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Melendez v. Board of Education for Montgomery County

United States District Court, D. Maryland

January 12, 2017



          DEBORAH K. CHASANOW United States District Judge.

         Presently pending and ready for resolution in this employment case are a motion for summary judgment filed by Defendant Board of Education for Montgomery County (“Defendant”) (ECF No. 70), and a motion to strike filed by Plaintiff Maria Melendez (“Plaintiff”) (ECF No. 77). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion for summary judgment will be granted, and Plaintiff's motion to strike will be denied.

         I. Background

         A. Factual Background[1]

         From 1997 until her resignation on July 19, 2011, Plaintiff worked at Albert Einstein High School (“AEHS”) for Defendant as a morning shift building services worker (“BSW”). (ECF Nos. 70-4, at 5-6; 70-22, at 22). The responsibilities of a BSW include “varied building cleaning duties and related facilities and grounds maintenance work . . . [that] requires sustained physical effort[.]” The job “involves some heavy work in moving or lifting furniture, ” and requires the ability to lift a minimum of fifty pounds. (ECF No. 70-22, at 12; id. ¶ 3; see also ECF Nos. 70-6 ¶ 3; 70-4, at 8, 21). This job description is the same for all BSWs employed by Defendant, regardless of their gender or their school assignment.

         BSWs at AEHS were assigned to either a morning or evening shift. (ECF No. 7, at 3). Within these shifts, the employees were assigned to different, overlapping schedules. When Plaintiff was hired to the AEHS morning shift in 1997, she was assigned to work from 10:30 a.m. to 7:00 p.m. (ECF No. 70-4, at 6). In 2001, her supervisor, building services manager Michael Moreland, agreed to change her hours to 6:30 a.m. to 3:00 p.m. (Id. at 7). Over time, Plaintiff may have begun to work from 6:00 a.m. to 2:30 p.m. instead. (ECF No. 76-2, at 54; see also ECF Nos. 70-6 ¶ 11; 70-14 ¶ 9; 70-14, at 6. But see ECF No. 70-4, at 7 (“Q So at the time that Tony Hopkins became the Acting Building Service Manager [in 2010] you were still supposed to be working from 6:30 to 3:00 p.m.? A Correct.”)). In 2010, the morning shift was staffed by six BSWs, three women (Plaintiff, Frances Miller, and Maria Ayala) and three men (Cleon Butler, Nathaniel Contreas, and Patrick Hyland). (ECF No. 70-7, at 3). Ms. Miller and Ms. Ayala were scheduled to begin work at 5:00 a.m., Plaintiff and Mr. Butler began at 6:00 a.m., and Mr. Contreas and Mr. Hyland began work at 8:00 a.m. and 10:30 a.m., respectively. (ECF Nos. 70-22 ¶ 6; 76-2, at 46). Plaintiff, Ms. Miller, Ms. Ayala, Mr. Contreas, and Mr. Hyland were primarily assigned to indoor cleaning tasks, but were regularly required to assist outdoors as needed. (ECF No. 76-2, at 57). Mr. Butler was assigned as the school's “groundskeeper” and “was responsible for maintaining the grounds on the exterior of the school building, ” although he assisted indoors as needed, which occurred “daily.” (Id.).

         In March 2010, AEHS principal James Fernandez noticed issues with the cleanliness of the cafeteria after lunch, which was then the responsibility of Plaintiff, Ms. Ayala, and Ms. Miller. (ECF No. 70-14 ¶ 4). Mr. Fernandez attempted to locate the BSWs on numerous occasions in the afternoons, but was unable to do so. He inquired into the schedules of the three BSWs, and was told by Tony Hopkins, then the school's plant equipment operator, that the three BSWs had been leaving work before the end of their scheduled shifts. When their supervisor, Mr. Moreland, “was not forthcoming with any type of response about whether he had knowledge that these three employees were not working their full shifts, ” Mr. Fernandez had AEHS business manager Robin Hart conduct an investigation into the possible payroll fraud. (Id. ¶¶ 5-6). Ms. Hart reviewed security footage from a two-week period that month and compared the departures of the BSWs with their scheduled shifts and timecards. (Id. ¶¶ 7-8). Ms. Hart reported that Plaintiff had left the school premises between 10:30 a.m. and 12:10 p.m. every day of that pay period without returning, but had been scheduled to work until 2:30 p.m. and had submitted time sheets reflecting that she worked 8-hour days. (Id. at 6). Ms. Hart reported similar findings as to the other two employees. (Id.). Plaintiff and her co-workers deny these allegations. (See ECF Nos. 75-31 ¶ 14; 70-16 ¶ 3).

         At the end of April, Mr. Moreland retired and Mr. Hopkins became the acting building services manager.[2] (ECF Nos. 70-6 ¶¶ 2-3; 70-14 ¶ 10). In early May, Mr. Fernandez and Mr. Hopkins discussed AEHS's building services needs. (ECF Nos. 70-14 ¶ 10; 76-2, at 30). In addition to issues with the cleanliness of the school in the afternoon, Mr. Hopkins identified staffing shortages in the afternoons when deliveries were received. (ECF No. 76-2, at 53). Additionally, because the evening shift BSWs left the school ready to open in the mornings, the first task requiring multiple BSWs was to clean the cafeteria after breakfast at 7:30, and accordingly, Mr. Hopkins testified, there was not enough work in the early mornings to require three BSWs indoors. (Id. at 28, 53; ECF No. 70-22 ¶ 6). Based on this information, Mr. Fernandez “determined that their hours had to be changed so that we would have BSW staff available in the afternoons to meet the needs of the school.” (ECF No. 70-14 ¶ 12). Mr. Fernandez decided to change the schedules of Plaintiff and Ms. Ayala, but did not change Ms. Miller's or Mr. Butler's hours because they had other early morning duties. (Id. ¶ 11). Ms. Miller, who worked from 5:00 a.m. to 1:30 p.m., was the most senior BSW and had long been responsible for unlocking and opening the school in the morning. (ECF No. 70-22 ¶ 6). Mr. Butler, who began at 6:00 a.m., was responsible for tasks relating to the maintenance of the exterior grounds, for which the evening shift BSWs were not responsible. (Id.). Mr. Fernandez affirmed that he also made the change so that he could ensure that Plaintiff and Ms. Ayala were working until the end of their shifts because of the timecard issues identified earlier that year. (ECF No. 70-14 ¶ 10). Because the employee union's contract permitted Mr. Fernandez to change an employee's shift by up to two hours without bargaining for prior approval, Plaintiff's hours were changed from 6:00 a.m. to 2:30 p.m., to 8:00 a.m. to 4:30 p.m., and Ms. Ayala's hours were changed from 5:00 a.m. to 1:30 p.m., to 7:00 a.m. to 3:30 p.m. (Id. ¶ 11).

         In Plaintiff's declaration, she states that Mr. Hopkins “told [her] that he did not want women working in the morning” (ECF No. 75-31 ¶ 6), and she testified at her deposition that Mr. Hopkins “said I don't want the three women on my schedule” (ECF No. 76-1, at 12). Mr. Hopkins denies saying this and denies that he did not want women to work for him. (ECF No. 76-2, at 55). Plaintiff also testified that Mr. Fernandez told her that it was Mr. Hopkins who changed her schedule (ECF No. 76-1, at 24), but Mr. Fernandez testified that he was the only one with the authority to change Plaintiff's schedule and that he was the one who made the decision (ECF No. 70-14 ¶ 10). While Mr. Hopkins testified that he was involved in the decision, he also testified that he did not have the authority to change the BSWs' schedules and that Mr. Fernandez was the one who did so. (ECF No. 76-2, at 53, 55).

         Mr. Fernandez avers that he held separate meetings with Plaintiff, Ms. Ayala, and Ms. Miller on May 13, 2010, to discuss the results of the payroll investigation, direct them to work their full scheduled hours, and clarify their job duties. (Id. ¶ 11). In his meetings with Plaintiff and Ms. Ayala, he also explained his decision to change their scheduled hours. (Id.). These changes were confirmed in writing on May 24, 2010, the day they were to go into effect. (Id. ¶ 13; id. at 10; see also 76-1, at 26).

         On May 26, a letter signed by Plaintiff, Ms. Miller, and Ms. Ayala was sent to Defendant's office of human resources and the superintendent's office. (ECF No. 70-14, at 13-15; id. ¶ 13). The letter alleged discrimination and harassment by Mr. Hopkins and AEHS's security staff, and requested a meeting with human resources and a union representative. (Id. at 13-15). The letter identifies Plaintiff as its author (see Id. at 13 (“I, Maria Melendez, Building Service Worker”)), although she testified that the BSWs wrote it together (ECF No. 76-1, at 26). Ms. Ayala testified during her deposition that, while the signature on the last page was hers, she had not seen the letter before, did not know who wrote it, and was not familiar with its contents. (ECF No. 70-15, at 14-15). She also denied that she was harassed at AEHS, that she felt unsafe working there, and that Mr. Hopkins had told her he did not want women working for him. (Id. at 16-19). Ms. Ayala further denied ever making a complaint about Mr. Hopkins. (Id. at 20-21). Ms. Miller affirmed that she first learned of the full contents of the letter during the meeting with human resources, upon which she “immediately withdrew” her complaint. (ECF No. 70-16 ¶ 4). Ms. Miller stated in her affidavit she “was misled by Ms. Melendez, ” that she had understood the letter only to be about the allegations of payroll fraud, which she disputed, and that “it is not true that I was being harassed, oppressed or working under unbearable or stressful working conditions. Nothing in the letter is true.” (Id. ¶¶ 3-4).

         The office of human resources investigated the May 26 letter's allegations. Meetings were held with each of the letter's signatories and representatives from human resources and the union, and a review of the March payroll investigation was also conducted. (See ECF No. 70-17). Following a “full and complete investigation, ” the office of human resources “was unable to substantiate any allegations of discrimination.” (ECF No. 70-13 ¶ 5). It determined that Plaintiff and Ms. Ayala's hours were changed by Mr. Fernandez because three BSWs were not needed indoors so early in the morning, that the changes were authorized under the union contract, that the March security tapes clearly showed the employees leaving the building prior to the end of their scheduled shifts in contradiction of their timesheets, and that none of the complaining employees had lost time, benefits, or money as a result of the schedule changes. (Id.; see also ECF No. 75-31 ¶ 15). Plaintiff was notified on June 17 that her allegations were not substantiated. (ECF No. 70-17). Plaintiff's union also notified Plaintiff on July 7 that her allegations against Mr. Hopkins were not substantiated, the change in her work hours was consistent with the union contract, and the union's investigation of her complaint was complete. (ECF No. 70-18).[3]

         In February 2011, Plaintiff met with AEHS business manager Simon Seaforth “to discuss various issues with her job performance and professionalism.” (ECF No. 70-22 ¶ 9). Mr. Hopkins, Plaintiff's manager, was also present. Mr. Seaforth stated in his affidavit that this meeting was held following “repeated counseling sessions” relating to complaints he had received and “[a]s a result of the continuing and escalating problems that [he] observed” with Plaintiff's performance. (Id. ¶¶ 8-9). During the meeting, Mr. Seaforth provided Plaintiff with a draft performance review, identifying areas on which performance issues had been identified, but “made it clear . . . that this was a counseling session as opposed to her employee evaluation.” (Id. ¶ 9).

         Two weeks later, Mr. Seaforth met again with Plaintiff for her formal employee evaluation, which was scheduled for every three years. (Id. ¶ 10). Again, Mr. Hopkins was present, but did not conduct the review himself because Mr. Seaforth was training him on how to conduct performance reviews.[4] (Id.). Plaintiff's performance review indicated that she failed to meet three of the seven core competencies for her job. (Id.; id. at 19-21). Plaintiff refused to sign the review. Because Plaintiff had received a negative performance review, she was automatically referred for intake into the Performance Improvement Process (“PIP”). (ECF No. 70-13 ¶ 8). PIP “provides underperforming supporting services employees with an opportunity to receive the intensive individualized assistance and professional development necessary to improve job performance and meet the core competency criteria, ” and offers employees different program options. (Id. ¶ 9). Mr. Seaforth attended Plaintiff's PIP intake meeting with a human resources professional growth consultant, at which she was presented with these options. (Id. ¶ 10; ECF No. 70-22 ¶ 11). Because Plaintiff refused to choose a plan, she was automatically placed into the default option, a 90-day Special Evaluation. (ECF No. 70-13 ¶ 10). This option “is specifically designed to assist an underperforming employee toward success in their assigned position.” (Id. ¶ 11).

         On July 19, 2011, Plaintiff resigned without notice. (ECF No. 70-22, at 22). Mr. Seaforth affirms that when she informed him she was quitting, he found it “sudden and unexpected.” (Id. ¶ 15). He asked another employee to translate while informing Plaintiff that she was not being forced to resign and explaining that she would lose seniority rights if she wanted to be re-employed by Defendant at a later time after resigning. He avers that he provided Plaintiff with a Notice of Termination of Employment form and advised “that she not make a hasty decision” and “to sleep on it.” (Id.). Later that afternoon, Mr. Seaforth found the completed form under his office door, signed by Plaintiff and indicating that the “Reason for Resignation” was “Home Responsibilities, ” and he affirms that the copy attached and incorporated to his affidavit is an exact copy of the form he found. (Id.; id. at 22). While Plaintiff does not dispute that she resigned on July 19 and confirmed her signature on this form, she testified that she did not check the “Home Responsibilities” box on the form and that she had written a note on the form stating “they're forcing me to leave because they've tried to get rid of me.” (ECF No. 76-1, at 40).

         B. Procedural Background

         In January 2012, Plaintiff filed a charge of discrimination, harassment, and hostile work environment with the Equal Employment Opportunity Commission (“EEOC”). (See ECF Nos. 31-3; 31-4). On April 6, 2012, Plaintiff's case was closed after Plaintiff purportedly withdrew her complaint, as further discussed in the court's order granting in part and denying in part Defendant's motion to dismiss or for summary judgment (ECF No. 45). On March 15, 2013, however, the EEOC reopened the investigation, and a notice of right to sue letter was issued to Plaintiff on May 20, 2014. (ECF Nos. 31-6; 31-7).

         Plaintiff filed a pro se complaint in the Circuit Court for Montgomery County, Maryland on August 19, 2014, naming AEHS as defendant. (ECF No. 2). Plaintiff subsequently retained counsel and filed an amended complaint adding Montgomery County Public Schools as a defendant. (ECF No. 11). After the defendants removed the case to this court and moved to dismiss, Plaintiff filed a second amended complaint substituting the Board of Education for Montgomery County as a defendant. (ECF No. 30). The second amended complaint asserts five claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”): sex discrimination (Count I); retaliation (Count II); disparate treatment (Count III); hostile work environment (Count IV); and adverse employment action (Count V). (ECF No. 30 ¶¶ 132-61). The complaint also included eight state law claims (Counts VI through XIII). (Id. ¶¶ 162-90). Defendant moved to dismiss or for summary judgment on all claims. (ECF No. 31). The motion was construed as a motion for summary judgment and granted as to the state law claims because the claims were time-barred. (ECF No. 45, at 22-29). Defendant argued for judgment on the Title VII claims on the ground that Plaintiff had failed to exhaust her administrative remedies by withdrawing her EEOC claim and not refiling it within the prescribed limitations period. (Id. at 11-21). Given the disputed evidence as to whether Plaintiff had withdrawn her EEOC claim, Defendant's motion was denied. (Id. at 21).

         Discovery has now been completed, and Defendant has moved for summary judgment. (ECF No. 70). Plaintiff filed a response in opposition (ECF No. 74), and Defendant replied (ECF No. 78). Plaintiff also filed a motion to strike portions of Defendant's exhibits to the motion for summary judgment (ECF Nos. 74; 77), and Defendant responded (ECF Nos. 78; 79).

         II. Plaintiff's Motion to Strike

         In her opposition to Defendant's motion for summary judgment and in a separately filed motion, Plaintiff has moved to strike all or part of four affidavits filed as exhibits to Defendant's motion. (ECF Nos. 74, at 2-8; 77). Plaintiff's motion to strike must be addressed first because Defendant relies on the evidence to which Plaintiff objects in connection with the motion for summary judgment. See Stanley Martin Cos. v. Universal Forest Prods. Shoffner LLC, 396 F.Supp.2d 606, 611 (D.Md. 2005). Pursuant to Fed.R.Civ.P. 56(c): “An affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”

         Plaintiff first objects to the Affidavit of Francis Miller (ECF No. 70-16), who retired in 2011 and is accordingly Defendant's former employee, citing Fed.R.Civ.P. 26, 30, and 37. (ECF No. 74, at 2-6). This affidavit was executed on January 14, 2016. Prior to the execution of this affidavit, Defendant had noticed Ms. Miller's deposition for January 20, 2016, and Plaintiff had separately noticed Ms. Miller's deposition for February 8. (See ECF No. 78-1). On January 8, in response to Plaintiff's counsel's inquiry, Defendant's counsel informed Plaintiff that it had not yet been able to serve Ms. Miller. (See ECF No. 75-2). According to Defendant's counsel, Ms. Miller was subsequently served with Defendant's deposition subpoena on January 13, after more than thirteen attempts were made, and she then contacted Defendant's counsel and agreed to provide an affidavit. (ECF No. 78, at 15 & nn.6-7). Defendant then decided not to take Ms. Miller's deposition, released her from its subpoena, and notified Plaintiff's counsel that Defendant was canceling her deposition. (Id.). Plaintiff never served her subpoena on Ms. Miller, and did not request additional time to effect service. (ECF No. 74, at 4).

         Plaintiff baselessly argues that Defendant's actions prevented her from deposing Ms. Miller. (Id. at 3). Plaintiff contends that Defendant's counsel was required to serve its deposition subpoena on Ms. Miller when its counsel met the witness on January 14, but Defendant's subpoena had already been served at that time, and Defendant was permitted to release the witness from the subpoena. Defendant's counsel was certainly under no obligation to take an unnecessary deposition.[5] Ms. Miller's cooperation with Defendant to provide an affidavit does not, as Plaintiff argues, show that Ms. Miller was within Defendant's custody and control, and there is no evidence that the contact information Defendant provided Plaintiff for Ms. Miller was inaccurate. Finally, assuming arguendo the affidavit was discoverable, Plaintiff has not identified any discovery request to which the affidavit would have been responsive. Plaintiff's motion to strike Ms. Miller's affidavit and request for sanctions and fees will accordingly be denied.

         Plaintiff next objects to paragraph 7 of the affidavit submitted by Heather Dublinski (ECF No. 70-13), a coordinator and human resources compliance specialist for Defendant, arguing that her statement is not true. (ECF No. 74, at 6). Plaintiff's objection is without merit. Plaintiff may dispute Ms. Dublinski's affidavit with her own evidence, or could have objected pursuant to Fed.R.Civ.P. 56(c), but her unsupported argument that “the MCPS records Dublinski refers to do not exist” (id.), is plainly an insufficient ground to strike the affidavit testimony. Plaintiff also moves to strike paragraphs 9 and 10, alleging that Defendant failed to produce the referenced document during discovery (id.), but she again fails to identify a discovery request to which the document would have been responsive. Plaintiff's motion to strike portions of Ms. Dublinski's affidavit will therefore be denied.

         Plaintiff also objects to the majority of Donald Smith's affidavit (ECF No. 70-20), arguing that it contains information that is not based on his personal knowledge and that his demonstrative exhibit was not produced in discovery. (ECF No. 74, at 6-7). Mr. Smith is a security assistant at AEHS. His affidavit is based on his own experiences working for Defendant, and his demonstrative aid was not responsive to Plaintiff's discovery request. Plaintiff's motion to strike will be denied.

         Finally, Plaintiff moves to strike portions of Simon Seaforth's affidavit. First, she objects to paragraph 13 on the ground that it holds him out to be an expert (id. at 8), but this paragraph is based on his personal experience and does not hold him out to be an expert. Plaintiff also moves to strike exhibit 19B to Mr. Seaforth's affidavit, a draft performance evaluation he affirms he gave to Plaintiff on February 17, 2011, on the ground that it “is not a true and correct copy of the exhibit exchanged by the parties during discovery, ” citing generally her statement of disputed facts and exhibits 9 and 20 in support.[6] (Id.). Plaintiff's exhibit and declaration may be evidence that a dispute of fact exists over the contents of the draft evaluation, but they do not provide proper grounds for objecting to or striking evidence on a motion for summary judgment. Accordingly, Plaintiff's motion as to Mr. Seaforth's affidavit will also be denied.

         For the foregoing reasons, Plaintiff's motion to strike will be denied.

         III. Defendant's Motion ...

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