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Westmoreland v. Prince George's County

United States District Court, D. Maryland

September 30, 2016




         Plaintiff 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 GRANTED.


         I. Procedural History

         Lt. 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 ("Station 40").

         In 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 scandal.

         On 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 judicial estoppel.

         On 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 events.

         A. 2007 Incidents

         On 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.

         On 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.

         At the 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 No.63-6.

         On 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 readiness standards.

         In a 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.

         B. May 16, 2008 Incident

         On May 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.

         Lt. 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 others.

         C. December 2008 Glove Incident

         On 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.

         D. December 6, 2008 Acton Lane Incident

         On 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 diverge.

         According 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.

         Meanwhile, 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.

         Lt. 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.

         Lt. 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.

         Firefighters 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.

         In 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.

         In a 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. ...

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