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Vicino v. State

United States District Court, Fourth Circuit

November 8, 2013

MEGAN E. VICINO, Plaintiff,


JAMES K. BREDAR, District Judge.

Megan E. Vicino ("Plaintiff") brought this suit against the Maryland Department of Natural Resources ("DNR") alleging employment discrimination on the basis of sex and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991. See 42 U.S.C. §§ 2000e et seq. Plaintiff also brought this suit against her former supervisor David Powell ("Powell") to recover damages stemming from his alleged employment discrimination on the basis of sex. See 42 U.S.C. § 1983. Now pending before the Court is Defendants' motion for summary judgment. (ECF No. 21.) The Court has considered the motion, Plaintiff's response in opposition (ECF No. 23), and Defendants' reply thereto (ECF No. 24). No hearing is required, Local Rule 105.6 (D. Md. 2011). The motion will be DENIED.

I. Factual Background [1]

Plaintiff was hired by DNR to work as a probationary[2] park ranger at Seneca Creek State Park and began working on July 1, 2009. (Am. Compl. ECF No. 7, ¶ 8; Defs.' Mot. Summ. J., Ex. 2, Dep. Vicino 18:8-22:7, March 27, 2013, ECF No. 21-4.) Plaintiff's immediate supervisor at Seneca Creek was Sergeant David Powell, the assistant park manager, who reported to Kim Lloyd, the Park Manager. ( Id. Ex. 2, Dep. Vicino 22:4-9.) Within the hierarchical structure of DNR, Ms. Lloyd reported to the Regional Manager, Daryl Anthony, who reported to the Deputy Superintendent, Lieutenant Colonel Christopher Bushman, who reported to the Superintendent, Nita Settina. Ms. Settina is the DNR official who formally hired Plaintiff and who possessed the formal decisionmaking authority to terminate Plaintiff. ( Id. Ex. 4, Dep. Settina 7:15-8:8, 31:11-13, Feb. 27, 2013, ECF No. 21-6.)

At the time of her hire, Plaintiff was the second of two full-time rangers assigned to Seneca Creek, the other being Ranger Chris Czarra. ( Id. Ex. 1, Dep. Powell 12:20-13:3, March 26, 2013, ECF No. 21-3.) Plaintiff and Ranger Czarra were assigned to the same office, but they were not, however, assigned identical workspaces. Ranger Czarra's work station included a large L-shaped desk with two overhead storage areas and a file cabinet. (Pl.'s Opp'n, Ex. 3, Dep. Linnemann 17:9-15, Feb. 26, 2013, ECF No. 23-5.) Plaintiff's work station consisted of a corner computer cabinet with no storage or drawer space. ( Id. Dep. Linnemann 19:16-19.) Only after Plaintiff requested improvements to her work space did Sgt. Powell grant her use of two drawers in a file cabinet ordinarily reserved for volunteer rangers. ( Id. Ex. 1, Dep. Powell 80:14-81:4; Id. Ex. 11, Decl. Vicino ¶ 3, ECF No. 23-13.) Without any notice to Plaintiff, however, Sgt. Powell later removed the drawers he had given to Plaintiff because he did not want to "ruffle feathers" with the volunteer rangers. ( Id. Ex. 1, Dep. Powell 81:2-4.)

Plaintiff's initial responsibilities as a ranger included managing the daily operations of the park, overseeing seasonal rangers, checking people in and out of the rental pavilion, and directing traffic. ( Id. Ex. 2, Dep. Vicino 24:12-18.) In October 2009, Sgt. Powell divided the responsibilities of hiring and supervising the park's seasonal staff between Plaintiff and Ranger Czarra. (Defs.' Mot. Summ. J., Ex. 9, Powell Mem., ECF No. 21-11.) Plaintiff was also put in charge of recruiting and maintaining contact with park volunteers. ( Id. )

Both Sgt. Powell and Plaintiff found it difficult to communicate with each other. Sgt. Powell stated that there was a "trend" in conversations with Plaintiff such that it was often difficult getting information from her. (Pl.'s Opp'n, Ex. 1, Dep. Powell 49:18-50:5.) Conversely, Plaintiff notes that several female park employees agree that Sgt. Powell does not communicate well with female subordinates and cannot develop the same level of camaraderie with women that he has with male counterparts. ( Id. Ex. 3, Dep. Linnemann 39:19-40-10; Id. Ex. 18, Dep. Diep 17:17-22, Mar. 1, 2013, ECF No. 23-20; Id. Ex. 2, Dep. Vicino 119:11-120:7.) Plaintiff notes further that when she asked Sgt. Powell questions he would not give her direct answers and often answered her with a question or would give contradicting information. ( Id. Ex. 2, Dep. Vicino 119:11-121:6.) When Ranger Czarra would ask Sgt. Powell questions, Sgt. Powell would give Ranger Czarra direct answers. ( Id. Dep. Vicino 120:4-121:6.) Sgt. Powell also frequently rejected Plaintiff's suggestions relating to recruiting volunteers without providing explanation or any instruction. ( Id. Dep. Vicino 63:11-64:12.)

Beginning October 19, 2009, Plaintiff and Ranger Czarra attended ranger school. ( Id. Dep. Vicino 34:3-6.) Plaintiff received passing scores in all respects, although there were two incidents at ranger school reflecting negatively upon Plaintiff. ( Id. Ex. 13, Ranger School Scores, ECF No. 23-15.) In the first incident, Plaintiff hurt her ankle while walking in the dark without a flashlight. ( Id. Ex. 2, Dep. Vicino 35:19-36:10.) When Plaintiff was asked to make an incident report regarding the injury, the facts in her report did not match her original story. ( Id. Ex. 10, Dep. Lloyd 53:17-54:3.) Plaintiff originally reported that she did not have a flash light when she fell and hurt her ankle, however, in her written report Plaintiff stated that she did have her flashlight but was merely not shining it at her feet. ( Id. Ex. 28, DNR 689, ECF No. 23-30.) In the second incident, Plaintiff discovered that Ranger Czarra left a set of keys in the door of an unattended truck. (Defs.' Mot. Summ. J., Ex. 6, Dep. Lloyd 67:12-18.) Plaintiff reported the issue to the ranger school deans rather than to Ranger Czarra, whereupon, the deans took the opportunity to simulate the theft and vandalism of a DNR vehicle. ( Id. Dep. Lloyd 68:4-18.) Following the incident, however, the deans informed Plaintiff that her initial response should have been to return the keys to Ranger Czarra and her actions had not reflected the teamwork expected among park rangers. ( Id. Dep. Lloyd 68:19-70:8; Id. Ex. 4, Dep. Settina 13:1-9.) Ranger school dean Angie Hummer reported these incidents to Ms. Lloyd. ( Id. Ex. 6, Dep. Lloyd 53:9-54:10, 66:10-67:11.) Ms. Lloyd later discussed the two incidents with Colonel Bushman and Ms. Settina while driving together from the ranger school graduation ceremony. ( Id. Ex. 4, Dep. Settina 9:9-19.) Both Bushman and Settina expressed concern about Plaintiff based on these incidents and Ms. Settina even inquired as to whether they should consider termination at that point. ( Id. Dep. Settina 15:12-21; Id. Ex. 5, Dep. Bushman 30:7-15, Feb. 27, 2013, ECF No. 21-7.) Ms. Lloyd, however, advised that they should give Plaintiff the opportunity to return to Seneca Creek. ( Id. Ex. 4, Dep. Settina 15:12-21.)

When Plaintiff returned from ranger school, she met with Sgt. Powell and Ms. Lloyd. At that meeting Sgt. Powell and Ms. Lloyd expressed that Plaintiff was not meeting expectations with regard to recruiting volunteers and she needed to improve her efforts to bring in more volunteers. (Pl.'s Opp'n, Ex. 2, Dep. Vicino 63:1-64-12.) In December, Plaintiff again met with Sgt. Powell and Ms. Lloyd, this time for her mid-cycle evaluation. ( Id. Dep. Vicino 66:11-67:4.) Once again, Plaintiff was told that she needed to increase her efforts with respect to recruiting and maintaining contact with volunteers. ( Id. Dep. Vicino 69:3-71:19.) Plaintiff received an overall rating of "meets standards" in her mid-cycle evaluation.[3] (Defs.' Mot. Summ. J., Ex. 16, Vicino Evaluation 3, ECF No 21-18.)

Part of Plaintiff's duties included supervising boat center and concession seasonal employees, but Plaintiff also interacted with and assisted other seasonal employees, such as contact station employee Hadona Diep.[4] ( Id. Ex. 9, Powell Mem. 2; Pl.'s Opp'n, Ex. 2, Dep. Vicino 153:3-155:2.) On April 27, 2010, Ms. Diep reported to Plaintiff that she felt she was being sexually harassed by Sgt. Powell. ( Id. Dep. Vicino 156:22-157:10.) Prior to Ms. Diep's mid-April start date at Seneca Creek, she had two issues involving Sgt. Powell. There was a scheduling mistake relating to Ms. Diep's first weekend of work and an issue with the raise Ms. Diep was entitled to as a returning seasonal employee. ( Id. Ex. 18, Dep. Diep 16:16-17:9.) Sgt. Powell corrected both of these issues, although he started repeatedly making comments to Ms. Diep such as "since you got a double raise you have to work double hard or harder" and since she had already taken a weekend off she was going to be his for the rest of the summer. ( Id. Dep. Diep 35:2-5; Id. Ex. 2, Dep. Vicino 165:11-15.) Sgt. Powell would also stare at Ms. Diep for extended periods of time, to the point where Ms. Diep would feel uncomfortable. ( Id. Ex. 18, Dep. Diep 39:7-40:5.) On April 27, Ms. Diep reported to Plaintiff that Sgt. Powell acted inappropriately around her and the other young female employees and Sgt. Powell's treatment of her had reached the point where she felt she was being sexually harassed by Sgt. Powell. ( Id. Dep. Diep 18:12-19:21.)

On April 29, 2010, Plaintiff contacted Ms. Lloyd by email, stating "[w]hen you have a few minutes, I need to talk about something privately." ( Id. Ex. 23, Vicino Email, ECF No. 23-25.) Later that same day, Plaintiff went to Ms. Lloyd's office to talk about Ms. Diep's complaint. ( Id. Ex. 2, Dep. Vicino 165:16-166:4.) The parties disagree as to the actual subject matter of the April 29th conversation between Plaintiff and Ms. Lloyd. Plaintiff maintains that she informed Ms. Lloyd that Ms. Diep reported that she was being sexually harassed by Sgt. Powell. ( Id. Dep. Vicino 165:20-167:19.) Ms. Lloyd, however, maintains that the conversation pertained to Sgt. Powell's harassment of Ms. Diep regarding the scheduling mistake that occurred several weeks prior. (Defs.' Mot. Summ. J., Ex. 6, Dep. Lloyd 118:4-119:10.)

On May 12, 2010, Ms. Lloyd attended a managers meeting with Ms. Settina. ( Id. Dep. Lloyd 170:6-17; Id. Ex. 5, Dep. Bushman 25:5-19.) Ms. Lloyd reported that Plaintiff's performance was declining and that Plaintiff was unable to complete the tasks fundamental to the park ranger position. ( Id. Ex 4, Dep. Settina 24:13-25:3.) Based upon Ms. Lloyd's recommendation, Ms. Settina agreed they should consider terminating Plaintiff on probation. ( Id. Ex. 6, Dep. Lloyd 170:6-171:4.) On May 18, 2010, Ms. Settina and Colonel Bushman discussed, via email, the possibility of terminating Plaintiff at the end of her probationary period. (Pl.'s Opp'n, Ex. 21, DNR 576, ECF No. 23-23.) Colonel Bushman was surprised that Ms. Lloyd recommended Plaintiff's termination to Ms. Settina. ( Id. ) Colonel Bushman had discussed Plaintiff with Ms. Lloyd on several occasions and although Ms. Lloyd expressed that Plaintiff had not developed into a "top-notch ranger, " Ms. Lloyd also stated that she did not feel Plaintiff should be terminated on probation. ( Id. ) The two agreed to monitor the situation and take a "hard look" before making a decision regarding Plaintiff. ( Id. )

On June 7, 2010, Plaintiff participated in her year-end evaluation with Ms. Lloyd and Sgt. Powell. ( Id. Ex. 2, Dep. Vicino 107:6-17.) Plaintiff's rating on her end-cycle evaluation dropped from what it was at her mid-cycle evaluation into the "needs improvement" range.[5] ( Id. Ex. 16, Vicino Evaluation 4, ECF No. 23-17.) Sgt. Powell prepared a report detailing his evaluation comments regarding Plaintiff. ( Id. Ex. 22, Powell Evaluation Comments, ECF 21-4.) Plaintiff also prepared a written rebuttal to her evaluation and sent copies to Sgt. Powell and Ms. Lloyd. ( Id. Ex. 24, Vicino Evaluation Rebuttal, ECF No. 21-25.) Following Plaintiff's rebuttal, a meeting was convened to discuss Plaintiff's employment future. ( Id. Ex. 5, Dep. Bushman 52:13-53:18.) Ms. Lloyd, Major Anthony, and Colonel Bushman all attended this meeting. ( Id. Dep. Bushman 51:16-52:12.) There is a factual dispute as to whether Ms. Settina attended the meeting. ( Id. Dep. Bushman 52:16-19, 67:8-16.) During the meeting, Colonel Bushman asked Ms. Lloyd to prepare an additional performance rebuttal addressing Plaintiff's comments. ( Id. Dep. Bushman 55:3-56:5; Id. Ex. 24, Lloyd Performance Rebuttal, ECF No. 21-26.) Colonel Bushman also requested that ranger school dean Angie Hummer prepare a report detailing Plaintiff's incidents at ranger school. ( Id. Ex. 5, Dep. Bushman 53:5-7.) All of the reports outlined above were presented to Ms. Settina and based on the reports and prior discussions with Ms. Lloyd and Colonel Bushman, Ms. Settina made the decision to terminate Plaintiff. ( Id. Ex. 4, Dep. Settina 31:11-32:2.) On June 18, 2010, ...

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