Hamilton v. Prince George's County Police Department et al
Filing
58
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 9/27/2019. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
NARICA HAMILTON
:
v.
:
Civil Action No. DKC 17-2300
:
PRINCE GEORGE’S COUNTY,
MARYLAND
:
MEMORANDUM OPINION
Presently pending and ready for resolution are the motion for
summary judgment filed by Defendant Prince George’s County, (ECF No.
40); the motion to strike or seal filed by Plaintiff NaRica Hamilton
(ECF No. 44); the consent motion for leave to file excess pages filed
by Plaintiff (ECF No. 46); the motion to seal filed by Defendant (ECF
No. 52); the motion to seal filed by Plaintiff (ECF No. 54); and the
motion for leave to file a sur-reply filed by Plaintiff (ECF No. 56).
The issues have been fully briefed, and the court now rules, no hearing
being deemed necessary.
Local Rule 105.6.
For the following reasons,
Defendant’s motion for summary judgment will be granted in part and
denied in part; Plaintiff’s motion to strike will be denied; both
Plaintiff’s
and
Defendant’s
motions
to
seal
will
be
granted;
Plaintiff’s motion for leave to file excess pages will be granted; and
Plaintiff’s motion for leave to file a sur-reply will be denied.
I.
Background
A.
Factual History
The following facts are presented in the light most favorable to
Plaintiff,
the
non-moving
party
for
the
purposes
of
Defendant’s
summary judgment motion.
Prince George’s County Police Department hired Plaintiff Corporal
NaRica Hamilton (“Cpl. Hamilton”) in 2006.
At all relevant times,
Plaintiff was the only female in her unit, and her immediate supervisor
was Sergeant Gerald Manley (“Sgt. Manley”), a male.
Beginning in August of 2015, there was an escalation in tension
between Cpl. Hamilton and Sgt. Manley.
That month, Sgt. Manley made
a joke about Cpl. Hamilton’s private life in front of other squad
members.
(ECF No. 49-1, at 30).
In early October, Sgt. Manley
instructed Cpl. Hamilton to visit Laurel High School and Cpl. Hamilton
refused based on her discomfort being around the school’s principal.
When Cpl. Hamilton turned up at the station after this refusal, Sgt.
Manley yelled at her.
(ECF No. 40-6, at 35).
On October 7, 2015,
Plaintiff expressed her concern about the discrimination she was
experiencing
to
Popielarcheck”).
Steward
Gerald
her
Lieutenant,
Lt.
Adam
Popielarcheck
(“Lt.
On October 8, Cpl. Hamilton sent an e-mail to Shop
Knight
of
the
Fraternal
Order
complaining of “sexist” behavior by Sgt. Manley.
of
Police
(“FOP”)
(ECF No. 49-13).
In
an October 14 squad meeting, Sgt. Manley spoke to Cpl. Hamilton in a
demeaning tone, refusing to answer her questions, and referring to her
2
repeatedly by her first name. (ECF No. 40-6, at 42-43). Cpl. Hamilton
left the meeting to complain to Lt. Popielarcheck, only to have their
one-on-one meeting interrupted by Captain Adam Parker (“Cpt. Parker”),
who instructed them to return to Sgt. Manley’s meeting.
Once they had
returned, Cpt. Parker – addressing the entire squad – cautioned the
squad about making complaints to the FOP.
(ECF No. 49-1, at 31). Five
days later, Cpl. Hamilton asked Sgt. Manley to turn down the volume
of a radio program he was listening to which was demeaning to women
and minorities.
Sgt. Manley refused. (ECF No. 29, at 7).
On October
22, Plaintiff filed a formal complaint with the police department.
(ECF No. 49-11)
On October 26, Plaintiff found out she was pregnant, and her
doctor told her that she needed to be placed on light duty because of
complications
from
the
pregnancy.
Plaintiff
requested
an
accommodation to ensure she did not have to a) stand for long periods,
b) drive more than 60 miles each day (i.e., drive more than her roughly
25-30 mile commute each way to and from work), or c) lift more than
twenty pounds.
The request was granted on November 2, and Plaintiff
was transferred to the Records Department.
Even though Plaintiff was
not supposed to drive other than from home to work and back, she was
asked to drive to the station on November 10, 11, and 12.
(ECF No.
40-6, at 75-78).
Cpl. Hamilton was asked to make these additional drives to review
and sign her performance review.
On that performance review, Cpl.
3
Hamilton received an overall score of 2.7, which is labelled as
“SATSIFACTORY”.
(ECF No. 49-24, at 1). Cpl. Hamilton complained about
this score, however, and it was ultimately revised upward to a score
of
2.85
which
“EXCEEDS
SATISFACTORY”.
Id.
Cpl.
Hamilton
was
nonetheless unhappy with both scores and with the substantive comments
on her performance review, as they were worse than in all her previous
reviews.
(ECF No. 40-6, at 26).
Plaintiff found out that she had had a miscarriage on or about
November 16.
Id. at 60.
Plaintiff then went on leave due to the
complications from her pregnancy and miscarriage.
When she returned,
Cpl. Hamilton immediately sought a transfer from her COPS unit to a
patrol unit.
Id. at 62.
Cpl. Hamilton was ultimately granted a
transfer request to a patrol assignment and involuntarily reassigned
to the night shift.
B.
Id. at 62-63.
Procedural Background
On June 23, 2017, Plaintiff filed suit in the Circuit Court for
Prince George’s County, Maryland, against Prince George’s County and
the Prince George’s County Police Department.
(ECF No. 2).
Plaintiff
brought 16 claims under an assortment of federal and state laws
alleging discrimination on the basis of sex, pregnancy, disability and
related claims of retaliation. On August 11, Defendant Prince George’s
County removed the case.
Defendant Prince George’s County moved to
dismiss, or in the alternative, for summary judgment on September 15.
(ECF No. 14).
Plaintiff responded (ECF No. 17), and Defendant replied
4
(ECF No. 20).
On April 16, 2018, the court granted in part and denied in part
Defendant’s motion for summary judgment.
(ECF No. 23).
Plaintiff
subsequently requested and was granted leave to file an Amended
Complaint.
(ECF No. 29).
Plaintiff’s remaining claims in the Amended
Complaint are 1) Gender Discrimination under Title VII of the Civil
Rights Act (“Title VII”) (Count I); 2) Hostile Work Environment under
Title VII (Count II); 3) Retaliation under Title VII (Counts III and
VIII); 3) Disability Discrimination and Failure to Accommodate under
the Americans with Disabilities Act (the “ADA”) (Counts IV and VI);
4) Retaliation under the ADA (Count V); and 5) Discrimination on the
Basis of Pregnancy under Title VII (Count VII).
Defendant moved for
summary judgment on all counts of the Amended Complaint on January 15,
2019.
(ECF No. 40).
The parties agreed by a consent motion to grant
Plaintiff an extension of time to file her opposition.
(ECF No. 41).
That motion sought an extension for Plaintiff to file her opposition
to the motion for summary judgment until February 15 and for Defendant
to reply by March 1.
Id.
The court’s paperless order erroneously
granted Plaintiff until March 1, 2019 to file her Opposition, simply
inserting the date of the reply
for this error.
(ECF No. 43).
The court apologizes
Neither Plaintiff nor Defendant opposed this order
nor raised the issue with the court.
On February 15, 2019, Plaintiff moved to strike certain sections
of the motion for summary judgment.
5
(ECF No. 44).
The court issued
a paperless order on the same day, directing the Clerk to place
Defendant’s motion for summary judgment, and plaintiff’s motion to
strike and/or seal temporarily under seal until the resolution of the
motion to strike and/or seal.
(ECF No. 45).
The court also directed
the parties to file redacted versions of the papers on the public
docket (ECFs No. 47 & 48).
Plaintiff then filed a consent motion for
leave to file excess pages in its Opposition to Defendant’s motion for
summary judgment.
(ECF No. 46).
Plaintiff subsequently filed her
over-long opposition on February 27, 2019.
(ECF No. 49).
Defendant
filed a motion to seal its opposition to plaintiff’s motion to strike
on March 5, 2019, (ECF No. 52), and then filed its reply in support
of its motion for summary judgment on March 13.
(ECF No. 53).
Plaintiff then filed her own motion to seal her reply to Defendant’s
opposition to motion to strike or seal on the same day.
54).
(ECF No.
Finally, Plaintiff filed a motion for leave to file a sur-reply,
(ECF No. 56), which Defendant opposed (ECF No. 57).
II.
Motion for Summary Judgment
A.
Standard of Review
Summary judgment will be granted only if “there is no genuine
dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986).
A dispute about a material fact is genuine “if the
evidence is such that a reasonable jury could return a verdict for the
6
nonmoving party.”
Liberty Lobby, 477 U.S. at 249.
In undertaking
this inquiry, a court must view the facts “in the light most favorable
to the party opposing the motion,” Matsushita Elec. Indus. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed.
Credit Union, 424 F.3d 397, 405 (4th Cir. 2005), but a “party cannot
create a genuine dispute of material fact through mere speculation or
compilation of inferences,” Shina v. Shalala, 166 F.Supp.2d 373, 375
(D.Md. 2001) (citation omitted).
To prevail on a motion for summary judgment, the moving party
generally bears the burden of showing that there is no genuine dispute
as to any material fact.
No genuine dispute of material fact exists,
however, if the nonmoving party fails to make a sufficient showing on
an essential element of his case as to which he would have the burden
of proof.
Celotex, 477 U.S. at 322–23.
B.
Analysis
1.
The Retaliation Claims
Cpl. Hamilton brings three separate retaliation claims: two of
them under Title VII and one under the ADA.
To establish a prima facie case of retaliation under Title VII,
a plaintiff must show that: 1) she engaged in a protected activity,
2) her employer took a materially adverse action against her and 3)
a causal connection existed between the activity and the adverse
7
action.
See Adams v. Anne Arundel County Public Schools, 789 F.3d
422, 429 (4th Cir. 2015).
Cpl. Hamilton brings two distinct, but similar, Title VII claims.
Cpl. Hamilton contends that 1) she engaged in a protected activity
when she complained publicly about her treatment, when she sought
assistance from Lt. Popielarcheck, when she e-mailed Shop Steward
Knight, and when she complained to the EEOC coordinator; 2) she
suffered an adverse employment action in the form of a lower Past
Performance Appraisal, a “subsequent hostile work environment,” the
“denial of request for assistance, and revised workload” and a “threat
by Captain Parker,”
(ECF No. 29, at 11); and that there was a causal
connection between 1) and 2).
As to her second Title VII retaliation
claim, brought pursuant to the Pregnancy Discrimination Act, Cpl.
Hamilton claims that she: 1) engaged in a protected activity by
requesting light duty due to her high risk pregnancy, 2) suffered an
adverse
employment
evaluation,
hostile
work
transfer
to
environment,
revised workload[,]”
linked.
action
in
the
the
form
Records
denial
of
of
a
lower
Department,
request
for
performance
and
“subsequent
assistance,
and
id. at 18, and 3) that 1) and 2) were causally
Id.
An action is sufficiently “adverse” to support a Title VII
retaliation claim if it “might well have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”
Booth v. Cty.
Exec., 186 F.Supp.3d 479, 488 (D.Md. 2016) (citing Burlington Northern
8
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (“Burlington
Northern”).
the
Title
This standard is easier for plaintiffs to meet than in
VII
discrimination
context,
as
it
encompasses
actions
“beyond workplace-related or employment related retaliatory acts and
harm.”
Wonasue v. University of Maryland Alumni Ass’n, 984 F.Supp.2d
480, 492 (D.Md. 2013) (citing Burlington Northern, 548 U.S. at 67-70).
That does not mean, however, that any retaliatory actions will suffice.
Id.
Employees are only protected “from retaliation that produces an
injury or harm,” i.e. “materially adverse actions,” as opposed to
“trivial” ones.
Cepada v. Bd. Of Educ. of Baltimore Cty., 814
F.Supp.2d 500, 515 (D.Md. 2011) (citing Burlington Northern, 548 U.S.
at 67-69).
a.
Adverse Employment Actions
Cpl. Hamilton bases her Title VII retaliation claims on several
alleged
“adverse
employment
actions”:
1)
the
drop-off
in
her
performance review, 2) the “hostile work environment” she suffered
from after taking her protected action, 3) denial of a request for
assistance, 4) her “revised workload”, 5) her “transfer to the Records
Department,”
18).
and 6) a “threat” from Cpt. Parker.
(ECF No. 29 at 11,
Again, in order to establish a prima facie case, Plaintiff must
show that each of these actions was materially adverse and causally
linked to a protected activity.
With regard to all but one of these
actions, Plaintiff has failed to make a sufficient showing on at least
9
one of the essential elements of a retaliation claim.
Celotex, 477
U.S. at 322-23.
1)
Lower Performance Reviews
In support of her Title VII retaliation claims, Cpl. Hamilton
argues that “negative comments [on her performance reviews] would be
concerning during transfer requests or other employment opportunities”
and that this “demonstrate[s] the negative effect of the score on
Plaintiff.”
(ECF No. 49-1, at 33).
Plaintiff cites an out-of-circuit
opinion from the United States District Court for the District of
Columbia
for
the
proposition
that
“[a]n
improperly
lowered
Part
Performance Appraisal score can constitute an adverse job action,
particularly when it causes the employee to lose a performance award.”
id., at 32 (citing Vance v. Chao, 496 F.Supp.2d 182, 185-86 (D.D.C.
2007)).
That early case, however, was resolving a motion to dismiss
and the plaintiff had also alleged that the lower rating resulted in
the loss or deniel of a bonus and being placed on a performance
improvement plan.
Courts in this district have rejected retaliation claims based
on poor or poorer performance reviews, even after Burlington Northern.
In Van Story v. Washington Cty. Health Dept, No. CV ELH-17-3590, 2019
WL 3340656, at *18 (D. Md. July 25, 2019), Judge Hollander explained:
In [Strothers v. City of Laurel, Maryland, 895
F.3d 317, 327 (4th Cir. 2018)], the Fourth Circuit
explained that an “adverse employment action” is
not the standard in a retaliation case. (Emphasis
10
added.) In other words, the adverse action “need
not be employment or workplace-related in order
to sustain a retaliation claim.” Id. In a
retaliation claim, the standard for an adverse
action is more lenient than for a substantive
discrimination claim. Burlington Northern & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct.
2405,
165
L.Ed.2d
345
(2006)
(“Burlington
Northern”) (“[T]he antiretaliation provision,
unlike the substantive provision, is not limited
to discriminatory actions that affect the terms
and conditions of employment.”).
In the retaliation context, the plaintiff must
show merely that the challenged action “well might
have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. at 68,
126 S.Ct. 2405 (quotation marks and citations
omitted). In the context of Title VII, the
antiretaliation provision “does not protect
against ‘petty slights, minor annoyances, and
simple lack of good manners.’ ” Geist v.
Gill/Kardash P’ship, 671 F. Supp. 2d 729, 738 (D.
Md. 2009) (quoting Burlington Northern, 548 U.S.
at 68, 126 S.Ct. 2405). Nor do any of the following
constitute an adverse 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.’ ” Wonasue
v. Univ. of Maryland Alumni Ass’n, 984 F. Supp.
2d 480, 492 (D. Md. 2013) (internal quotation
marks omitted in part) (quoting Rock v. McHugh,
819 F. Supp. 2d 456, 470-71 (D. Md. 2011)). A poor
performance
review
or
reprimand
does
not
constitute an adverse action unless it causes
“real harm to [the plaintiff’s] employment or is
an intermediate step to discharge.” Amirmokri v.
Abraham, 437 F. Supp. 2d 414, 423 (D. Md. 2006),
aff’d, 266 F. App’x 274 (4th Cir. 2008) (citation
omitted); see also Jeffers v. Thompson, 264 F.
Supp. 2d 314, 330 (D. Md. 2003) (“Like a
reprimand, a poor performance rating does not in
itself constitute an adverse employment action.
11
‘Rather, it is a mediate step, which, if relied
upon for a true adverse employment action (e.g.,
discharge, demotion, etc.) becomes relevant
evidence.’”) (internal citation omitted) (quoting
Settle v. Balt. Cty., 34 F. Supp. 2d 969, 1010 (D.
Md. 1999)).
There is nothing in the record to suggest that Plaintiff’s
performance review was relied upon for a true adverse employment
action.
The reduction in Plaintiff’s performance review score does
not constitute an adverse employment action for the purposes of Title
VII Retaliation.
2)
Hostile Work Environment as Retaliatory Adverse Action
Plaintiff next argues that she suffered an adverse employment
action in the form of “[t]he subsequent hostile work environment” that
she suffered from following her protected actions.
11, 18).
(ECF No. 29, at
Cpl. Hamilton does not support this allegedly adverse
employment action with any degree of particularity.
In fact, the
timeline
regarding
action”
is
muddled,
and
of
hostile
it
is
this
“adverse
unclear
employment
which
elements
the
decidedly
work
environment Cpl. Hamilton viewed as “retaliation,” and which elements
of the hostile work environment preceded Cpl. Hamilton’s taking a
protected action.
The Fourth Circuit has “recognized – in the Title VII context –
that ‘retaliatory harassment’ may constitute a materially adverse
action,” Feminist Majority Found. V. Hurley, 911 F.3d 674, 694 (4th
Cir. 2018), but Plaintiff’s muddling of the various examples of
12
harassment means she has not established the requisite “causal link”
between harassment and protected activity.
Cpl. Hamilton argues that
she was harassed, that she complained about the harassment, and that
the harassment continued after the complaint.
assuming
that
harassment
sufficient
to
On this record, even
constitute
an
adverse
employment action occurred, Plaintiff has by no means shown that the
continuation of Sgt. Manley’s harassment after her complaints was
causally linked to the complaints themselves.
3)
Denial of Request for Assistance
Plaintiff next argues that she suffered a retaliatory adverse
employment
action
in
the
form
of
assistance[.]” (ECF No. 29, at 11, 18).
a
“denial
of
request
for
It is entirely unclear from
Plaintiff’s papers to which “denial of request for assistance” she is
referring.
Plaintiff at one point states that she “complained to
Lieutenant Popielarcheck. . . about these events of October 7 and 14,
2015, but nothing was done.”
Id. at 7.
Plaintiff also suggests that
“Sergeant Angela Lane was supposed to request that Sergeant Manley
travel to Plaintiff to serve her with the Past Performance Appraisal
to accommodate her light duty restrictions not to drive long distances,
[but] Sergeant Manley refused to travel to her.”
Id. at 6.
These
appear to be the only “denials of requests for assistance” alleged in
Plaintiff’s Amended Complaint.
In her opposition to Defendant’s
motion for summary judgment, Plaintiff appears not to rely on any
13
“denial of request for assistance” as evidence of a materially adverse
employment action.
Plaintiff is not so much alleging that her employers retaliated
against her for engaging in a protected activity as she is arguing
that her employers ignored her protected activity.
In essence, she
is not arguing retaliation, but inaction. The Fourth Circuit, however,
has held that inaction does not give rise to a retaliation claim where
a Plaintiff’s “employment status remained the same, as did her wages
and terms of employment.”
Cooper v. Smithfield Packaging Company,
Inc., 724 Fed.Appx. 197, 202 (4th Cir. 2018) (finding no adverse
employment action where employers failed to investigate Plaintiff’s
sexual harassment complaint, failed to transfer Plaintiff or her
supervisor, and disregarded her concerns that superintendent’s conduct
was affecting her ability to work).
Thus, the denial of Plaintiff’s
request for assistance cannot constitute an adverse employment action.
4)
The “Revised Workload” and Transfer to the Records
Department
Plaintiff next alleges that she suffered an adverse employment
action in the form of a “revised workload” and her transfer to the
Records Department.
(ECF No. 29, at 11, 18).
It is not entirely
clear from the Amended Complaint or her Opposition brief what Cpl.
Hamilton
means
by
“revised
workload.”
It
seems,
however,
that
Plaintiff is here alluding to her “involuntary shift change from day
to night shift . . . [which] changed the nature of her work[.]”
14
Id.
at 7-8.
Plaintiff ties this “revised workload” in the very next
sentence to her move to the Records Department.
Id. at 8.
The
muddling of these two adverse employment actions is not the only case
where Plaintiff’s claims surrounding these events are difficult to
make out. In one breath, Plaintiff claims this change was involuntary,
even retaliatory.
Id.
Yet in another, she claims that her transfer
to the Records Department was a result of her requesting “light duty”
due to her pregnancy.
Id. at 6.
Likewise, Plaintiff at one point
claims she “was forced to request a transfer,” (ECF No. 49-1, at 33).
Whether Plaintiff meant that she was forced to request a transfer
because of her pregnancy, or forced to request a transfer because of
Sgt. Manley’s conduct towards her is unclear.
In either case, Plaintiff’s transfer and new work duties are not
actionable adverse employment actions in a Title VII retaliation case.
The decision in Adams, 789 F.3d at 429-30, forecloses Plaintiff’s
arguments.
In that case, the court held that there was no adverse
employment action where Plaintiff was “transferred to a different and
less stressful school,” and where the plaintiff was “reportedly not
averse to the possibility of being [re]assigned[.]”
Far from being
“not averse” to reassignment, Cpl. Hamilton actively requested it.
Even if the reassignment were a result of Cpl. Hamilton’s desire to
get away from Sgt. Manley – and not, as she concedes, a result of her
pregnancy – this would still not necessarily constitute an adverse
15
employment action.
See Von Gunten v. Maryland, 243 F.3d 858, 868-69
(4th Cir. 2001).
Finally, Cpl. Hamilton’s transfer to the night shift cannot
constitute an adverse employment action.
While that change may have
been undesirable, plaintiff does not allege it led to any “diminution
in pay” or other similar adverse impact.
See Chika v. Planning
Research Corp., 179 F.Supp.2d 575, 587 (D.Md. 2002) (holding that
undesirable transfer to night shift “[w]hile inconvenient. . . does
not automatically constitute an adverse employment action.”)
See
also Tawwaab v. Virginia Linen Service, Inc. 729 F.Supp.2d 757 (D.Md.
2010) (noting that reassignment to a position that is not “dirtier,
more arduous, less prestigious, [and] objectively inferior” is not an
adverse employment action.)
Additionally, and perhaps more obviously, the fact that Cpl.
Hamilton requested both her transfer to Records and her transfer to
patrol belies the argument that the transfer was “causally linked” to
any protected activity.
The only inference to be drawn from the fact
that Cpl. Hamilton requested and then received a transfer is that the
transfer was granted because it was requested, and not, as Cpl.
Hamilton
implicitly
argues,
to
“dissuade[
her]
from
making
or
supporting a charge of discrimination.” Burlington Northern, 548 U.S.
at 67–68.
adverse,
Even if Cpl. Hamilton requested a transfer because of
discriminatory
employment
actions,
the
granting
request does not itself give rise to a retaliation claim.
16
of
that
To hold
otherwise would be to provide perverse incentives for employers and
employees
alike:
if
employers
may
be
held
liable
for
granting
employees’ requests to be transferred away from hostile or demeaning
supervisors, then they understandably might be unlikely to do so.
In sum, Plaintiff has fallen well short of establishing that her
transfer
was
either
adverse,
or
causally
linked
to
a
protected
activity.
5)
The “Threat” from Captain Parker
Again, the lenient retaliation standard requires Plaintiff to
establish only that “a reasonable employee would have found 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.”
700
Fed.Appx.288
(Mem),
Munive v. Fairfax County School Board,
289
Northern, 548 U.S. at 68).
(4th
Cir.
2017)
(citing
Burlington
At least one court has found threats of
retaliation sufficient to constitute an “adverse employment action”
in the retaliation context.
See
E.E.O.C. v. Cognis Corp., No. 10-
CV-2182, 2011 WL 6149819, at *7 (C.D. Ill. Dec. 12, 2011).
In order to show causation, Plaintiff must establish that Cpt.
Parker knew Cpl. Hamilton engaged in a protected activity.
See Dowe
v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657
(4th Cir. 1998) (“the employer’s knowledge that the plaintiff engaged
in a protected activity is absolutely necessary to establish the third
element of the prima facie case”); see also, Causey v. Balog, 162 F.3d
17
795, 803-04 (D.Md. 1998) (“Knowledge of a charge is essential to a
retaliation claim”).
As for the “protected activity,” Title VII prohibits retaliation
against an employee who has “opposed any practice made an unlawful
employment practice” by Title VII. 42 U.S.C. § 2000e-3(a). The Fourth
Circuit “as well as the other Courts of Appeals, also has articulated
an
expansive
recognizing
view
that
of
it
what
constitutes
‘encompasses
oppositional
utilizing
informal
conduct,
grievance
procedures as well as staging informal protests and voicing one’s
opinions in order to bring attention to an employer’s discriminatory
activities.’”
DeMasters v. Carilion Clinic, 796 F.3d 409, 417 (4th
Cir. 2015) (citing Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 259).
Under this “expansive view,” complaints of discrimination
made to an FOP shop steward constitute protected activity.
See, e.g.,
Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir.2009) (protected
activity
includes
“complain[ing]
about
unlawful
practices
to
a
manager, the union, or other employees”) (emphasis added).
Proper analysis requires examining what Cpt. Parker knew and
when, and what potentially protected activities Cpl. Hamilton took and
when.
On October 7, Cpl. Hamilton met with Lt. Popielarcheck and Sgt.
Manley.
(ECF No. 40-6, at 34).
At this meeting, Plaintiff discussed
her discomfort with the way Sgt. Manley had treated her following the
Laurel High School incident.
Id.
Cpl. Hamilton did not suggest, in
that meeting, that she felt that Sgt. Manley’s actions were based on
18
Cpl. Hamilton’s race, gender, or pregnancy.
Id. at 35.
The next day,
Cpl. Hamilton sent an e-mail to Shop Steward Knight complaining of
“sexist” behavior by Sgt. Manley.
(ECF No. 49-13).
Shop Steward
Knight communicated portions of that e-mail directly to Sgt. Manley
and Lt. Popielarcheck and “might have spoken with the major or captain
about it.”
(ECF No. 49-15, at 27).
meetings the following week.
There were then a series of
According to Cpl. Hamilton, there was
an “initial meeting” with the entire squad at which neither Cpt. Parker
nor Lt. Popielarcheck were present.
(ECF No. 40-6, at 37-38).
At
this initial meeting, Sgt. Manley was rude to Cpl. Hamilton, allegedly
speaking to her at a demeaningly slow pace and noting that he was
doing so to avoid yelling at her.
Id. at 39.
Sgt. Manley did not,
however, make any comments based on Cpl. Hamilton’s race, gender, or
pregnancy.
Id. at 41.
After Sgt. Manley refused to stop calling Cpl. Hamilton by her
first name, Cpl. Hamilton excused herself from this initial meeting
and went to Lt. Popielarcheck again to complain about Sgt. Manley’s
rude and demeaning behavior.
Id. at 41-43.
During their brief, one-
on-one meeting, Cpt. Parker interrupted and instructed both Cpl.
Hamilton and Lt. Popielarcheck to rejoin the squad meeting.
42.
Id. at
It was at this point, once Cpl. Hamilton and Lt. Popielarcheck
had rejoined Sgt. Manley’s staff meeting, that Cpt. Parker spoke up,
addressing the whole squad and telling them that the unit was “skating
on thin ice so be careful what you complain about.”
19
Id. at 120.
Plaintiff states in her opposition that Cpt. Parker made this statement
with regard to complaints made to the Fraternal Order of Police.
(ECF
No. 49-1, at 31).
On this record, Plaintiff has produced evidence of all three
elements of a prima facie case.
First, as stated above, Plaintiff’s
e-mail
constitutes
to
Shop
Steward
Knight
a
protected
activity.
Second, under the lenient retaliation standard, a reasonable jury
could well find that Cpt. Parker’s “threat” regarding complaints to
the FOP would dissuade[] a reasonable worker from making or supporting
a charge of discrimination.” Burlington Northern, 548 U.S. at 67–68.
Between
the
temporal
proximity,
and
the
fact
that
Cpt.
Parker
apparently specifically referenced FOP complaints, Plaintiff has, at
this stage, established that Cpt. Parker’s threat and the e-mail to
Shop Steward Knight were causally linked.
2.
The Hostile Work Environment Claim
Cpl. Hamilton’s hostile work environment claim operates under a
distinct, yet similar standard.
Instead of requiring an “adverse
employment action,” a claim for a hostile work environment under Title
VII requires a plaintiff to establish that the issues rendering the
work environment “hostile” are “sufficiently severe or pervasive to
alter the condition of the victim’s employment[.]”
Boyer-Liberto v.
Fontainbleau Corp., 786 F.3d 264, 277 (4th Cir. 2015) (emphasis added).
In
order
to
establish
a
prima
facie
case
of
hostile
work
environment under Title VII, a plaintiff must show harassment that was
20
1) unwelcome, 2) because of Plaintiff’s sex, 3) sufficiently severe
or pervasive to alter the conditions of employment and create an
abusive atmosphere; and 4) that there is some basis for imposing
liability on the employer.
Inc.,
335
F.3d
325
(4th
See Ocheltree v. Scollon Productions,
Cir.
2003).
Plaintiff’s
hostile
work
environment claim fails to meet a number of these factors, but, as
with most of her claims, the most notable failure is her inability to
establish the third prong.
Any issues of discrimination or harassment
were simply not severe or pervasive enough to alter the conditions of
her employment.
The “severity and persistency” prong is analyzed in light of the
totality of the circumstances, which include: 1) the frequency of the
discriminatory conduct; 2) its severity; 3) whether it is physically
threatening or humiliating, or a mere offensive utterance; and 4)
whether
it
performance.
unreasonably
interferes
with
an
employee’s
work
See Foster v. Univ. of Maryland E. Shore, 908 F.Supp.2d
686, 698 (D.Md. 2012).
The Fourth Circuit has noted explicitly that
the “severity and persistency” prong is a “high bar,” E.E.O.C. v.
Sunbelt Rentals, Inc., 521 F.3d 306, 315 (4th Cir. 2008), and that
intermittent acts of harassment are insufficient to establish that a
hostile work environment is severe or pervasive.
Green v. A. Duie
Pyle, Inc., 371 F.Supp.2d 759, 762-63 (D.Md. 2005).
The “standard for
proving an abusive work environment is intended to be a very high one
because the standard is designed to filter out complaints attacking
21
‘the ordinary tribulations of the workplace.’” Wang v. Metro. Life
Ins. Co., 334 F.Supp.2d 853, 864 (D.Md.2004). “Courts usually only
allow
hostile
work
environment
claims
to
proceed
where
the
[harassment] is near constant, oftentimes of a violent or threatening
nature, or has impacted the employee’s work performance.” Tawwaab, 729
F.Supp.2d at 777.
Plaintiff cannot meet this high bar.
Plaintiff claims that the
harassment she faced “escalated to a hostile work environment in August
2015.”
(ECF No. 49-1, at 30).
The examples of harassment Plaintiff
cites in that time are 1) a joke, on our about August 2015, that Sgt.
Manley made “about private information nregarding Plaintiff’s personal
circumstances to other members of the squad,”
(ECF No. 29, at 4); 2)
a request, via text, from Sgt. Manley that Cpl. Hamilton go to Laurel
High School, followed by an altercation where Sgt. Manley yelled at
Cpl. Hamilton for not going, id.; 3) an October 14 meeting where Sgt.
Manley spoke to her “in a demeaning tone” and refused to explain
himself to her, stating, “I am the sergeant, I don’t have to explain
myself to you, but since you are crying about the issue, I will
explain,”
id. at 5; 4) an October 19 incident in which Sgt. Manley
was listening to a Rush Limbaugh radio program which discussed women
and minorities in a discriminatory manner and Sgt. Manley refused to
turn down the volume upon a request from Cpl. Hamilton, id. at 7; 5)
a poor performance review issued on November 13, id.; 6) Sgt. Manley’s
refusal
to
travel
to
Cpl.
Hamilton
22
to
bring
Cpl.
Hamilton
her
performance review, id. at 6-7; and 7) an allegedly involuntary change
to working the night shift, id. at 7.
Cpl. Hamilton describes roughly seven incidents of harassment
over the course of five months, with allusions to other incidents or
implications that these incidents were part of a broader pattern.
Taking these allegations in the light most favorable to Cpl. Hamilton,
these
incidents
are
still
pervasiveness” requirement.
not
enough
to
meet
the
“severity
and
Ward v. Acme Paper & Supply Co., 751 F.
Supp. 2d 801, 806–07 (D. Md. 2010), is very closely on point, and
highly instructive:
The Fourth Circuit has recognized that “plaintiffs
must clear a high bar in order to satisfy the
severe or pervasive test.” [Equal Employment
Opportunity Comm'n v. Sunbelt Rentals, Inc., 521
F.3d 306, 315 (4th Cir.2008).] For instance,
“complaints premised on nothing more than rude
treatment by coworkers, ... callous behavior by
one’s supervisor, ... or a routine difference of
opinion and personality conflict with one’s
supervisor” are not actionable. Id. (internal
quotation marks, citations, and alterations
omitted). In the present case, Mr. Pollack’s
decision not to accommodate Ms. Ward’s weightlifting
restriction,
while
possibly
discriminatory, was too isolated an incident to
constitute severe and pervasive conduct. See
Pueschel v. Peters, 577 F.3d 558, 566 (4th
Cir.2009) (affirming district court’s decision
that “isolated personnel decisions” were “not
actionable” for purposes of a hostile work
environment claim because they were not severe or
pervasive). Mr. Cheeks’s remarks immediately
following the news of Ms. Ward’s pregnancy were
rude and callous, but similarly isolated. See
Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 773
23
(4th Cir.1997) (finding that even assuming
allegations of four gender-based comments were
true, they were so “trivial” and “isolated” that
they were not severe or pervasive). Because the
alleged misconduct was not severe and pervasive,
Ms. Ward’s hostile work environment claim will be
denied.
As
in
Ward,
because
the
alleged
conduct
here
was
neither
sufficiently pervasive, nor sufficiently severe, the court will grant
defendant’s
motion
for
summary
judgment
as
to
the
hostile
work
environment claim.
3.
The Discrimination Claims
Plaintiff brings two claims of Title VII discrimination: one on
the basis of her sex, another on the basis of her pregnancy.
As stated
above, Plaintiff has failed to establish that any of the adverse
actions allegedly taken against her met the standards of a retaliation
or hostile work environment claim under Title VII.
It follows, then
that Cpl. Hamilton also fails to meet the standard required under her
Title VII Discrimination claims.
In order to survive summary judgment on a Title VII discrimination
claim, plaintiff must show that (1) she is a member of a protected
class; (2) her job performance was satisfactory; (3) she suffered an
adverse employment action; and (4) 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).
As with most
of her other claims, Plaintiff has not established that she suffered
an adverse employment action.
24
Unlike in the retaliation context, in order to constitute an
adverse employment action for a discrimination claim, the action must
be discriminatory and must “adversely affect ‘the terms, conditions,
or benefits’ of the plaintiff’s employment.” James v. Booz-Allen &
Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004).
berate
or
humiliate
employment action.
you
is
not
enough
to
Having an employer
constitute
an
adverse
See Booth v. Cty. Exec., 186 F.Supp.3d at 485-486;
see also Cepada, 814 F.Supp.2d at 515 (holding that being “yelled at”
and “criticized” did not constitute an adverse employment action under
the more lenient standard for such actions applied to Title VII
retaliation claims); Blount v. Dep’t of Health & Human Servs., 400
F.Supp.2d 838, 842 (D.Md.2004) (holding that “disparaging remarks made
by a supervisor,” including statements alleged to have embarrassed the
employee in front of co-workers, “do not state an adverse employment
action”).
potential
“[R]educed opportunity for promotion,” can constitute a
adverse
employment
action,
see
Stoyanoc
v.
Mabus,
126
F.Supp.3d 531 (D.Md. 2015), but “[a] poor performance rating does not
in itself constitute an adverse employment action.” Jeffers, 264
F.Supp.2d at 330.
Plaintiff
recites
essentially
the
same
“adverse
employment
actions” in the Discrimination Claims as she does in the Retaliation
Claims: “a lower evaluation, harassment, refusal of an accommodation,
and
ultimate
transfer,”
for
the
Gender
Discrimination
claim
and
“violat[ion of] the light duty conditions” and “a lower performance
25
evaluation” for the Pregnancy Discrimination claims.
harassment,
nor
the
lower
evaluation,
nor
Neither the
Plaintiff’s
transfer
constitute “adverse employment actions” as none of these adversely
affected
“the
employment[.]”
terms,
conditions,
or
benefits
James, 368 F.3d at 375.
of
the
plaintiff’s
Further, it is again worth
noting that Plaintiff’s transfer was seemingly voluntary – which, for
obvious reasons, weighs strongly against a finding that it constituted
an adverse employment action.
See Pollard v. Baltimore County Bd. Of
Educ., 65 F.Supp.3d 449 (D. Md. 2014).1
Because plaintiff has failed to establish any cognizable adverse
employment action – discriminatory or otherwise – the court will grant
Defendant’s motion for summary judgment as to these claims.
4.
The ADA Claims
Plaintiff brings three claims under the ADA: 1) a Disparate
Treatment
Claim,
Retaliation claim.
2)
a
Failure
to
Accommodate
Claim,
and
3)
a
A plaintiff claiming disparate treatment under the
ADA must demonstrate 1) that she had a disability as defined in the
ADA, 2) that she was a qualified individual, and 3) that the employer
took an adverse action against her on account of the disability.
See
Martinson v. Kinney Shoe Corp., 104 F.3d 683, 685-86 (4th Cir. 1997).
In order to establish a failure to accommodate claim, Plaintiff must
As for the violation of light duty conditions, this is redundant
of Plaintiff’s failure to accommodate claim under the ADA and is
addressed below.
1
26
show that 1) she was an individual who had a disability within the
meaning of the ADA, 2) the employer had notice of this disability, 3)
with
reasonable
accommodation
she
could
perform
the
essential
functions of the position; and 4) the employer refused to make such
accommodations. See Wilson v. Dollar General Corp., 717 F.3d 337, 345
(4th Cir. 2013).
For both the disparate treatment, and the failure to accommodate
claims then, Plaintiff must establish that she actually suffered from
a disability. For the retaliation claim, however, “a plaintiff is not
required to prove the conduct he opposed was actually an ADA violation.
Rather, [s]he must show [s]he had a ‘good faith belief’ the conduct
violated the ADA.”
Schmidt v. Town of Cheverly, MD., 212 F.Supp.3d
573, 581 (D.Md. 2016) (citing Reynolds v. Am. Nat. Red Cross, 701 F.3d
143, 154 (4th Cir.2012)).
a.
Plaintiff’s Alleged Disability
The question of whether a plaintiff is disabled under the ADA,
“and therefore can bring a claim under the statute, is a question of
law for the court, not a question of fact for the jury.” Rose v. Home
Depot U.S.A., Inc., 186 F. Supp. 2d 595, 608 (D.Md. 2002) (citing
Hooven–Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir.2001)).
Under the ADA, a disability is any one of the following: “(A) a
physical ... impairment that substantially limits one or more ...
major life activities ...; (B) ... a record of such an impairment; or
(C) [when an individual is] regarded as having such impairment.’” See
27
Rohan v. Networks Presentations LLC, 375 F.3d 266, 273 (4th Cir. 2004)
(quoting 42 U.S.C. § 12102(2) (ADA definition)).
The Fourth Circuit
has further explained that “‘Substantially limits’ means, inter alia,
significantly restricted as to the condition, manner or duration under
which an individual can perform a particular major life activity as
compared to the condition, manner, or duration under which the average
person in the general population can perform that same major life
activity.”
Rhoads v. F.D.I.C., 257 F.3d 373, 387 (4th Cir. 2001)
(internal quotations and citations omitted.)
“Significantly, a plaintiff cannot state a claim under the ADA
by alleging that she was discriminated against due to her pregnancy
alone, because pregnancy is not a disability under the ADA.”
984 F.Supp.2d at 488.
Wonasue,
Plaintiff’s ADA claim, then, rests on the
complications of her pregnancy.
The Fourth Circuit has addressed pregnancy complications in a
Rehabilitation Act case which uses “the law applicable to the Americans
with Disabilities Act.”
Brockman v. Snow, 217 Fed.Appx. 201, 208 (4th
Cir. 2007) (citing Myers v. Hose, 50 F.3d278, 281 (4th Cir. 1995).
There, the court held that:
Even if we assume that pregnancy complications may
constitute a disability, Brockman’s evidence
falls far short of showing that she was
substantially limited in a major life activity.
The only evidence Brockman proffers in this regard
is her doctor’s note stating that she should be
on bed rest “until further notice,” and the claim
that the doctor orally instructed her not to walk
long distances. Significantly, Brockman’s own
28
actions directly contradict her assertion that she
was substantially limited in walking, as she
walked, stood, and performed other normal work
functions when she came back to the office of her
own accord. It is not enough that her ability to
walk be limited - it must be substantially
limited. See 29 C.F.R. § 1630.2(j)(1). Brockman
offers no evidence of the duration of her
impairment, nor of its severity, both factors that
would point to a finding of a substantial
limitation. As she does not present sufficient
evidence to show that she was substantially
limited in a major life activity, Brockman’s RA
claim fails and we find that the district court’s
grant of summary judgment was proper on this
issue.
Brockman, 217 Fed.Appx at 209.
While Brockman left open the possibility that “complications due
to pregnancy can constitute a disability under the [ADA],” id., the
court made it clear that pregnancy complications would still need
substantially to limit a major life activity in order to do so.
Courts outside this circuit have reached the same conclusion.
Id.
See,
e.g., Conley v. United Parcel Serv., 88 F.Supp.2d 16, 19–20 (E.D.N.Y.
2000) (collecting cases and noting that “[c]ourts have generally held
that
complications
arising
from
pregnancy
do
not
constitute
a
disability under the ADA.”)2
The Fourth Circuit has noted that 2008 Amendments to the ADA
were intended to loosen the requirements for establishing the
existence of a disability. Jacobs v. N.C. Admin. Office of the Courts,
780 F.3d 562, 572 (4th Cir. 2015). While the 2008 amendment “abrogated
earlier inconsistent caselaw,” id., Wonasue, 984 F.Supp.2d 480,
notably post-dates the amendment.
What is more, the reasoning of
Brockman, 217 Fed.Appx. 201, remains persuasive.
The emphasis on
“whether an individual’s impairment is a disability under the ADA
should not demand extensive analysis,” Jacobs, 780 F.3d at 572. That
2
29
In this case, the record is undisputed that Cpl. Hamilton was not
“substantially limited” in any major life activity.
Cpl. Hamilton
contends that the complications from her pregnancy limited her because
her doctor told her she could not drive more than 60 miles a day.
Assuming, arguendo, that driving constitutes a major life activity, a
limitation to fewer than 60 miles a day is not a “substantial”
limitation.
Under the analysis in Brockman, “It is not enough that
her ability to [drive] be limited - it must be substantially limited.”
Because Cpl. Hamilton has not established that her pregnancy
complications substantially limited a major life activity, the court
will grant summary judgment in favor of Defendants on Counts IV and
VI of the Amended Complaint.
b.
The ADA Retaliation Claim
Again, in establishing an ADA retaliation claim, “a plaintiff is
not required to prove the conduct he opposed was actually an ADA
violation. Rather, [s]he must show [s]he had a ‘good faith belief’ the
conduct violated the ADA.” Schmidt, 212 F.Supp.3d at 581.
Plaintiff
must still, however, meet the elements of a prima facie case:
1) that
she engaged in a protected activity, 2) that she suffered an adverse
said, the amendment did not entirely eliminate the requirement that a
claimed disability must substantially limit a major life activity in
order to constitute a disability. Courts have continued to apply this
requirement in analyzing whether pregnancy-related complications
constitute disabilities. See, e.g., Brown-Wicks v. PPE Casino Resort
Maryland, LLC, No. GJH-18-2576, 2019 WL 3778677, at *3 (D. Md. Aug.
9, 2019); Saah v. Thumel, No. CV RDB-15-2425, 2017 WL 491221, at *6
(D. Md. Feb. 7, 2017).
30
action, and 3) a causal link exists between the protected conduct and
the adverse action.
See Reynolds v. Am. Nat. Red Cross, 701 F.3d 143,
154 (4th Cir. 2012).
Plaintiff relies on the same elements mentioned
in her other retaliation claims: that 1) she engaged in protected
activity by complaining “regarding her treatment by Sergeant Manley,”
(ECF No. 49-1, at 32); 2) Plaintiff suffered an adverse employment
action when she “was forced to travel to Sgt. Manley or risk being in
violation of orders and then forced to complete a significant grievance
process while dealing with suffering a miscarriage, id. at 39; and 3)
there was a causal link between her complaints and the above-stated
adverse employment action, id. at 40.
Plaintiff’s arguments for causation – and indeed her argument
that she suffered an adverse employment action – are deeply confusing.
Plaintiff seems to argue that she suffered multiple adverse employment
actions, implying in her “causal link” section that her employer’s
failure to notify her of deadlines to appeal her performance review
constituted adverse employment action.
Id. at 39.
She also implies
that her lower performance review somehow had to do with her taking
the protected action of complaining about her disability: “Plaintiff
complained about her treatment after each discreet act and suffered
comments
indicating
below-satisfactory
performance
and
was
not
provided full information regarding grieving [sic] her appraisal.”
Id. at 42.
At another point, Plaintiff sums up the alleged adverse
31
employment actions in her ADA retaliation claim as “poor comments
along with inadequate information.”
Id.
Plaintiff’s allegations of a causal link between her protected
activity and adverse employment actions against her are conclusory and
confusing.
Further, the alleged adverse employment actions – a
poor(er) performance review, being forced to make three trips to Sgt.
Manley, and her employer’s failure to notify her of an appeal deadline
– are definitively not “materially adverse” as none are remotely suited
to “dissuade[] a reasonable worker from making or supporting a charge
of discrimination.” Burlington Northern, 548 U.S. at 67–68.
Because Plaintiff has failed to make out a prima facie case of
retaliation under the ADA, the court will grant summary judgment in
favor of Defendant on Count V of the Amended Complaint.
C.
Timeliness of Plaintiff’s Opposition
Finally, in its Reply Memorandum of Law in Support of Motion for
Summary Judgment (ECF No. 53), Defendant argues that “Plaintiff’s
Opposition (ECF Nos. 49 & 49-1) should be stricken because it was
untimely filed.”
Defendant argues that Plaintiff’s opposition brief
was untimely because it was filed on February 27, 2019.
at 1).
(ECF No. 53,
The court’s paperless order of January 17, 2019 (ECF No. 43),
however, stated that: “Plaintiff’s response to motion for summary
judgment is now due by March 1, 2019.”
Accordingly, Plaintiff’s
Opposition was timely filed and will not be stricken.
32
III. Motion to Strike
Cpl. Hamilton seeks to strike certain allegations regarding her
personal life in Defendant’s motion for summary judgment.
She has
sought to do so under Rule 12(f), which pertains to pleadings as
opposed to papers.
IV.
This motion will be denied as improper.
Motions to Seal
Defendant has asked that its Motion to File Under Seal (ECF No.
52)
“be
temporarily
granted
regarding
Defendant’s
Opposition
to
Plaintiff’s Motion to Strike and Opposition to Motion to Seal until a
ruling is made by this Court.”
(ECF No. 52, at 2).
Plaintiff also
asks that “Plaintiff’s Reply Memorandum to Defendant’s Opposition to
Motion to Strike or Seal be placed under seal.”
(ECF No. 52, at 1).
The court will deny the motion to strike, but, in light of the
sensitive personal information contained in the parties’ papers, grant
the motions to seal: all papers currently filed under seal will remain
so.
Redacted versions of Plaintiff’s papers have already been filed
publicly.
V.
Consent Motion for Leave to File Excess Pages
Pursuant to Local Rule 105.3, memoranda in opposition a motion
are not to exceed thirty-five (35) pages, exclusive of attachments,
absent leave of the court. This motion (ECF No. 46) – filed only a day
prior to the filing of a thirty-nine (39) page opposition – seeks
leave
to
exceed
the
maximum
allotted
page
number
by
six
pages.
According to Cpl. Hamilton, because this addition will not prejudice
33
the Defendant “as it responds only to the assertions contained and
involved in Defendant’s Motion for Summary Judgment[,]” the court
should grant her leave to file a longer than usual opposition.
(ECF
No. 46-1, at 2).
Although “[c]umbersome filings ... are a considerable drain on
judicial resources,” Sampson v. City of Cambridge, Md., No. WDQ–06–
1819, 2008 WL 7514365, at *3 (D.Md. June 5, 2008), Cpl. Hamilton’s
motion for leave to exceed the page limitation will be granted, and
her brief will be considered in its entirety.
VI.
Motion for Leave to File Sur-Reply
Plaintiff seeks leave to file a sur-reply in order to address the
issue
of
timeliness
regarding
Plaintiff’s
opposition
to
summary
judgment. (ECF No. 56). The court, however, does not need the benefit
of Plaintiff’s sur-reply in order to decide the issue of timeliness.
As sur-replies are disfavored and the decision of whether to allow one
is squarely within the court’s discretion, the court will deny this
motion.
34
VII. Conclusion
For
the
foregoing
reasons,
Defendant’s
motion
for
summary
judgment will be granted in part and denied in part; Plaintiff’s motion
to strike will be denied; both Plaintiff’s and Defendant’s motions to
seal will be granted; Plaintiff’s motion for leave to file excess
pages will be granted; and Plaintiff’s motion for leave to file a surreply will be denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
35
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