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Westmoreland v. Prince George's County

United States District Court, Fourth Circuit

December 16, 2013

PHYLLIS
v.
WESTMORELAND, Plaintiff,
v.
PRINCE GEORGE'S COUNTY, MARYLAND Defendant.

MEMORANDUM OPINION

ALEXANDER WILLIAMS, Jr., District Judge.

Plaintiff Phyllis M. Westmoreland brought this action against Defendant Prince George's County, Maryland. Plaintiff asserted claims for sex discrimination, racial discrimination, retaliation, and hostile work environment in violation of Title VII. Ultimately, Plaintiff prevailed on her retaliation claim at trial. In the wake of the trial, four motions are pending before the Court: (1) Defendant's Second Renewed Motion for Judgment as a Matter of Law and, in the Alternative, for New Trial and Remittitur (Second JNOV Motion); (2) Plaintiff's Motion for Attorney Fees and Costs (First Motion for Attorney Fees); (3) Plaintiff's Supplemental Motion for Attorney Fees and Costs (Supplemental Motion for Attorney Fees); and (4) Plaintiff's Second Motion for Attorney Fees and Costs (Second Motion for Attorney Fees). The Court has reviewed the entire record and deems a hearing unnecessary. For the reasons that follow, the Court DENIES Defendant's Second JNOV Motion and GRANTS IN PART AND DENIES IN PART Plaintiff's Motions for Attorney Fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

Prince George's County, Maryland (the County or Defendant) employed Plaintiff as a firefighter in its Fire and Emergency Medical Services Department (Department) from 1989 until December 2009. Plaintiff is an African-American female. The Department is integrated; many of the relevant decision makers are African American.

Plaintiff worked as a firefighter and EMT until 2003. At that time, she was transferred to the Office of Professional and Career Development (the Academy), where her duties were more administrative in nature. In 2006, she was promoted to lieutenant. All the performance reviews Plaintiff received in the period leading up to 2006 were glowing.

The Academy contains a division called Officer Candidate School (OCS). Among other things, OCS is responsible for administering promotional exams. Plaintiff attended OCS in 2006. Although Plaintiff testifies that she had instructional duties at the Academy, she states that she was a student for the purposes of OCS. In April 2006, a promotional test was administered in OCS and Plaintiff was slated to take it. The Department alleged that Plaintiff cheated on the exam by submitting a blank answer sheet. Plaintiff vehemently denied this allegation, asserting that an instructor told her and the rest of the students to put their names on a blank sheet and to turn it in. Plaintiff also asserts that she was the only student at OCS to receive disciplinary action for allegedly cheating on the test. Although the Department made a factual finding that Plaintiff cheated or attempted to cheat on the test, it dismissed the charges against Plaintiff on procedural grounds.

In June 30, 2006, Plaintiff filed an internal EEO complaint alleging discrimination.[1] On or around July 3, 2006, the Department tried to transfer her from the Academy to a fire station (Station 40). The transfer was rescinded, partly on the advice of an internal EEO official who opined that the proximity of the transfer to Plaintiff's complaint raised a red flag and that African-American females were disproportionately receiving adverse actions. In mid-October 2006, Plaintiff was transferred to Station 40 per the orders of Fire Chief Lawrence Sedgwick (Chief Sedgwick). Plaintiff received several disciplinary actions when she arrived at Station 40. She also received a satisfactory-to-negative performance review that corresponded to the time in which she complained about discrimination. After working at Station 40 for around three years, Plaintiff voluntarily retired from the Department in 2009 with the rank of lieutenant.

In September 2009, Plaintiff filed a Complaint in this Court. (ECF No. 1.) On September 2, 2010, Plaintiff filed an eight-count Amended Complaint alleging: (1) gender discrimination based on discriminatory request for transfer; (2) race discrimination based on discriminatory request for transfer; (3) gender discrimination based on discriminatory reassignment to Station 40; (4) race discrimination based on discriminatory reassignment to Station 40; (5) gender discrimination based on failure to investigate; (6) race discrimination based on failure to investigate; (7) retaliation based on transfer out of the Academy; and (8) hostile work environment based on gender. (ECF No. 26.) The County subsequently moved to dismiss Counts 5, 6, and 8. On August 31, 2011, the Court issued an Opinion and Order denying the County's motion. (ECF Nos. 51, 52.) The County filed a Motion for Summary Judgment on February 15, 2012. (ECF No. 55.) On June 26, 2012, the Court issued another Opinion and Order granting in part and denying in part the County's Motion for Summary Judgment. (ECF No. 63.) The Court granted summary judgment for Defendant on Plaintiff's claims alleging disparate treatment arising out of her attempted transfer and the County's alleged failure to investigate, reasoning that these acts did not constitute adverse actions. The Court also granted summary judgment for Defendant on Plaintiff's hostile work environment claim, concluding that her attempted transfer, transfer, disciplinary charges, and unfavorable performance appraisal did not constitute severe and pervasive conduct. Accordingly, the case proceeded to trial on Plaintiff's two remaining claims: retaliation and disparate treatment based on her transfer to Station 40. A five-day jury trial was held. (ECF Nos. 86, 96.) The Court granted judgment at the close of the evidence for Defendant on Plaintiff's claim of disparate treatment based on gender and race. (ECF No. 91.)

On April 12, 2013, the jury returned a verdict finding the County liable to Plaintiff for retaliation in violation of Title VII and awarding her $350, 000. (ECF No. 102.) On April 15, 2013, the Court notified the parties of its intent to reduce the verdict to the statutory cap of $300, 000. (ECF No. 100.) In addition, the Court entered an Order declining to award backpay and front pay. (ECF No. 105.) Judgment was entered in this case on April 22, 2013 in the amount of $300, 000. (ECF No. 106.) The County filed its First Motion for Attorney Fees and Costs three days after the entry of the Judgment. (ECF No. 107.).

On May 20, 2013, the County filed its Renewed Motion for Judgment as a Matter of Law and, in the Alternative, for New Trial and Remittitur (First JNOV Motion). (ECF No. 111.) Plaintiff opposed this Motion. (ECF No. 113.) When the original Motion was filed, neither side had obtained the trial transcript. The Court issued an Order dated July 15, 2013 directing the County to order and file the transcript of the trial proceedings. (ECF No. 120.) On August 11, 2013, the transcript was filed with the clerk's office. (ECF Nos. 121-125.) The County has submitted its Second JNOV Motion in accordance with the Court's instructions.

In the meantime, on June 6, 2013, Plaintiff filed her Supplemental Motion for Attorney Fees. (ECF No. 115.) On September 19, 2013, Plaintiff filed a Second Motion for Attorney Fees. (ECF No. 130.)

II. STANDARD OF REVIEW

A. Rule 50(b)

A district court will not disturb a decision denying a motion for judgment as a matter of law under Rule 50(b) "unless, without weighing the evidence or assessing witness credibility, [the court] concludes that reasonable people could have returned a verdict only for defendants." Cooper v. Dyke, 814 F.2d 941, 944 (4th Cir. 1987) (emphasis added) (citation omitted). In making this determination, courts must "view the evidence, and all reasonable inferences [therefrom], in the light most favorable to the prevailing party." Randall v. Prince George's County, Md., 302 F.3d 188, 201 (4th Cir. 2002) (citation omitted); see also Cooper, 814 F.2d at 944.

B. Rule 59(e)

The Fourth Circuit has recognized that there are three grounds for amending an earlier judgment under Rule 59(e): "(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice." Pacific Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (citation omitted). Generally, "reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly." Id. (citation and internal quotation marks omitted).

C. Rule 59(a)

Rule 59(a) provides that courts may grant a new trial after a jury trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed.R.Civ.P. 59(a)(1). Under this standard, "[a] new trial will be granted if (1) the verdict is against the clear weight of the evidence, or (2) is based upon evidence which is false, or (3) will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict." Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998) (citation and internal quotation marks omitted). In making this determination, courts may "weigh the evidence and consider the credibility of witnesses." Id. (citation omitted).

III. LEGAL ANALYSIS

A. Rule 50(b)

Plaintiff has filed a second renewed motion for judgment as a matter of law pursuant to Rule 50(b). The essential question the Court faces is whether a reasonable jury could have returned a verdict only for Defendant on Plaintiff's retaliation claim.

Plaintiff did not present direct evidence of retaliation at trial. Therefore, the Court analyzes her retaliation claim under the pretext framework. Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004) (citation omitted).

"In the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of retaliation, whereupon the burden shifts to the employer to establish a legitimate non-retaliatory reason for the action." Id. "If the employer sets forth a legitimate, non-retaliatory explanation for the action, the plaintiff then must show that the employer's proffered reasons are pretextual or his claim will fail." Id. "More specifically, the plaintiff can prove pretext by showing that the explanation is "unworthy of credence" or by offering other forms of circumstantial evidence sufficiently probative of [retaliation].'" Id. (alteration in original) (citation omitted).

"To establish [her] prima facie case of retaliation, [Plaintiff] must show that [she] engaged in protected activity, that [the County] took adverse action against [her], and that a causal relationship existed between the protected activity and the adverse employment activity." Id. (citation omitted). The County concedes that, by filing an internal EEO complaint, Plaintiff engaged in protected activity. Therefore, the questions are (1) whether the County took adverse employment action against her; and (2) whether a causal relationship exists between the protected activity and the adverse employment action.

The Supreme Court has enunciated the test for adversity within the meaning of Title VII's antiretaliation provision. See generally Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). For an act to be adverse within the meaning of Title VII's antiretaliation provision, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 68 (citation and internal quotation marks omitted). "[T]he significance of any given act of retaliation will often depend upon the particular circumstances." Id. at 69. For example, "[a] schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children." Id. (citation omitted).

Specifically, the reassignment of job duties may also constitute a materially adverse action. See id. at 71; see also Hoyle v. Freightliner, LLC, 650 F.3d 321, 337 (4th Cir. 2011). Courts consider all the relevant circumstances to determine whether the reassignment of job duties constitutes a materially adverse action. See Burlington, 548 U.S. at 71. Such circumstances include, but are not limited to, whether the new position is more arduous than the old position; whether the new position is more prestigious; and whether the new position is objectively considered a better job. See id. Furthermore, a retaliatory downgrade of a performance evaluation may "[a]ffect a term, condition, or benefit of employment." See Von Gunten v. Maryland, 243 F.3d 858, 867 (4th Cir. 2001) (citation omitted), abrogated on other grounds by Burlington, 548 U.S. 53.

As a general matter, plaintiffs may demonstrate that the employee's engagement in protected activity caused the materially adverse action via two evidentiary routes. First, plaintiffs may show that the adverse act bears sufficient temporal proximity to the protected activity. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). Mere temporal proximity between the protected activity and the materially adverse action suffices to establish a prima facie case of causation only where it is "very close." Id. at 273 (citation and internal quotation marks omitted). Although the Supreme Court has not defined "very close, " Breeden suggests that a "3-month period is insufficient." See id. (citation and internal quotation marks omitted). Second, as this Court has consistently held, "plaintiffs may state a prima facie case of causation by relying on evidence other than, or in addition to, temporal proximity where such evidence is probative of causation." Jenkins v. Gaylord Entm't Co., 840 F.Supp.2d 873, 881 (D. Md. 2012) (citing cases); see also Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) (holding that "other relevant evidence may be used to establish causation" where temporal proximity is missing).

In this case, a reasonable jury could have returned a verdict for Plaintiff on her retaliation claim. Plaintiff submitted enough evidence for a reasonable juror to conclude that the transfer from the Academy to Station 40 was materially adverse. Plaintiff testified that the transfer significantly increased her work hours, changed her duties and responsibilities, caused her child care problems, interfered with her educational and career opportunities, and caused her a lot of stress. See Doc. No. 121 at 71-75. Specifically, Plaintiff testified that she would have to return to the field, see id. at 71; that her work day would increase from 8 to 24 hours, see id.; that the increase in hours would encumber her ability to care for her children, who were aged six and seven at the time, and whose father was also a firefighter working a 24-hour shift, see id. at 71-72; and that the increased hours interfered with her ability to attend college, which was a part of her Individual Development Plan with the Academy, see id. at 72-74. Based on these circumstances, a reasonable juror could have concluded that the change in Plaintiff's work schedule made an enormous difference in her life. A reasonable juror could also have concluded that Plaintiff's duties at Station 40, which involved riding rescue vehicles and responding to emergencies, were significantly more arduous and stressful than her duties at the Academy. See Doc. No. 121 at 39 (describing typical duties at a fire station). Plaintiff also submitted evidence that, after receiving sterling performance appraisals throughout her tenure as a firefighter, she received a satisfactory/negative performance appraisal for the evaluation period coinciding with her protected activity. See Doc. No. 121 at 47-48, 51-52, 77-79. One could rationally conclude that the threat of receiving a negative performance review would dissuade an employee from complaining about discrimination where the employee has received only outstanding performance reviews for years. Accordingly, based on all the relevant circumstances, a reasonable jury could conclude that the transfer to Station 40 was materially adverse.

Defendant argues that Plaintiff failed to show that her transfer was a materially adverse action for two primary reasons. First, Defendant asserts that Plaintiff received the same, if not more, salary and benefits. Second, Defendant argues that, because Plaintiff's job status remained the same and no loss of prestige was associated with the transfer, the transfer amounted to an undesirable reassignment at most.

These arguments are flawed in several respects. First, they require the Court to weigh the evidence. However, courts do not weigh the evidence when ruling on Rule 50(b) motions. Defendant's arguments are also substantively unsound. The apparent fact that Plaintiff received the same pay and benefits at Station 40 does not mean that the action could not be materially adverse. The question is whether it would deter a reasonable person from making or supporting a charge of discrimination. For the reasons stated above, despite the pay parity, a reasonable juror could so find. Furthermore, although Defendant adds that Plaintiff received more pay at Station 40, the evidence does not compel this conclusion. Through the testimony of Department employee Denise Dickens, Defendant offered Trial Exhibit 12 to prove that Plaintiff received more pay at Station 40 than at the Academy. However, on cross-examination of Dickens, counsel for Plaintiff pointed out several inconsistencies in Exhibit 12 that casted doubt on its validity. See Doc. No. 123 at 143-49. Even Dickens conceded that she did not prepare the document alone, that some of its information was "not possible, " and that it contained some "typographical errors." See Doc. No. 123 at 143, 146, 149. Therefore, a rational factfinder could have given this document no weight. As there was no other evidence that Plaintiff earned more money at Station 40, one reasonably could have concluded that Plaintiff did not earn higher pay at Station 40. Even assuming that Plaintiff did earn significantly more overtime at Station 40, this fact would have some tendency to corroborate Plaintiff's testimony that she worked longer hours at Station 40. Therefore, the fact that Plaintiff received the same, and conceivably more, pay at Station 40 does not foreclose the finding of materially adverse action.

The Court also finds unconvincing the argument that there was no material adversity because Plaintiff's job status remained the same and because she lost no prestige. One could infer that, at least at times, Plaintiff was an instructor at the Academy. See, e.g., Doc. No. 123 at 27, 66-67, 143. Furthermore, although Dickens felt that working as a traditional firefighter at the station was generally a better job with more potential for advancement, Dickens testified that the experience at the Academy was "definitely unique" because it allowed people at the Academy to "give back to the new employees coming in." See Doc. No. 123 at 135. Defendant would respond that a mere change in duties is insufficient to show material adversity. The only controlling case on which Defendant relies to support this proposition is James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371 (4th Cir. 2004). But James is inapposite because it addressed Title VII's antidiscrimination provision, not its antiretaliation provision. See id. at 376 n.2. Moreover, James predates the Supreme Court's decision in Burlington, in which it enunciated the material adversity standard. This fact is critical because adversity for the purposes of Title VII's antidiscrimination provision represents a higher standard than adversity within the meaning of Title VII's antiretaliation provision. See Burlington, 548 U.S. at 61-67; see also Lettieri, 478 F.3d at 650 n.2. Thus, to reiterate, the real issue is whether the transfer would have dissuaded a reasonable worker from complaining about discrimination. The fact that Plaintiff's official job classification remained the same is obviously not dispositive of this inquiry. For good measure, Defendant has not even addressed the significance of Plaintiff's aberrational negative performance review and its correspondence with her complaint of discrimination. Accordingly, Defendant's counterarguments lack merit.

Plaintiff also submitted sufficient evidence for a reasonable jury to conclude that she stated a prima facie case of causation. Plaintiff filed her EEO complaint on June 30, 2006. Doc. No. 121 at 52-53. Plaintiff was notified of her transfer on October 10, 2006 and it became effective on or around October 17, 2006. See Doc. No. 121 at 69; Doc. No. 124 at 9. This temporal proximity (3.5 months), standing alone, is insufficient to state a prima facie case of causation. However, Plaintiff adduced other evidence probative of causation. On or about July 3, 2006, Plaintiff received a transfer memo from the Academy. See Doc. No. 122 at 50. Although the transfer was later halted, the memo halting the transfer states that the proximity of Plaintiff's transfer to her filing of the EEO complaint raises a red flag and that African-American females were disproportionately receiving adverse actions. Doc. No. 122 at 55-56. Furthermore, Lieutenant Carla Blue testified that Major Chauncey Bowers and Chief Sedgwick attempted or contemplated transferring Plaintiff from the Academy on several occasions between July 3, 2006 and the mid-October 2006 transfer. See Doc. No. 123 at 9, 12. At least in part, the testimony of EEO officer Eugene Jones corroborates Blue's testimony. See Doc. No. 123 at 184 (testifying that Major Bowers tried to transfer Plaintiff in August 2006); id. at 199-200 (testifying that Blue attempted to block certain transfer attempts). Based on these facts, Plaintiff adduced adequate evidence to state a prima facie case that there was a causal link between her June 30, 2006 EEO complaint and her mid-October 2006 transfer.

Defendant has set forth several nonretaliatory reasons wherefore it transferred Plaintiff to Station 40. Perhaps its primary justification is that Plaintiff was allegedly involved in a cheating scandal that caused the Department negative publicity, low morale, and the loss of training certification. Defendant also argues that Plaintiff created conflicts with her coworkers. To prove the later proposition, Defendant seems to focus on Plaintiff's filing of "baseless" EEO charges.

As at least some of these reasons are facially neutral, "the McDonnell Douglas framework-with its presumptions and burdens-disappear[s], and the sole remaining issue [is] [retaliation] vel non." Westmoreland v. Prince George's County, Md., 876 F.Supp.2d 594, 609 (D. Md. 2012) (citation and internal quotation marks omitted). "In other words, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's stated reasons were not its true reasons, but were a pretext for [retaliation]." Id. (citation and internal quotation marks omitted). "It is well-established that it is permissible for the trier of fact to infer the ultimate fact of [retaliation] from the falsity of the employer's explanation, especially since the employer is in the best position to put forth the actual reason for its decision." Westmoreland, 876 F.Supp.2d at 609 (citation and internal quotation marks omitted). "Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully [retaliated]." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000).

"This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability." "[T]here will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was [retaliatory]." Id. "For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, [nonretaliatory] reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason ...


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