United States District Court, D. Maryland
GEORGE L. RUSSELL, III, District Judge.
Pending before the Court is Defendant's, University of Maryland Medical System Corporation ("UMMS"), Motion for Summary Judgment (ECF No. 80), three Motions to Seal the parties' summary judgment briefs (ECF Nos. 81, 86, 90), and Plaintiff's, Lori Flood, Motion for Leave to File Surreply (ECF No. 93). The issues have been fully briefed and no hearing is necessary. See Local Rule 105.6 (D.Md. 2014). For the reasons set forth below, UMMS's Motion for Summary Judgment will be granted in part and denied in part, the Motions to Seal will be granted, and Flood's Motion for Leave to File Surreply will be denied.
Flood was hired by UMMS in December 2008 as a clinical pharmacist. Clinical pharmacists' job duties included verifying doctors' orders, dispensing medications, providing information to medical staff regarding drug interactions, and overseeing the work of pharmacy technicians. Pharmacists are also responsible for monitoring the electronic "queue" of medications ordered for the patients served by their pharmacy. A pharmacist is required to verify each prescription before it is filled by a pharmacy technician and medication cannot leave a pharmacy unless a pharmacist physically verifies that a prescription is properly filled. Thus, a pharmacist is required to be physically present in the pharmacy at all times. UMMS contains multiple pharmacies: the main or "central" pharmacy, and approximately four "satellite" pharmacies within the same building, including the pediatric pharmacy.
Within the first six months of Flood's employment, UMMS received numerous complaints regarding her failure to adhere to policies and procedures. Due to her performance issues, Flood's initial six-month probationary period was extended for three months. Moreover, following the completion of her probationary period, Flood continued to have ongoing performance issues, for which she received numerous formal disciplinary actions.
Flood suffers from a degenerative disk disease in her neck and lower back. At the time she reported to work on the night of November 23, 2010, she was experiencing some back pain, but was capable of performing her work duties. That night, she was the sole pharmacist assigned to work in UMMS's pediatric pharmacy, which provides clinical pharmacy services to the newborn intensive care unit, the pediatric intensive care unit, and the pediatric unit. As her back pain increased, however, Flood attempted to contact her direct supervisor, Robyn Warnick, to seek permission to return home to retrieve her medication.
As a supervisor, Warnick rotated between the UMMS pharmacies. Flood tried texting, calling, and paging Warnick, but did not try to email her, even though they frequently communicated that way. Nevertheless, without successfully reaching Warnick, Flood abandoned the pediatric pharmacy and left the hospital building without permission. Flood asked Amjad Ahmed, the pharmacist who was staffing the central pharmacy that night, to monitor the medication "queue" while she was away.
After Flood returned to the hospital, Warnick observed that Flood appeared confused and found her speech to be slurred. Based on these observations, Warnick referred Flood for a fitness for duty evaluation,  which was conducted by the Employee Health Department ("EH"). Flood was placed on an administrative leave of absence with pay pending the results of the evaluation.
On January 10, 2011, while out on fitness for duty, Flood submitted the required medical certification to complete her request for a leave of absence under the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615(a)(2) (2012). UMMS contends that, upon being notified Flood had been cleared by EH for fitness for duty, two days later, on January 12, 2011, however, it proceeded to terminate Flood for her conduct on November 23, 2010.
Following her termination, Flood initiated this lawsuit in the Circuit Court for Baltimore City, Maryland. (ECF No. 2). The case was removed to this Court on July 13, 2012. (ECF No. 1). On October 15, 2012, Flood filed her Second Amended Complaint, alleging Gender Discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e-16 et seq. (2012) (Count I), Hostile Work Environment under Title VII (Count II), Retaliation under Title VII (Count III), Retaliation under FMLA (Count IV), Interference with Rights Under FMLA (Count V), Gender Discrimination under Title 20 of the State Government Article of the Annotated Code of Maryland ("Title 20"), Md.Code Ann., State Gov't §§ 20-601, et seq. (Count VI), Disability Discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (2012) (Count VII), Disability Discrimination (Disparate Treatment) under Title 20 (Count VIII), Disability Discrimination (Failure to Accommodate) under the ADA (Count IX), Disability Discrimination (Failure to Accommodate) under Title 20 (Count X), Disability Discrimination (Disparate Treatment) under the Rehabilitation Act, 29 U.S.C. § 794(a) (2012) (Count XI), Hostile Work Environment under Title 20 (Count XII), and Retaliation under Title 20 (Count XIII) (See Second Am. Compl., ECF No. 30). On July 21, 2014, UMMS filed its Motion for Summary Judgment (ECF No. 80), simultaneously with a Motion to Seal Motion for Summary Judgment and Exhibits (ECF No. 81). Flood filed a timely Opposition to Motion for Summary Judgment ("Opposition") (ECF No. 85), simultaneously with a Motion to Seal the Opposition and Exhibits (ECF No. 86). UMMS filed a timely Reply to Opposition to Motion for Summary Judgment ("Reply") (ECF No. 89), simultaneously with a Motion to Seal the Reply (ECF No. 90). Additionally, on October 16, 2014, Flood filed a Motion for Leave to File Surreply. (ECF No. 93). The Motions are ripe for disposition.
A. Motions to Seal
The parties seek authorization to file their summary judgment briefs under seal because they contain highly confidential information regarding third-party medical information that has been marked as confidential pursuant to the terms of the parties' Confidentiality Stipulation and Qualified Protective Order ["Protective Order"]. The terms of the parties' Protective Order require material marked confidential and/or highly confidential filed with the Court be filed under seal pursuant to Local Rule 105.11. (See Confidentiality Stipulation and Qualified Protective Order, ECF No. 38).
Local Rule 105.11 provides: "[a]ny motion seeking the sealing of pleadings, motions, exhibits or other papers to be filed in the Court record shall include (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protections." Local Rule 105.11 (D.Md. 2014). The court must address the public's right to access materials made part of a dispositive motion when considering a summary judgment motion despite the existence of a pretrial discovery protective order. Rushford v. New Yorker Magazine, Inc. , 846 F.2d 249, 253 (4th Cir. 1988). Thus, compliance with Local Rule 105.11 allows the Court to engage in the mandatory analysis outlined by the United States Court of Appeals for the Fourth Circuit. See ...