United States District Court, D. Maryland
PHYLLIS M. WESTMORELAND, Plaintiff,
PRINCE GEORGE'S COUNTY, Defendant,
THEODORE D. CHUANG, District Judge.
Plaintiff Phyllis M. Westmoreland ("Westmoreland"), a former Prince George's County firefighter, brings this action against Defendant Prince George's County, Maryland ("the County") alleging that because of her gender, she was subjected to a hostile work environment. disparate treatment, and constructive discharge, and that she was retaliated against in the form of removal from duty and constructive discharge, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Maryland Fair Employment Practices Act ("MFEPA"), Md. Code, State Government § 20-606. Presently pending before the Court is the County's Motion to Dismiss, or. in the Alternative, Motion for Summary Judgment. ECF No. 11. The Court has reviewed the pleadings and supporting documents and heard oral argument on February 4, 2015, For the reasons outlined below, the Motion, construed as a Motion to Dismiss, is GRANTED in part and DENIED in part.
Westmoreland is an African American woman who began working at the Prince George's County Fire Department ("Department") in 1989. Am. Compl., ECF No. 9, ¶ 9. At that time. she was one of 32 women in the Department, out of a total of approximately 650 employees. Id. ¶ 15. For the majority of her career, Westmoreland "received high commendations, performance reviews and awards, " and accordingly "steadily rose through the ranks." Id. ¶¶ 10-11. In April 2006, Westmoreland was promoted to the rank of Fire Lieutenant. Id. ¶ 20. In her May 2006 performance review, Westmoreland was given an "outstanding" rating of 3.95 out of a possible 4.0. Id. ¶¶ 12-13.
I. Westmoreland's Tenure at the Fire/Emergency Medical Services Training Academy
Seeking to expand her experience, Westmoreland asked to be and was assigned to the Department's Fire/Emergency Medical Services ("EMS") Training Academy. While at the Academy. Westmoreland noticed what she believed were disparities in the opportunities available to women in the Department. Id. ¶ 16. In response, she "created and participated in" support groups for fellow female firefighters and began to advocate to senior management for women's rights. Id. "Almost immediately" after Westmoreland began these efforts, "male colleagues and supervisors" began to harass her. Id. ¶ 17. Then, in April 2006, the Department determined that there had been cheating as part of the Academy's Officer Candidate School Examination. Id. ¶ 19. Although the Department concluded that 38 individuals were involved. Westmoreland was "singled out for discipline." Id. ¶ 19. The charges against Westmoreland stemming from that scandal were later dismissed. Id.
On June 30, 2006, as a result of the Department's response to the cheating scandal and continuing harassment stemming from it, Westmoreland filed an internal equal employment opportunity ("EEO") complaint. Id. ¶¶ 21-22. Her position at the Academy quickly became tenuous. On July 3. 2006, she was given orders to report back to field duty. Id. ¶ 23. When she protested the transfer, the orders were rescinded. Id. ¶ 24. However, on October 10, 2006, new transfer orders were issued that assigned her to field duty at Fire Station 40. Id. ¶ 25. On the heels of that transfer, on October 13, 2006, Westmoreland received her "first ever" negative performance review: a 1.95 rating, down from her May 2006 3.95 rating. Id. ¶ 26.
Westmoreland reported for duty at Fire Station 40 on October 18, 2006. Id. ¶ 27. That same day, the Department's discipline coordinator hand-delivered to her two disciplinary notices stemming from events at the Academy. Id. ¶¶ 27-28. On October 20, 2006, Westmoreland filed a complaint against the Department with the U.S. Equal Employment Opportunity Commission ("EEOC"). alleging that she had been subjected to gender and race discrimination while at the Academy and that she was transferred to Station 40 in retaliation for filing the June 30, 2006 internal EEO Complaint. Id. ¶ 29. Three more disciplinary charges followed in the wake of Westmoreland's EEOC Complaint, all based on events at the Academy. Id. ¶¶ 30, 32, 34-35. Those charges made their way through the Department's administrative process over the course of the next year, with the Department ultimately suspending Westmoreland for four days and placirw. a Written Notice of Unsatisfactory Performance in her personnel tile. Id. ¶¶ 40. 43.
On April 21, 2008, the EEOC's Baltimore Field Office concluded its investigation of Westmoreland's EEOC Complaint, finding that Westmoreland had been subjected to race and gender discrimination, and that the Department had retaliated against her because of her complaints. Westmoreland v. Prince George's Cnty, No. AW-09-2453, Am. Compl. (D. Md. Sept. 2, 2010), ECF No. 29 ¶ 36. On June 22, 2009, Westmoreland received her right-to-sue letter based on the October 2006 EEOC charge. Id. Compl. Ex. I, ECF No. 1-1.
II. Westmoreland's Tenure at Station 40
Meanwhile. Westmoreland was facing new hostility at Station 40. Apparently taking their cue from Academy staff, Westmoreland's supervisors at Station 40 fostered a culture of exclusion. Westmoreland v. Prince George's Cnty., No. DC-14-0821, Am. Compl, (D. Md. May 9, 2014), ECF No. 9 ¶ 28. In February 2007, the Volunteer Chief of the Station told Westmoreland that she did not belong there. Id. ¶ 38. The Station's Battalion Chief, on instruction from the Fire Chief, was "secretly documenting" her activities. Id. ¶ 39. The rank and file followed suit, taking pains to exclude Westmoreland from station life and to sabotage her effectiveness. Id. ¶¶ 28, 36. Her colleagues cooked communal dinners that they knew Westmoreland could not eat, tampered with her safety equipment, and ignored her orders. Id. ¶ 36. Westmoreland's professional reputation suffered, with "unfounded rumors and allegations" swirling around her. Id. ¶ 41. Apparentlyas a result of those unfounded allegations, with no prior information or warning, Westmoreland was placed on a 30-day suspension on March 22. 2007. Id.
Over the ensuing two years, Westmoreland continued to experience "insubordination and hostility" from her coworkers and supervisors at Station 40. Id. ¶ 44. Westmoreland informally complained to supervisors about the ongoing harassment-including on December 5, 2007; December 14, 2007; May 16, 2008; and December 6, 2008-but no responsive action was ever taken. Id. ¶¶ 45, 48. On December 9, 2008, Westmoreland formalized her prior complaints by detailing them in an email to her immediate supervisor, Captain James Reilly. Id. ¶ 49. In that email she also complained about the Station's unresponsiveness to her previous complaints. Id. ¶ 49.
On January 19, 2009, after a disagreement with a male colleague. Westmoreland was ordered off duty and instructed to undergo counseling. Id. ¶ 50. Two days later, Captain Reilly contacted Westmoreland's counselor and reported-falsely, Westmoreland contends-that Westmoreland was ordered off duty because she had threatened to shoot and kill "everyone in the firehouse." Id. ¶ 51. In February 2009, because of the ongoing stress at the Station, Westmoreland's psychiatrist ordered her not to work. Id. ¶ 53. Westmoreland was allowed to return to duty in a "non-operational" capacity on April 3, 2009, an accommodation provided by the Department on the recommendation of Westmoreland's physician and her counselor. Id. ¶ 54. On July 6, 2009, the Department rescinded the accommodation, against the advice of Westmoreland's physician and counselor, and ordered her to return to full duty. Id. Rather than report to an assignment she felt would compromise her mental health. Westmoreland used her sick leave. Id. Westmoreland remained on sick leave for the next three months. Id. ¶¶ 54, 57.
During that time, Westmoreland pursued external remedies for her complaints. On July 24, 2009, she sent a letter to two Prince George's County Human Relations Commissioners, but received no response. Id. ¶ 56. On September 29, 2009, she filed a second grievance with the EEOC, this one focusing on the events at Station 40. Id. ¶ 58. In that Charge, she alleged that she had been retaliated against because of her prior complaints, particularly when she was removed from duty on January 19, 2009. Mot. Dismiss, Ex. 5 at 1, ECF No. 11-11. She also complained about the Department's refusal, in July 2009, to accommodate her request to remain on "non-operational" duty. Id. She concluded that she had been "discriminated against due to retaliation as to unequal terms and conditions of employment and involuntary retirement." Id. On October 8, 2009, with all available leave exhausted and with continued unresponsiveness from the Department. Westmoreland "felt she had no other choice" but to submit her resignation letter. Am. Compl. ¶ 57.
Over the next three years, Westmoreland's September 2009 EEOC Complaint made its way through that agency's administrative process. On December 6. 2012, the EEOC issued its determination that there was "reasonable cause to believe that (the Department] discriminated against [Westmoreland] when it subject her to continuing retaliation with respect to unequal terms and conditions of employment, involuntary retirement, harassment and discipline's in violation of Title VII. Am. Compl, Ex. 1, ECF No. 9-1 at 2. On December 20, 2013, the EEOC issued Westmoreland a right-to-sue letter. Id, Ex. 2, ECF No. 1-2.
III. Westmoreland's 2009 Civil Action
On September 18, 2009, while still employed by the Department and before filing her EEOC complaint about the events at Station 40. Westmoreland filed suit in this Court against the County. Westmoreland, No. AW-09-2453, Compl., ECF No, In her September 2. 2010 Amended Complaint, ECF No. 29, Westmoreland alleged eight causes of action: (I) gender discrimination based on the July 3, 2006 attempt to transfer her out of the Academy; (II) race discrimination based on the July 3, 2006 attempt to transfer her out of the Academy; (III) gender discrimination based on her reassignment to Station 40; (IV) race discrimination based on her reassignment to Station 40; (V) gender discrimination based on the Department's failure to investigate her complaints; (VI) race discrimination based on the Department's failure to investigate her complaints: (VII) retaliation based on her transfer to Station 40: and (VIII) hostile work environment based on gender. See id., Compl. ¶¶ 38-86.
The County filed an Answer, ECF No. 34, addressing counts 1, II, III, IV, and VII, and a Motion to Dismiss, ECF No. 33, which asked the Court to dismiss counts V. VI, and VIII on the basis that the Court lacked subject-matter jurisdiction over some claims and that others failed to state a claim upon which relief could be granted. See Fed.R.Civ.P. 12(b)(1) & (6). In an August 31. 2011 Memorandum Opinion and September 1, 2011 Order, the Court denied the County's Motion, and the case entered discovery. Westmoreland, No. AW-09-2453, ECF Nos. 50 & 52.
On February 15, 2012, after the close of discovery, the County filed a Motion for Summary Judgment, ECF No. 55, which Westmoreland opposed, ECF No. 57. In a June 26, 2012 Memorandum Opinion and Order, ECF Nos. 63 & 64, the Court granted the County's motion as to Westmoreland's hostile work environment claim (Count VIII), but denied it as to the remaining seven counts. The Court then slated the case for trial on the remaining seven counts.
On March 19, 2013 and March 25, 2013, the County filed Motions in Limine seeking, in relevant part, to exclude any evidence, documents, or testimony related to Westmoreland's September 29, 2009 EEOC Complaint, which stemmed from her experiences at Station 40. Id. ECF Nos. 70 & 77. The County sought, in particular, to exclude medical records from Westmoreland's counselor and psychotherapist, whom she saw after she was ordered by her supervisors at Station 40 to undergo counseling. See id. Mem. Supp. Second Mot. in Limine at 4-5, ECF No. 77-1. The County explained that if Westmoreland were allowed to introduce evidence related to her 2009 EEOC charge, she would "have two bites at the apple because she could raise these allegations in the instant case and then file a second lawsuit in federal court raising these same allegations again." Id at 5. In Orders dated April 5, 2013, the Court granted the County's Motions in Limine as to Westmoreland's 2009 EEOC charge and thus precluded Westmoreland from introducing any documentary or testimonial evidence relating to the alleged discrimination at Station 40. Id., ECF Nos. 82 & 83.
The case proceeded to trial beginning on April 8, 2013. In a bench conference before opening statements, Westmoreland's attorney revisited the issue of Westmoreland's 2009 mental-health treatment. Specifically, counsel asked to call Westmoreland's counselor and psychotherapist as witnesses. Westmoreland, No. AW-09-2453, April 8, 2013 Trial Tr. (D. Md. Aug. 9, 2013), ECF No. 121 at 7. Counsel clarified that Westmoreland's claim was not one of a "hostile work environment that she had to endure while she was at Station 40." but was one that based on "all these things" that went on in her last years at the Department, she was "forced to retire." Id. In counsel's estimation, Westmoreland's 2009 mental-health treatment was highly relevant to Westmoreland's retirement decision and thus should be before the jury. Id. The Court was skeptical, explaining that if Westmoreland was "having difficulties" in 2006, her counseling records from 2009-three years later-were of questionable relevance. Id. at 9. However, the Court reserved decision on the issue until after Westmoreland's testimony about her transfer to Station 40. Id.
In her testimony, Westmoreland described her initial appointment to the Academy, the Academy cheating scandal, the July 2006 failed attempt to transfer her out of the Academy, her October 2006 transfer to Station 40, and the multiple disciplinary charges later levied against her based on events at the Academy. See Westmoreland, No. AW-09-2453, April 8 and April 9, 2013 Trial Tr. (D. Md. Aug. 9, 2013), ECF Nos. 121 and 122. She did not testify in any depth about the alleged harassment she suffered while at Station 40. See id She did testify that she retired from the Department in 2009, read an excerpt from her retirement letter, and explained that she did not want to retire but felt she had to because she had "no hope" that the conditions of her employment would change and "no faith" in the Department. Id, April 8, 2013 Trial Tr. at 106.
In a bench conference after Westmoreland's direct examination, the Court returned to the question of the 2009 medical records. The Court explained to Westmoreland's counsel that there was "no claim" for constructive discharge in the Complaint. Id. at 103. Counsel replied that the claim was a "notice pleading." Id. Counsel for the County disputed that representation, remarking that "there was no constructive discharge claim, because if there were we would have moved [to dismiss it]." Id. at 104. The Court agreed with the County, noting that the constructive discharge claim was "not there" in the Complaint and so was "not before us right now." Id. Accordingly, the Court precluded Westmoreland from calling her counselor and psychotherapist as witnesses. Id. at 105.
On April 11, 2013, at the close of the defense case, Westmoreland and the County each made an oral motion for judgment as a matter of law. Westmoreland sought judgment as a matter of law on her retaliation claim (Count VII). See Id, April 11, 2013 Trial Tr., (D. Md. Aug. 14, 2013) ECF No. 124 at 72-75. The County requested judgment as a matter of law on the retaliation claim and Westmoreland's remaining six gender and race discrimination claims. See id. at 75-79. The Court denied both motions on the retaliation claim. hut granted the County's motion as to the gender and race discrimination claims. See id. at 83-88. On April 12, 2013, the retaliation claim went to the jury. That same day, the jury returned a verdict finding that the County had retaliated against Westmoreland by transferring her to Station 40 and awarding Westmoreland ...