IVORY C. WEATHERSBEE, Plaintiff,
BALTIMORE CITY FIRE DEPARTMENT, et al., Defendants.
Ellen Lipton Hollander United States District Judge
Ivory C. Weathersbee, plaintiff,  a firefighter in Baltimore City, has sued the Baltimore City Fire Department (“BCFD”); its Chief, James S. Clack; and the Mayor & City Council of Baltimore (“City”), defendants, asserting four claims: employment discrimination on the basis of race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (Count One); retaliation, also in violation of Title VII (Count Two); violation of his rights to due process and equal protection of the law under the Fourteenth Amendment to the Constitution of the United States, by way of a claim under 42 U.S.C. § 1983 (Count Three); and a claim of employment discrimination on the basis of race under 42 U.S.C. § 1981 (Count Four).
Following discovery, defendants filed a Motion for Summary Judgment (ECF 20), which has been fully briefed. No hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, the Motion will be granted.
Mr. Weathersbee, who is African American, is employed by the BCFD. He joined the department as a firefighter in 1991. See EEOC Charge of Discrimination at 1 (“EEOC Charge”), Ex.E to Motion (ECF 20-7). He was promoted to the rank of lieutenant in or around 2000. See Deposition of Ivory Weathersbee at 8 (“Weathersbee Dep.”), Ex.J to Motion (ECF 20-12). As of March 2009, he held the rank of lieutenant and was assigned to Engine Company No. 31 (“Engine 31”). A “company” in the BCFD is a four-person crew of firefighters assigned to an engine or truck. See Declaration of James S. Clack ¶ 16 (“Clack Decl.”), Ex.I to Motion (ECF 20-11). A lieutenant is the first-line supervisor in charge of a company and is the lowest rank in the BCFD officer corps. Id. ¶¶ 9, 15.
On March 17, 2009, at approximately 9:14 a.m., a radio call was transmitted by BCFD dispatch, directing Engine 31 and an ambulance unit to respond to a report of a patient who was hemorrhaging at 2700 North Charles Street, in Baltimore. Mr. Weathersbee failed to acknowledge the call, and Engine 31 did not respond to the scene. The ambulance unit arrived on the scene at 9:28, and exited the building with the patient at approximately 9:30. Because Engine 31 had not arrived, the ambulance crew notified dispatch to cancel the call for Engine 31. See generally Ex.A to Motion (ECF 20-2) (incident reports). Mr. Weathersbee was subsequently charged by his Captain in an internal disciplinary proceeding with failure to give undivided attention to his duties and failure to respond to an alarm, both violations of BCFD regulations.
The charges were sustained and, after a number of hearings, see Dec. 14, 2012, Deposition of Ivory C. Weathersbee at 25 (“Weathersbee Dep.”), Ex.J to Motion (ECF 20-12), Chief Clack determined, with the concurrence of other ranking officers, to demote Mr. Weathersbee from lieutenant to firefighter.
The incident on March 17, 2009, had been the most recent of three occasions on which Engine 31, under Mr. Weathersbee’s command, had failed to respond to the scene of an emergency call. Mr. Weathersbee had received disciplinary sanctions of increasing severity for the earlier incidents. See generally Ex.A to Motion (incident reports and disciplinary records). He had also been disciplined on fifteen other occasions for other infractions, including missing a shift, being late to shifts, or failing to complete administrative duties, such as payroll and scheduling for his company. See generally Ex.B & C to Motion (ECF 20-4 & 20-5) (incident reports and disciplinary records).
Accordingly, on July 22, 2009, Chief Clack issued General Order 48-09, formally demoting Mr. Weathersbee to firefighter and reassigning him to another fire company. See Gen’l Order 48-09, Ex.D to Motion (ECF 20-6). The demotion entailed a decrease in salary from approximately $70, 000 to $50, 000 per year. See EEOC Charge at 1. Mr. Weathersbee appealed the demotion to the Baltimore City Civil Service Commission and also filed a grievance through his union, Fire Local 964. See EEOC Charge at 2. No records from the appeal or the grievance, as such, are contained in the record. However, Mr. Weathersbee has submitted copies of two emails sent to him on October 22, 2009, by Stephen Fugate, the president of the union and a captain in the BCFD, which were sent within an hour of each other. See Fugate Emails, Ex.A-5 to Opposition (ECF 28-1 at 12). Collectively, the emails advised Weathersbee that the Department and the Union “are in agreement that [Weathersbee’s] demotion from July will be a temporary demotion and that [Weathersbee would] be re-promoted in January of ’10 as a position becomes available, ” provided that Weathersbee agreed to waive any “claim for ‘back-pay’ to recoup the difference in salary from July through January.” Id. See also Affidavit of Ivory C. Weathersbee ¶ 10 (“Weathersbee Aff.”), Ex.A-1 to Opposition (ECF 28-1 at 1) (stating that Fugate is the union president and a captain in the BCFD). “In other words, ” according to Fugate, Weathersbee’s “penalty would be limited to the temporary reduction in rank from July to January inclusive of the salary difference and that’s the end of that.” Fugate Emails. Mr. Fugate advised Weathersbee that it was important that Weathersbee decide whether to accept this resolution “ASAP so this information can be passed along to the Hearing Officer scheduled to hear [Weathersbee’s] case next Friday.” Id. However, he stated: “If you would prefer to roll-the-dice with a hearing, . . . that’s up to you.” Id.
In his affidavit, Weathersbee recounts that the BCFD “wanted [him] to give up a claim to back pay which at the time would have been for more than $10, 000.” Weathersbee Aff. ¶ 11. He avers that he rejected the proposal outlined by Mr. Fugate, explaining: “I was willing to be reinstated as a Lieutenant. That is what I have been fighting for. I was not willing to give up my claim to back pay.” Id. No other information concerning plaintiff’s Civil Service Commission appeal or his union grievance is contained in the record. However, neither route was apparently successful for plaintiff, because he remains a firefighter. In his affidavit, he states: “Financially, for nearly the last three years, I have lost at least 15% of what my compensation would have been as a Lieutenant.” Id. ¶ 12.
On January 27, 2010, Weathersbee filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). See EEOC Charge. The EEOC issued a “right-to-sue letter” to Weathersbee on October 18, 2011. See Right-to-Sue Letter, Ex.F to Motion (ECF 20-8). He filed suit in this Court on February 27, 2012.
Additional facts will be included in the Discussion.
A. Standard of Review
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In resolving a motion for summary judgment, a district court must view all of the facts, including reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013); News and Observer Publishing Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). “A party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [its] pleadings, ’ but rather must ‘set forth specific facts’” showing that there is a triable issue. Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042 (2004). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986). The district court’s “function” in resolving a motion for summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Liberty Lobby, 477 U.S. at 249. If “the evidence is such that a reasonable jury could return a verdict for the nonmoving party, ” then a dispute of material fact precludes summary judgment. Id. at 248.
B. Proper Parties
At the outset, defendants argue that only the City is a proper party to this suit. Plaintiff does not contest this argument.
Defendants are correct that no claims are viable against the BCFD. The Baltimore City Fire Department is an executive department of the City government that does not have an independent legal identity or the capacity to sue or be sued. See Jenkins v. Balt. City Fire Dept., 862 F.Supp.2d 427, 441-42 (D. Md. 2012) (holding that “BCFD (unlike the City itself) is not an entity that can be sued”), aff’d on other grounds, ___F. App’x ___, 2013 WL 1767630 (4th Cir. Apr. 25, 2013); see Id . at *1 n.* (“Plaintiffs do not appeal the district court’s entry of summary judgment in favor of Defendant BCFD on the ground that it is not an entity that may be sued.”); see also Balt. City Charter, Art. I, § 1 (establishing City as “[c]orporate entity” with power to “sue and be sued”); Art. VII, § 47 (establishing BCFD, without grant of capacity to sue and be sued). Therefore, all claims against BCFD will be dismissed, with prejudice.
Defendants are only partly correct with respect to Chief Clack. Defendants correctly note that individual supervisors are not liable under Title VII. An individual person can only be liable under Title VII if that person qualifies as an “employer” within the meaning of the statute. See Lissau v. Southern Food Servs., Inc., 159 F.3d 177, 181 (4th Cir. 1998) (holding that “supervisors are not liable in their individual capacities for Title VII violations”); cf. Luy v. Balt. Police Dept., 326 F.Supp.2d 682, 688 (D. Md. 2004) (dismissing Title VII claim against police commissioner), aff’d, 120 F. App’x 465 (4th Cir. 2005); Erskine v. Bd. of Educ., 197 F.Supp.2d 399, 405 (D. Md. 2002) (dismissing Title VII claims against public school administrators). Accordingly, plaintiff’s Title VII claims cannot proceed against Chief Clack.
However, Chief Clack is a proper defendant with respect to plaintiff’s claims under 42 U.S.C. §§ 1983 and 1981. “[L]ocal government officials sued in their official capacities are ‘persons’ under § 1983 in those cases in which . . . a local government would be suable in its own name, ” and are subject to suit in both their official and individual capacities. Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 n.55 (1978). Moreover, individual supervisors may be liable under § 1981 if “they ‘intentionally cause [an employer] to infringe the rights secured by” section 1981.” Carson v. Giant Food, Inc., 187 F.Supp.2d 462, 483 (D. Md. 2002) (quoting Tillman v. Wheaton-Haven Recreation Ass’n, 517 F.2d 1141, 1145 (4th Cir. 1975)), aff’d sub nom. Skipper v. Giant Food, Inc., 68 F. App’x 393 (4th Cir.), cert. denied, 540 U.S. 1074 (2003); accord Tibbs v. Balt. Police Dept., Civ. No. RDB-11-1335, 2012 WL 3655564, at *6 (D. Md. Aug. 23, 2012) (“[W]hile individual liability for supervisors may arise under 42 U.S.C. § 1981, it only applies where the act or omission resulting in the infringement of rights was intentionally caused by the supervisor . . . .”); Luy, supra, 326 F.Supp. at 688; see also Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012) (“One key difference between § 1981 and Title VII is that ...