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