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Countess v. State

United States District Court, Fourth Circuit

January 16, 2014

NADINE COUNTESS, Plaintiff,
v.
STATE OF MARYLAND, Defendant.

MEMORANDUM OPINION

Ellen Lipton Hollander United States District Judge

Plaintiff Nadine Countess filed suit against her employer, the State of Maryland, alleging discrimination in employment. ECF 2. Plaintiff, who is African-American, alleged that her transfer to a new position, without the supervisory responsibilities she previously held, amounted to race discrimination and retaliation, in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §§ 2000e et seq., and Maryland Code (2009 Repl. Vol., 2011 Supp.), § 12-601 et seq. of the State Government Article (“S.G.”). Id.[1] In response to defendant’s motion to dismiss (ECF 11), plaintiff filed an amended complaint (“Am. Compl., ” ECF 13), which is the operative complaint. Following discovery, defendant filed a Motion for Summary Judgment (ECF 37), supported by a Memorandum (“Memo, ” ECF 37-2) and exhibits (collectively, the “Motion”). The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6.[2] For the reasons that follow, I will grant the Motion.

Factual Background[3]

Countess has been an employee of the State of Maryland for over thirty years and has spent more than twenty years with the Child Support Enforcement Administration (“CSEA”). See Whistleblower Complaint, Memo Ex. G (ECF 37-9). At all times relevant to this case, Countess worked as an Assistant Director at CSEA. Id. Her direct supervisor was Fran Johnson; her second-line supervisor was Hubert Aduna; her third-line supervisor was Gina Higginbotham. See Deposition of Fran Johnson, Director of Direct Services at CSEA, (“Johnson Dep., ” ECF 40-4) at 13, 16–19.

Countess supervised the Central Registry/Interstate Unit of CSEA. Affidavit of Gina Higginbotham, Deputy Executive Director for Programs at CSEA (“Higginbotham Aff., ” ECF 11-7) ¶ 1. One aspect of her job was to monitor the Interstate Case Reconciliation (“ICR”) project, which aimed to reconcile Maryland’s interstate child-support case data with that of other states. Id. For example, if a child-support case involved parents living in different states, the ICR team would help ensure that Maryland had received all pertinent data from the other state’s records. Id. The ICR project was conducted with support from University of Maryland employees who contracted to assist with the project. Id. Countess supervised these contractual employees. Id.

Johnson testified at her deposition that she began receiving complaints about Countess from CSEA staff and other state employees in early 2011. Johnson Dep. at 62–64, 90–93. One such complaint stated that the ICR staff was belittled, micromanaged, bullied, “spoken to as if they [were] children, ” and threatened with termination. Ex. 0 to the Affidavit of Fran Johnson (“Johnson Aff., ” ECF 37-3 at 4). Further, the complainant advised that the contractual staff was “walking on eggshells” and that morale was “very low.” Id. Around the same time, the same individual told Higginbotham that Countess treated her as her “personal assistant, ” requested that she violate state rules regarding use of the state’s fleet of vehicles, and that the staff would often cry after meetings with Countess. Higginbotham Aff. ¶ 2. According to a timeline Johnson created in preparation for a later grievance hearing, another ICR staffer named Dorothy Craig also complained about the work environment on the ICR team. Johnson Timeline, ECF 37-3 at 3.[4]

Higginbotham and Johnson relayed these complaints to Aduna, who then interviewed several ICR staffers. Johnson Dep. at 88, 91; Higginbotham Aff. ¶ 2. On March 2, 2011, following his interviews with the ICR staff and a meeting with Countess, Aduna advised that he was temporarily transferring the ICR contract monitor function from Countess to Johnson. Ex. 2 to Johnson Aff. (ECF 37-3 at 7); Opp. Ex. 6 (ECF 40-9).

On March 9, 2011, Johnson conducted a series of interviews with the contractual staff from the University of Maryland. According to the email informing the staff of these meetings, the purpose of the meetings was to “gather pertinent information that will, 1) help shed light on the conditions of the work environment . . ., and, 2) to discuss your interactions with the Interstate Operation’s management team.” Opp. Ex. 7 (ECF 40-10). Johnson’s handwritten notes from these interviews are included in the record as Exhibit 4 to the Johnson Affidavit. ECF 37-3 at 20–27, 37–44. Although the notes are difficult to decipher, they appear to reflect, inter alia, some staffers’ concerns with Countess’s professionalism and managerial effectiveness. Id.; Johnson Dep. at 69–77, 80. One particular concern that surfaced repeatedly was the staffers’ fear that Countess would have them fired if they did not do exactly what she asked of them. See, e.g., Higginbotham Aff. ¶ 4.

On March 10, 2011, Countess filed a grievance through the State Personnel Management System regarding Aduna’s reassignment of oversight responsibilities of the ICR unit from Countess to Johnson. See Grievance Form, ECF 37-4 at 8.[5] Higginbotham conducted a grievance hearing on March 17, 2011. Id. at 14.[6] Handwritten notes from the hearing reflect that parties discussed the morale issues previously reported to Johnson and Higginbotham. Id. at 13. On March 21, 2011, Higginbotham denied Countess’s grievance, stating that “the action taken was consistent with management’s rights . . . .” Id. at 17. Countess pursued her appellate rights, and a “Step-Two” grievance hearing was scheduled for May 10, 2011. Affidavit of Daniel Watt, Assistant Manager of the Employee Relations Unit of the Maryland Department of Human Resources (“DHR”) (“Watt Aff., ” ECF 37-5).

In the interim, on April 18, 2011, Countess filed a complaint of discrimination with the DHR’s Office of Employment and Program Equity. Memo Ex. F (ECF 37-8). Her complaint stated, id.:

On March 10, 2011, I felt that I was forced to file grievances in an attempt to formalize my complaints and obtain relief from my current situation. On March 17, 2011, I met with the Interim Executive Director and provide[d] information regarding direct violations of personnel policies, unfair employment practices, bullying, and harassment that had caused me emotional distress. . . . To date, Ms. Johnson still remains my supervisor and no attempts to address any of my concerns have been made. Additionally, I do not believe management did a thorough investigation into my [complaint].
The discrimination and adverse employment actions that CSEA management continues to allow is in direct violation of [Maryland Law].

The grievance hearing took place as scheduled on May 10, 2011, and it was attended by Higginbotham, Aduna, Johnson, and other CSEA staff members. ECF 37-5 at 7. Daniel Wait and Tymeana M. Bullock, Employee Relations Officer for DHR, presided at the hearing. After the hearing, Countess’s grievance was denied because she “presented no evidence to indicate that management has in any way abused its discretion . . . .” Id. According to defendants, Countess appealed this decision to the Department of Budget and Management, which rendered a decision in favor of CSEA. Memo at 8 n.8.

Countess filed a second complaint of discrimination with DHR on May 17, 2011. She alleged in her complaint that “male colleagues are more likely to be promoted when new work functions are assigned [than are] qualified female employees.” Opp. Ex. 4 at 1–2.

On June 29, 2011, Countess filed a memorandum objecting to her mid-cycle performance evaluation for Fiscal Year 2012. Opp. Ex. 5. The memorandum took issue with the manner in which her performance evaluation was conducted. In particular, Countess stated her belief that the process “was discriminatory and inequitable, ” and she stated that she was “in dispute of the Satisfactory Performance Rating and request that it be rescinded.” Id. Countess sent the memorandum to Johnson and Aduna. Id.; Johnson Dep. at 152–53. Higginbotham was unsure whether she ever received or learned about the memorandum. Higginbotham Dep. at 90.

That same day, Countess left work on sick leave. She returned to work on July 18, 2011, and met with Johnson. Johnson read aloud a memorandum written by Higginbotham notifying Countess that, effective August 1, 2011, she would be transferred to the Department of Human Resources Information Systems (“DHRIS”), located in Essex. See Temporary Transfer Letter, ECF 37-4 at 61; see ECF 37-3 at 64–65. Although Countess’s title and salary would remain the same, her responsibilities were reduced and her supervisory duties were eliminated. Higginbotham Dep. at 139.

Higginbotham cited two reasons for her decision to transfer Countess. First, according to Higginbotham, “there was still the concern that staff were afraid of her. That did not go away.” Id. at 77. Higginbotham indicated in her affidavit that in addition to the complaints from the University of Maryland contractual staff, she had also received complaints from “Central Registry staff, also under the supervision of Ms. Countess.” Higginbotham Aff. ¶ 6. According to Higginbotham, those complaints indicated that the Central Registry staff was intimidated by Countess, afraid of Countess, and concerned that Countess “would stop at nothing to get even with them for making complaints about her.” Id. Further, Higginbotham testified that Johnson and ...


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