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Foster v. University of Maryland Eastern Shore

United States District Court, Fourth Circuit

September 27, 2013

IRIS FOSTER, Plaintiff,
v.
UNIVERSITY OF MARYLAND EASTERN SHORE, Defendant.

MEMORANDUM OPINION

TIMOTHY J. SULLIVAN, Magistrate Judge.

This matter is before the Court[1] on Defendant University of Maryland Eastern Shore's ("UMES") Motion for Reconsideration ("Motion") (ECF No. 62). In its Motions, UMES moves for the Court to reconsider its decision denying summary judgment as to Plaintiff Iris Foster's ("Ms. Foster") Title VII retaliation claim. The Court has considered the submissions of the parties (ECF Nos. 62, 64, 66, 67, 68, 69, 70 & 74) and has had the benefit of the parties' oral arguments. See ECF No. 75. UMES's Motion for Reconsideration is GRANTED. For the reasons set forth below, UMES is entitled to summary judgment on Ms. Foster's Title VII retaliation claim.

I. BACKGROUND

A. Factual History

This case concerns UMES's termination of Ms. Foster from her position as a University Police Officer II in UMES's Department of Public Safety.[2] ECF No. 1. Ms. Foster was hired "on a six-month probationary period" on April 9, 2007. ECF 1 ΒΆ 1. Even before she was hired by UMES, Ms. Foster was subject to improper sexual remarks and harassment by her co-worker Rudolph Jones ("Jones"), and this behavior continued through the first month of her employment. ECF No. 55 at 7. Ms. Foster first complained to Assistant Director of Public Safety Lawrence Wright, Jr. ("Wright") on May 8, 2007. Id. at 8. Thereafter, she complained to Director of Human Resources and Equity Officer Marie Billie. Id. UMES conducted an investigation and found that Ms. Foster's complaints had merit. Id. About one month after it received Ms. Foster's complaint, UMES reassigned Jones to another location where he would not have contact with Ms. Foster and disciplined him. Id. at 9.

On August 27, 2007, UMES extended Ms. Foster's probationary period for an additional six months, as recommended by UMES's "Policy on Probation for Nonexempt Employees." ECF Nos. 41-3 & 55 at 10. On September 6, 2007, Ms. Foster was injured and was limited to performing no more than "light duty." ECF No. 55 at 10. UMES removed Ms. Foster from duty entirely, and thereafter denied her request to attend a one-day in-service training session. ECF probation"-tantamount to termination-effective November 29, 2007. ECF No. 55 at 11. UMES stated that it "had some concerns about [Ms. Foster's] work performance, " her use of "almost all of her accrued sick leave and personal leave" and her inflexibility with regard to scheduling. Id.

B. Procedural History

On December 4, 2012, the Court granted summary judgment to UMES on Count I of her Complaint, which alleged a hostile work environment and termination based on gender in violation of Title VII. ECF No. 55. The Court denied UMES's motion for summary judgment on Count II of Ms. Foster's Complaint, which alleged Title VII retaliation. In doing so, Judge Grimm found that Ms. Foster had presented "sufficient evidence of retaliatory animus' to generate a jury question regarding whether [her] termination was causally related to her engaging in the protected activity of complaining about Jones's behavior." ECF No. 55 at 32 (emphasis added). Having found that Ms. Foster established a prima facie retaliation claim, Judge Grimm went on to note that the evidence Ms. Foster offered to prove that UMES's proffered reasons for her termination were pretextual was "sufficient to generate a jury question on pretext, " even though the evidence was "somewhat lacking." ECF No. 55 at 37.

In light of the Supreme Court's decision in University of Texas Southwestern Medical Center v. Nassar , 133 S.Ct. 2517 (2013), UMES has moved for the Court to reconsider its decision denying summary judgment on Count II, Ms. Foster's Title VII retaliation claim. In Nassar , the Supreme Court examined which causation standard applies to Title VII retaliation claims. Id. The Court noted that given the "ever-increasing frequency" with which retaliation claims are filed, resolution of the causation standard applicable to such claims was a question of "central importance to the fair and responsible allocation of resources in the judicial and litigation systems." Id. at 2531. The Court noted that if a lessened causation standard were found to apply to such claims, it "would make it far more difficult to dismiss dubious claims at the summary judgment stage." Id. at 2532. The Court held that "Title VII retaliation claims must be proved according to the traditional principles of but-for causation" and require "proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Id. at 2533. To establish a "but-for" causal relation, Ms. Foster must now prove that "the desire to retaliate was the but-for' cause" of her termination. Id. at 2528; see Mallik v. Sebelius , No. PWG-121725, 2013 WL 4559516 (D. Md. Aug. 28, 2013) ("This means that the employer would not have taken the adverse employment action against the plaintiff if the employer were not trying to retaliate against the plaintiff for engaging in a protected activity.").

Previously, the Court found that Ms. Foster had put forth evidence sufficient to show a "causal relationship" between her protected activity and her termination. Under Nassar, however, the Supreme Court has clarified that retaliation claims are subject to a heightened standard of "but-for" causation. This is a higher standard of causation than Judge Grimm employed in his pre-Nassar Memorandum Opinion. Because there has been an intervening change in controlling law, reconsideration of the Court's previous summary judgment decision is appropriate. See Fed.R.Civ.P. 54(b); Quigley v. United States , 865 F.Supp.2d 685, 700 (D. Md. 2012) (citing with approval Akeva L.L.C. v. Adidas Am., Inc. , 385 F.Supp.2d 559, 565-66 (M.D. N.C. 2005) ("Courts will reconsider an... order in the following situations: (1) there has been an intervening change in controlling law; (2) there is additional evidence that was not previously available; or (3) the prior decision was based on clear error or would work manifest injustice.")).

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a); Dash v. Mayweather , No. 12-1899, 2013 WL 4365967 (4th Cir. Sept. 26 (2013). The party moving for summary judgment bears the burden of demonstrating that no genuine dispute exists as to any material fact. Pulliam Inv. Co. v. Cameo Props. , 810 F.2d 1282, 1286 (4th Cir. 1987). In reviewing a motion for summary judgment, the Court considers the evidence in the light most favorable to the non-moving party. Ricci v. DeStafano , 557 U.S. 557, 585 (2009).

If the moving party demonstrates that there is no evidence to support the non-moving party's case, the burden shifts to the non-moving party to identify specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250 (1986). To satisfy this burden, the non-moving party "must produce competent evidence on each element of his or her claim." Miskin v. Baxter Healthcare Corp. , 107 F.Supp.2d 669, 671 (D. Md. 1999). Although the Court "must draw all reasonable inferences in favor of the non-moving party, " that party "may not create a genuine issue of material fact through mere speculation, or building one inference upon another." Id. (citing Anderson , 477 U.S. at 255; Runnenbaum v. NationsBank , 123 F.3d 156, 163 (4th Cir. 1997); Sylvia Dev. Corp. v. Calvert Cnty. , 48 F.3d 810, 817-18 (4th Cir. 1995)). Indeed, the existence of only a "scintilla of evidence" ...


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