United States District Court, D. Maryland
RICHARD D. BENNETT, District Judge.
The Plaintiff Renee Basil filed this action against the Defendants Maryland Transportation Authority ("MdTA") alleging discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and against Michael A. Noel ("Officer Noel") and Richard D. Perry ("Captain Perry") (collectively "Defendants") pursuant to 42 U.S.C. § 1983 for violations of her rights under the Constitution of the United States. Presently pending is the Defendants' Motion for Summary Judgment (ECF No. 58). The parties' submissions have been reviewed and no hearing is deemed necessary. See Loc. R. 105.6 (D. Md. 2011). For the reasons that follow, the Defendants' Motion is DENIED.
For purposes of the pending Motion for Summary Judgment, this Court views the facts and any inferences therefrom in the light most favorable to the Plaintiff, the nonmoving party. Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Plaintiff Basil enrolled in the Maryland Transportation Authority ("MdTA") Police Academy on August 1, 2007 and completed her training on February 22, 2008. Pl.'s Am. Compl. ¶¶ 2, 20, 31, ECF No. 9. Officer Noel had been an MdTA employee since 1989 and was Basil's Motor Vehicle Law instructor. Id. ¶¶ 6, 22. The MdTA has an anti-fraternization policy and prohibits the use of sexual language. See MdTA Police Academy Rules 5, 9-10, ECF No. 64-8. Nevertheless, throughout Basil's training at the Police Academy, Officer Noel "singled [her] out from her male colleagues and continuously and frequently made inappropriate gender based comments to" her. Am. Compl. ¶ 23. Particularly, Officer Noel frequently asked her whom she was dating and whether she was interested in dating anyone, stared at her, told her dirty jokes, and went out of his way to make physical contact with her by intentionally brushing up against her in the hallway on too many occasions to count. See Deposition of Renee Basil 57-59, 64-65, 76-77, ECF No. 64-9. Additionally, Officer Noel held Basil alone after class, purportedly to discuss class work; as punishment for incorrect answers on an assignment, he instructed her to do push-ups until he told her to stop. Basil Dep. 52-53. On another occasion, Officer Noel called Basil into his office, in isolation from her classmates, again stating the need to discuss corrections to her class work. Basil Dep. 54-57. Officer Noel was joined by Officer James Cox, who stood by while Officer Noel asked her inappropriate questions regarding her relationship status. Id. When Basil told Noel that the answers were none of his business, Noel again ordered her to do push-ups while Officer Cox watched. Id.
Basil alleges that she did not report these incidents to Officers Noel and Cox's supervisors at that time because she feared retaliation. Id. at 57-59. In particular, Basil cited her knowledge of the close relationship between Officer Noel and Defendant Captain Perry, the Commander of the Academy. Id. Officer Noel considered Captain Perry like a "father." Deposition of Michael Noel 72, ECF No. 64-7. Likewise, Captain Perry considered himself to be Officer Noel's "mentor." Deposition of Richard Perry 20, ECF No. 64-8. Perry had trained Noel and provided advice throughout Noel's career. Noel Dep. 11; Perry Dep. 20. When Officer Noel was investigated by the Internal Affairs Unit in 2008 for improperly using MdTA computers for personal purposes, Captain Perry filed an Endorsement, asking that the charge of conduct unbecoming an officer not be sustained and for a more lenient penalty. Perry Dep. 147-49; MdTA Internal Affairs Unit Complaint Against Personnel Report, ECF No. 64-11. Outside of work, Captain Perry and Officer Noel socialized extensively, dining, bowling, playing baseball, and doing "everything together." Perry Dep. 212-14. Knowing how close Officer Noel was to Captain Perry, Basil testified that she "just wanted to get through the Academy" and "didn't know what to do." Basil Dep. 78.
After graduating from the Academy in February 2008, Basil was assigned to the Baltimore Harbor Tunnel Command where she no longer had contact with Officer Noel. Id. at 84. Soon after, on March 27, 2008, she sustained a dog bite injury that left her unable to return to full police officer duty. Id. at 82. She was placed on light duty while awaiting a determination concerning her application for medical retirement. Id. at 83-84. MdTA officers seeking medical retirement are routinely assigned to light duty positions while awaiting the finalization of the approval process. Am. Compl. ¶ 37; Declaration of Kimberly Staigerwald, ECF No. 64-25. In general, a light duty assignment lasted up to 180 days, which could be extended an additional 180 days. Letter from Perry to Basil of April 22, 2009, ECF No. 64-30. As a matter of practice, personnel regularly remained on light duty for more than one year, and additional ninety-day extensions to light duty status were routinely granted while awaiting retirement approval. Deposition of MdTA Rule 30(b)(6) Designee Frederick Joseph Ruff 35-41, ECF No. 6.
In May 2008, soon after Basil was placed on light duty, Officer Noel was also assigned to Baltimore Harbor Tunnel Command. Although he was not Basil's direct supervisor, she was required to follow his commands based on rank and her light duty status. Basil Dep. 91; see also Deposition of Michael McCullough 11-14, ECF No. 64-15. Basil alleges that Officer Noel's sexually-charged behavior resumed "more aggressively and relentlessly" than before. Am. Compl. ¶ 40. Officer Noel admits that he came to Basil's office "constantly." Noel Dep. 247. Basil's co-worker, Roberta Neubeck, testified that Officer Noel came by two to three times per week without a work-related reason and always spoke to Basil out of the hearing of others, making Basil appear uncomfortable. Deposition of Roberta Neubeck 12, 28-32, ECF No. 64-20. Additionally, because one of Officer Noel's duties was to monitor the use of access cards to enter buildings at the Harbor Tunnel Command, he was able to determine where Basil was throughout the day, see Deposition of Ricky F. Williams 24-25, ECF No. 64-16; Deposition of Mark Henry 63, ECF No. 64-17, and would appear when Basil was in other locations at the facility. Basil Dep. 118-19. Basil also received inappropriate emails and text messages from Officer Noel asking her about her height, weight, relationship status, and whether she would go on a date or on trips with him. Id. at 93-97; MdTA Special Report, ECF No. 64-18. She reported the inappropriate emails to Sergeant Michael McCullough, who confirmed that Basil was upset by communications that were "basically of a harassing nature, " and "basically of a sexual nature." McCullough Dep. 15-16.
On one occasion, Officer Noel asked a co-worker, Daniel Baker, whether Baker was "f***ing" Basil. Deposition of Daniel Baker 49-51, ECF No. 64-13. Basil had confided in Baker that Officer Noel had made unwanted advances, and Baker reported the latest comment Officer Terry Hendrickson. Id. In December 2008, Officer Noel sent Basil a text message asking whether she would purchase lingerie for Christmas from the "racy" store Frederick's of Hollywood. Basil Dep. 105; Pl.'s Opp. 13 n.7. Also, in late December 2008 or early January 2009, Officer Noel, while speaking to Officer Hendrickson in front of Basil, claimed that he had placed video cameras in the women's restroom of the building and was going to place a camera in Basil's home restroom as well so he could watch her urinate. Basil Dep. 105-07, 149. Officer Hendrickson, who stated that he had daughter's Basil's age, told Officer Noel not to talk that way. EEOC Charge of Discrimination, ECF No. 13 Ex. A. Basil immediately contacted Sergeant McCullough to report Officer Noel's comments because she feared that he actually had access to her home address. Basil Dep. 106, 111; McCullough Dep. 22-23. Sergeant McCullough instructed her "to pick her battles" and "not make waves" as to Officer Noel because of his relationship with Captain Perry. Basil Dep. 110-12, 126, 148, 151. Thus, Basil again refrained from making further complaints for fear of jeopardizing her position. Am. Compl. ¶ 53. Basil testified that she was let down by Sergeant McCullough, whom she felt was her "only friend" and "trusted him with this information." Basil Dep. 113.
Despite Basil's repeated requests for Officer Noel to stop his behavior because it was affecting her ability to perform her job, he was "relentless" and "wouldn't leave [her] alone." Basil Dep. 101-02, 116-17. Officer Noel would tell Basil "dirty jokes, " "stare at [her] breasts, " and "get close" to her physically, making Basil feel "disgusted." Id. at 121, 127. Officer Noel's conduct toward Basil continued until he retired on March 31, 2009. Id.
During this time period, Basil was still working on light duty status while she awaited the approval of the medical retirement application. Captain Perry was her "main contact" for retirement. Basil Dep. 136. After her initial period of one year of light duty expired, she received several routine one-month extensions. Id .; see, e.g., Letter from Perry to Basil of April 22, 2009, ECF No. 64-30. On May 29, 2009, Basil received a letter granting her an extension until July 30, 2009. Letter from Perry to Basil of May 29, 2009, ECF No. 64-24. Basil expected that, in keeping with the MdTA's customary practice and after being assured by Captain Perry, her light duty appointment would be extended until her medical retirement was approved. Basil Dep. 223-25. Furthermore, Basil had verbal offers to continue working as a civilian at the MdTA in the Quartermaster department, after her retirement from police work, as several others had done. Basil Dep. 139, 166-69, 187-88.
On May 26, 2009 Basil was informed that Officer Noel would return to the MdTA as a civilian contractor. Basil Dep. 128-29. Upon learning that Officer Noel had returned, she reported his history of inappropriate sexual conduct to Corporal Robert Jones. Id. 128-30. Basil hoped that Corporal Jones would bring her story to the attention of higher-ranked authorities, but he did not. Id. at 130-32.
On June 24, 2009, Basil had lunch with Retired Lieutenant Colonel Mark Henry, and co-workers Roberta Neubeck and Nancy Barksdale. Ms. Barksdale complained of being sexually harassed and stalked by Officer Noel while working in close proximity to him. Neubeck Dep. 30-31; Deposition of Mark Henry 62-63, ECF No. 64-17. That same day, Basil again reported Officer Noel's behavior toward herself and other women to Corporal Jones and asked for a meeting with Captain Corey McKenzie, Corporal Jones' supervisor. Basil Dep. 132. The next day, Basil detailed her allegations against Officer Noel to Captain McKenzie. Id. at 133-34. Basil also explained to Captain McKenzie that she had not reported the incidents to Defendant Captain Perry directly because of his close friendship and mentor relationship with Officer Noel. Id. at 134.
The following day, June 26, 2009, Captain McKenzie was instructed by Captain Perry to send Basil to his office. McKenzie Dep. 79-80. During the ensuing meeting, Captain Perry informed her that she was being "terminated" because "she was no longer fit for duty due to the dog bite she sustained in early 2008, " and she was escorted off the premises and told that she was not allowed to return. Basil Dep. 148, 163-64; Am. Compl. ¶¶ 63-64. It was also implied that because Basil was terminated, the offer to work as a civilian in the Quartermaster department was no longer available, and she therefore did not apply. Basil Dep. 170. Basil was surprised at her discharge because she had been told on multiple occasions by Captain Perry that her light duty assignment would be extended until she retired. Id. at 88, 136, 223-225. Other employees were also surprised that Basil was discharged before her retirement became final. Neubeck Dep. 28; McCullough Dep. 42. Basil claims that Captain Perry's reason for her discharge was a pretext as it is customary for officers awaiting determinations concerning their medical retirement application to be placed on light duty. Am. Compl. ¶ 65. According to Basil, she was terminated by the MdTA and Captain Perry in retaliation for reporting Officer Noel's behavior toward herself and Ms. Barksdale. Id. ¶ 72.
Several other women employed by the MdTA reported similar conduct by Officer Noel during the same general time period. Heidi Faircloth, a Telephone Communication Operator, stated that Officer Noel sent to her cell phone a photograph of what he claimed were his genitalia. Deposition of Heidi Faircloth 22-23, ECF No. 64-1. Ms. Faircloth also testified that Officer Noel showed a photograph of a woman's naked breasts to MdTA Captain Jackson, and told him that they were Ms. Faircloth's. Id. at 11-14. Captain Jackson's response was to question Ms. Faircloth as to her involvement with Officer Noel. Id. Ms. Faircloth did not file a complaint against Officer Noel because she feared retaliation. Id. at 15-16, 24. Amber Hart stated that Officer Noel showed her an empty plastic bag and told her it was her new bathing suit, and also would come to her office and physically nudge her in the side until she told him to stop. Statement of Amber Hart, ECF No. 64-2. Another Telephone Communication Officer, Marcella Price, had a brief sexual relationship with Noel, which he solicited using MdTA email. Deposition of Marcella Price 12, 20-21, 42, ECF No. 64-3. Price ended the relationship when Officer Noel asked her to participate in a threesome with Officer Cox, whom Noel described as having a "big d**k." Id. 20-21. Officer Cox is the same officer who was in Officer Noel's office on the second occasion when the Plaintiff was forced to do pushups. At the time of Price's brief relationship with Officer Noel, he was in charge of approving requests for overtime and days off for Telephone Communication Officers. Id. 8, 26. Price testified that another Telephone Communications Officer, Erin Rossi, asked Officer Noel for an approval, to which he responded, "If I do this for you, what will you do for me?" Id. at 24-26.
Amanda McKenzie, the wife of Captain McKenzie, also testified that Officer Noel often made inappropriate sexual comments to her, despite her telling him to stop. Deposition of Amanda McKenze 25-26, ECF No. 64-4. The incident that ultimately led to Officer Noel's termination occurred on October 19, 2009, when he touched Ms. McKenzie on the buttocks. Id. at 42-44. Ms. McKenzie reported the incident, but not before checking with her husband based on her fear that because of Officer Noel's status with the MdTA, they both could face retaliation. Id. at 21-24. By that time, Basil had already complained repeatedly about Officer Noel's conduct and been discharged. Ms. McKenzie was unaware of Basil's previous allegations, and was upset that despite the MdTA's knowledge of such complaints, Officer Noel was permitted to work with her and other women. McKenzie Dep. 46. Officer Noel was eventually terminated following Ms. McKenzie's complaint. Ruff Dep. 130-31.
On September 21, 2009, Basil timely filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging a continuing pattern of harassment. EEOC Charge of Discrimination 2, ECF No. 13 Ex. A. In response to the EEOC Charge, the MdTA undertook an investigation of the allegations against Officer Noel. Major Joseph Ruff of the MdTA assigned William Booker, a former Baltimore Police Department Detective Sergeant who worked at the time as a civilian contractor conducting background checks on new hires at the MdTA, to investigate. Deposition of William Booker 14-19, 214. Booker, who had never conducted an EEOC investigation before, updated Major Ruff from time to time, via email and meetings. Booker Dep. 19-21. Booker produced a written report, finding nothing inappropriate in the emails and concluding that no sexual harassment or retaliation took place. MdTA Special Report, Confidential Investigation, ECF No. 64-18. Booker testified, however, that he was very deferential to MdTA officers, particularly Captain Perry, in pursuing his investigation. Booker Dep. 71-79, 216. He stated that he knew he served at the pleasure of the MdTA, and that there was no need to question Captain Perry's truthfulness. Id. at 78-79, 162. Additionally, Booker was surprised to learn of additional incidences of Officer Noel's sexually explicit conduct toward other female MdTA employees that he did not uncover in his investigation and may have changed his determination. Id. at 144-46. Furthermore, according to the MdTA's internal policies, a complaint such as the one against Officer Noel must be referred to the Internal Affairs Unit. See MdTA Directives Manual, Code of Conduct §§ III.3.1 to 3.2, ECF No. 64-28. Major Ruff testified that the procedure was not followed in this case because Officer Noel was at the time a civilian contractor, but admitted that the Code of Conduct applies to civilians and sworn members of the MdTA. Ruff Dep. 88-90, ECF No. 64-6; Code of Conduct § I.2.1.
On February 22, 2012, Basil filed suit in this Court against the Maryland Transportation Authority, Officer Noel, and Captain Perry. Compl., ECF No. 1. On or about March 10, 2012, the EEOC closed its file and issued Basil a right to sue letter. Am. Compl. ¶ 13-14. Basil subsequently filed an Amended Complaint, alleging disparate treatment (Count I), hostile work environment (Count II), and retaliation (Count III) against the MdTA in violation of Title VII, 42 U.S.C. § 2000e, et seq. Additionally, Basil alleges individual claims pursuant to 42 U.S.C. § 1983 against Officer Noel for subjecting her to a hostile work environment in violation of the Equal Protection Clause (Count IV) and against Captain Perry for violating her First Amendment rights (Count V). The Defendants moved to dismiss the Amended Complaint, and this Court denied the Motion to Dismiss on February 15, 2013. Mem. Op. & Order, ECF Nos. 23-24. Following a period of discovery, the Defendants moved for summary judgment.
STANDARD OF REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that a court "shall grant summary judgment 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." Fed.R.Civ.P. 56(c). A material fact is one that "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue over a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249. In undertaking ...