Smith v. Board of Education of Prince George's County

Filing 32

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 12/8/2017. (jf3s, Deputy Clerk)

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

21.11 FC, -8 P 2:30

MABEL SMITH,
Plaintiff,
Case No.: GJH-16-206
BOARD OF EDUCATION OF PRINCE
GEORGE'S COUNTY,
Defendant.

MEMORANDUM OPINION
In her one-count Complaint, Plaintiff Mabel Smith alleges that she suffered retaliation in
response to her complaints of age, gender, and national origin discrimination that she raised to
her employer, the Board of Education of Prince George's County, Maryland (the "Board" or
"Defendant"), in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.
§§ 2000e-2 et seq. Presently pending before the Court is the Board's Motion for Summary
Judgment, ECF No. 26. No hearing is necessary to resolve the Motion. See Local Rule 105.6
(D. Md. 2016). For the reasons that follow, the Board's Motion is granted.
I. BACKGROUND'
Plaintiff is employed by the Board as a teacher in the Prince George's County
school system and was assigned to Kettering Middle School as a classroom teacher for the

Unless stated otherwise, the Court relies on evidence that is undisputed and views the evidence in the light most
favorable to the non-movant. Notably, however, in her Opposition, Plaintiff cites extensively to the Complaint but
not to evidence in the record. See Cambridge Capital Group v. Pill, 20 F. App'x 121, 124-25 (4th Cir. 2001) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) ("Allegations contained in a complaint are not evidence, and
cannot defeat a motion for summary judgment.")).

2005-2006 through 2014-2015 school years. ECF No. 26-12 at 6, 2.2 Amin Salaam is
Principal of Kettering Middle School and served as Plaintiff's immediate supervisor for
the 2012-2013 through 2014-2015 school years. ECF No. 26-13 at 2. On February 27,
2015, Salaam informed Plaintiff of an impending disciplinary meeting related to Plaintiff's
observation of, and role in, diffusing an altercation that occurred between two students in
front of Plaintiff's classroom earlier that day. ECF No. 26-8 at 1.3 According to Salaam,
the meeting was necessary because Plaintiff misled Salaam during his investigation into
the altercation by erroneously informing him that she "did not see anything." Id. Following
notification of this meeting, Plaintiff sent an email to Dr. Kevin Maxwell, Chief Executive
Officer of Prince George's County Public Schools, on March 3, 2015, requesting that he
review Salaam's conduct, and that Salaam harassed her, bullied her, and demeaned her
character. ECF No. 26-8 at 1-6.
Amana Simmons, the Board's Equal Opportunity Advisor, acknowledged receipt of
Plaintiff's email to Maxwell and informed Plaintiff that the Board would treat it as a complaint
of discrimination and/or harassment pursuant to the Board's Administrative Procedure 4170,
ECF No. 26-11 at 62-72. See ECF No. 26-11 at 73. Simmons and Plaintiff met on March 3, 2015
to discuss Plaintiff's concerns. Following this meeting, Salaam held the aforementioned
disciplinary meeting on March 11, 2015 with Plaintiff, Kettering Vice Principal Secoya
Muschett, and Jimalatice Thomas, Plaintiff's union representative. ECF No. 26-2 at 4. During the
meeting, Plaintiff denied that she was aware of the altercation that occurred between two

Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to the page numbers generated
by that system.
3 Although Plaintiff provides no evidentiary support, for the sake of context, the Court notes that in her Complaint
she alleged that the disciplinary meeting followed earlier complaints by her to the union regarding harassing conduct
by Salaam. ECF No. 1 ¶ 33-35. Specifically, she alleged "harsher treatment" from Salaam in the form of an
increased work-load, derogatory comments about her Jamaican origin, and intimidating behavior. ECF No. 1 rlf 1532.
2

2

students in front of her classroom on February 27. Id. After Salaam played recordings taken from
a security camera showing Plaintiff breaking up the subject altercation, Plaintiff left the meeting
to seek medical attention. Id.; see also ECF No. 26-10 (security camera recording). Salaam then
informed Thomas and Muschett that he would issue a "Letter of Professional Counseling for
Misconduct, Willful Neglect of Duty & Insubordination" (the "Letter") to Plaintiff for her
conduct following the altercation, ECF No. 26-2 at 4, and issued the Letter later that day. ECF
No. 26-2 at 37-39. While the Letter primarily discussed Plaintiff's conduct related to this
altercation, Salaam also referenced two prior incidents where Plaintiff allegedly inappropriately
yelled at Salaam in front of students and staff on September 11 and December 10, 2014. Id.
Following the disciplinary meeting, Plaintiff remained absent from work on
extended medical leave through the end of the 2014-2015 school year, but her salary and
benefits remained unchanged. ECF No. 26-12 at 23-25, 29. On March 16, 2015, Plaintiff
filed a Charge of Discrimination with the EEOC, alleging national origin and age
discrimination and retaliation. ECF No. 26-3. Thereafter, on March 25, 2015, Plaintiff
received a report from an observation conducted by Salaam, stating that her performance
was "unsatisfactory." ECF No. 28-3. Plaintiff also received an evaluation for the 20142015 school year with an overall score of 49.57, corresponding to an "ineffective" rating.
ECF No. 28-4. Subsequently, the score was increased to 75.29, corresponding to an
"effective" rating. ECF No. 26-2 at 24. Plaintiff initiated the subject action on January 21,
2016, bringing one claim, "Title VII — Retaliation." ECF No. 1. On July 26, 2016, the
Court denied Defendant's Motion to Dismiss, ECF No. 3. See ECF No. 11. Following
completion of discovery, Defendant now moves for summary judgment. ECF No. 26.

3

STANDARD OF REVIEW
"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). "This standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S.
at 247-48 (1986) (emphasis in original). Thus, "[t]he party opposing a properly supported
motion for summary judgment 'may not rest upon the mere allegations or denials of [his]
pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for
trial." Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003)
(quoting Fed. R. Civ. P. 56(e)) (alteration in original).
On a motion for summary judgment, the Court must "view the evidence in the light most
favorable to. . . the nonmovant, and draw all inferences in her favor without weighing the
evidence or assessing the witness' credibility." Dennis v. Columbia Colleton Med. Ctr., Inc.,
290 F.3d 639, 644-45 (4th Cir. 2002). The moving party bears the burden of showing that there
is no genuine issue as to any material fact. No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of her case as to which
she would have the burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Therefore, on those issues on which the non-moving party has the burden of proof, it is her
responsibility to confront the summary judgment motion with an affidavit or other similar
evidence showing that there is a genuine issue for trial.

4

III. DISCUSSION
Plaintiff's Complaint identifies two actions that form the primary basis for her
claim of retaliation under Title VII: (1) the March 11. 2015 Letter of Professional
Counseling received by Plaintiff on March 18, 2015, ECF No. 1 ¶ 49, and (2) Salaam's
ratings of Plaintiff as "ineffective" in interim and annual job performance reviews issued
on March 25, 2015 and June 19, 2015, respectively, id. ¶J 50, 52.4 Title VII prohibits
employment discrimination based on "race, color, religion, sex, or national origin," 42
U.S.C. § 2000e-2(a), and its anti-retaliation provision serves to "prevent[] an employer
from interfering (through retaliation) with an employee's efforts to secure or advance
enforcement of the Act's basic guarantees." Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 63; see also 42 U.S.C. § 2000e-3(a).
To establish a prima facie claim of retaliation under Title VII, a plaintiff must
demonstrate three elements: "(1) [s]he engaged in a protected activity, (2) [her] employer
acted adversely against [her], and (3) the protected activity was causally connected to the
adverse action." Clarke v. DynCorp

LLC, 962 F. Supp. 2d 781, 789 (D. Md. 2013)

(citations omitted). Once a plaintiff demonstrates a prima facie claim, the burden shifts to
the employer to show that there was a legitimate non-retaliatory reason for the adverse
action. Foster v. Univ. of Md.-Eastern Shore, 787 F.3d 243, 250 (4th Cir. 2015) (citing the
burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792

In Plaintiffs response to Defendant's Motion for Summary Judgment, Plaintiff repeats a number of allegations set
forth in her Complaint that Salaam harassed her and made derogatory comments related to Plaintiffs Jamaican
origin. ECF No. 24-1 at 2-5. As Plaintiff has not amended her Complaint to raise a claim of discrimination under
Title VII, the Court will only consider evidence related to her claim of retaliation. See Hall v. Greystar Mgmt.
Servs., L.P., 637 F. App'x 93, 98 (4th Cir. 2016) ("Retaliatory conduct, by its very nature, must come afterthe
protected activity.") (emphasis in original) (citing Dowe v. Total Action Against Poverty in Roanoke Valley, 145
F.3d 653, 657 (4th Cir. 1998)).
4

5

(1973)). Thereafter, the burden shifts back to the plaintiff to rebut the employer's
explanation and show that it was merely a pretext for discrimination. Id.
Defendant argues that Plaintiff cannot establish that there was an adverse action,
and that even if there was such an action, it was not causally related to a protected activity.
As explained by the Court in resolving Defendant's earlier Motion to Dismiss, Title VII's
protections against discrimination and retaliation are not coterminous. Smith v. Board of
Ed. Of Price George's Cnty., No. GJH-16-206, 2016 WL 4014563, at *4 (D. Md. July 26,
2016) (citing Burlington N, 548 U.S. at 67). While a plaintiff alleging discrimination must
show that she was subject to an adverse employment action that altered the terms or
conditions of employment, a plaintiff alleging retaliation need only show that a reasonable
employee would find "the challenged action materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination." Burlington N., 548 U.S. at 68 (citation and internal quotation
marks omitted); see also Hinton v. Virginia Union Univ., 185 F. Supp. 3d 807, 827 (E.D.
Va. 2016) ("Under [Burlington Northern], effect on terms or conditions of employment
can certainly be a factor in the fact-based determination of material adversity,. . .
however, effect on terms or conditions of employment is no longer necessary to state
actionable misconduct in a retaliation claim.") (internal citations and quotation marks
omitted) (emphasis in original). The Court addresses each of the alleged retaliatory actions
in turn.

6

A. Letter of Professional Counseling5
Defendant argues that the Letter of Professional Counseling was not an adverse
action, or, alternatively, that Defendant has articulated a legitimate, non-discriminatory
reason for issuing the Letter. The Letter was effectively a reprimand. See ECF No. 26-2 at
37-39. While reprimands suggestive of an impact to the terms and conditions of
employment may be the subject of a retaliation claim, see Howerton v. Bd. of Educ. of
Prince George's Cty., No. TDC-14-0242, 2015 WL 4994536, at * 18 (D. Md. Aug 19,
2015), courts have found that reprimands without collateral consequences do not dissuade
a reasonable employee from engaging in protected activity. Hinton, 185 F. Supp. 3d at
832; see also id. at 833 (citing Bhatti v. Trustees of Boston Univ., 659 F.3d 64, 73 (1st Cir.
2008) ("a criticism that carries with it no consequences is not materially adverse and
therefore not actionable")). Here, the Letter may not have altered the terms or conditions
of Plaintiffs employment, but the Letter suggested that Plaintiffs failure to improve her
performance could result in termination. ECF No. 26-2 at 37-39 ("Over the next 60 days, you
must show immediate improvement in your conduct. . . . Failure to do so may result in further
discipline up to and including termination of employment"). Therefore, this reprimand is highly
suggestive of collateral consequences, reaching beyond the "non-actionable snubbing, antipathy,
and petty slights," Hinton, 185 F. Supp. 3d at 832, that otherwise do not constitute an adverse
action.

5 Plaintiff incorrectly states that the Letter of Professional Counseling "was dated just two (2) days after Plaintiff
Smith filed a Charge of Discrimination with EEOC on March 16, 2015." ECF No. 27-1 at 11. While Plaintiff may
have received the letter on March 18, 2015, see ECF No. 1 1 49, the record indicates that Salaam issued the letter on
March 11, 2015. ECF No. 28-2 ¶ 19. Regardless, Defendant does not dispute that Plaintiff engaged in a protected
activity prior to receiving the Letter, and the Court will therefore assume that Plaintiff satisfied the first element of a
prima facie claim for retaliation.

7

However, even if the Letter of Professional Counseling was an adverse action, the
evidence unequivocally demonstrates that Salaam issued the Letter based on Plaintiffs refusal to
cooperate in his inquiry into the altercation between two students on February 27, 2015. ECF No.
26-2 at 37. Plaintiff does not dispute Salaam's testimony that prior to being shown the videotape
demonstrating her involvement, "Ms. Smith denied her awareness or involvement in the
incident." Id at 4. In fact, Plaintiff repeats an assertion made in her Complaint that she "stands
by her claim that she did not observe any kind of altercation between the students." ECF No. 271 at 5 (citing ECF No. 1 ¶ 38). Yet the record shows that such an assertion is, at the very least,
misleading. Contrary to Plaintiffs assertions, security recordings of the subject altercation show
that Plaintiff broke up the altercation herself. ECF No. 26-10. Moreover, as part of the
correspondence sent to Dr. Maxwell on March 3, 2015, Plaintiff admitted that after she broke up
the altercation, Salaam asked her if she saw "what happened," she replied that "I did not see
anything." ECF No. 26-8 at 3. Plaintiffs failure to assist Salaam in investigating the altercation,
as made clear in the Letter itself, demonstrates both that the Letter was not causally related to her
protected activity and that even if Plaintiff could establish a prima facie case of retaliation, there
was a legitimate, non-discriminatory reason for the letter.6
B. "Ineffective" Performance Ratings
Plaintiff also alleges that Salaam gave her an interim "ineffective" performance
rating on March 25, 2015 and an annual "ineffective" performance rating on July 19, 2015
for the 2014-2015 school year. ECF No. 1 ¶J 50. 52. In denying Defendant's Motion to
Additionally, Plaintiff does not suggest that the Letter was issued as a pretext for retaliation. While Plaintiff repeats
an assertion from her Complaint that on February 4,2015, weeks before the subject altercation, Salaam threatened to
issue Plaintiff a Letter of Reprimand in response to her complaint to the union, ECF No. 27-1 (citing ECF No. 1 II
36), Plaintiff fails to provide any evidence suggesting that Salaam made such a statement. Plaintiff alleges that
Thomas, her union representative, was present when Salaam made this threat but offers no supporting deposition
testimony or affidavit from Thomas. See Anderson, 477 U.S. at 249 (the nonmoving party cannot defeat a properly
supported summary judgment motion without presenting "significant probative evidence").
6

8

Dismiss, the Court stated that these allegations, if true, are sufficiently material to
constitute actionable retaliation. ECF No. 10 at 9. However, the uncontroverted record
indicates that Plaintiff did not receive "ineffective" performance ratings as alleged.
First, Plaintiff did not receive an interim performance rating at all; the March 25,
2015 review referenced in the Complaint consisted of Observation Notes provided by
Salaam.7 ECF No. 31 II 4. The Observation Notes were part of Salaam's continuous review
of all teachers following classroom observation and used as a means of providing Plaintiff
with specific feedback to assist her in improving her performance in one of the four areas
in which she would be evaluated at the end of the year. Id. Notably, the Observation Notes
template indicates that they "should not be used as a mid-cycle indicator of performance, a
formative indicator, or be used to estimate projected end-of-cycle values, as computation
will be incomplete and may be misleading until all data is available." ECF No. 28-3 at 2.
"[Mot every performance evaluation or vague charge of poor performance will support a
finding of materially adverse action in a retaliation claim," Smith, 2016 WL 4014563, at
*5, and there is no basis to conclude that the March 25, 2015 Observation Notes would
have dissuaded a reasonable worker from making or supporting a charge of discrimination.
See, e.g., Zackrie v. Lockheed Martin, Corp., No. RWT-04-1864, 2006 WL 2849767, at *8
(D. Md. Oct. 2, 2006) (finding that an employer's action of documenting areas for the
plaintiffs improvement was not materially adverse under Burlington).
Second, Plaintiff received a final performance rating of "effective" on her 20142015 school year evaluation. ECF No. 26-2 at 32-35; see also ECF No. 26-12 at 30-31
(Plaintiff's deposition testimony acknowledging the same). Like all other teachers, half of

7 The Observation Notes only state "Unsatisfactory — The teacher purposefully resists discussing performance with
supervisors or colleagues." ECF No. 28-3 at I.

9

Plaintiff's performance rating consisted of a Professional Growth Score based on a rating
from Salaam as Plaintiff's direct supervisor. ECF No. 31 117. The other half consisted of a
Student Growth Measures Score based on empirical data that reported the progress of her
students ("Student Learning Outcomes" or "SLOs"). Id. II 10. Plaintiff's final "effective"
performance rating included a Professional Growth Score of 40.67 and a Student Growth
Measures Score of 34.62. Id. While Plaintiff did initially receive an "ineffective"
performance rating for the 2014-2015 school year, the rating was due to Plaintiff receiving
a Student Growth Measures score of 8.90 as a result of incomplete data caused by Plaintiff
leaving on extended medical leave prior to submitting her SLOs. ECF No. 28-4; ECF No.
31 ¶ 12. Contrary to Plaintiff's assertions that Salaam gave her an "ineffective" rating in
retaliation for her protected activity, Salaam himself recognized the error in Plaintiff's
Student Growth Measures score and emailed his immediate supervisor, Dr. Tricia
Hairston, to request a correction. ECF No. 31 at 14. Moreover, the portion of Plaintiff's
evaluation subject to Salaam's discretion was never decreased or alleged to be
unfavorable. As previously noted by the Court, "context matters when considering whether
a particular action on the part of an employer is sufficient to state a claim of retaliation,"
Smith, 2016 WL 4014563, at *5 n. 5 (citing Burlington N., 548 U.S. at 69). While Plaintiff
offers allegations that "she had to file several appeals to get this matter addressed," ECF
No. 24-1 at 13, the record provides no support for that claim and otherwise makes clear
that Plaintiff's initial "ineffective" performance rating was ultimately corrected and not a
materially adverse action sufficient to sustain her claim of retaliation.
Thus, because Plaintiff is not able to establish a prima facie case of retaliation,
summary judgment in favor of Defendant is appropriate.

10

IV. CONCLUSION
For the foregoing reasons, the Board's Motion to for Summary Judgment, ECF No.
26, is will be granted. A separate order follows.

Dated: December

, 2017
GEORGE J. HAZEL
United States District Judge

11