Wilson v. Montgomery College Board of Trustees et al
Filing
90
MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 3/23/2021. (dg3s, Deputy Clerk)
Case 8:17-cv-02784-PWG Document 90 Filed 03/23/21 Page 1 of 18
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
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JOY WILSON,
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Plaintiff,
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Case No.: 17-cv-2784-PWG
v.
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MONTGOMERY COUNTY COLLEGE
BOARD OF TRUSTEES,
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Defendant.
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MEMORANDUM OPINION
Pending is Defendant Montgomery College Board of Trustees’ (the “Board”) Motion for
Summary Judgment, ECF No. 83, which seeks judgment in its favor as to Plaintiff Joy Wilson’s
lone remaining claim: retaliation in violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12203(a). This case has a significant procedural history, including several amended
complaints and motions to dismiss. On September 10, 2018, I granted in part the Board’s most
recent motion to dismiss and allowed only Ms. Wilson’s ADA retaliation claim to proceed, after
which the parties completed discovery. Now, having reviewed the Board’s motion for summary
judgment, Ms. Wilson’s opposition, and the Board’s reply, I find a hearing is unnecessary 1 and I
will grant the motion.
1
Loc. R. 105.6 (D. Md. 2018). The motion is fully briefed. See ECF Nos. 83, 87, 89.
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Factual Background 2
Ms. Wilson began working for Montgomery College in 1998; the College terminated her
employment on May 19, 2016. Third Am. Compl. ¶¶ 3, 13, 29, 35, ECF No. 51-1 (“Compl.”).
She claims disabilities including “emotional and other impairments including, but not limited to,
severe emotional stress reactions” and diagnoses of “Persistent Depressive Disorder, Left
Amblyopia, and Dry Eyes Syndrome.” Id. ¶ 14. These conditions, she alleges, impair and
“substantially affect the life activity of seeing, communicating, interacting, and working.” Id.
In January 2016, Ms. Wilson alleges she submitted an accommodations request, having
previously done so without success in May 2014, and again was denied. Id. ¶¶ 25, 80, 88. On
February 17, 2016, Ms. Wilson alleges that she was placed on administrative leave. Id. ¶ 27. This,
she states, was “either a constructive discharge or adverse employment action or both.” Id. On
May 13, 2016, Ms. Wilson filed a complaint with the Maryland Commission on Civil Rights
(“MCCR”) in which she made several allegations against the College, including their failure to
provide reasonable accommodations she requested as a result of her disabilities. Id. ¶ 28. The
operative complaint in this case also alleges the MCCR complaint accused the college of
discharging her unlawfully. 3 Id. On May 19, 2016, while still on administrative leave, the Board
terminated her employment. Id. ¶ 29.
Procedural Background
2
I previously wrote a lengthy recitation of the facts in my 2018 memorandum opinion. In
the interest of clarity, I have included here only the facts pertinent to Ms. Wilson’s ADA retaliation
claim.
3
It is unclear to me how, on May 13, 2016, the date Ms. Wilson filed the charge, she could
have alleged “unlawful discharge,” as ¶ 28 of the complaint states, considering her employment
was terminated on May 19, 2016, six days after filing the MCCR charge. The Charge suggests the
Board “initiated disciplinary actions to terminate [Ms. Wilson’s] employment” but does not allege
actual termination.
2
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It is critically important to note the parameters of this case following my September 10,
2018 memorandum opinion granting in part Defendant’s Motion to Dismiss. I dismissed with
prejudice Ms. Wilson’s claims for discrimination under the ADA 42 U.S.C. §§ 12101 – 12213;
the Equal Protection Clause of the U.S. Constitution (pursuant to 42 U.S.C. § 1983); and the
Rehabilitation Act, 29 U.S.C. §§ 794 et seq.; as well as her claims for discrimination and retaliation
under the Montgomery County Code §§ 27-6 and 27-19. The only claim I held could proceed was
Ms. Wilson’s ADA retaliation claim against only the Board. 4 September 28, 2018 Memorandum
Opinion, ECF No. 60 at 2 (“Mem. Op.”). I also limited the course of conduct that qualified as
retaliation, holding only that Ms. Wilson’s filing a January 2016 accommodations request,
followed by her placement on administrative leave in February, and her May 2016 MCCR
complaint followed by the Board firing her, made out a cause of action for retaliation. Mem. Op.
18–19. 5
Standard of Review
Summary judgment is proper when the moving party demonstrates, through “particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other
materials,” 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), (c)(1)(A); see Baldwin v. City of Greensboro,
4
Ms. Wilson, over the span of her amended complaints, also sued Montgomery Community
College and the Montgomery College Foundation but then removed those parties in her third
amended complaint. Mem. Op. 3 (citing Compl. ¶ 3).
5
As my opinion stated: “[f]or now, assuming as true the facts as Wilson has pleaded them,
she filed an administrative claim and, in response, the Board fired her. That’s enough [to state a
claim for retaliation],” Mem. Op. 18, and “Wilson alleged that her employer placed her on
administrative leave the month after her accommodation request, and then terminated her
employment while she was still on leave. . . . Therefore, she states a claim for retaliation in
violation of the ADA,” Mem. Op. 19–20.
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714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there
is no evidence to support the nonmoving party’s case, the burden shifts to the nonmoving party to
identify evidence that shows that a genuine dispute exists as to material facts. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585–87 n.10 (1986). The existence of only
a “scintilla of evidence” is not enough to defeat a motion for summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986). Instead, the evidentiary materials submitted
must show facts from which the finder of fact reasonably could find for the party opposing
summary judgment. Id. When ruling on a motion for summary judgment, the court may not make
credibility determinations regarding conflicting testimony or declarations and must draw all
reasonable inferences in favor of the nonmovant. Anderson, 477 U.S. at 255 (“Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge, whether he is ruling on a motion for summary
judgment or for a directed verdict.”).
Discussion
1) Exhaustion
The Board first argues that Ms. Wilson failed to exhaust her administrative remedies.
Def.’s Mot. Mem. 5, ECF No. 83-2. “[T]he ADA incorporates [the] enforcement procedures [from
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.], including the requirement
that a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC before
pursuing a suit in federal court.” Sydnor v. Fairfax Ctny., Va., 681 F.3d 591, 593 (4th Cir. 2012)
(citations omitted); see also Murphy v. Adams, No. DKC-12-1975, 2014 WL 3845804, at *7 (D.
Md. Aug. 4, 2014) (“[F]ederal courts lack subject matter jurisdiction over Title VII claims for
which a plaintiff has failed to exhaust administrative remedies.”) (quoting Balas v. Huntington
Ingalls Indus., Inc., 711 F.3d 401, 406 (4th Cir. 2013)). Additionally, the charge must be timely,
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although “the timeliness of an EEOC charge is not a jurisdictional matter.” Underdue v. Wells
Fargo Bank, N.A., 684 F. App’x 346, 347 (4th Cir. 2017) (citing Hentosh v. Old Dominion Univ.,
767 F.3d 413, 417 (4th Cir. 2014)). Rather, failure to file a timely EEOC charge is a basis for
dismissal under Rule 12(b)(6) for failure to state a claim. See id. In Maryland, discrimination
claims must be filed with the EEOC no later than 300 days after the alleged discriminatory
conduct. See Williams v. Giant Food Inc., 370 F.3d 423, 428 (4th Cir. 2004); Abdi v. Giant Food,
LLC, No. PWG-14-2988, 2016 WL 808775, at *4 (D. Md. Mar. 2, 2016).
Preliminarily, the administrative charge at issue here is one filed with the MCCR. While
Ms. Wilson forwarded her complaint to the EEOC and received a Right to Sue letter, Compl. ¶ 8,
Judge Hollander has noted that MCCR and EEOC complaints carry equal weight when it comes
to satisfying the exhaustion requirement. Rodgers v. COMSO, Inc., C.A. No. ELH-19-3268, 2020
WL 1663134, at *13 (D. Md. Apr. 3, 2020).
The Board states Ms. Wilson failed to exhaust her administrative remedies in her January
2016 accommodation request. Def.’s Mot. Mem. 5. The Board cites Lewis v. MV Transp., Inc.,
No. 8:12-CV-00983-AW, 2012 WL 4518541, at *3 (D. Md. Sept. 28, 2012) 6 to support the
proposition that exhaustion is required prior to bringing suit for a violation of the ADA. Def.’s
Mot. Mem. 5.
The basis of the Board’s claim is that, in its view, Ms. Wilson failed to include in her
January 2016 MCCR charge an allegation “that she made a reasonable accommodation request in
January 2016” or allege that the Board retaliated against her for any January 2016 accommodation
6
Lewis notes that ADA and Title VII exhaustions requirements are identical. Id. (citations
omitted).
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request. Def.’s Mot. Mem. 6. The result of such a failure, the Board argues, is that Ms. Wilson
failed to exhaust her administrative remedies and her claim therefore fails.
Ms. Wilson strenuously objects, pointing to “page 2 of the MCCR complaint,” which
includes language such as “[i]n retaliation for my opposition of their discriminatory activity, on or
about January 19, 2016, the Respondent again denied my reasonable accommodation request.”
Pl.’s Opp. 11, ECF No. 87; Ex. 18 to Pl.’s Opp., ECF No. 87-3 at 53. 7 The MCCR complaint
continued: “[o]n or about February 17, 2016, in an attempt to further discriminate and retaliate
against me, the Respondent initiated disciplinary actions to terminate my employment.” Ex. 18 to
Pl.’s Opp., ECF No. 87-3 at 53. Then, in its reply brief, Defendant appears to withdraw its
exhaustion argument, stating the defense “is moot in light of the undisputed fact that no
accommodation was requested in January 2016 and, in any event, Dr. Williams [the College’s
Director of Employee Relations, Diversity and Inclusion, who ultimately terminated Ms. Wilson’s
employment, Pl.’s Mot. 2] was unaware of any accommodation request in January 2016,”
apparently surrendering the exhaustion argument in favor of its argument on the merits of the
summary judgment motion. Def.’s Reply at 2, n. 1.
I have reviewed the MCCR complaint. Ms. Wilson filed the complaint on May 13, 2016
and raised several grievances, most of which are not relevant here due to my earlier opinion setting
limitations on her retaliation claim. But among those grievances is an allegation that her employer
denied her reasonable accommodation request “in retaliation for [her] opposition of their
7
Counsel for Ms. Wilson attached to her opposition motion a 253-page trove of documents
marked in the Court’s electronic filing system as “Exhibit.” It is filed at ECF No. 87-3. Counsel
marked the various documents as exhibits (i.e. EX 18) and also used a Bates Stamp numbering
system, which is apparently imposed on the exhibits by the College (i.e. MontCollege_000433).
In an effort to accurately cite to the record, where I have cited to the documents attached to the
Plaintiff’s opposition, I have used the Court’s ECF pagination number rather than the Bates Stamp
number.
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discriminatory activity, on or about January 19, 2016.” Ex. 18 to Pl.’s Opp., ECF No. 87-3 at 53.
On the first page, she checked the “retaliation” box. Considering the formal charge defines the
scope of any claims that may later be raised in a civil suit, Jones v. Calvert Group, Ltd., 551 F.3d
297, 300 (4th Cir. 2009) (internal quotation marks omitted), (abrogated on other grounds by Fort
Bend Cnty. v. Davis, 139 S. Ct. 1843, (2019)), Ms. Wilson’s MCCR complaint sufficiently put the
Board on notice that she was alleging retaliatory conduct. This is so, particularly in light of the
rule that administrative charges are to be construed liberally, though the court may not read into a
charge an allegation it does not contain. Balas v. Huntington Ingalls Indus., Inc., 711 F.3d 401,
408 (4th Cir. 2013). Accordingly, the Board’s motion for summary judgment on the exhaustion
issue, to the extent that it has not been withdrawn, is denied.
2) Retaliation
The matter of retaliation is far more nuanced. The elements of ADA retaliation are “(1)
[an employee’s] engagement in a protected activity; (2) adverse employment action; and (3) a
causal link between the protected activity and the employment action.” Hamilton v. Prince
George’s Ctny. Police Dep’t, No. DKC 17-2300, 2018 WL 1365847, at *6 (D. Md. Mar. 16, 2018)
(quoting Coleman v. Md. Ct. of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)). Regarding the first
element, “protected activity is conduct ‘oppos[ing] any practice made an unlawful employment
practice[.]” Id. (quoting 42 U.S.C. § 2000e-3(a)). This “expansive” definition “encompasses
utilizing informal grievance procedures as well as staging informal protests and voicing one’s
opinions
in
order
to
bring
attention
to
an
employer’s
discriminatory
activities.’” Id. (quoting Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir.
1998)). A request for an accommodation is a protected activity under the ADA, as is filing an
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administrative complaint. See Haulbrook v. Michelin N. Am., 252 F.3d 696, 706 (4th Cir. 2001);
Hamilton, 2018 WL 1365847, at *6.
What qualifies as adverse employment action under the second element turns on the
perspective of a reasonable employee. “[A] plaintiff must show that a reasonable employee would
have found the challenged action materially adverse, ‘which . . . means it well might have
dissuaded a reasonable worker from making or supporting a charge of discrimination.’” Madock
v. McHugh, No. ELH-10-2706, 2011 WL 3654460, at *26 (D. Md. Aug. 18, 2011) (quoting
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 69 (2006) (citations and quotation marks
omitted)); see also Strothers v. City of Laurel, Md., 895 F.3d 317, 327 (4th Cir. 2018)
(“[R]etaliatory actions do have to be ‘materially adverse’—such that they ‘might have dissuaded
a reasonable worker’ from engaging in protected activity.” (quoting Burlington N., 548 U.S. at 68,
126)).
And as to causation, courts assess the lapse in time between protected activity and adverse
action. As the Fourth Circuit has stated, a lapse of only six days clearly is sufficient to infer
causation. See Foster v. Univ. of Md.-E. Shore, 787 F.3d 243, 247, 253 & n.16 (4th Cir. 2015)
(noting that it would be “plainly contrary to law” to “only look to Foster’s initial complaint of
harassment and not her subsequent complaints of retaliation” and concluding that “Foster’s
evidence of temporal proximity also tends to show causation: according to her uncontradicted
testimony, she complained . . . about perceived retaliation on September 21, 2007, and again on
September 28, 2007, just a month before she was terminated” (emphasis removed)). In an ADA
retaliation action, which is assessed through the same lens as a Title VII retaliation claim, Sydnor,
681 F.3d at 593, “establishing a ‘causal relationship’ at the prima facie stage is not an onerous
burden.” Strothers v. City of Laurel, 895 F.3d 317, 335 (4th Cir. 2018). To clear the bar, the
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employee need only show “that (1) the employer either understood or should have understood the
employee to be engaged in protected activity and (2) the employer took adverse action against the
employee soon after becoming aware of such activity.” Id. at 335–36; see Anderson v. Sch. Bd. of
Gloucester Ctny., Va., No. 3:18cv745, 2020 WL 2832475, at *18 (E.D. Va. May 29, 2020)
(applying Strothers to ADA retaliation claim) (citing A Society Without a Name v. Virginia, 655
F.3d 342 (4th Cir. 2011)).
Once a prima facie case is established, the burden of production shifts to the defendants to
articulate a legitimate, nondiscriminatory reason for the adverse employment action. Strothers,
895 F.3d at 328. The defendant's burden at this point is “one of production, not persuasion.” See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). The plaintiff then must
prove by a preponderance of the evidence that the legitimate reasons offered by the employer are
but a pretext for discrimination, thus creating an inference that the employer did act with
discriminatory intent. Strothers, 895 F.3d at 328. If the plaintiff cannot produce evidence
demonstrating the falsity of the employer's proffered reasons, then defendants are entitled to
summary judgment as a matter of law. Anderson, 2020 WL 2832475, at *18; see also Reeves, 530
U.S. at 148 (Explaining in the discrimination context, “an employer would be entitled to judgment
as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the
employer's decision, or if the plaintiff created only a weak issue of fact as to whether the
employer’s reason was untrue and there was abundant and uncontroverted independent evidence
that no discrimination had occurred.”).
The Board argues that the record lacks evidence to support a finding that Ms. Wilson was
placed on administrative leave or that her employment was terminated due to either her January
2016 accommodations request or her May 2016 MCCR complaint. First, the Board argues that
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there is no evidence Ms. Wilson satisfied the first element by making the alleged reasonable
accommodation request in January 2016. The Board points to two areas in the record to support
this conclusion: first, Lori Stegeman, the College’s ADA Coordinator, provided an affidavit that
Ms. Wilson did not submit a reasonable accommodation request in January 2016. Stegeman Aff.
¶ 9, Ex. 2 to Def.’s Mot., ECF No. 83-4. Additionally, the Board states Ms. Wilson, in her
deposition, testified she did not recall making such a request in January 2016. Def.’s Mot. Mem.
7; Wilson Dep., Ex. 3A to Def.’s Mot. at p. 90–91, ECF No. 83-5.
The Board also argues that there is no causal connection between Ms. Wilson’s May 13,
2016 filing of an MCCR Charge and her termination from employment later that month. Def.’s
Mot. Mem. 8. The reason for this, in the Board’s view, is that “Dr. Williams authorized Plaintiff’s
termination on May 18, 2016, before Defendant received notice of the MCCR Complaint. The
MCCR did not issue the Notice of Charge of Discrimination until May 25, 2016.” Id. at 9. Further
bolstering its assertion that no one was on notice about the MCCR charge, the Board cites
Plaintiff’s testimony that she did not tell anyone about her pending MCCR complaint. Id. at 4, 9;
Wilson Dep., Ex. 3A to Def.’s Mot. at p. 121.
Finally, the Board argues that even if there is a causal connection, thereby establishing a
prima facie case, Ms. Wilson cannot overcome the final prong of the retaliation analysis:
disproving the Board’s legitimate, non-retaliatory reasons for terminating her employment. Def.’s
Mot. 9. The Board cites exhibit 4 to its motion, an affidavit from Dr. Williams, which the Board
says shows that Dr. Williams terminated Ms. Wilson for “insubordination, inappropriate behavior,
misconduct, malfeasance and/or nonfeasance of duty, below standard work performance, conduct
harmful to the best interest of the College, its students and/or its employees and violation of the
policy on Prevention of Workplace Violence.” Id.; Williams Dec. Ex. 4A to Def.’s Mot. at 6, ECF
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No. 83-7. This, the Board argues, vindicates its decision to terminate Ms. Wilson’s employment
for legitimate reasons entirely unrelated to her exercise of protected activity.
In opposition, Ms. Wilson argues that she did “mention[] disability discrimination and
reasonable accommodation in the Charge”—which I interpret to mean her May 13, 2016 charge
filed with the MCCR. Pl.’s Opp. 12. While the opposition brief is not the picture of clarity, it also
points to a February 2, 2016 email as evidence of Ms. Wilson having made an accommodations
request in January 2016. Id.; Ex. 23 to Pl’s Opp., ECF No. 83-7 at 58.
The opposition also argues that Dr. Williams was aware of Ms. Wilson’s earlier filings
aside from the 2016 MCCR complaint. Pl.’s Opp. 13. But in so doing, Ms. Wilson concedes that
“Defendant is correct that the record does not reflect specific evidence that Williams was aware of
the formal Charge of Discrimination filed with the MCCR at the time of filing.” Id. Ms. Wilson
appears to argue that Dr. Williams was instead aware of other protected activity in which Ms.
Wilson engaged well before the January 2016 request. Id.
Finally, Ms. Wilson argues that the Board lacked legitimate, non-pretextual reasons for
taking adverse employment action against her. Evidence of pretext, Ms. Wilson argues, is evident
in the decline in her performance review score after she first requested (in 2014) accommodations;
the “subjective” accusation against Ms. Wilson for workplace violence that “was almost
exclusively only witnessed by the alleged hostile party”; and in other conduct, such as neck rolling,
slamming a door, and nonverbal language, that the Board used to justify her termination. Pl.’s
Opp. 13–14. Ms. Wilson also notes she was admonished for the offense of using a comma instead
of a colon. Id. at 14 (citing Ex. 34 to Pl.’s Opp., ECF No. 83-7 at 145). These reasons, which Ms.
Wilson casts as “suspicious” and implies are de minimus reasons for taking adverse employment
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action, raise a genuine dispute of material fact (in her view) as to whether the Board’s reasons for
terminating her were merely pretextual.
The Board’s Reply correctly stresses that my September 10, 2018 Memorandum Opinion
limited the scope of Ms. Wilson’s ADA retaliation claim. That claim, I found, could only be based
on the protected conduct of Ms. Wilson’s January 2016 accommodation request and her May 13,
2016 complaint, as well as the adverse action of the February 17, 2016 placement on administrative
leave and her May 16, 2016 termination. Supra, note 5.
The Reply notes that it is undisputed that Dr. Williams was unaware of a February 2016
email exchange between Ms. Wilson and Ms. Stegman, an email exchange the Board further notes
is absent from either the operative complaint or the MCCR charge. Def.’s Reply 2, n. 2. The
Reply also argues that Ms. Wilson attempts to expand the issues before me: rather than relying on
alleged protected activity in January and May of 2016, Ms. Wilson falls back on issues from 2014
and 2015, which are far afield from the claim I found could proceed. Def.’s Reply 3. As my
Memorandum Opinion held, the basis of Ms. Wilson’s lone surviving claim—ADA retaliation—
was her January 2016 accommodations request, her February 2016 placement on Administrative
Leave, the May 2016 MCCR complaint, and her May 2016 termination from employment. Def.’s
Reply at 2; Mem. Op. 14–20.
After rebutting Ms. Wilson’s attempt to expand the factual record beyond that which I
previously ruled would be the scope of her surviving claim, the Reply argues Ms. Wilson has failed
to undermine the legitimate bases for her placement on leave and eventual termination. Def.’s
Reply. 6–7. Establishing pretext, the Board argues, requires evidence to support “an inference that
the proffered legitimate reason for termination has no basis in fact.” Id. at 7 (citing Pritchard v.
Metro. Wash. Airports Auth., No. 1:18-cv-1432 (AJT/TCB), 2019 WL 5698660, at *8 (E.D. Va.
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November 4, 2019)). Viewing the facts through this lens, the Board is emphatic that Ms. Wilson
has failed to cite any evidence that at all undermines Dr. Williams’ well-founded belief that she
had a legitimate basis for terminating Ms. Wilson. Def.’s Reply 8 (citing Ex. 4 and 4A to Def.’s
Mot).
Turning to my charge in deciding this summary judgment motion, I must assess whether
“the facts and all justifiable inferences arising therefrom in the light most favorable” to Ms. Wilson
fail to demonstrate a genuine dispute of material fact. Foster, 787 F.3d, at 248 (quoting Libertarian
Party of Va. v. Judd, 718 F.3d 308, 312 (4th Cir. 2013)).
I find there are legitimate issues of material fact on Ms. Wilson’s establishment of a prima
facie case of retaliation based on a combination of her January 2016 accommodations request, her
placement on administrative leave in February 2016, and termination in May 2016. As to the first
element, Ms. Wilson engaged in protected activity when she requested accommodations in January
2016. A request for an accommodation is protected activity under the ADA. See Haulbrook, 252
F.3d at 706. While her MCCR complaint is not artfully stated, I must construe that document
liberally, Balas, 711 F.3d at 408, and she has the benefit of all reasonable inferences being drawn
in her favor as the non-movant. Foster, 787 F.3d, at 248 (quoting Libertarian Party of Va. v. Judd,
718 F.3d 308, 312 (4th Cir. 2013)). The Board does cartwheels trying to parse her MCCR
complaint, but I am not convinced that its inartfulness is fatal. While Ms. Stegeman’s affidavit
and Ms. Wilson’s imprecise deposition testimony suggest she may not have engaged in protected
activity preceding her placement on administrative leave, I find the language in the MCCR
complaint, combined with the rule that all reasonable inferences are drawn in favor of the nonmovant, is enough to conclude, for summary judgment purposes, that Ms. Wilson submitted an
accommodations request in January 2016. Prong one is met.
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As to the second element, neither party disputes that the Board took adverse action against
Ms. Wilson. And, as my earlier opinion detailed, termination easily clears the bar of adverse
employment action. Boone v. Goldin, 178 F.3d, 253, 255 (4th Cir. 1999); Niner v. Garrett Ctny.
Pub. Works, Civ. A. No. ELH-17-2948, 2018 WL 3869748, at *16 (D. Md. Aug. 15, 2016). I also
find that administrative leave, which here accompanied the possibility of eventual termination, is
adverse employment action because it could have the effect of deterring a reasonable employee
from engaging in protected conduct. Strothers, 895 F.3d at 327; Ex. 1C to Def.’s Mot, ECF No.
83-3. Prong two is met.
The causal element is also satisfied. The Board relies largely on its argument from the first
element—that Ms. Wilson never engaged in protected activity—to undercut any causal link. But,
having found Ms. Wilson engaged in protected activity in January 2016, and that the Board took
adverse action against her in February; then again when it terminated her employment, the causal
element is satisfied. Ms. Wilson’s placement on administrative leave occurred mere days after the
protected activity, 8 well within the requisite time period to satisfy causation at this stage. Carter
v. Ball, 33 F. 3d 450, 460 (4th Cir. 1994) (finding five-month gap between protected activity and
adverse action was sufficient to establish causal connection); Clements v. Town of Sharpsburg,
No. 5:18-cv-573-FL, 2019 WL 1995327, at *4 (same). Her ultimate termination also is close
enough temporally, particularly considering the intervening administrative leave, to satisfy the
causal link.
What I haven’t yet discussed is Ms. Wilson’s MCCR complaint. Because she concedes
Dr. Williams did not have notice and stated no one else could have known about her intent to file
8
As noted, Ms. Wilson was placed on administrative leave on February 17, 2016 after
allegedly making an accommodations request in January 2016. Compl. ¶¶ 27, 45. And the Board
terminated her employment on May 19, 2016. ¶¶ 28, 29.
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a complaint, there cannot be a causal connection between the filing of her MCCR complaint and
her termination. To qualify, adverse action must occur soon after an employer learning of
protected activity and here, the employer did not learn about the MCCR complaint before
terminating Ms. Wilson’s employment. Strothers, 895 F.3d at 335–36; Anderson, 2020 WL
2832475, at *18.
Now, it’s the obligation of the Board to show legitimate, non-retaliatory reasons for the
adverse action, which they have done. The Board’s Exhibit 1B, a Recommendation to Terminate
Ms. Wilson, dated January 8, 2016, lists insubordination, disorderly conduct on the job,
harassment, and a workplace violence incident as reasons for terminating her employment. Ex.
1B to Pl.’s Mot., ECF No. 83-3. 9 The Report details Ms. Wilson’s workplace issues. Some facts
that stand out are Ms. Wilson failing to satisfy her supervisors’ requests for annual goals (id. at 9),
turning routine conversations about IRS reporting into contentious conversations (id. at 11),
accusing a supervisor of lying and then slamming a door, apparently in response to a verbal
reprimand (id.), levying regular accusations of bad faith against her supervisors (id. at 13), and
providing incorrect materials to students (id. at 16). The Board having made a showing that it took
adverse action against Ms. Wilson based on legitimate reasons, the burden now shifts to Ms.
9
The record is puzzlingly ambiguous about the date Ms. Wilson allegedly made her January
2016 accommodations request. Nowhere in the many versions of her complaint or in her
opposition memorandum or exhibits does she state a specific date when she sought
accommodations in January 2016, nor is any explanation given for her inability to recall when she
made the request. This is all the more curious given her frequent efforts to refer back to events
that occurred far earlier to support her claims. Similarly, the MCCR complaint offers only the
date the request was denied, not the date it was made. Proof that the accommodations request
occurred after the Recommendation to Terminate would be fatal to the causal element. And if Ms.
Wilson had proof that the Recommendation to terminate her employment occurred shortly after an
accommodations request, surely she would use this evidence to argue the decision to terminate her
employment was pretextual. Thus, the Court is forced to speculate regarding whether her January
accommodation request preceded the decision by her supervisors to recommend the termination
of her employment.
15
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Wilson to prove the Board’s explanation is a mere pretext. Anderson, 2020 WL 2832475, at *18.
That issue is the crux of what I must now decide.
I will assess the two possible actions that could constitute retaliation—administrative leave
and termination—and whether the Board’s proffered explanation for these actions was pretextual.
The Board placed Ms. Wilson on administrative leave for insubordination, inappropriate behavior,
disorderly conduct, workplace violence, deficient performance, and other reasons. Ex. 1C to Pl.’s
Mot. (Letter from Dr. Williams imposing administrative leave), ECF No. 83-3. These also were
the reasons for her eventual termination. Ex. 4A to Pl.’s Mot. Ms. Wilson does not meaningfully
rebut these legitimate reasons for taking adverse employment action against her. Rather, her
opposition memorandum points to earlier incidents, such as a significant decline in Ms. Wilson’s
performance evaluation from 2014 to 2015, to argue that the Board’s reasons must be pretextual.
The opposition also notes that Ms. Wilson started receiving poor marks shortly after her first
accommodations request. But that occurred far earlier than the accommodations request and
protected activity that I have found formed the basis of her ADA retaliation claim.
Ms. Wilson has failed to meet her burden at this final stage of the analysis. She argues that
Dr. Williams was aware of earlier grievances and even invited Ms. Wilson to file an administrative
complaint. Pl.’s Opp. 13 (citing e.g. Ex. 25 to Pl.’s Opp., ECF No. 83-7 at 115 (Ms. Wilson noting
a Dec. 12, 2014 meeting with Dr. Williams); Ex. 67 to Pl.’s Opp., ECF No. 83-7 at 233 (staff
grievance dated Dec. 13, 2014); Ex. 75 to Pl.’s Opp., ECF No. 83-7 at 115 (email from Dr.
Williams acknowledging grievance); Ex. 10 to Pl.’s Opp., ECF No. 83-7 at 34 (same)). But there
is no citation to the record demonstrating Dr. Williams, the decisionmaker, was aware of the
January 2016 accommodation request and nothing beyond speculation that the Board’s reasons for
imposing administrative leave and later terminating Ms. Wilson’s employment were pretextual.
16
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Speculation is far from sufficient to establish pretext. Gibson v. Marjack Co., 718 F. Supp. 2d 649,
658 (D. Md. 2010) (“Since [employee] offers no evidence beyond his own unsubstantiated
speculations that [employer’s] proffered reason for termination was actually a pretext for
retaliation, he fails to establish pretext by a preponderance of the evidence.”)).
Further, the threshold is significant when it comes to showing pretext after an employer
has shown legitimate reasons for taking adverse employment action. The employee must show
that but-for her engaging in protected conduct, the employer would not have taken the adverse
action. Carr v. Md. Grocery Store Co., Civil Action No. GLR-17-244, 2019 WL 1427779, at *10
(D. Md. Mar. 29, 2019) (citing Davis v. W. Carolina Univ., 695 F. App’x 686, 688 (4th Cir. 2017))
(holding that the plaintiff must prove “but-for” causation for her retaliation claim and that her
complaint about disability discrimination must, therefore, be “the only motivating factor” in the
decision to terminate her); see also Davis v. W. Carolina Univ., 695 F. App’x 686, 688 (4th Cir.
2017) (plaintiff must establish disability was but-for cause of discrimination for ADA
discrimination claim) (citing Gentry v. E. W. Partners Club Mgmt. Co., 816 F.3d 228, 235 (4th
Cir. 2016)); Gentry, 816 F.3d at 235–36 (ADA’s text calls for “but-for” standard); see generally
DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998) (observing that “this [c]ourt does
not sit as a kind of super-personnel department weighing the prudence of employment decisions
made by firms charged with employment discrimination” (internal quotation marks omitted)). Ms.
Wilson cannot make this showing. The Record is clear that the Board had ample non-retaliatory
reason to terminate her employment, and therefore its motion for summary judgment must be
granted.
17
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Conclusion 10
For the foregoing reasons, the Board’s motion for summary judgment is GRANTED. A
separate order follows.
DATED this 23rd day of March, 2021.
BY THE COURT:
/S/
Paul W. Grimm
United States District Judge
10
Plaintiff’s opposition suggests that, if her opposition is unsuccessful in avoiding summary
judgment, she would seek to amend the complaint for a fourth time. Pl.’s Opp. 1. But she has not
filed a motion to amend, and if she were to do so it would be denied. Ms. Wilson’s time to amend
as provided in the scheduling order has long passed. At this procedural juncture, Fed. R. Civ. P.
15(a)(2) requires either the opposing party’s written consent, which Ms. Wilson has not received
(see Def.’s Reply 4 n.5), or leave of the Court. Although leave to amend ordinarily must be freely
given, it may be denied where the proposed amendment “would be prejudicial to the opposing
party, or the moving party has acted in bad faith, or the amendment would be futile.” See Equal
Rights Ctr. v. Niles Bolton Assoc., 602 F.3d 597, 603 (4th Cir. 2010). A proposed amendment is
prejudicial to the opposing party if it is belated and would change the nature of the litigation. Id.
at 604; see also Deasy v. Hill, 833 F.2d 38, 42 (4th Cir. 1987). Here, discovery is complete and
summary judgment has now been granted for the Board. Further, Ms. Wilson has had three
opportunities to amend (ECF Nos. 24, 30, 51) and has neither shown good cause nor due diligence
to warrant a motion to amend at this late juncture. It is unquestionable that an amendment now
would be belated and would prejudice the Defendant. Therefore, she will not be allowed to amend
her complaint, and summary judgment is granted in the Defendant’s favor.
18
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