d 489, 494 (1991). However, the LGTCA "does not waive governmental
immunity or otherwise authorize any actions directly against local governments." Livesay v. Ball.
Cly., 862 A.2d 33, 44 (2004) (internal citations omitted); see also Hoffman v. Ball, Police Dep '1,
379 F. Supp. 2d 778, 790 (D. Md. 2005) (noting that "the LGTCA does not waive
[governmental] immunity"). Therefore, absent a claim against an individual town employee such
as Chief Robshaw, the Plaintiffs common law tort claim fails and the Defendant is entitled to
summary judgment on Count III.
C. Count IV: Loss of Consortium
Finally, in Count IV, both Plaintiffs, Ofc. Francis Schmidt and Mrs. Schmidt, allege
"harm to the marital unit" based on the "defendant's tortious conduct" and "indirectly by the
financial and emotional strain to [Ofc. Schmidt] which has rendered him unable to participate in
marital and family life and to provide the financial and emotional support he would have
provided but for Defendant's wrongful conduct." ECF No. 4 tf 146.
As mentioned in Schmidt I, "harm to the marital unit" is a tort not yet seen in Maryland.
See Schmidt I at *13, n.14, 2014 WL 4799039. Plaintiffs' claim is better described as "loss of
consortium," which is based on "a right to recover for an injury to the marital unit." See
16
Gillespie-Linton v. Miles, 473 A.2d 947, 949 (Md. Ct. Spec. App. 1984). A claim of "loss of
consortium" is a derivative claim, predicated on a finding of harm under the tort of wrongful
discharge in Count III. Since the Court found that Defendant is entitled to summary judgment as
to Count III, the Court must also find that the Defendant is entitled to summary judgment on the
derivative claim of loss of consortium.
III. CONCLUSION
For the foregoing reasons, Defendant's Motion for Summary Judgment, ECF No. 39, is
granted in part and denied in part. Specifically, Defendant's Motion is granted with respect to
Counts III and IV of the Complaint, ECE No. 4. With respect to Count II, Defendant's motion is
granted as to Plaintiffs Title VII and state analogue claims and to Plaintiff's ADA claims, which
were argued but not alleged in the Amended Compliant. However Defendant's motion is denied
with respect to Plaintiffs EEO reprisal claims based upon his assertion of rights under state law
in Count II regarding his disability. A separate Order follows.
A
Dated: Augus1,2016
GEORGE J. HAZEL
United States District Judge
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