United States District Court, D. Maryland
PHYLLIS M. WESTMORELAND, Plaintiff,
PRINCE GEORGE'S COUNTY, Defendant.
THEODORE D. CHUANG, UNITED STATES DISTRICT JUDGE
Lieutenant Phyllis M. Westmoreland ("Lt.
Westmoreland”) is a former firefighter suing Prince
George's County ("the County") under Title VII
of the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C. §§ 2000e-2000e-17 (2012), for alleged
removal from duty and constructive discharge in retaliation
for her complaints about discrimination and harassment at the
Prince George's County Fire Department. Presently pending
before the Court is the County's Motion for Summary
Judgment, ECF No. 57. Having reviewed the briefs and
submitted materials, the Court finds no hearing necessary.
See D. Md. Local R. 105.6. For the reasons set forth
below, the County's Motion for Summary Judgment is
Westmoreland is an African American woman who began working
at the Prince George's County Fire Department ("the
Department") in October 1989 and resigned from the
Department in October 2009. On September 18, 2009, while
still employed by the Department, Lt. Westmoreland filed suit
in this Court against the County based on alleged race and
gender discrimination, retaliation, and a hostile work
environment, in violation of Title VII. 2d Am. Compl,,
Westmoreland Prince George's Cty., No.
AW-09-2453 (D. Md. Sept. 21, 2000), ECF No. 35
("Westmoreland I”). Lt.
Westmoreland's claims in that suit centered on her time
at the Department's Fire/Emergency Medical Services
Training Academy ("the Academy") and the fallout
from a 2006 cheating scandal at that facility. As part of her
allegations, she asserted that as a result of race and gender
discrimination and in retaliation for her complaints about
disparate treatment in the investigation into the cheating
scandal, she had been reassigned to a post at Fire Station 40
April 2013, Westmoreland I went to trial. At trial,
Lt. Westmoreland was precluded from introducing evidence
related to alleged additional discrimination at Station 40.
Lt. Westmoreland was also precluded from introducing medical
evidence from 2009, which she argued was relevant to a
constructive discharge claim. The County objected to the
evidence, asserting that no claim for constructive discharge
had been alleged in the Complain,, and the Court agreed. At
the close of trial, the Court granted the County's motion
for judgment as a matter of law on all but Lt.
Westmoreland's retaliation claim, which was submitted to
the jury. On April 2,, 2013, the jury returned a verdict in
Lt. Westmoreland's favor on that claim, finding that her
transfer to Station 40 was in retaliation for her complaints
about the Department's handling of the 2006 cheating
March 18, 2014, Lt. Westmoreland filed the present suit
("Westmoreland II”). In her May 9, 2014
Amended Complaint, she alleged six causes of action under
both Title VII and the Maryland Fair Employment Practices Act
("MFEPA"), Md. Code, State Gov't. § 20-606
(2014): (1) hostile work environment at Station 40 based on
gender; (II) retaliation in the form of removal from duty
based on a December 9, 2008 complaint to her supervisor;
(III) retaliation in the form of discipline based on five
disciplinary offenses levied against her in 2006-2007 in
response to her October 2006 EEOC Complaint about events at
the Academy; (IV) retaliation in the form of constructive
discharge in response to her October 2006 EEOC Complaint; (V)
gender discrimination based on disparate treatment in
discipline; and (VI) gender discrimination based on disparate
treatment through constructive discharge. The County moved to
dismiss or, in the alternative, for summary judgment on all
of Lt. Westmoreland's clams, asserting that Lt.
Westmoreland was essentially relitigating events that had
been the subject of Westmoreland I. Specifically,
the County argued, as relevant here, that the claims in
Westmoreland II were barred by a failure to exhaust
administrative remedies, the doctrine of laches, res
judicata, the applicable statutes of limitations, and
March 4, 2015, this Court, construing the County's Motion
as a Motion to Dismiss, granted the Motion as to Lt.
Westmoreland's Title VII claims under Counts I, III, V,
and VI of the Amended Complaint and all of Lt.
Westmoreland's state law claims. The Court denied the
Motion as to Count II, a retaliation claim arising from Lt.
Westmoreland's removal from duty following her December
9, 2008 complaint to her supervisor, and on Count IV, a
retaliation claim arising from Lt. Westmoreland's alleged
constructive discharge in response to her 2006 EEOC
complain.. The Court limited Lt. Westmoreland's Count IV
claim to events occurring after her transfer to Station 40
that did not arise from the events at the Academy. II.
Station 40 Because this Court has limited the claims in
Westmoreland II to those of retaliation stemming
from events unrelated to Lt. Westmoreland's time at the
Academy that occurred after her transfer to Station 40, it
recounts only the record evidence that relates to those
October 10, 2006, Lt. Westmoreland was informed that she had
been transferred from the Academy to Station 40, located in
Brandywine, Maryland, a job with very different
responsibilities than the training position she had at the
Academy. Station 40 was a rescue squad, and Lt. Westmoreland
would be responsible for overseeing the Station's
responses to fires and medical emergencies as well as
extrications from vehicles. In Lt. Westmoreland's
estimation, the transfer was undesirable. Lt. Westmoreland
reported to Station 40 on October 18, 2006. On October 20,
2006, she filed a Charge of discrimination with the United
States Equal Employment Opportunity Commission
("EEOC") based on discipline meted out for her
alleged involvement in the Academy cheating scandal and her
transfer to Station 40. That Charge was the basis for the
claims litigated in Westmoreland I.
March 18, 2007, Volunteer Chief Chad Lallier sent an email to
Battalion Chief Steven White asking to have Lt. Westmoreland
assigned to a different station. He stated that although he
thought Lt. Westmoreland was "personable, " members
of his crew did not want to go on calls with her because they
did not trust her ability to make decisions. Lallier Email at
2, Opp'n Mot. Summ. J. ("Opp'n") Ex. 28,
ECF No. 63-29. Because Station 40 was in an area where it
could take 10 to 15 minutes for another crew or chief to
arrive, he suggested that Lt. Westmoreland should be assigned
to a station closer to one with a battalion chief on site,
which would ensure that if she hesitated or made a
questionable decision, it could be promptly corrected. On
March 22, 2007, Volunteer Chief Lallier and Volunteer Chief
Donald Prather met with Major ("Maj.") Denton
Rourke and Captain ("Capt.") Mark Smith, one of Lt.
Westmoreland's supervisors at Station 40, about the
situation. The Volunteer Chiefs' specific concerns were
that Lt. Westmoreland did not timely respond to radio calls,
that she was not always on the correct radio channel, and
that, once on the scene of an incident, she and her crew did
not always properly carry out their duties. In response to
these concerns, Maj. Rourke instituted a 30-day review period
for Lt. Westmoreland, which expired without incident. No
official reprimand was placed in Lt. Westmoreland's
personnel file based on this incident.
close of her first year at Station 40, Lt. Westmoreland
received a positive performance review. For the period from
October 9, 2006 to October 9, 2007, she was given an
"exceeds satisfactory" rating in five of six
categories-the second best rating possible-and received a top
mark of "outstanding" in the sixth. Based on the
evaluation, Lt. Westmoreland was approved for a yearly merit
pay increase. On December 2, 2007, Capt. Matthew Ludy, one of
Lt. Westmoreland's Station 40 supervisors, sent a
memorandum to the Fire Chief detailing the basis for Lt.
Westmoreland's evaluation. In particular, he stated that
she was "very decisive, comfortable and confident in
implementing and executing her skills and decisions, "
that she "ensures operational readiness of all
apparatus, " that she conducts herself "in a
professional manner, " that she "maintains a
positive attitude, " and that she "truly goes above
and beyond to ensure that she and the department are viewed
favorably." Ludy Eval. Ltr. at 3-4, Opp'n Ex. 4, ECF
December 4, 2007, Lt. Westmoreland and her crew were called
out to a fire from which they returned in the early hours of
December 5, 2007. At about 6:30 that morning, when Capt. Ludy
was beginning his shift, he discovered that the equipment Lt.
Westmoreland and her crew had used had not been adequately
returned to a state of readiness for future use. As a result,
on December 12, 2007, Lt. Westmoreland received a Periodic
Performance Assessment writing her up for failures in
operational readiness. That assessment, which is unsigned,
indicated that several tools had dirt and debris on them, a
thermal imager had the battery inserted upside down, and wet
towels were left in a compartment. Lt. Westmoreland was
informed that she would be monitored for three months to
ensure that her crew was adhering to the Department's
December 16, 2007 memorandum to Capt. Ludy, Lt. Westmoreland
took issue with the evaluation, contesting certain
allegations and noting that no one had consulted her or her
crew about the reported deficiencies before writing her up.
She expressed her belief that complaints about her and her
crew were considered true without any further investigation
and described the evaluation as "another form of
harassment." Westmoreland Mem. at 3, Opp'n Ex. 6,
ECF No. 63-7. Lt. Westmoreland filed no formal grievance as a
result of this incident, and her period of monitoring expired
without further incident.
16, 2008 Incident
16, 2008, Station 40 was called out to an automobile accident
at which Lt. Westmoreland ordered an extrication of the
vehicle's passenger. Paramedics from Station 25 were also
on the scene. Paramedic Kerper thought that Lt.
Westmoreland's extrication procedure was unsafe,
prompting the paramedics to take photographs of the operation
and to express their concerns to police officers on the
scene. Kerper and other paramedics reported the incident to
both the Department's Safety Officer and to Battalion
Chief Adon Snyder.
Westmoreland learned from one of her crew that Kerper thought
her operation had been unsafe and that he was going to have
her written up. She complained to Battalion Chief Snyder
about the paramedics' photographing of the procedure.
According to Lt. Westmoreland, a paramedic supervisor
conducted an investigation during which Kerper admitted that
his comments had been unprofessional. When Battalion Chief
Snyder interviewed Station 25 Capt. Helminiak about the
incident, Capt. Helminiak suggested that although Lt.
Westmoreland's operation could have been conducted more
safely, he was not as alarmed as his paramedics were by the
incident. Capt. Helminiak surmised that they may have
embellished the danger of the operation because they did not
respect Lt. Westmoreland. Battalion Chief Snyder found no
evidence that the paramedics had photographed Lt.
Westmoreland at any other incident. Based on this
information, Battalion Chief Snyder concluded that the
paramedics had displayed a degree of disrespect towards Lt.
Westmoreland, that there were ongoing personality conflicts
between Lt. Westmoreland and the Station 25 paramedics, and
that Lt. Westmoreland was quick to go on the defensive
because she regularly perceived a lack of respect from
December 2008 Glove Incident
approximately December 6, 2008, a pair of dirty gloves was
left on the front seat of a fire engine. Assuming the gloves
belonged to Lt. Westmoreland, a volunteer firefighter passed
the gloves to Volunteer Chief Robert Smalls of the Clinton
Fire Station, who sent the items to Lt. Westmoreland through
inter-office mail. When Lt. Westmoreland received the
package, she was offended that the sender had assumed that
she had left the gloves, which she asserts she did not do.
She then mailed the gloves back to Chief Smalls through
inter-office mail and notified Battalion Chief Mark Smith of
the incident. Battalion Chief Smith met with Chief Smalls,
informed him that there were better ways to handle the
situation, and considered the matter closed.
December 6, 2008 Acton Lane Incident
December 6, 2008, Lt. Westmoreland and her crew were called
to a fire at a house on Acton Lane in Charles County,
Maryland. Once on the scene, the Station 40 crew was
instructed to take lights to the backyard. Later, Volunteer
Lt. William Marty Thompson of the Waldorf Volunteer Fire
Department was instructed by Capt. Jeff Duer to ask Station
40 to bring shovels to the house to help the Fire Marshal. By
that point, Lt. Westmoreland had returned to the Station 40
fire engine and was sitting in the front seat while her crew
gathered equipment. From there, the accounts of what happened
to Lt. Thompson, he approached Lt. Westmoreland and asked her
to have her crew bring shovels to the house, and Lt.
Westmoreland agreed. Several minutes after Lt. Thompson
returned to the interior of the house, no one from the
Station 40 crew had arrived with shovels, so he went back to
repeat his request. Lt. Westmoreland responded that her crew
was packing up its equipment first. When Lt. Thompson told
her that the Fire Marshal was waiting, Lt. Westmoreland
repeated, in a loud voice, that she and her crew were packing
up first. Lt. Thompson replied, "So you're telling
me to go tell the Fire Marshal that he has to hold his
investigation until you are done packing up?" Thompson
Aff. ¶14, County Mot. Summ. J. ("Mot.") Ex. 4,
ECF No. 57-7. Lt. Westmoreland then "got into" Lt.
Thompson's face and began yelling and cursing at him
while also pointing the antenna from her radio in his face.
Id. ¶15. Lt. Thompson asked firefighters from
Charles County to radio for a Prince George's County
battalion chief to come to the scene. This altercation took
place in front of several members of Lt. Westmoreland's
crew, who, according to Lt. Thompson, seemed shocked.
the scene caught the attention of Capt. Duer. After seeing
Lt. Westmoreland yelling and pointing her radio antenna in
Lt. Thompson's face, he approached the two firefighters,
but before he could intervene, Lt. Westmoreland turned and
began to yell at him. When Capt. Duer asked Lt. Westmoreland
to give him her name, rank, and identification number, she
yelled her name in response, prompting Capt. Duer to ask her
to write the information down. This request sparked more
yelling from Lt. Westmoreland, followed by a second request
from Capt. Duer that she write down the requested information
and an order that she pack her gear and leave the scene.
Capt. Duer never received the requested information from Lt.
Westmoreland. Prior to this incident, neither Lt. Thompson
nor Capt. Duer knew who Lt. Westmoreland was or that she had
previously filed any internal or external charges of
discrimination against the Department.
Westmoreland gave a different account. According to her, in
response to Lt. Thompson's request for shovels, she
explained that they were packing up equipment and refueling
their saw and would bring the shovels afterwards. When she
asked him if any pf the other crews had shovels, he said that
they did not. He did not tell her that the request for
shovels was coming from the Fire Marshal. During this
interaction, Lt. Westmoreland bristled at his demeanor
because Lt. Thompson, a volunteer firefighter, had approached
her as if he were her peer officer, which she felt was
unprofessional. After this conversation, Lt. Thompson walked
over to the Incident Commander, looked in Lt.
Westmoreland's direction, and then quickly returned and
insisted, "I need the shovels now!" This time, he
was in Lt. Westmoreland's personal space, in a way that
Lt. Westmoreland found threatening and unprofessional. Lt.
Westmoreland told him that there was no need to speak to her
like that and then had "an exchange of words" with
Lt. Thompson. Westmoreland Stmt. at 1, Mot. Ex. 7.14, ECF No.
57-26. In that exchange, she was angry, so she yelled at him
to get out of her space and not to talk to her that way. When
Capt. Duer came over, she tried to explain what was
happening, but he cut her off and asked for her name and
identification number. She gave the information to him, and
he then asked her to write it down. When she turned to do so,
he told her to pack up and go back to the station. She denies
yelling at Capt. Duer.
Thompson's and Capt. Duer's accounts were
corroborated by other firefighters on the scene who had not
previously met Lt. Westmoreland. Lt. Thomas Edwards of the
Waldorf Volunteer Fire Department reported that he saw Lt.
Thompson and Lt. Westmoreland having a heated discussion
during which Lt. Westmoreland was yelling but Lt. Thompson
did not raise his voice, and that after the incident, Lt.
Westmoreland's crew apologized for her actions. Assistant
Fire Chief Mark Bryant, who was visiting from South Carolina,
recalled seeing Lt. Westmoreland screaming at Lt. Thompson
with her arms raised, and then, after Capt. Duer asked her to
provide her name, rank, and identification number, he heard
her muttering that she would give "her damn name and
number to whoever wanted it" as she walked passed him.
Bryant Stmt, Mot. Ex. 7.3, ECF No. 57-15. Assistant Fire
Chief Bryant asserted that Lt. Westmoreland's actions had
not been professional or courteous and that they had been
witnessed by several members of the public.
from Lt. Westmoreland's crew either corroborated parts of
Lt. Thompson's story or told no story at all. Volunteer
Lt. Chris Goldsmith recalled hearing Lt. Thompson say in
passing that he would not be cursed out on the fire ground.
Both he and Volunteer Firefighter Matthew Thompson asserted
that upon their return to Station 40, they were told that a
battalion chief would be arriving to take statements, and
that the career firefighters-Steven Strawbridge, Melvin
Batts, and Douglas Charnock-were expressly instructed to
report that they heard and saw nothing. In his statement,
Firefighter Strawbridge stated that he was putting tools
away, so he had his back to the encounter. Firefighter
Charnock stated that he was putting equipment away, so
although he heard voices behind him, he did not know what was
said. Firefighter Batts asserted simply that he did not see
or hear anything.
response to Lt. Thompson's request for a battalion chief
to come to the scene, Battalion Chief Sayshan Conver-White
was dispatched to investigate the incident and arrived at
Station 40 to take statements soon after the crew returned
from Acton Road. In the ensuing days, she also interviewed
Lt. Thompson and Lt. Westmoreland and obtained written
statements from other individuals on the scene. Based on her
investigation, Battalion Chief Conver-White concluded that
Lt. Westmoreland had been "yelling and screaming and her
conduct and behavior was unacceptable." Conver-White
Aff. ¶ 9, Mot. Ex. 7, ECF No. 57-12. She was unaware of
Lt. Westmoreland's prior allegations of discrimination.
letter dated January 5, 2009, Lt. Westmoreland was notified
that, based on its investigation, the Department had decided
to impose a Step II Charge, a written notice of
unsatisfactory conduct, against her for the December 6, 2008
Acton Lane altercation with Lt. ...