United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
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.
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.
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.).
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
end of April, Mr. Moreland retired and Mr. Hopkins became the
acting building services manager. (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).
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).
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).
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).
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).
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).
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. (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).
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
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).
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).
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).
Plaintiff's Motion to Strike
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
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).
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. 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
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
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.
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. (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.
foregoing reasons, Plaintiff's motion to strike will be
Defendant's Motion ...