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Schmidt v. The Town of Cheverly

United States District Court, D. Maryland, Southern Division

September 25, 2014

FRANCIS K. SCHMIDT, et al., Plaintiffs,


GEORGE J. HAZEL, District Judge.

This Memorandum Opinion and Order addresses the Motion to Dismiss or, Alternatively, for Summary Judgment of Defendant, the Town of Cheverly, Maryland, ECF No. 13; Plaintiff's Opposition, ECF No. 18; and Defendant's Reply, ECF No. 22; A hearing was held on August 4, 2014. For the reasons stated herein, Defendant's Motion is GRANTED IN PART and DENIED IN PART.


In reviewing a motion to dismiss, this Court accepts the facts in the Amended Complaint as true. See Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011). Further, in review of a motion for summary judgment, the facts are to be considered in the light most favorable to the nonmoving party, drawing all justifiable inferences in that party's favor. Ricci v. DeStefano, 557 U.S. 557, 585-86 (2009). The facts below are reviewed with these principles in mind.

Plaintiffs Francis K. Schmidt ("Officer Schmidt") and his wife, Donna Schmidt, brought this action against Officer Schmidt's former employer, Defendant, the Town of Cheverly, alleging retaliation against Officer Schmidt. That retaliation is alleged to have occurred because Officer Schmidt exercised his rights under the Family Medical Leave Act (the "FMLA"), Title VII of the Civil Rights Act of 1964 ("Title VII"), the Prince George's County Human Relations Ordinance, the Maryland Human Rights Act, and the U.S. Constitution. See Am. Compl. Defendant is a municipal government entity located in Prince George's County, Maryland. Id. at ¶ 3. Defendant employed Officer Schmidt as a police officer from sometime in 2008 until August 2012. Id. at ¶ 6.

According to several police officers, during staff meetings between 2008 and 2011, Police Department Chief Harry Robshaw regularly stated that he would punish anyone who attempted to exercise the right to report unfair or unlawful practices by him or the police department. Id. at ¶ 11. He further stated that he appointed the trial board members, who are responsible for handling internal disciplinary actions, and would ensure that a police officer who complained would never work again.[1] Id.

In December 2008, [2] Chief Robshaw shoved a pool cue under Donna Schmidt's skirt at a Christmas party. Id. at ¶ 13. He also told other officers of his desire to have sex with Mrs. Schmidt . Id. at ¶ 14. Mrs. Schmidt did not initially report the incident for fear that Chief Robshaw would retaliate against her husband. Id. at ¶ 15. At an unspecified time between 2008 and 2010, Chief Robshaw told one of the other police officers that Officer Schmidt was a "problem" that they needed to "get rid of." Id. at ¶ 16. According to Officer Schmidt, between the fall of 2010 and August 2011, Chief Robshaw called Officer Schmidt names, denied him permission to engage in off-duty work, and assigned him to one of the oldest police cruisers. Id. at ¶ 18.

On September 29, 2011, Officer Schmidt suffered a hernia while at work. Id. at ¶ 30. Due to the hernia and required surgery, he was unable to work from September 30, 2011 until November 28, 2011. Id. at ¶ 31. During this time period, Chief Robshaw told Sergeant Edmund Gizinski: "I'm giving you a heads up since you're the FOP [Fraternal Order of Police] representative; Schmidt's trying to file workers' comp. so we're going to fire him." Id. at ¶ 37. Id. ; See also Pl. Opp., Ex. 4, Aff. Earl Stone at ¶ 14. This message was conveyed to Officer Schmidt on October 5, 2011 by another police officer. Am. Compl. at ¶ 37.

In October 2011, Mrs. Schmidt began contacting county, state, and federal officials to report what she believed to be Chief Robshaw's pattern of unlawful conduct.[3] Am. Compl. at ¶ 39. Chief Robshaw expressed concern that Mrs. Schmidt was "after his job." Id. at ¶ 41.

While unable to work due to the hernia, Officer Schmidt requested administrative leave. Id. at ¶ 33. Defendant's Administrator, David Warrington, originally granted Officer Schmidt 30 days administrative leave on October 12, 2011. Id. at ¶ 44. On November 3, 2011, Administrator Warrington granted Officer Schmidt an additional 30 days of leave in a letter stating that the leave was "30 days of designated FMLA [Family Medical Leave Act] leave (November 11th-December 11th) as administrative leave without pay." See Pl. Opp., Ex. 8. On November 9, 2011, Officer Schmidt wrote a letter to the administrator, stating that he was invoking his right to FMLA leave. Am. Comp. ¶ 46.

On November 4, 2011, one of the police officers began organizing a leave bank - where officers would donate their leave to help Officer Schmidt financially while he recovered - but Chief Robshaw advised: "I don't think it's going to happen with what she's done." Id. at ¶ 48. Another member of the police department added, "how does Schmidt expect to work here with what his wife has done." Id. at ¶ 49.

Donna Schmidt filed a "charge of discrimination" with the Prince George's County Human Relations Commission (the "PGCHR Commission") on November 15, 2011. See Def. Motion, Ex. 1. She alleged that Chief Robshaw sexually harassed her on several occasions beginning in December 2009. Id. In the same month, Officer Schmidt filed his own Charge of Discrimination with the PGCHR Commission. See Def. Motion, Ex. 3. He asserted discrimination based on disability as well as retaliation. Id. He stated that he suffered a workrelated injury, that he had been aiding his wife in her sexual harassment complaints, that Chief Robshaw did not permit others to donate paid leave, and that he heard that the Chief was not going to permit him to return to work because of his wife's actions. Id.

On November 28, 2011, Officer Schmidt provided the police department with a physician's report that he was medically fit to return to work. Am. Compl. ¶ 53. A short time before Officer Schmidt was permitted to return to work, an officer heard Chief Robshaw say, "find some way to get rid of that mother fucker." See Pl. Opp., Ex. 4, Aff. Stone at ¶ 17. When the officer asked why the Chief wanted to fire Officer Schmidt, the Chief said, "I just don't like that mother fucker." Id.

Officer Schmidt returned to work on December 5, 2011. Am. Compl. at ¶ 57. On the same day he returned, Officer Schmidt was informed that Defendant was investigating whether Officer Schmidt was involved in and failed to report a hit and run accident in the summer of 2011. Am. Compl. ¶ 57.[4] Chief Robshaw was identified as the officer in charge of the investigation. Id. Officer Schmidt complains that, while the investigation was ongoing, he was subjected to humiliation and verbal abuse. Id. at ¶ 63. In April 2012, Officer Schmidt was suspended based on the hit and run allegations. Id. When Officer Schmidt was eventually permitted to return to work, he was often not allowed to enter the building, and at one point, was assigned to separate rubber bands and paper clips into paper cups. Id.

A hearing before a trial board was held in July 2012 with regard to the damage to the police car. Id. at ¶ 64. As a result of the investigation, Chief Robshaw added the charge that Officer Schmidt failed to report a pre-2011 accident involving the police vehicle when questioned during the investigation. Id. The trial board found Officer Schmidt not guilty of the hit and run and not guilty of the failure to report the hit and run, but guilty of a failure to disclose pre-2011 damage of the car during the investigation. Id. at ¶ 67. The trial board recommended a 40 hour suspension and $1, 000 fine. Id. at ¶ 68. On August 13, 2012, Chief Robshaw increased the discipline to termination. Id. at ¶ 69. Chief Robshaw indicated that he considered Officer Schmidt's past job performance and the entire record of the hearing in making his decision. Def. Mot., Ex. 15. Specifically, Chief Robshaw found that because Officer Schmidt had been deceitful, testimony he gave in court on police matters would be discredited, meaning that he could no longer fulfill his duties. Def. Mot., Ex. 13. Further, Chief Robshaw found that continuing to permit Officer Schmidt to work in the department after he was found to have provided false statements would destroy morale among the other officers. Id.

On September 21, 2012, the PGCHR Commission dismissed Officer Schmidt's November 29, 2011 charge of discrimination. See Def. Mot., Ex. 8. [5] Officer Schmidt filed another charge of discrimination on October 2, 2012 (after he was terminated in August 2012) alleging that he was retaliated against for filing the November 29, 2011 charge. See Def. Motion, Ex. 11. He contended that because he filed the charge in November 2011, he was (1) given a written warning for violation of department policy on January 24, 2012; (2) suspended from police duty from April 2012 until August 2012; (3) reassigned to the Code and Photo Enforcement Unit; and (4) terminated on August 13, 2012. Id. Before the PGCHR Commission issued an order, Officer Schmidt requested a right-to-sue letter from the Equal Employment Opportunity Commission ("EEOC"). Am. Compl. ¶ 79.

Turning back to the November 29, 2011 charge, the EEOC adopted the findings of the PGCHR Commission with regard to that charge and sent Officer Schmidt a right-to-sue letter on May 15, 2013. See Def. Mot., Ex. 10. Plaintiffs filed a Complaint against Defendant on August 22, 2013 in the Circuit Court for Prince George's County. See ECF No. 1. On September 11, 2013, the EEOC sent Officer Schmidt a right-to-sue letter for the October 2, 2012 charge of discrimination. See Pl. Opp., Ex. 10. Thus, Plaintiffs amended their Complaint to reflect receipt of the second right-to-sue letter. See Am. Compl. ¶ 80.

Plaintiffs' Amended Complaint claims that Defendant retaliated against Officer Schmidt in a plethora of ways because he exercised his protected rights under the (1) Family Medical Leave Act ("FMLA"), (2) Title VII of the Civil Rights Act of 1964 ("Title VII"), (3) Prince George's County Human Relations Ordinance, (4) the Maryland Human Rights Act, and (5) the U.S. Constitution. Id. at ¶ 83-141. Officer Schmidt further contends that he was retaliated against for filing a workers' compensation claim. Id. at § 148-164. As for Mrs. Schmidt, she asserts "harm to the marital unit." Id. at ¶ 142-147. On November 4, 2013, Defendant filed a Notice of Removal to this Court.


Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint if it fails to state a claim upon which relief can be granted. This Rule's purpose "is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal quotation marks omitted). When deciding a motion to dismiss pursuant to Rule 12(b)(6), a court "must accept as true all of the factual allegations contained in the complaint, " and must "draw all reasonable inferences [from those facts] in favor of the plaintiff." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and internal quotation marks omitted).

If the Court considers matter outside the pleadings, as the Court does here, [6] the Court must treat a motion to dismiss as one for summary judgment. Fed.R.Civ.P. 12. (b). When the Court treats a motion to dismiss as a motion for summary judgment, "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Id. It is obvious that when the moving party styles its motion as a "Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, " as is here, and the nonmoving party attaches exhibits to its opposition, the nonmoving party is aware that materials outside the pleadings are before the court, and the Court can treat the motion as one for summary judgment. See Laughlin v. Metropolitan Wash. Airports Auth., 149 F.2d 253, 260-61 (4th Cir. 1998). Further, a court is not prohibited from granting a motion for summary judgment before the commencement of discovery. See Fed.R.Civ.P. 56(a) (stating that the court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact" without distinguishing pre- or post-discovery). However, summary judgment should not be granted if the nonmoving party has not had the opportunity to discover information that is essential to his opposition to the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1987). If the nonmoving party feels that the motion is premature, that party can invoke Federal Rule of Civil Procedure 56(d). See Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986). Under Rule 56(d), a court may deny a motion for summary judgment if the nonmovant shows through an affidavit that, for specified reasons, he or she cannot not properly present facts, currently unavailable to him or her, that are essential to justify an opposition. Here, the nonmovant has not filed an affidavit under 56(d).

Summary judgment is proper only when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Meson v. GATX Tech. Servs. Corp., 507 F.3d 803, 806 (4th Cir. 2007); see also Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating that no genuine dispute exists with regard to material facts. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). Notably, the moving party can demonstrate that there is no genuine issue of material fact by explaining that "there is an absence of evidence in support of the nonmoving party's case." Celotex, 477 U.S. at 325. If the party seeking summary judgment demonstrates that there is no admissible evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify specific facts showing that there is a genuine issue for trial. Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 535 (D.Md. 2007). To satisfy this burden, the nonmoving party must produce competent evidence on each ...

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