United States District Court, D. Maryland
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For Mary Kay Canarte, In Re: John Andrew Durkalski, LEAD ATTORNEY, Butsavage and Associates PC, Washington, DC.
For Jay Hawkins, Plaintiff: C. Sei Hee Arii, LEAD ATTORNEY, Arii Law Firm, LLC, Rockville, MD; Gwenlynn Whittle D Souza, LEAD ATTORNEY, Gwenlynn Whittle D Souza, Rockville, MD.
For Isiah Leggett, Montgomery County, Maryland, Arthur M. Wallenstein, Director, Montgomery County Department of Correction and Rehabilitation, Arthur M. Wallenstein, Personally, Defendants: Patricia P Via, LEAD ATTORNEY, Paul F Leonard, Jr, Office of the County Attorney for Montgomery County MD, Rockville, MD.
Alexander Williams, Jr., United States District Judge.
Plaintiff Jay Hawkins brings this employment discrimination action against several Defendants, including Montgomery County, Maryland. Pending before the Court are three Motions: (1) Defendants' Motion for Summary Judgment; (2) Plaintiff's Motion for Leave to Amend Complaint; and (3) Plaintiff's Motion for Sanctions for Fabrication and Spoliation of Evidence. The Parties have exhaustively briefed all outstanding Motions. The Court has carefully reviewed the record and deems a hearing unnecessary. For the following reasons, the Court GRANTS Defendants' Motion for Summary Judgment, DENIES Plaintiff's Motion for Leave to Amend Complaint, and DENIES Plaintiff's Motion for Sanctions for Fabrication and Spoliation of Evidence.
I. FACTUAL AND PROCEDURAL BACKGROUND
This consolidated case sounds in employment discrimination. Plaintiff Jay Hawkins is an African-American male who worked for the Montgomery County Department of Corrections and Rehabilitation (the Department) from 2006 to 2011 as a correctional officer. Defendants terminated Plaintiff in 2011 for lying and establishing an inappropriate relationship with an inmate. Plaintiff has sued the following Defendants: (1) Montgomery County, Maryland (the County); the Department; Isiah
Leggett, County Executive for Montgomery County, Maryland; and Arthur Wallenstein, Director of the Department.
The Department operates two detention facilities: (1) Montgomery County Correctional Facility, located in Boyds, Maryland; and (2) Montgomery County Detention Center, located in Rockville, Maryland. Slightly over three-hundred correctional officers are employed at these facilities. The racial and gender makeup of the employees is as follows: African-American officers--199 (66%) (55 female, 144 male); Caucasian officers--90 (30%) (8 female, 82 male); Hispanic officers--7 (2%) (2 female, 5 male); and Asian-American officers--7 (2%) (all male).
The facility where Plaintiff worked was divided into three units which, in turn, were subdivided into pods. A pod is an area of the jail that houses a cluster of inmate cells. Correctional officers were posted at various pods throughout the facility. According to Plaintiff, the " medium/maximum" pods were the most dangerous because most of the lockdowns occurred there. Plaintiff was often assigned to the medium/maximum pods in Unit 2.
In 2009 - 2010, Plaintiff became concerned about what he perceived as a pattern of discrimination in the post assignments of correctional officers. Basically, Plaintiff believed that African-American guards were substantially more likely to be assigned to the most dangerous posts (i.e., the medium/maximum pods). Plaintiff eventually complained to Department officials.
The Department investigated Plaintiff's concerns. A deputy of Warden Robert L. Green conducted the investigation. Based on the deputy's investigation, Warden Green concluded that there " could have been the appearance" of a problem. Subsequently, more Caucasian and Hispanic females were assigned to the most dangerous posts.
Apparently dissatisfied with the Department's response to his concerns, Plaintiff informally complained about discrimination to Warden Green in August 2010. Plaintiff followed up his informal complaint by filing an EEOC charge in September 2010.
On or around August 26, 2010, the Department's Training Manager, Daedra Carrio, determined that the Department needed four general instructors to help with the overall training of the correctional officers. Carrio impaneled a diverse selection committee. Although some of the diverse panel members that Carrio originally appointed could not participate in the interview process, Carrio, as a Hispanic female, added herself to the panel to ensure that it was diverse. The panel interviewed twenty applicants, of which it planned to choose four. Doc. No. 49-20 at 4, 7. The interviewers completed a consensus evaluation form for each candidate and ranked the candidates when the interviews were over. Id. at 9, 13. Although he received a favorable recommendation, the panel did not rank Plaintiff in the top four and, hence, did not choose him for the trainer position. Id. at 14. Carrio did not know about Plaintiff's discrimination complaint when the panel selected the candidates. Id. at 17. Although Warden Green evidently had to approve the panel's recommendation, the panel made the decision to select the trainers. See id. at 10; Doc. No. 65-5 at 4. Green later asked Carrio for the evaluation forms and selection packet. Doc. No. 49-20 at 11. Warden Green apparently misplaced the selection packet.
In February 2011, during the pendency of Plaintiff's EEOC charge, Defendants learned that Plaintiff might have formed an inappropriate relationship with an inmate. An inmate named " Inmate Moore"
approached Jennifer Zuckerman, a Department employee, and told her that he had received a note indicating that a federal investigator wanted to speak with him regarding a discrimination complaint. Inmate Moore approached Warden Green on the same day and told him that he had received a letter in the mail and that someone wanted him to talk to a federal investigator. Warden Green assigned Deputy Warden Gilliam and Zuckerman to investigate Inmate Moore's allegations. Gilliam and Zuckerman spoke with Moore and Moore gave them an " Inmate Pass" form with handwritten information written on the back. Doc. No. 49-29. Gilliam reviewed the handwriting and concluded that it was similar to Plaintiff's. Doc. No. 49-12 at 21- 23; see Doc. No. 49-15 at 7-8.
On February 24, 2011, Gilliam met with Inmate Moore again. Moore allegedly told Gilliam that Plaintiff had sent him the letter and Inmate Pass form. Moore allegedly further stated that Plaintiff had given him another sheet of paper with several questions on it. Doc. No. 49-30. Gilliam also states that Moore told him that Plaintiff had let Moore out of his cell, approach the console and desk area where the correctional officers would sit, and let him look at information on a computer. Additionally, Gilliam states that Moore told him that Plaintiff wanted Moore's contact information so that Plaintiff or his lawyer could contact Moore when he left jail. Angela Washington, a Department official, interviewed Moore on the following day. Washington recommended that the Department go forward with a full investigation. Subsequently, Defendants placed Plaintiff on administrative leave with full pay pending an internal investigation by the Department. Doc. No. 49-3; see Doc. No. 49-31 at 2-3.
Bernard Woodard, a County investigator, led the investigation. In connection with his investigation, Woodard watched a videotape of the housing unit where the interactions between Plaintiff and Moore allegedly occurred and conducted some interviews. According to Woodard, Moore told him that Plaintiff wanted Moore to testify in the EEOC matter and that Plaintiff had let him out of his cell during unauthorized times. Moore also allegedly said that he thought Plaintiff was trying to pressure him to lie.
Woodard also interviewed Plaintiff. Woodard states that Plaintiff first told him that Plaintiff had not given Moore any written correspondence. Doc. No. 49-32 at 27-28. Woodard further states that he subsequently showed Plaintiff the two documents that Moore had produced, whereupon Plaintiff confessed that he had given Moore both documents. Id.
Plaintiff testifies that he saw Moore on February 21, 2011. Doc. No. 49-22 at 46. Plaintiff states that Moore told him that Moore had overheard a conversation between Officer Tarner and Lt. DeBoard in which they had gone into details about Plaintiff's EEOC complaint. Id. at 47-48. Plaintiff further testifies that Moore told him that he had heard Officer Tarner (Caucasian female) tell Lt. DeBoard that she could not stand Plaintiff's " black ass" and that she had received an undesirable post assignment because of Moore's complaint about perceived discrimination in post assignments. Id. at 74. In response, Plaintiff wrote down some information on two pieces of paper, one of which was the Inmate Pass form. Id. at 49. Plaintiff also states that he jotted down this information to inform Moore that Moore needed to tell the information to the EEOC investigator handling Plaintiff's discrimination complaint. Id. at 50.
On June 13, 2011, Woodard submitted a Memorandum memorializing the findings of his investigation. Doc. No. 49-33.
Woodard made the following significant findings: (1) Plaintiff allowed Moore to remain outside of his cell during unauthorized times to validate Moore's allegations of discrimination and because Plaintiff was distraught after hearing Moore describe details of Plaintiff's EEOC complaint; (2) Plaintiff showed Moore post assignments and incident reports to confirm what Moore told Plaintiff; (3) Plaintiff saved Department documents to his personal flash drive to assist him with the filing of a discrimination complaint against Warden Green; (4) Plaintiff discussed the actions of his colleagues with Moore, thereby diminishing respect for Officer Tarner and reducing staff morale. Based on these findings, Woodard generally concluded that Plaintiff violated standards of conduct, codes of ethics, personnel regulations, and various other rules and policies. Id. at 8-9.
On July 19, 2011, the Department issued a Statement of Charges (Statement). The Statement outlines numerous personnel regulations, standards of conduct, and codes of ethics that Plaintiff's conduct violated. Doc. No. 49-6. The Statement notified Plaintiff that these violations could serve as a basis for his dismissal. Based on the procedural options the Statement presented, Plaintiff voluntarily participated in an ADR process pursuant to a collective bargaining agreement (CBA) between his union and the County. The ADR committee could not make a recommendation. Thereafter, on August 26, 2011, Defendant Wallenstein issued a Notice of Disciplinary Action (Notice) dismissing Plaintiff from County employment. Doc. No. 49-9. The Notice is similar to the Statement and generally sets forth the following bases for dismissal:
forming an inappropriate relationship with an inmate; allowing an inmate to remain unsecured out of his cell at unauthorized times; making a false statement to the investigator about the relationship with the inmate; using a flash drive to store County information and then sharing that information with an inmate for personal gain; secretly developing the relationship with the inmate and coercing him to lie against departmental officials; giving the inmate privileges he was not otherwise allowed (allowing him out of cell at unauthorized times) and placing the security of the inmate and the facility in jeopardy; corresponding with the inmate for personal gain and not reporting the information received from the inmate to a supervisor; showing confidential information to the inmate when allowing him near the officer's station in viewing of the County computer; soliciting information from an inmate regarding other staff for personal gain; and making untruthful statements regarding written correspondence with an inmate and then retracting those statements when presented with copies of that correspondence.
Doc. No. 49-1 at 13; see Doc. No. 49-9.
Plaintiff grieved his termination. Pursuantly, Plaintiff and the County participated in a binding arbitration. The Parties stipulated that the issue was " [whether] the discharge of [Plaintiff] was based on just cause?" Doc. No. 49-10 at 2. The arbitrator held a two-day, trial-like hearing in which counsel represented both Parties. The Parties presented the testimony of several witnesses and submitted numerous documents. After the hearing, the Parties submitted written arguments. In the end, the arbitrator issued a fourteen-page, single-spaced decision holding that the County met its burden of proving that it had terminated Plaintiff for just cause. Id. at 9-14.
Plaintiff instituted this action in the Circuit Court for Montgomery County, Maryland. Defendant removed the case on February 27, 2012. Although Plaintiff's Complaint sounds in employment discrimination, it also features an assortment of due process claims under federal and state law. Plaintiff filed a parallel action arising out of the same operative facts before Judge Chasanow. In the parallel action, Plaintiff asserted related discrimination and retaliation claims. Judge Chasanow later consolidated that action with this case. The consolidated case presents the following claims: (1) section 1981--racial discrimination; (2) section 1981--retaliation; (3) section 1983--equal protection; (4) Maryland Declaration of Rights--equal protection; (5) section 1983--procedural due process; (6) Maryland Declaration of Rights--procedural due process; (7) section 1983--substantive due process; (8) Maryland Declaration of Rights-- substantive due process; (9) violation of administrative due process-- Accardi doctrine; (10) Title VII--racial discrimination; (11) Title VII--retaliation; (12) Maryland Code--racial discrimination; and (13) Maryland Code--retaliation. See Doc. Nos. 2, 27.
The Parties filed partial motions for summary judgment on Plaintiff's procedural due process claims. The Court ruled on these motions in a Memorandum Opinion issued on January 11, 2013. Doc. No. 61. The Court denied Plaintiff's motion for partial summary judgment and granted Defendants' cross-motion for partial summary judgment. Consequently, the Court dismissed the following claims: (1) section 1983--procedural due process; (2) Maryland Declaration of Rights--procedural due process; and (3) violation of administrative due process-- Accardi doctrine.
After discovery, Defendants filed a lengthy Motion for Summary Judgment. Doc. No. 49. Plaintiff filed an even lengthier Response. Doc. No. 54. Defendants' Motion for Summary Judgment is ripe. Plaintiff has filed a barebones Motion for Leave to Amend Complaint (Doc. No. 55), as well as a Motion for Sanctions for Fabrication and Spoliation of Evidence (Doc. No. 56). These Motions are ripe as well.
II. STANDARD OF REVIEW
Summary judgment is appropriate only " if the movant shows that there is no genuine issue as to any material fact and that 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, 323-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must " draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded to particular evidence." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). To defeat a motion for summary judgment, the nonmoving party must come forward with affidavits or similar evidence to show that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A disputed fact presents a genuine issue " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Material disputes are those that " might affect the outcome of the suit under the governing law." Id.
Although the Court should believe the evidence of the nonmoving party and draw all justifiable inferences in his or her favor, the nonmoving party cannot create a genuine dispute of material fact " through mere speculation or the building of one
inference upon another." See Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Further, if a party " fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e)(2). Finally, hearsay statements or conclusory statements with no evidentiary basis cannot support or defeat a motion for summary judgment. See Greensboro Prof'l Firefighters Ass'n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).
III. LEGAL ANALYSIS
A. Title VII--Retaliation
Plaintiff argues that Defendants retaliated against him in six different ways. All of these theories lack merit.
1. Nonselection for the Trainer Position
The Court assumes that Plaintiff's August 2010 communication to Warden Green about perceived discrimination constitutes protected activity. The Court also generally assumes that the failure to promote an employee constitutes a materially adverse action. See Volovsek v. Wis. Dep't of Agric., Trade & Consumer Prot., 344 F.3d 680, 688 (7th Cir. 2003) (citation omitted) (stating that " [t]he failure to promote is an adverse employment action with respect to discrimination and to retaliation claims" ). But cf. Buckley v. Mukasey, 538 F.3d 306, 316 n.13 (4th Cir. 2008) (seeming to express skepticism about the idea that the failure to promote constitutes a materially adverse action).
As to prong (3), however, a reasonable juror could not conclude that Plaintiff's protected activity caused Defendants' failure to promote. Plaintiff has submitted no evidence suggesting that the panel members knew about his protected activity. See Gibson v. Marjack Co., Inc., 718 F.Supp.2d 649, 655 (D. Md. 2010) (citations omitted) (" To establish a causal connection between a protected activity and an adverse action, a plaintiff must prove . . . that the employer knew the employee engaged in a protected activity." ). Carrio and Green testified that the panel made the final decision to select the trainers and that Warden Green played no meaningful role in the process. The record contains no evidence that Plaintiff or Warden Green relayed Plaintiff's complaint to any panel members.
Plaintiff observes that the late-August 2010 failure to promote occurred close in time to his August 2010 protected activity and concludes that this temporal proximity is probative of causation. But absent some threshold showing that Defendants planned to pick Plaintiff for the position, it is unapparent how mere temporal proximity between the protected activity and the failure to promote could support an inference of retaliation. Otherwise, an inference of retaliation would arise any time employees, irrespective of qualifications or the employer's legitimate needs, complained about discrimination and employers failed to promote them shortly thereafter. Although Plaintiff arguably was qualified for the ...