Melendez v. Albert Einstein High School et al
Filing
80
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 1/12/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MARIA MELENDEZ
:
v.
:
Civil Action No. DKC 14-3636
:
BOARD OF EDUCATION FOR
MONTGOMERY COUNTY
:
MEMORANDUM OPINION
Presently
employment
pending
case
are
and
a
ready
motion
for
for
resolution
summary
judgment
in
this
filed
by
Defendant Board of Education for Montgomery County (“Defendant”)
(ECF No. 70), and a motion to strike filed by Plaintiff Maria
Melendez
(“Plaintiff”)
briefed,
and
necessary.
the
Local
(ECF
court
Rule
now
No.
77).
rules,
105.6.
The
no
For
issues
hearing
the
have
being
following
been
deemed
reasons,
Defendant’s motion for summary judgment will be granted, and
Plaintiff’s motion to strike will be denied.
I.
Background
A.
Factual Background1
From 1997 until her resignation on July 19, 2011, Plaintiff
worked at Albert Einstein High School (“AEHS”) for Defendant as
a morning shift building services worker (“BSW”).
4, at 5-6; 70-22, at 22).
1
(ECF Nos. 70-
The responsibilities of a BSW include
Unless otherwise noted, the facts outlined here are
undisputed and construed in the light most favorable to
Plaintiff. Additional facts will be provided in the analysis.
“varied
grounds
building
cleaning
maintenance
physical effort[.]”
or
lifting
duties
and
related
work . . . [that]
facilities
requires
and
sustained
The job “involves some heavy work in moving
furniture,”
and
minimum of fifty pounds.
requires
the
ability
to
lift
a
(ECF No. 70-22, at 12; id. ¶ 3; see
also ECF Nos. 70-6 ¶ 3; 70-4, at 8, 21).
This job description
is the same for all BSWs employed by Defendant, regardless of
their gender or their school assignment.
BSWs at AEHS were assigned to either a morning or evening
shift.
were
(ECF No. 7, at 3).
assigned
to
Within these shifts, the employees
different,
overlapping
schedules.
When
Plaintiff was hired to the AEHS morning shift in 1997, she was
assigned to work from 10:30 a.m. to 7:00 p.m.
6).
(ECF No. 70-4, at
In 2001, her supervisor, building services manager Michael
Moreland, agreed to change her hours to 6:30 a.m. to 3:00 p.m.
(Id. at 7).
Over time, Plaintiff may have begun to work from
6:00 a.m. to 2:30 p.m. instead.
(ECF No. 76-2, at 54; see also
ECF Nos. 70-6 ¶ 11; 70-14 ¶ 9; 70-14, at 6.
But see ECF No. 70-
4, at 7 (“Q So at the time that Tony Hopkins became the Acting
Building Service Manager [in 2010] you were still supposed to be
working from 6:30 to 3:00 p.m.? A Correct.”)).
In 2010, the
morning shift was staffed by six BSWs, three women (Plaintiff,
Frances Miller, and Maria Ayala) and three men (Cleon Butler,
Nathaniel Contreas, and Patrick Hyland).
2
(ECF No. 70-7, at 3).
Ms. Miller and Ms. Ayala were scheduled to begin work at 5:00
a.m.,
Plaintiff
and
Mr.
Butler
began
at
6:00
a.m.,
and
Mr.
Contreas and Mr. Hyland began work at 8:00 a.m. and 10:30 a.m.,
respectively.
Ms.
Miller,
(ECF Nos. 70-22 ¶ 6; 76-2, at 46).
Ms.
Ayala,
Mr.
Contreas,
and
Mr.
Plaintiff,
Hyland
were
primarily assigned to indoor cleaning tasks, but were regularly
required to assist outdoors as needed.
(ECF No. 76-2, at 57).
Mr. Butler was assigned as the school’s “groundskeeper” and “was
responsible for maintaining the grounds on the exterior of the
school building,” although he assisted indoors as needed, which
occurred “daily.”
In
March
(Id.).
2010,
AEHS
principal
James
Fernandez
noticed
issues with the cleanliness of the cafeteria after lunch, which
was then the responsibility of Plaintiff, Ms. Ayala, and Ms.
Miller.
(ECF No. 70-14 ¶ 4).
Mr. Fernandez attempted to locate
the BSWs on numerous occasions in the afternoons, but was unable
to do so.
He inquired into the schedules of the three BSWs, and
was told by Tony Hopkins, then the school’s plant equipment
operator, that the three BSWs had been leaving work before the
end
of
their
scheduled
shifts.
When
their
supervisor,
Mr.
Moreland, “was not forthcoming with any type of response about
whether he had knowledge that these three employees were not
working
their
full
shifts,”
Mr.
Fernandez
had
AEHS
business
manager Robin Hart conduct an investigation into the possible
3
payroll
fraud.
footage
from
(Id.
a
¶¶ 5-6).
two-week
departures
of
the
timecards.
Ms.
Hart
period
that
month
with
their
BSWs
(Id. ¶¶ 7-8).
reviewed
and
scheduled
security
compared
the
shifts
and
Ms. Hart reported that Plaintiff had
left the school premises between 10:30 a.m. and 12:10 p.m. every
day of that pay period without returning, but had been scheduled
to work until 2:30 p.m. and had submitted time sheets reflecting
that she worked 8-hour days.
(Id. at 6).
similar
other
findings
as
to
the
two
Ms. Hart reported
employees.
Plaintiff and her co-workers deny these allegations.
(Id.).
(See ECF
Nos. 75-31 ¶ 14; 70-16 ¶ 3).
At the end of April, Mr. Moreland retired and Mr. Hopkins
became the acting building services manager.2
¶¶ 2-3;
70-14
¶ 10).
In
early
May,
Mr.
(ECF Nos. 70-6
Fernandez
Hopkins discussed AEHS’s building services needs.
14
¶ 10;
cleanliness
76-2,
of
at
the
30).
school
In
addition
in
the
to
Mr.
(ECF Nos. 70-
issues
afternoon,
and
Mr.
with
the
Hopkins
identified staffing shortages in the afternoons when deliveries
were received.
(ECF No. 76-2, at 53).
Additionally, because
the evening shift BSWs left the school ready to open in the
mornings, the first task requiring multiple BSWs was to clean
the
cafeteria
2
after
breakfast
at
7:30,
and
accordingly,
Mr.
Mr. Hopkins became the acting manager on May 3, and was
hired as the building services manager in July 2010.
(ECF No.
76-2, at 50).
4
Hopkins
testified,
there
was
not
enough
mornings to require three BSWs indoors.
70-22
¶ 6).
Based
on
this
work
in
the
early
(Id. at 28, 53; ECF No.
information,
Mr.
Fernandez
“determined that their hours had to be changed so that we would
have BSW staff available in the afternoons to meet the needs of
the school.”
(ECF No. 70-14 ¶ 12).
Mr. Fernandez decided to
change the schedules of Plaintiff and Ms. Ayala, but did not
change Ms. Miller’s or Mr. Butler’s hours because they had other
early morning duties.
(Id. ¶ 11).
Ms. Miller, who worked from
5:00 a.m. to 1:30 p.m., was the most senior BSW and had long
been responsible for unlocking and opening the school in the
morning.
(ECF No. 70-22 ¶ 6).
Mr. Butler, who began at 6:00
a.m., was responsible for tasks relating to the maintenance of
the exterior grounds, for which the evening shift BSWs were not
responsible.
(Id.).
Mr. Fernandez affirmed that he also made
the change so that he could ensure that Plaintiff and Ms. Ayala
were
working
until
the
end
of
their
shifts
because
timecard issues identified earlier that year.
¶ 10).
Fernandez
Because
to
the
change
employee
an
union’s
employee’s
by
the
(ECF No. 70-14
contract
shift
of
up
permitted
to
two
Mr.
hours
without bargaining for prior approval, Plaintiff’s hours were
changed from 6:00 a.m. to 2:30 p.m., to 8:00 a.m. to 4:30 p.m.,
and Ms. Ayala’s hours were changed from 5:00 a.m. to 1:30 p.m.,
to 7:00 a.m. to 3:30 p.m.
(Id. ¶ 11).
5
In
Plaintiff’s
declaration,
she
states
that
Mr.
Hopkins
“told [her] that he did not want women working in the morning”
(ECF No. 75-31 ¶ 6), and she testified at her deposition that
Mr. Hopkins “said I don’t want the three women on my schedule”
(ECF No. 76-1, at 12).
Mr. Hopkins denies saying this and
denies that he did not want women to work for him.
2, at 55).
(ECF No. 76-
Plaintiff also testified that Mr. Fernandez told her
that it was Mr. Hopkins who changed her schedule (ECF No. 76-1,
at 24), but Mr. Fernandez testified that he was the only one
with the authority to change Plaintiff’s schedule and that he
was the one who made the decision (ECF No. 70-14 ¶ 10).
While
Mr. Hopkins testified that he was involved in the decision, he
also testified that he did not have the authority to change the
BSWs’ schedules and that Mr. Fernandez was the one who did so.
(ECF No. 76-2, at 53, 55).
Mr. Fernandez avers that he held separate meetings with
Plaintiff, Ms. Ayala, and Ms. Miller on May 13, 2010, to discuss
the results of the payroll investigation, direct them to work
their full scheduled hours, and clarify their job duties.
¶ 11).
(Id.
In his meetings with Plaintiff and Ms. Ayala, he also
explained his decision to change their scheduled hours.
(Id.).
These changes were confirmed in writing on May 24, 2010, the day
they were to go into effect.
(Id. ¶ 13; id. at 10; see also 76-
1, at 26).
6
On May 26, a letter signed by Plaintiff, Ms. Miller, and
Ms. Ayala was sent to Defendant’s office of human resources and
the superintendent’s office.
¶ 13).
(ECF No. 70-14, at 13-15;
id.
The letter alleged discrimination and harassment by Mr.
Hopkins and AEHS’s security staff, and requested a meeting with
human resources and a union representative.
(Id. at 13-15).
The letter identifies Plaintiff as its author (see id. at 13
(“I, Maria Melendez, Building Service Worker”)), although she
testified that the BSWs wrote it together (ECF No. 76-1, at 26).
Ms.
Ayala
testified
during
her
deposition
that,
while
the
signature on the last page was hers, she had not seen the letter
before, did not know who wrote it, and was not familiar with its
contents.
(ECF No. 70-15, at 14-15).
She also denied that she
was harassed at AEHS, that she felt unsafe working there, and
that Mr. Hopkins had told her he did not want women working for
him.
(Id. at 16-19).
complaint
about
Mr.
Ms. Ayala further denied ever making a
Hopkins.
(Id.
at
20-21).
Ms.
Miller
affirmed that she first learned of the full contents of the
letter during the meeting with human resources, upon which she
“immediately withdrew” her complaint.
(ECF No. 70-16 ¶ 4).
Ms.
Miller stated in her affidavit she “was misled by Ms. Melendez,”
that
she
had
understood
the
letter
only
to
be
about
the
allegations of payroll fraud, which she disputed, and that “it
is not true that I was being harassed, oppressed or working
7
under unbearable or stressful working conditions.
the letter is true.”
The
letter’s
office
of
Nothing in
(Id. ¶¶ 3-4).
human
allegations.
resources
Meetings
investigated
were
held
with
the
May
each
of
26
the
letter’s signatories and representatives from human resources
and the union, and a review of the March payroll investigation
was also conducted.
complete
(See ECF No. 70-17).
investigation,”
resources
“was
unable to substantiate any allegations of discrimination.”
(ECF
No. 70-13 ¶ 5).
the
office
of
Following a “full and
human
It determined that Plaintiff and Ms. Ayala’s
hours were changed by Mr. Fernandez because three BSWs were not
needed indoors so early in the morning, that the changes were
authorized under the union contract, that the March security
tapes clearly showed the employees leaving the building prior to
the end of their scheduled shifts in contradiction of their
timesheets, and that none of the complaining employees had lost
time, benefits, or money as a result of the schedule changes.
(Id.; see also ECF No. 75-31 ¶ 15).
Plaintiff was notified on
June 17 that her allegations were not substantiated.
70-17).
(ECF No.
Plaintiff’s union also notified Plaintiff on July 7
that her allegations against Mr. Hopkins were not substantiated,
the
change
in
her
work
hours
was
8
consistent
with
the
union
contract, and the union’s investigation of her complaint was
(ECF No. 70-18).3
complete.
In February 2011, Plaintiff met with AEHS business manager
Simon
Seaforth
“to
discuss
various
performance and professionalism.”
issues
with
her
job
(ECF No. 70-22 ¶ 9).
Hopkins, Plaintiff’s manager, was also present.
Mr.
Mr. Seaforth
stated in his affidavit that this meeting was held following
“repeated
counseling
sessions”
relating
to
complaints
he
had
received and “[a]s a result of the continuing and escalating
problems that [he] observed” with Plaintiff’s performance.
¶¶ 8-9).
with
a
(Id.
During the meeting, Mr. Seaforth provided Plaintiff
draft
performance
performance
issues
had
review,
been
identifying
identified,
areas
but
on
which
“made
it
clear . . . that this was a counseling session as opposed to her
employee evaluation.”
(Id. ¶ 9).
Two weeks later, Mr. Seaforth met again with Plaintiff for
her formal employee evaluation, which was scheduled for every
three years.
3
(Id. ¶ 10).
Again, Mr. Hopkins was present, but
In October 2010, Plaintiff again contacted her union
regarding the May schedule change, alleging that the change in
her work hours was discriminatory.
(See ECF No. 70-19).
She
did not provide a reason for this belief, and instructed the
union not to contact Mr. Fernandez to investigate the issue.
When the union representative reviewed the union’s files and
found that this allegation had already been investigated,
Plaintiff was informed again that her complaint was not
substantiated and was closed.
(Id.).
Plaintiff also declares
that she “once again called the union about Tony” in January
2011. (ECF No. 75-31 ¶ 13).
9
did not conduct the review himself because Mr. Seaforth was
training him on how to conduct performance reviews.4
(Id.).
Plaintiff’s performance review indicated that she failed to meet
three of the seven core competencies for her job.
19-21).
Plaintiff
refused
to
sign
the
(Id.; id. at
review.
Because
Plaintiff had received a negative performance review, she was
automatically
Improvement
referred
Process
for
intake
(“PIP”).
(ECF
into
No.
the
70-13
Performance
¶ 8).
PIP
“provides underperforming supporting services employees with an
opportunity to receive the intensive individualized assistance
and
professional
development
necessary
to
improve
job
performance and meet the core competency criteria,” and offers
employees different program options.
(Id. ¶ 9).
Mr. Seaforth
attended Plaintiff’s PIP intake meeting with a human resources
professional growth consultant, at which she was presented with
these
options.
(Id.
¶ 10;
ECF
No.
70-22
¶ 11).
Because
Plaintiff refused to choose a plan, she was automatically placed
into the default option, a 90-day Special Evaluation.
70-13 ¶ 10).
4
(ECF No.
This option “is specifically designed to assist an
A school counselor was also present to assist with
interpretation for Plaintiff. (ECF No. 70-22 ¶ 10). The record
reflects that interpreters were provided for Plaintiff at
various times, including during the investigation of her May 26
complaint (see ECF No. 75-7), her performance review (ECF No.
70-22 ¶ 10), and a meeting regarding her resignation (id. ¶ 15).
Plaintiff does not raise language difficulties in connection
with her claims.
10
underperforming
position.”
employee
toward
success
in
their
assigned
(Id. ¶ 11).
On July 19, 2011, Plaintiff resigned without notice.
No. 70-22, at 22).
Mr. Seaforth affirms that when she informed
him she was quitting, he found it “sudden and unexpected.”
¶ 15).
(ECF
(Id.
He asked another employee to translate while informing
Plaintiff that she was not being forced to resign and explaining
that she would lose seniority rights if she wanted to be reemployed by Defendant at a later time after resigning.
that
he
provided
Plaintiff
with
a
Notice
of
He avers
Termination
of
Employment form and advised “that she not make a hasty decision”
and
“to
sleep
on
it.”
(Id.).
Later
that
afternoon,
Mr.
Seaforth found the completed form under his office door, signed
by Plaintiff and indicating that the “Reason for Resignation”
was
“Home
Responsibilities,”
and
he
affirms
that
the
copy
attached and incorporated to his affidavit is an exact copy of
the form he found.
(Id.; id. at 22).
While Plaintiff does not
dispute that she resigned on July 19 and confirmed her signature
on this form, she testified that she did not check the “Home
Responsibilities” box on the form and that she had written a
note on the form stating “they’re forcing me to leave because
they’ve tried to get rid of me.”
11
(ECF No. 76-1, at 40).
B.
Procedural Background
In
January
2012,
Plaintiff
filed
a
charge
of
discrimination, harassment, and hostile work environment with
the Equal Employment Opportunity Commission (“EEOC”).
Nos. 31-3; 31-4).
(See ECF
On April 6, 2012, Plaintiff’s case was closed
after Plaintiff purportedly withdrew her complaint, as further
discussed in the court’s order granting in part and denying in
part Defendant’s motion to dismiss or for summary judgment (ECF
No. 45).
On March 15, 2013, however, the EEOC reopened the
investigation, and a notice of right to sue letter was issued to
Plaintiff on May 20, 2014.
(ECF Nos. 31-6; 31-7).
Plaintiff filed a pro se complaint in the Circuit Court for
Montgomery County, Maryland on August 19, 2014, naming AEHS as
defendant.
(ECF
No.
2).
Plaintiff
subsequently
retained
counsel and filed an amended complaint adding Montgomery County
Public
Schools
as
a
defendant.
(ECF
No.
11).
After
the
defendants removed the case to this court and moved to dismiss,
Plaintiff
filed
a
second
amended
complaint
substituting
Board of Education for Montgomery County as a defendant.
No. 30).
the
(ECF
The second amended complaint asserts five claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e,
et seq. (“Title VII”): sex discrimination (Count I); retaliation
(Count
II);
disparate
treatment
(Count
III);
hostile
work
environment (Count IV); and adverse employment action (Count V).
12
(ECF No. 30 ¶¶ 132-61).
law
claims
Defendant
claims.
(Counts
moved
to
The complaint also included eight state
VI
through
dismiss
(ECF No. 31).
or
XIII).
for
(Id.
summary
¶¶
162-90).
judgment
on
all
The motion was construed as a motion for
summary judgment and granted as to the state law claims because
the claims were time-barred.
(ECF No. 45, at 22-29).
Defendant
argued for judgment on the Title VII claims on the ground that
Plaintiff had failed to exhaust her administrative remedies by
withdrawing
prescribed
her
EEOC
claim
limitations
and
period.
not
refiling
(Id.
at
it
within
the
Given
the
11-21).
disputed evidence as to whether Plaintiff had withdrawn her EEOC
claim, Defendant’s motion was denied.
(Id. at 21).
Discovery has now been completed, and Defendant has moved
for summary judgment.
(ECF No. 70).
Plaintiff filed a response
in opposition (ECF No. 74), and Defendant replied (ECF No. 78).
Plaintiff also filed a motion to strike portions of Defendant’s
exhibits to the motion for summary judgment (ECF Nos. 74; 77),
and Defendant responded (ECF Nos. 78; 79).
II.
Plaintiff’s Motion to Strike
In
her
opposition
to
Defendant’s
motion
for
summary
judgment and in a separately filed motion, Plaintiff has moved
to strike all or part of four affidavits filed as exhibits to
Defendant’s motion.
motion
to
strike
(ECF Nos. 74, at 2-8; 77).
must
be
addressed
13
first
Plaintiff’s
because
Defendant
relies on the evidence to which Plaintiff objects in connection
with the motion for summary judgment.
See Stanley Martin Cos.
v. Universal Forest Prods. Shoffner LLC, 396 F.Supp.2d 606, 611
(D.Md. 2005).
Pursuant to Fed.R.Civ.P. 56(c):
“An affidavit or
declaration used to support or oppose a motion [for summary
judgment] must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”
Plaintiff first objects to the Affidavit of Francis Miller
(ECF
No.
70-16),
who
retired
in
2011
and
is
accordingly
Defendant’s former employee, citing Fed.R.Civ.P. 26, 30, and 37.
(ECF No. 74, at 2-6).
14, 2016.
This affidavit was executed on January
Prior to the execution of this affidavit, Defendant
had noticed Ms. Miller’s deposition for January 20, 2016, and
Plaintiff
had
separately
noticed
February 8.
(See ECF No. 78-1).
Plaintiff’s
counsel’s
inquiry,
Ms.
Miller’s
deposition
for
On January 8, in response to
Defendant’s
counsel
informed
Plaintiff that it had not yet been able to serve Ms. Miller.
(See
ECF
Miller
No.
was
75-2).
According
subsequently
served
to
Defendant’s
with
counsel,
Defendant’s
Ms.
deposition
subpoena on January 13, after more than thirteen attempts were
made, and she then contacted Defendant’s counsel and agreed to
provide an affidavit.
(ECF No. 78, at 15 & nn.6-7).
Defendant
then decided not to take Ms. Miller’s deposition, released her
14
from
its
subpoena,
and
notified
Plaintiff’s
Defendant was canceling her deposition.
served
her
subpoena
on
Ms.
Miller,
additional time to effect service.
Plaintiff
baselessly
(Id.).
and
that
deposition
Defendant’s
subpoena
on
argues
that
counsel
Ms.
that
Plaintiff never
did
not
request
(ECF No. 74, at 4).
prevented her from deposing Ms. Miller.
contends
counsel
was
Miller
Defendant’s
(Id. at 3).
required
when
its
to
actions
Plaintiff
serve
counsel
met
its
the
witness on January 14, but Defendant’s subpoena had already been
served at that time, and Defendant was permitted to release the
witness from the subpoena.
Defendant’s counsel was certainly
under no obligation to take an unnecessary deposition.5
Ms.
Miller’s cooperation with Defendant to provide an affidavit does
not,
as
Plaintiff
argues,
show
that
Ms.
Miller
was
within
Defendant’s custody and control, and there is no evidence that
the
contact
information
Miller was inaccurate.
5
Defendant
provided
Plaintiff
for
Ms.
Finally, assuming arguendo the affidavit
Plaintiff argues that Defendant violated Fed.R.Civ.P.
30(g), which provides: “A party who, expecting a deposition to
be taken, attends in person or by an attorney may recover
reasonable expenses for attending, including attorney’s fees, if
the noticing party failed to: (1) attend and proceed with the
deposition; or (2) serve a subpoena on a nonparty deponent, who
consequently did not attend.” (ECF No. 74, at 4). Plaintiff’s
counsel was informed in advance of the cancellation of Ms.
Miller’s deposition, however. As Plaintiff admits, “Plaintiff’s
counsel showed up for the deposition of Maria Ayala,” which had
also been noticed for January 20 and proceeded as scheduled.
(Id. (emphasis added)).
Counsel did not attend expecting Ms.
Miller to be deposed. Accordingly, Plaintiff is not entitled to
reasonable expenses pursuant to Rule 30(g).
15
was
discoverable,
request
to
Plaintiff
which
the
has
not
affidavit
identified
would
have
any
been
discovery
responsive.
Plaintiff’s motion to strike Ms. Miller’s affidavit and request
for sanctions and fees will accordingly be denied.
Plaintiff
next
objects
to
paragraph
7
of
the
affidavit
submitted by Heather Dublinski (ECF No. 70-13), a coordinator
and human resources compliance specialist for Defendant, arguing
that
her
statement
is
not
true.
(ECF
Plaintiff’s objection is without merit.
No.
74,
at
6).
Plaintiff may dispute
Ms. Dublinski’s affidavit with her own evidence, or could have
objected
pursuant
argument
that
to
“the
Fed.R.Civ.P.
MCPS
records
56(c),
but
Dublinski
her
unsupported
refers
to
do
not
exist” (id.), is plainly an insufficient ground to strike the
affidavit testimony.
9
and
10,
alleging
Plaintiff also moves to strike paragraphs
that
Defendant
failed
to
produce
the
referenced document during discovery (id.), but she again fails
to identify a discovery request to which the document would have
been responsive.
Plaintiff’s motion to strike portions of Ms.
Dublinski’s affidavit will therefore be denied.
Plaintiff also objects to the majority of Donald Smith’s
affidavit (ECF No. 70-20), arguing that it contains information
that
is
not
based
on
his
personal
knowledge
and
demonstrative exhibit was not produced in discovery.
74, at 6-7).
that
(ECF No.
Mr. Smith is a security assistant at AEHS.
16
his
His
affidavit is based on his own experiences working for Defendant,
and
his
demonstrative
discovery request.
Finally,
aid
was
not
responsive
to
Plaintiff’s
Plaintiff’s motion to strike will be denied.
Plaintiff
Seaforth’s affidavit.
moves
to
strike
portions
of
Simon
First, she objects to paragraph 13 on the
ground that it holds him out to be an expert (id. at 8), but
this paragraph is based on his personal experience and does not
hold him out to be an expert.
Plaintiff also moves to strike
exhibit 19B to Mr. Seaforth’s affidavit, a draft performance
evaluation he affirms he gave to Plaintiff on February 17, 2011,
on the ground that it “is not a true and correct copy of the
exhibit
exchanged
by
the
parties
during
discovery,”
citing
generally her statement of disputed facts and exhibits 9 and 20
in support.6
(Id.).
Plaintiff’s exhibit and declaration may be
evidence that a dispute of fact exists over the contents of the
draft evaluation, but they do not provide proper grounds for
objecting
judgment.
to
or
striking
evidence
on
a
motion
for
summary
Accordingly, Plaintiff’s motion as to Mr. Seaforth’s
affidavit will also be denied.
6
Plaintiff’s exhibit 20 includes the first two pages of
Defendant’s exhibit 19B, but also includes a signature page and
omits Plaintiff’s attendance records found in exhibit 19B. (ECF
No. 75-16).
Plaintiff declares that her exhibit is a true and
correct copy of the document in her custody that she produced to
Defendant.
(ECF No. 75-33 ¶ 2.a).
Exhibit 9 is a 345-page
exhibit containing records from the EEOC investigation file, and
its relevance here is unclear. (See ECF Nos. 76-4; 76-5).
17
For
the
foregoing
reasons,
Plaintiff’s
motion
to
strike
will be denied.
III. Defendant’s Motion for Summary Judgment
Plaintiff’s second amended complaint contains five Title
VII counts:
sex discrimination (Count I); retaliation (Count
II); disparate treatment (Count III); hostile work environment
(Count IV); and adverse employment action (Count V).
31).
(ECF No.
Defendant has moved for summary judgment on all claims.
A.
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.
242,
250
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is inappropriate if any material factual issue
“may reasonably be resolved in favor of either party.”
Lobby,
477
U.S.
at
250;
JKC
Holding
Co.
v.
Wash.
Liberty
Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).
The moving party bears the burden of showing that there is
no genuine dispute as to any material fact.
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, however, then there is no genuine dispute of material
18
fact.
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 evidentiary showing” demonstrating
that there is a genuine issue for trial.
See Ross v. Early, 899
F.Supp.2d 415, 420 (D.Md. 2012), aff’d, 746 F.3d 546 (4th Cir.
2014).
“A mere scintilla of proof . . . will not suffice to
prevent summary judgment.”
(4th Cir. 2003).
significantly
Peters v. Jenney, 327 F.3d 307, 314
“If the evidence is merely colorable, or is not
probative,
summary
judgment
may
be
Liberty Lobby, 477 U.S. at 249–50 (citations omitted).
granted.”
In other
words, 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);
see Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514,
522 (4th
Cir. 2003).
Indeed, this court has an affirmative
obligation to prevent factually unsupported claims and defenses
from going to trial.
(4th Cir. 1993).
See Drewitt v. Pratt, 999 F.2d 774, 778–79
At the same time, the court must construe the
facts that are presented in the light most favorable to the
party opposing the motion.
Scott v. Harris, 550 U.S. 372, 378
(2007); Emmett, 532 F.3d at 297.
19
B.
Analysis
1.
Count I, Sex Discrimination
Title VII prohibits discrimination based on an employee’s
personal characteristics such as “race, color, religion, sex, or
national origin.”
42 U.S.C. § 2000e-2(a); Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2525 (2013).
To survive a
motion for summary judgment, a plaintiff asserting a Title VII
claim
must
provide
evidence
of
through one of two avenues of proof:
discrimination
motivated
the
intentional
discrimination
(1) direct evidence that
employer’s
adverse
employment
decision, or (2) the McDonnell Douglas “pretext framework” that
requires
a
plaintiff
to
show
that
the
“employer’s
proffered
permissible reason for taking an adverse employment action is
actually a pretext for discrimination.”
See Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir.
2004) (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S.
792, 807 (1973)).
a.
Direct Evidence of Intentional Discrimination
Direct evidence includes “evidence of conduct or statements
that both reflect directly the alleged discriminatory attitude
and that bear directly on the contested employment decision.”
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006)
(quoting Taylor v. Va. Union Univ., 193 F.3d 219, 232 (4th Cir.
1999) (en banc)).
If believed, direct evidence “would prove the
20
existence
of
presumptions.”
542,
548
(4th
a
fact . . . without
any
inference
or
O’Connor v. Consol. Coin Caterers Corp., 56 F.3d
Cir.
1995)
(alteration
in
original)
(quoting
Bodenheimer v. PPG Indus., 5 F.3d 955, 958 (5th Cir. 1993)),
rev’d on other grounds, 517 U.S. 308 (1996).
To overcome a
motion for summary judgment using direct evidence, a plaintiff
“must produce evidence that clearly indicates a discriminatory
attitude at the workplace and must illustrate a nexus between
that negative attitude and the employment action.”
Harbour
Recreation
Club,
180
F.3d
598,
608
(4th
Brinkley v.
Cir.
1999),
overruled on other grounds by Desert Palace v. Costa, 539 U.S.
90 (2003).
Plaintiff argues that a single statement allegedly made by
Mr. Hopkins, that “he did not want three women working in the
morning,” is direct evidence of a discriminatory attitude that
bears on Mr. Hopkins’s decision to change Plaintiff’s schedule.
(ECF No. 74, at 35).
Assuming arguendo that this statement was
made, it is not evidence of discriminatory attitude.7
7
As a
Plaintiff contends that it is undisputed that Mr. Hopkins
made this statement, citing an answer he gave during his
deposition to a “clear and unambiguous” question. (ECF No. 74,
at 15 n.14).
Plaintiff mischaracterizes both the question and
answer. Plaintiff’s counsel asked Mr. Hopkins: “Okay, so prior
to you stepping out on the break, we talked a little about the
shifts differentials, (inaudible 20:21:33), so you stated
earlier you didn’t want the three women working in the morning,
right?”
(ECF No. 76-2, at 27).
Counsel was referring to an
earlier question of whether Plaintiff, Ms. Miller, and Ms. Ayala
worked on the morning or evening shift.
(Id. at 25).
That
21
preliminary matter, “it is not clear that a single, isolated
statement
could
intent.”
Mungro v. Giant Food, Inc., 187 F.Supp.2d 518, 521
(D.Md. 2002).
provide
the
requisite
direct
evidence
of
Even if it could, however, the alleged statement
itself does not indicate a discriminatory attitude.
According
to Plaintiff, Mr. Hopkins did not say that he did not want women
working for him, he said that he did not want the three female
BSWs working in the morning.
This is entirely consistent with
the testimony of Mr. Hopkins, Mr. Seaforth, and Mr. Fernandez,
and
the
findings
investigations,
that
of
the
human
Plaintiff’s
resources
schedule
was
and
union
changed
only
because too many BSWs were scheduled to work too early in the
morning.
Moreover, Plaintiff’s assertions that Mr. Hopkins “didn’t
want the women working in the morning, because he believed that
the three female building service workers . . . ‘could not do
the work’ simply because they were women” (ECF No. 74, at 3637), and that Mr. Hopkins “arbitrarily changed the hours to
eliminate the female staff in the morning on his own” (id. at
16),
are
clearly
contradicted
by
the
record.
First,
Ms.
question, in response to which Mr. Hopkins had confirmed that
those BSWs worked the morning shift, had been followed by a
break in the deposition and then by twenty-six other questions
by counsel. (Id. at 25-27). Mr. Hopkins answered “correct” to
counsel’s question, then immediately changed his answer and
reiterated
multiple
times
that
he
had,
understandably,
misinterpreted the question. (Id. at 27).
22
Miller’s early morning schedule was never changed, and Ms. Ayala
and Plaintiff’s schedules were adjusted – at most - by only two
hours.8
It is undisputed that all three female BSWs continued to
work on the same shift for Mr. Hopkins in the morning.
Second,
Mr. Hopkins repeatedly and consistently testified that, while he
believed all of the female BSWs to be capable of performing the
tasks of a BSW on the morning shift, there were not enough of
those tasks at 5:00 and 6:00 a.m. to necessitate having three
BSWs working indoors at that time, regardless of their gender.
(See ECF No. 76-2, at 27-28).9
The majority of the BSWs’s tasks
8
Plaintiff states that Ms. Miller’s hours “were changed
from 5:00 am to 7:00 am,” citing a June 8, 2010 email by Ann
Kamenstein in the office of human resources.
(ECF No. 74, at
16).
Ms. Kamenstein’s email summarizes the May 2010 complaint
made by Plaintiff, Ms. Ayala, and Ms. Miller, but it does not
show that Ms. Miller’s schedule was changed.
(See ECF No. 757).
It is undisputed that Ms. Miller’s schedule was not
changed. (See ECF Nos. 70-14 ¶¶ 10-12; 70-22 ¶ 6).
9
Plaintiff repeatedly cites a portion of Mr. Hopkins’s
deposition in which he stated that he had not required Plaintiff
to move heavy, broken cafeteria furniture, as she specifically
alleged in her complaint (ECF No. 30 ¶¶ 85-86), because of
“their size and their strength and ability” (ECF No. 76-2, at
59). (See ECF No. 74, at 14, 36-37, 56). Plaintiff argues that
this statement shows Mr. Hopkins believed women incapable of
performing the required duties of a BSW, but Mr. Hopkins
actually testified that the reason he did not require Plaintiff
to move the broken tables in the manner she alleged was because
the size of the tables necessitated the use of a hand truck to
move. (ECF No. 76-2, at 59). Plaintiff now attempts to argue,
simultaneously, that Mr. Hopkins moved her off the morning shift
because he did not believe she could lift furniture and lifting
furniture was necessary during the morning shift; that Mr.
Hopkins showed “favoritism” to the male BSWs by only requiring
male BSWs, and not female BSWs, to lift furniture; but also that
Mr. Hopkins retaliated against her and harassed her by forcing
23
necessarily were done later in the day after school started.
(See ECF No. 76-2, at 27-28).
Plaintiff and Ms. Ayala were not
replaced from 5:00 a.m. to 8:00 a.m. by male BSWs, and there
were no male BSWs assigned to work indoors at 5:00 a.m. or 6:00
a.m.
whose
schedules
remained
the
same.
Third,
although
Plaintiff argues that Mr. Hopkins changed her hours, she offers
no evidence to dispute Defendant’s evidence that the decision
was made by Mr. Fernandez.
Finally, as discussed in more detail
below, the two-hour change in Plaintiff’s schedule was not an
adverse
employment
action.
Plaintiff
has
not
shown
direct
evidence of discrimination.
b.
Inference of Discriminatory Intent
Because Plaintiff does not put forth direct evidence of
discrimination, her discrimination claims must be examined using
the burden-shifting framework established in McDonnell Douglas.
The familiar McDonnell Douglas framework “‘compensat[es] for the
fact that direct evidence of intentional discrimination is hard
her to lift furniture.
These arguments are not only
contradictory but also unsupported by the record.
Plaintiff also argues that Mr. Hopkins testified that he
did not want women working in the morning because they could not
handle the pace of the tasks.
Plaintiff’s characterization of
Mr. Hopkins’s testimony, here and elsewhere, is misleading. Mr.
Hopkins repeatedly testified that the only reason the women
“could not” complete the early morning tasks was because there
were no early morning tasks for them to do. See, e.g., ECF No.
76-2, at 27 (“[Q] [W]hat couldn’t they do there that made you
want [to change] their schedule?
A They could do their jobs.
Just having the three employees, we had too many people working
in the morning shift hours.
We had pretty much the morning
staff coming in at five and six o’clock in the morning.).
24
to come by’” and “give[s] plaintiffs who lack direct evidence a
method for raising an inference of discrimination.”
Diamond v.
Colonial Life & Accident Ins., 416 F.3d 310, 318 (4th Cir. 2005)
(quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989)
(O’Connor, J., concurring)).
Under McDonnell Douglas, once the
plaintiff meets her initial burden of establishing a prima facie
case
for
a
Title
VII
violation,
“the
burden
shifts
to
the
employer to articulate a legitimate, nondiscriminatory reason
for the adverse employment action.”
at 285.
Lockheed Martin, 354 F.3d
If 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)).
According
to
the
United
States
Court
of
Appeals for the Fourth Circuit, “[t]he 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) (alteration in original) (quoting Burdine, 450
U.S. at 256).
To establish a prima facie case on a theory of disparate
treatment, a plaintiff must show four elements:
25
(1) that she is
a member of a protected class; (2) that her job performance was
satisfactory;
(3)
that
she
suffered
an
adverse
employment
action; and (4) that she was treated differently from similarly
situated employees outside the protected class.
Coleman v. Md.
Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff’d sub
nom. Coleman v. Court of Appeals of Md., 132 S.Ct. 1327 (2012).
In
its
motion
for
summary
judgment,
Defendant
challenges
Plaintiff’s showing on the second, third, and fourth elements.
Here, without deciding whether Plaintiff has met her burden with
regard to the second and fourth elements, the court finds that
Plaintiff
has
not
presented
evidence
employment action against her.
showing
an
adverse
Therefore, she cannot establish
a prima facie case of discrimination.
“An adverse employment action is a discriminatory act which
adversely affect[s] the terms, conditions, or benefits of the
plaintiff’s employment.”
368
F.3d
371,
375
James v. Booz-Allen & Hamilton, Inc.,
(4th
Cir.
quotation marks omitted).
2004)
(citation
and
internal
In most cases, this type of action
“inflicts direct economic harm,” by way of “a significant change
in
employment
promote,
status,
such
reassignment
as
with
hiring,
firing,
significantly
failing
to
different
responsibilities, or a decision causing a significant change in
benefits.”
(1998).
Burlington Indus. v. Ellerth, 524 U.S. 742, 761-62
Indirect
actions
that
26
affect
present
and
future
employment
such
as
loss
of
job
title,
loss
of
supervisory
responsibility, limited access to training programs, or reduced
opportunities for promotion also qualify as adverse employment
Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999);
actions.
Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981).
The adverse employment actions Plaintiff identifies were:
(1) the two-hour change to her schedule in May 2010, which she
argues deprived her of an accommodation to provide care for her
daughter;
(2)
her
subsequent
placement
March
in
2011
PIP;
performance
and
(ECF No. 74, at 36-37, 40-45).
(3)
evaluation
constructive
and
discharge.
Plaintiff also argues that she
suffered hostile working conditions during the summer of 2010,
none
of
which
separately
constitute
an
adverse
employment
action, see, e.g., Allen v. Rumsfeld, 273 F.Supp.2d 695, 702
(D.Md. 2003), but which will be addressed in the context of her
constructive discharge argument.10
1)
Schedule
The
two-hour
change
adverse employment action.
in
Plaintiff’s
schedule
was
not
an
The schedule change did not affect
her pay, responsibilities, title, opportunities for advancement,
or even her shift, and therefore was not a direct or indirect
10
Curiously, although Defendant reserved the argument in
its motion to dismiss or for summary judgment, Defendant does
not argue that Plaintiff’s claims are time-barred. As the only
allegedly discriminatory acts within the 300-day statutory
limitations
period
were
Plaintiff’s
intake
to
PIP
and
resignation, the question appears to be a good one.
27
adverse employment action.
Cf. McCain v. Waste Mgmt., Inc., 115
F.Supp.2d 568, 575 (D.Md. 2000) (holding that a plaintiff who
retained his position but was transferred from the day shift to
the night shift had not suffered an adverse employment action).
Plaintiff argues that she lost an accommodation for childcare
for
her
daughter
constitutes
an
as
a
result
adverse
of
the
employment
change,
and
action.
In
that
this
2001,
when
Plaintiff’s daughter was six years old, her hours were changed
from
10:30
a.m.
to
7:00
p.m.,
to
6:30
a.m.
to
3:00
p.m.
Plaintiff testified that this was to make to easier for her to
pick
up
Assuming
her
daughter
arguendo
after
that
school.
(ECF
2001
schedule
the
No.
76-1,
change
at
4).
was
an
accommodation, and that the loss of such an accommodation could
be an adverse employment action, Plaintiff still has not shown
that the 2010 change to her hours adversely affected the terms,
conditions, or benefits of her employment.
daughter was fifteen years old.
forward
no
evidence
that
By 2010, Plaintiff’s
(Id. at 25).
she
Plaintiff has put
continued
to
require
an
accommodation to provide childcare, or that the change in her
hours affected her childcare arrangements or ability to provide
childcare in any way.
Plaintiff’s testimony suggests that she
was
with
primarily
unhappy
the
schedule
change
because
it
increased her transportation costs (see id. at 24-25), but this
is not an adverse employment action.
28
2)
Performance Review and PIP
Plaintiff acknowledges that a negative performance review
and placement on PIP do not constitute an adverse employment
action where it does not expose the individual to economic harm.
(ECF No. 74, at 41 & n.37).
She argues that her placement on
PIP was an adverse employment action because it prevented her
from
applying
to
other
positions
opportunities for promotion.
and
diminished
her
Defendant’s policy was that an
employee is “not eligible to voluntarily transfer to or apply
for another position” while they are participating in a PIP
option.
(ECF No. 70-13 ¶ 9).
Defendant’s policy prohibiting an
employee from transferring to a new position before she has
successfully completed the PIP had no effect on the terms and
conditions of her employment, but instead gave her time and
resources
to
improve
current position.
71
(D.D.C.
Furthermore,
her
performance
while
remaining
in
her
See Bonnette v. Shinseki, 907 F.Supp.2d 54,
2012);
there
(see
is
also
no
evidence
ECF
that
No.
70-13
Plaintiff’s
¶¶ 9-10).
negative
performance review or PIP would have affected her opportunities
for promotion.
Plaintiff has not shown that her performance
review or PIP materially affected her work status or caused any
economic harm, and accordingly, has not shown that she suffered
an adverse employment action.
29
3)
Constructive Discharge
Although
Plaintiff
refers
in
her
opposition
to
her
“termination” and “firing” (ECF No. 74, at 39), she concedes
that
she
resigned
without
notice
and
constructive discharge (id. at 43-45).
asserts
a
claim
of
“Because the claim of
constructive discharge is so open to abuse by those who leave
employment of their own accord, this Circuit has insisted that
it be carefully cabined.”
Honor v. Booz–Allen & Hamilton, Inc.,
383 F.3d 180, 187 (4th Cir. 2004) (quoting Paroline v. Unisys
Corp.,
879
F.2d
100,
114
(4th
Cir.
1989)).
A
constructive
discharge is a form of an adverse employment action, and occurs
when
“an
employer
deliberately
makes
an
employee’s
working
conditions intolerable and thereby forces him to quit his job.”
Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir. 1985)
(quoting Holsey v. Armour & Co., 743 F.2d 199, 209 (4th Cir.
1984)); see also James, 368 F.3d at 378; McCain, 115 F.Supp.2d
at 574 (“To advance a claim for ‘constructive discharge,’ the
plaintiff must establish: (1) the employer deliberately made an
effort to force the employee to quit; and (2) that the working
conditions
were
intolerable”).
“[d]eliberateness . . .
specific
intent
to
In
require[s]
force
an
the
proof
employee
Fourth
of
to
the
leave,”
Circuit,
employer’s
and
the
tolerability of working conditions “is assessed by the objective
standard
of
whether
a
‘reasonable
30
person’
in
the
employee’s
position would have felt compelled to resign.
not
be
Thus,
unreasonably
the
perceptions
sensitive
law
does
not
to
govern
a
to
permit
claim
‘An employee may
his
working
an
employee’s
of
environment.’
constructive
subjective
discharge.”
Bristow, 770 F.2d at 1251 (citations omitted) (quoting Johnson
v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir. 1981)).
Plaintiff
discharge.
resignation
cannot
prove
either
element
of
constructive
She relies on isolated incidents a year prior to her
for
her
claim,
furniture and work outside.
including
being
assigned
(ECF No. 74, at 44-45).
to
move
Tasks such
as moving furniture, collecting branches, and performing other
work outdoors were within her job description and part of the
normal duties of a BSW.
A reasonable person would not have felt
forced to resign over being tasked with responsibilities that
were within her job description and performed by all workers.
Plaintiff also references “monitoring tactics” as part of the
intolerable working conditions and alleges that she was watched
through the school’s security cameras, but her only evidence of
being “monitored” was related to ensuring she was working her
scheduled hours in the spring of 2010.
Cf. Allen, 273 F.Supp.2d
at 702 (finding that scrutiny and documentation of employee’s
tardiness
and
absenteeism
did
not
adversely
conditions, or benefits of employment).
affect
terms,
Similarly, the other
incidents Plaintiff describes, such as her access to supplies
31
being controlled, the documentation of her alleged misuse of
supplies, and allegedly working without air conditioning once,
all of which occurred between six and fourteen months before her
resignation, would not compel a reasonable person to resign.
Plaintiff also argues that she was “assaulted by Hopkins on
school
premises”
testimony
that
(ECF
Mr.
No.
Hopkins
74,
at
43,
“pushed
45),
[a]
referring
trash
can
to
her
into
the
direction where my arm was when I was cleaning the window” one
time in June or July 2010 (ECF No. 76-1, at 52-53).11
The
evidence does not support that Plaintiff was assaulted by her
supervisor; at most, it shows that she sustained a minor injury
on the job, a year before she resigned, for which she did not
seek treatment or worker’s compensation.
Taking the evidence in
the light most favorable to Plaintiff, she has not shown that
any
of
these
intolerable
particularly
11
alleged
as
to
given
one-time
compel
the
a
incidents
reasonable
year-long
temporal
were
objectively
person
gap
to
so
resign,
between
their
Mr. Hopkins denies this incident occurred. (ECF No. 707, at 37).
Plaintiff also testified that she immediately
reported the incident to then-Assistant Principal Mildred
Charley-Greene, who saw a mark left by the trash can and
reprimanded Mr. Hopkins.
(ECF No. 76-1, at 52-53).
In her
affidavit, Ms. Charley-Greene states, “I never witnessed any
type of assault by Tony Hopkins against Maria Melendez; I never
observed any type of injury on Maria Melendez; and Maria
Melendez never reported any type of injury or assault inflicted
upon her by Tony Hopkins.” (ECF No. 70-27 ¶ 3). She described
her protocol for such allegations and for injuries, and stated
that Plaintiff’s allegations regarding this incident “are
absolutely false.” (Id.).
32
occurrence
and
her
resignation.12
“[M]ere
‘[d]issatisfaction
with work assignments, a feeling of being unfairly criticized,
or
difficult
intolerable
or
as
to
unpleasant
compel
a
working
conditions
reasonable
person
are
to
not
so
resign.’”
James, 368 F.3d at 378 (alteration in original) (quoting Carter
v. Ball, 33 F.3d 450, 459 (4th Cir. 1985)).
Moreover, Plaintiff has shown no evidence of her employer’s
intent to force her to resign.
In fact, the undisputed evidence
is that Plaintiff’s employers were surprised by her resignation
and urged her to reconsider her decision.
Confusingly,
Plaintiff
argues
only
includes the element of intent.”
(ECF No. 70-22 ¶ 15).
that
“an
actual
assault
(ECF No. 74, at 45).
Only
Plaintiff’s briefing uses the term “assault,” and she testified
only
that
Mr.
Hopkins
pushed
a
trash
can
in
her
direction.
Plaintiff testified that she did not report the incident to the
police (see ECF No. 76-1, at 53), Mr. Hopkins was not convicted
of assault, and there is no evidence that Mr. Hopkins acted with
the requisite intent of assault.
Regardless, even a showing
that Mr. Hopkins assaulted Plaintiff would not show that he did
12
Plaintiff’s
unfounded
accusation
that
Mr.
Hopkins
attempted to poison her by tampering with her water bottle in
2011 similarly falls far short of meeting her burden here.
Although Plaintiff testified that she believed someone had
poisoned her water (see ECF No. 76-1, at 49-51), she has put
forth no evidence that anyone tampered with her water, much less
that Mr. Hopkins did so and did so in order to force her to
resign.
33
so in order to force her to resign.
that
anyone
imposed
intolerable
Plaintiff has not shown
working
conditions
with
the
intent to compel her to resign.
“The employment discrimination laws require as an absolute
precondition to suit that some adverse employment action have
occurred.
every
They cannot be transformed into a palliative for
workplace
grievance,
expedient of quitting.”
Plaintiff
has
not
real
or
imagined,
by
the
Bristow, 770 F.2d at 1255.
presented
evidence
that
she
simple
Because
suffered
an
adverse employment action, she cannot establish a prima facie
case
of
discrimination,
and
Defendant’s
motion
for
summary
judgment will accordingly be granted as to Count I.
2.
Count II, Retaliation
To establish a prima facie case for retaliation, Plaintiff
must show that:
(1) she engaged in protected activity; (2) her
employer took a materially adverse action against her; and (3) a
causal connection existed between the protected activity and the
adverse action.
See Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 61-67 (2006); Laber v. Harvey, 438 F.3d 404, 432
(4th Cir. 2006).
“[A] plaintiff must show that a reasonable
employee
would
have
adverse,
‘which
in
found
this
the
context
challenged
means
it
action
well
materially
might
have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.’”
Burlington N., 548 U.S. at 68 (internal
34
quotation marks omitted) (quoting Rochon v. Gonzales, 438 F.3d
1211,
1219
(D.C.
because
materiality
Cir.
2006)).
“it
is
The
important
standard
to
focuses
separate
on
significant
from trivial harms,” and is an objective standard for purposes
of
judicial
establishes
administrability.
her
prima
facie
Id.
case
at
of
68-69.
If
retaliation,
Plaintiff
the
burden
shifts to Defendant to offer evidence of a legitimate, nonretaliatory
burden
reason
shifts
Defendant’s
for
back
the
to
proffered
adverse
Plaintiff
reason
action,
to
was
a
after
produce
pretext
which
evidence
for
the
that
retaliation.
Anderson v. G.D.C., Inc. 281 F.3d 452, 458 (4th Cir. 2002).
Protected
employment
activity
practice”
under
includes
Title
opposing
VII
or
an
“ma[king]
“unlawful
a
charge,
testif[ying], assist[ing], or participat[ing] in . . . [a Title
VII]
investigation,
§ 2000e-3(a).
the
office
proceeding,
or
hearing[.]”
42
U.S.C.
Plaintiff argues that her May 26, 2010, letter to
of
human
resources
was
a
protected
activity.
Plaintiff also identifies her calls to her union in October 2010
and
January
2011
as
protected
activities,
but
there
is
no
evidence that any other employee at AEHS or of Defendant was
made aware of these later complaints.13
Without evidence that
her employer knew of the protected activities, Plaintiff cannot
13
In fact, it is undisputed that Plaintiff instructed the
union not to investigate her renewed complaint or contact the
school in October.
35
establish
subsequent
a
causal
adverse
connection
action.
between
See,
e.g.,
the
activities
Balas
v.
and
Huntington
Ingalls Indus., 711 F.3d 401, 410-11 (4th Cir. 2013); Smith v.
Vilsack, 832 F.Supp.2d 573, 586 (D.Md. 2011).
Plaintiff has
shown evidence only that she may have engaged in a protected
activity through her May 26 complaint.
The adverse actions Plaintiff alleges are the same as those
that
form
the
basis
of
her
discrimination
claim,
including
assigning Plaintiff to tasks such as moving heavy furniture and
tree branches, monitoring her while she was working, and pushing
a trash can towards her.14
Although “a reassignment of duties
can constitute retaliatory discrimination where both the former
and
present
duties
fall
within
the
same
job
description,”
Burlington N., 548 U.S. at 55, Plaintiff has not shown evidence
that she was given new tasks in retaliation.
Plaintiff argues
that she was “subjected . . . to tasks ordinarily tasked to the
male building service workers such as lifting heavy furniture,
large tree branches, and the lifting of metal cabinets,” which
Mr. Hopkins “knew that Plaintiff would struggle to perform,” in
retaliation for her May complaint.
(ECF No. 74, at 49, 57).
Plaintiff declares that, “in May 2010, Tony would make us three
14
As the change in Plaintiff’s schedule was made prior to
her letter of complaint, it cannot be the basis of her
retaliation claim.
Plaintiff has provided no evidence to
support her argument that she engaged in a protected activity
prior to her schedule change.
36
women, work outside to pick up the [] large tree branches in the
heat,” and that “in July 2010, during the summer school session,
Tony would make us three women pick up heavy furniture, while
the male workers would sweep floors and laugh at us.”
75-31 ¶ 6).
“include[]
(ECF No.
However, Plaintiff testified that her job duties
picking
up
heavy
things,”
and
in
response
to
a
question of whether a BSW had to be able to life fifty pounds,
she answered, “Of course and we were doing that.
were doing that.
That’s nothing new.”
All along we
(ECF No. 76-1, at 19).
She also testified that she had regularly been asked to clean up
outside in previous summers.
(Id. at 16).
The other two female
morning shift BSWs also dispute Plaintiff’s assertion that these
tasks
were
complaint.
new
Ms.
and
imposed
Ayala
in
testified
retaliation
that
she
for
their
sometimes
May
worked
outside, including picking up branches; that she regularly had
to move heavy furniture; and that she worked with both men and
women to accomplish those tasks when Mr. Moreland was their
supervisor, prior to the May 2010 complaint.
15, at 6-13).
(See ECF No. 70-
Ms. Miller stated in her affidavit:
I was never asked to do any job tasks or
work outside of my job description. . . .
The male and female Building Service Workers
were not treated any differently from each
other.
The men and women Building Service
Workers were all assigned the same job
description and job duties.
Maria Melendez
was always complaining that jobs she was
asked to do were not part of her job
description, but that was not true.
For
37
example, Maria Melendez would refuse to
clean the trash room or fix a plugged toilet
because she felt that was a man’s job duty.
(ECF No. 70-16 ¶ 8).
To the extent that the events Plaintiff
relies upon are supported by the record, and construing that
evidence in the light most favorable to Plaintiff, she has not
shown that her employer took materially adverse actions against
her.15
Plaintiff has also failed to show that any such adverse
action was causally connected to her letter of complaint in May
2010. A causal connection may “exist[] where the employer takes
adverse
employment
action
against
an
learning of the protected activity.”
15
employee
shortly
after
Price v. Thompson, 380
Moreover, assuming arguendo that Plaintiff’s assigned
tasks did change in the summer of 2010, Mr. Seaforth stated in
his affidavit:
I was aware that there was a culture that
had developed at AEHS before I began working
there
that
allowed
women
to
exclude
themselves from some types of building
service work.
However, upon my transfer to
AEHS, I made it very clear that there would
be no gender differentiation for building
service work.
The language in the BSW job
description is the expectation for all BSWs
regardless of gender.
During the summer of
2010, Ms. Melendez told me that she did not
believe that women should have to move
furniture, and that this was men’s work.
However, I explained that these duties fall
within her job description, and reiterated
that there is no differentiation by gender
for the building service work.
(ECF No. 70-22 ¶ 5).
Plaintiff has not shown that this
legitimate, non-retaliatory reason for her assignment to new
duties within her job description is pretextual.
38
F.3d
209,
(4th
213
Cir.
2004).
Mr.
Hopkins
and
other
decisionmakers at AEHS were clearly aware of Plaintiff’s May 26
complaint, but knowledge of prior protected activity alone is
insufficient to establish causation.
Gibson v. Old Town Trolley
Tours of Washington, D.C., Inc., 160 F.3d 177, 182 (4th Cir.
1998).
some
There must be evidence that Defendant was motivated in
way
action.
by
Plaintiff’s
See id.
protected
activity
to
take
adverse
Here, Plaintiff presents no such evidence, and
she cannot create a genuine issue of material fact through mere
speculation or the building of inference upon inference.
Plaintiff also argues that Mr. Hopkins retaliated against
her
in
February
and
March
2011
by
giving
her
performance
counseling and a negative performance review that led to her
automatic placement on PIP.
Several courts have observed that a
poor performance review may not be a materially adverse action.
See Wonasue v. Univ. of Md. Alumni Ass’n, 984 F.Supp.2d 480, 492
(D.Md. 2013) (“[N]one of the following constitutes an adverse
employment action in a retaliation claim: failing to issue a
performance appraisal; moving an employee to an inferior office
or
eliminating
the
employee’s
work
station;
considering
the
employee ‘AWOL’; or issuing a personal improvement plan, ‘an
“Attendance Warning,”’ a verbal reprimand, ‘a formal letter of
reprimand,’
or
‘a
proposed
termination.’”
(quoting
Rock
v.
McHugh, 819 F.Supp.2d 456, 470-71 (D.Md. 2011))); Simmington v.
39
Gates, No. DKC-08-3169, 2010 WL 1346462, at *13 (D.Md. Mar. 30,
2010)
(collecting
cases).
Here,
even
assuming
Plaintiff’s
evaluation was a materially adverse action, it was conducted
more than nine months after Plaintiff’s letter of complaint.16
See King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003)
(noting that two-and-a-half month length of time between notice
of complaint and adverse action “is sufficiently long so as to
weaken significantly the inference of causation between the two
events”).
Plaintiff’s
causation
arguments
are
entirely
speculative, and are premised on the contention that Mr. Hopkins
was responsible for Plaintiff’s evaluation despite undisputed
evidence that Mr. Seaforth conducted the evaluation.
Moreover,
Defendant has offered legitimate, nondiscriminatory reasons for
Plaintiff’s evaluation.
Mr. Seaforth set forth in his affidavit
Plaintiff’s “excessive absentee record,” specifically that she
had not worked a full pay period between July 1, 2010, and her
evaluation on March 2, 2011; his own observations of Plaintiff’s
interactions with other employees and students; and the feedback
and complaints from other employees that were the basis for
Plaintiff’s performance evaluation.
16
Plaintiff relies
2011 union complaints to
No. 74, at 54-55), but
complaints were known to
retaliation.
(ECF No. 70-22 ¶¶ 8-10).
here on her October 2010 and January
argue for a shorter length of time (ECF
again, she has not shown that these
her employer at the time of the alleged
40
Plaintiff has shown no evidence that the concerns noted in her
review were false and pretextual.
The evidence does not support a finding of retaliation, and
Defendant is entitled to summary judgment on Count II.
3.
Count IV, Hostile Work Environment
Plaintiff also alleges a Title VII claim for hostile work
environment.
To establish a prima facie case of hostile work
environment harassment, Plaintiff must show:
(1) that she was
subjected to unwelcome conduct; (2) the unwelcome conduct was
based on a protected ground; (3) it was sufficiently pervasive
or
severe
to
alter
the
conditions
of
her
employment
and
to
create a hostile work environment; and (4) some basis exists for
imputing liability to the employer.
See Smith v. First Union
Nat’l Bank, 202 F.3d 234, 241-42 (4th Cir. 2000).
Plaintiff’s
claim
above
relies
on
the
same
incidents
Plaintiff attributes to Mr. Hopkins.17
discussed
that
Defendant argues that
Plaintiff cannot establish that the harassment she claims she
suffered was because of her gender or that the alleged conduct
17
Specifically, Plaintiff argues that the requirement that
she move furniture and tree branches was “manual labor,”
required so that her supervisor and male colleagues could “laugh
at [her] inability”; that her supervisor “physically assaulted
[her] by throwing a trash can in her direction and bruising her
arm”; and that she was “yelled at” in front of teachers,
monitored through the school’s security cameras, forced to work
without air-conditioning, and “suppressed [in her] ability to do
her job.” (ECF No. 74, at 57). Plaintiff also argues that her
“belie[f] that Hopkins tried to poison her when she discovered
that her water bottle was tampered” is evidence of severe and
pervasive abuse. (Id.).
41
was sufficiently pervasive or severe to create a hostile work
environment.
Plaintiff must do more than claim membership in a protected
class to establish that harassment was based on her gender; she
must “show that she was ‘singled out for adverse treatment by
the harasser because of her membership in a group protected by
Title VII.’”
Khoury v. Meserve, 268 F.Supp.2d 600, 612 (D.Md.
2003) (quoting
1415,
1423
Doe v. Petaluma City Sch. Dist., 949 F.Supp.
(N.D.Cal.
1996)).
Plaintiff’s
own
opinion
or
speculation as to gender animus cannot suffice to prove that she
suffered unwelcome conduct due to sex.
See, e.g., Nicole v.
Grafton Sch., Inc., 181 F.Supp.2d 475, 482–83 (D.Md. 2002).
The
only evidence Plaintiff proffers to support the proposition that
she was harassed because of her gender is Mr. Hopkins’s alleged
statement that he did not want women to work in the morning, and
her unsupported contention that this was because he “believed
that wom[e]n were unable to perform at the rate of men in the
morning and therefore would [have] impeded the tasks of the
morning shift[.]”
(ECF No. 74, at 56).
As discussed above,
while it is disputed whether Mr. Hopkins made this statement,
this issue alone is not enough for Plaintiff’s claims to survive
summary
judgment
because
discriminatory intent.
the
statement
does
not
evince
None of the events Plaintiff describes
as creating a hostile work environment explicitly referred to
42
her
gender,
and
there
is
simply
no
evidence
in
the
record
connecting the allegedly hostile actions of Mr. Hopkins with
sex-based discriminatory motives.
Furthermore,
Plaintiff
fails
to
establish
that
the
harassment she claims she suffered was sufficiently pervasive or
severe to create a hostile work environment.
The determination
of the sufficiency of an environment’s hostility or abusiveness
should be made by considering the totality of the circumstances,
including
the
“frequency
of
the
discriminatory
conduct;
its
severity; whether it is physically threatening or humiliating,
or
a
mere
interferes
offensive
with
an
utterance;
employee’s
and
work
whether
it
unreasonably
performance.”
Harris
v.
Forklift Sys., Inc., 510 U.S. 17, 23 (1993); accord Smith, 202
F.3d at 241-42.
“manual
labor,”
Plaintiff argues that she was forced to do
but
it
is
undisputed
that
the
tasks
she
describes were her job responsibilities and required of all the
BSWs.
and
Her argument is premised on her apparent belief that male
female
employees
in
the
same
position
should
have
been
treated differently; the fact that employees were not treated
differently based on their gender clearly cannot prove genderbased harassment.
The incident in which Mr. Hopkins allegedly
pushed a trash can towards Plaintiff and bruised her arm is the
most severe of those that Plaintiff describes, but it allegedly
occurred only once and therefore does not establish sufficiently
43
frequent
hostile
treatment.
The
evidence,
drawing
the
inferences therefrom in the light most favorable to Plaintiff,
does
not
establish
treatment
that
is
objectively
physically
threatening or humiliating, or otherwise sufficiently severe to
alter the conditions of her employment and create a hostile work
environment prohibited under Title VII.
Defendant’s motion for
summary judgment on Plaintiff’s hostile work environment claim
will therefore be granted.
4.
Count III, Disparate Treatment, and Count V, Adverse
Employment Action
Count
III
of
Plaintiff’s
second
amended
complaint
claim for “disparate treatment” under Title VII.
at
24).
Defendant
duplicative
of
discrimination.
argues
Count
that
I,
(ECF No. 70-2, at 43).
a
(ECF No. 30,
disparate
Plaintiff’s
is
treatment
claim
for
is
sex
Additionally, as the
court previously noted, Plaintiff labels Count V of the second
amended
complaint
as
“adverse
employment
action
under
Title
VII,” but an “adverse employment action” is not a separate cause
of action under the statute.
n.3).
(ECF Nos. 30, at 26; 45, at 6
Plaintiff stated in her opposition that her disparate
treatment
claim
was
incorporated
into
her
sex
discrimination
claim argument, but did not otherwise respond to Defendant’s
arguments as to Counts III or V.
(ECF No. 74, at 35 n.35).
Accordingly, judgment will be entered for Defendant on Counts
III and V.
44
IV.
Conclusion
For the foregoing reasons, the motion for summary judgment
filed
by
Defendant
will
strike will be denied.
be
granted.
Plaintiff’s
motion
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
45
to
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