United States District Court, D. Maryland
Richard D. Bennett United States District Judge
Nicole Saah (“Plaintiff” or “Saah”)
has brought this action against Defendants Carroll L. Thumel,
D.V.M. and Mary Beth Soverns, D.V.M., P.A. (d/b/a Countryside
Veterinary Clinic) (“Defendant” or
“Thumel/Soverns, P.A.”) and Countryside
Veterinary Clinic, Inc., alleging pregnancy discrimination,
disability discrimination, and retaliation for protected
activity in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e, et
seq. (“Title VII”), the Americans with
Disabilities Act, 42 U.S.C. §§ 12101, et
seq. (“ADA”), the Maryland Fair Employment
Practices Act, Md. Code Ann., State Gov't §§
20-601, et seq. (“MFEPA”), and the
Howard County Human Rights Act, Howard County Code
§§ 12.200, et seq. See Compl.,
¶¶ 105-120, ECF No. 1.
pending before this Court is Defendant Thumel/Soverns,
P.A.'s Motion for Summary Judgment (ECF No.
The parties' submissions have been reviewed, and no
hearing is necessary. See Local Rule 105.6 (D. Md.
2016). For the reasons stated herein, Defendant
Thumel/Soverns, P.A.'s Motion for Summary Judgment (ECF
No. 18) is GRANTED IN PART and DENIED IN PART. Specifically,
Plaintiff has failed to present any evidence that she
suffered a “disability.” Accordingly,
Defendant's Motion is granted with respect to all claims
[both discrimination and retaliation] under the Americans
with Disabilities Act and the Maryland Fair Employment
Practices Act, which prohibit discrimination on the basis of
disability, but not pregnancy alone. Additionally,
Defendant's Motion is granted with respect to
Plaintiff's disability discrimination claim under the
Howard County Human Rights Act, which prohibits both
disability discrimination and pregnancy discrimination.
Judgment shall be entered for Defendant Thumel/Soverns, P.A.
as to those claims. However, Defendant's Motion is denied
as to both Plaintiff's pregnancy discrimination and
retaliation claims, brought under Title VII of the Civil
Rights Act of 1964 and the Howard County Human Rights Act. A
genuine issue of material fact remains as to liability on
those claims. Finally, Defendant's Motion is granted with
respect to Plaintiff's request for punitive damages.
Judgment shall be entered for Defendant as to Plaintiff's
request for punitive damages, and Punitive damages will not
be awarded in this case.
Plaintiff Saah's Employment with Defendant
ruling on a motion for summary judgment, this Court reviews
the facts and all reasonable inferences in the light most
favorable to the nonmoving party. Scott v. Harris,
550 U.S. 372, 378 (2007); see also Hardwick ex rel.
Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013).
In October of 2007, Plaintiff Nicole Saah
(“Plaintiff” or “Saah”) was hired as
a veterinary assistant by Defendant Carroll L. Thumel, D.V.M.
and Mary Beth Soverns, D.V.M., P.A. (d/b/a Countryside
Veterinary Clinic) (“Defendant” or
“Thumel/Soverns, P.A.”), a veterinary clinic in
Howard County, Maryland. See Compl., ¶¶ 7,
22, ECF No. 1. Doctor Carroll Thumel (“Dr.
Thumel”) and Doctor Mary Beth Soverns (“Dr.
Soverns”) are the co-owners of Thumel/Soverns, P.A.
Thumel Dep., p. 5, ECF No. 18-14. As a veterinary assistant,
Saah's duties included assisting veterinarians during
animal examinations, assisting with x-rays, cleaning animal
cages, walking and feeding animals, administering
medications, injections, and fluids to animals, and
performing some lab work. See Soverns Dep., p. 303,
ECF No. 18-15.
Plaintiff Saah's Job Performance
Grap (“Grap”) has been the Thumel/Soverns, P.A.
practice manager and Saah's supervisor since 2012. Grap
Dep., p. 10, ECF No. 18-13. When Saah was a new employee, she
received training on all office policies, including policies
related to employee break time, work hours, clocking in and
out of the employee tracking system, calling in sick,
performance reviews, grounds for dismissal, and the Hospital
Manual. See Saah Dep., p. 49, ECF No. 18-12; Soverns
Dep., p. 293-294, ECF No. 18-15. Saah admits that she
violated these policies at various times during her
employment with Thumel/Soverns, P.A, including using her cell
phone during work hours and eating in the office during work
hours. Saah Dep., p. 70-72, ECF No. 18-12. Grap contends that
she spoke regularly to Saah about her violations of the
company's cellphone policy and made Dr. Soverns aware of
these discussions. Grap Dep., p. 90-91, 325, ECF No. 18-13.
Additionally, on May 7, 2012, Dr. Thumel had a one-on-one
meeting with Saah to discuss her chronic lateness, and her
practice of repeatedly clocking in on the time clock in the
morning and walking to a nearby Dunkin Donuts store, then
eating breakfast in the office instead of performing assigned
tasks. Saah Dep. p. 77-78, ECF No. 18-12. Saah was late to
work on several occasions, and has indicated that it was
discussed with her in her 2010 annual review and in
subsequent annual reviews. Id. at 86.
these admitted policy violations, many of which occurred in
Saah's first few years of employment, Saah's written
performance reviews from both 2012 and 2013 [the years
immediately prior to her termination, discussed
infra] were overwhelmingly positive. Specifically,
Doctors Thumel and Soverns rewarded Saah's performance in
2013 with a “96/100” points on the performance
review scale and a $0.96 per hour raise. 2013 Review, ECF No.
22-5. On her 2013 performance review, Saah received a 10/10
for “Attendance.” Id. The comments
section for “Attendance” read
“Perfect!” Id. Saah also received a
10/10 under categories labeled “Attitude,
“Ability to do Job, ” “Helpful, ”
“Represents Countryside Well at All Times, ”
“Promotes our Products and/Services” “and
“Attendance at Meetings.” Id. The 2013
review noted Saah's tardiness, but deducted only 3
points. Id. In contrast, Saah has indicated that the
clinic temporarily reduced the wage rate of another employee
in 2013 as a sanction for her chronic tardiness, effectively
suspending a recently awarded raise. Saah Dep., p. 152-53,
ECF No. 18-12. There is no indication that Thumel/Soverns,
P.A. ever took this measure against Saah. Additionally,
Defendant has provided no documentary evidence of inadequate
job performance by Saah following the 2013 performance
review. In fact, Doctors Thumel and Soverns have admitted
that Saah's performance was unchanged after her 2013
performance evaluation. See Soverns Dep., p. 93, ECF
No. 18-15; Thumel Dep., p. 261, ECF No. 18-14.
Plaintiff Saah's Pregnancy
of 2013, Saah informed Thumel/Soverns, P.A. that she was
pregnant. Saah Dep., p. 157, ECF No. 18-12. Saah spoke
directly to Grap, who subsequently informed Dr. Soverns about
a week later. Id. at 157-58. According to Saah, Grap
was “surprised” by the news, and Dr. Soverns
never congratulated her, but asked Saah how she was going to
handle working and being in school at the same time as having
a baby. Id. at 158; Statement of Nicole Saah, p. 12,
ECF No. 20.
Soverns has indicated that Thumel/Soverns, P.A. has a
long-standing policy and practice concerning pregnant
employees. See Soverns Dep., p. 308, ECF No. 18-15.
Pursuant to that policy, pregnant employees are directed not
to perform chemotherapy, take x-rays, empty litter boxes, or
lift heavy objects, and are encouraged to ask for help
whenever it is needed. Id. Additionally,
Thumel/Soverns, P.A. has promulgated a nondiscrimination
policy. See Employee Handbook, ECF No. 22-25.
the final three months of her employment, Saah asked
co-workers for assistance in lifting animals, lifting heavy
objects, and performing x-rays. Saah Dep., p. 226, ECF No.
18-12. Saah did not ask for any additional accommodations
beyond those routine precautions. Id. at 309. Saah
has indicated that no clinic employee ever denied her
requests for help. Id. at 226. However, Saah has
stated that from October of 2013 through December of 2013,
the final months of Saah's pregnancy, Grap would roll her
eyes when Saah asked for assistance, and would not jump up to
help her. Id. at 174. Additionally, Brooke Schaper
Floyd, a fellow clinic employee, recalls Grap saying that she
thought Saah was “taking advantage of her
pregnancy.” Floyd Dep., p. 110-111, ECF No. 22-11.
The Incident on December 9, 2013
December 9, 2013, Saah was standing at a computer outside of
a closed office door at the clinic when she overheard a
conversation inside that office. Saah Dep., p. 178-82, ECF
No. 18-12. Saah could hear people talking inside and
couldn't understand much of what they said, but heard
them mention the name of another employee, Jacklyn Sink.
Id. Saah proceeded to walk down the hall to an
employee break room where fellow employees Lauren Hess,
Brooke Schaper Floyd, and Heidi Previll were eating lunch.
Id. at 182-84. Saah claims that she stated to her
fellow employees that she had overheard Grap, Dr. Soverns,
and Dr. Thumel talking in the office, and had heard
Jacklyn's name mentioned, but didn't know what it was
about. Id. at 185-87. Of the employees present in
the break room at that time, Previll and Hess recall Saah
saying that Grap was “talking shit” about people.
Previll Decl., ¶ 2, ECF No. 18-5; Hess Decl., ¶ 2,
ECF No. 18-6. However, Floyd recalls Saah saying only that
Jacklyn was in trouble and had done something wrong. Floyd
Dep., p. 30-32, ECF No. 18-17. Later that day, Previll
approached Grap, told her about Saah's statement, and
indicated that it made her feel uncomfortable.
evening, Grap called Saah on the telephone to discuss the
incident. Saah Dep., p. 193-94, ECF No. 18-12. Grap asked
Saah if she had told the employees in the break room that
Grap was “talking shit.” Grap Dep., p. 244, ECF
No. 18-13. According to Grap, Saah responded, “Yeah, I
said that.” Id. at 249. However, Saah denies
making this statement and also denies making the underlying
“talking shit” comment. Saah Dep., p. 193-94, ECF
No. 18-12. Instead, Saah claims that while on the phone with
Grap, she confronted Grap about the way in which she had been
treated in the final months of her pregnancy. Saah stated,
“I feel like you've been treating me a little
unfairly having to go and ask for help and you know, you sigh
and roll your eyes and take forever to come help me, and
that's a little frustrating to me. I don't understand
why . . . you've been treating me like that[, ]” to
which Grap responded that Saah was “Lazy.” Saah
Dep., p. 194-95, ECF No. 18-12. According to Saah, she then
asked Grap, “Lazy why? Because I'm pregnant and I
need help with things[?]” Id. Grap responded,
“[m]aybe lazy is not the word I should use.”
Plaintiff Saah's Termination
her conversation with Saah, Grap sent a series of text
messages to Dr. Soverns, informing her that Saah had admitted
to making the “talking shit” statement and had
shown no remorse. Grap also relayed to Soverns that Saah had
complained of being “picked on” and objected that
“she [couldn't] tell anyone anything.” Text
Messages, ECF No. 18-9. The following day, December 10, 2013,
Grap met with Doctors Thumel and Soverns to discuss Saah.
Grap Dep., p. 61, 223, ECF No. 18-13. Grap told the doctors
what she had heard from Previll and that Saah had admitted to
making the “talking shit” statement. Id.
at 224. Grap told the doctors what happened in her
conversation with Saah. Id. at 224; Soverns Dep., p.
29, ECF No. 18-15. That afternoon, Grap called Saah to inform
her that she was terminated from her position. Saah Dep., p.
197-98, ECF No. 18-12.
Thumel and Soverns have indicated that clinic management had
no plans to discipline, much less fire, Saah as of December
9, 2013. Thumel Dep., p. 6-7, ECF No. 18-14; Soverns Dep., p.
44, ECF No. 18-15. However, the doctors have also indicated
that in their December 10, 2013 meeting they discussed
Saah's prior violations of clinic policy, and concluded
that Saah's eavesdropping outside of a closed office
door, then telling co-workers that a manager was
“talking shit, ” was the “last
straw.” Soverns Dep., p. 19, ECF No. 18- 15;
Thumel Dep., p. 29, 30-31, 35, 38-39, 109-110, 171-72, 180,
ECF No. 18-14. Dr. Thumel admits that Saah's comments
would have violated no company policy if she had merely
stated that she “heard Jacklyn's name” and
“heard them talking in there, ” which is in fact
what Saah claims to have said in the break room. Thumel Dep.,
p. 93-95, ECF No. 18-14. Additionally, Doctors Thumel and
Soverns have both stated that they are unaware of a clinic
policy prohibiting disparaging or disruptive comments.
See Thumel Dep., p. 99-100, ECF No.18-14; Soverns
Dep., p. 274, ECF No. 18-15.
was immediately hired to replace Saah, and other employees
filled in to take over her hours. Unemployment Hrg. Record,
p. 34, ECF No. 22-10. None of the other assistants were
pregnant during this time. Thumel Dep., p. 295, ECF No.
18-14. The only female hired as a veterinary assistant after
Saah, Summer Scout Ford, was not pregnant at the time she was
hired. Id. at 296.
Soverns met with Saah and Saah's mother on December 18,
2013. Soverns Dep. p. 173, ECF No. 18-15. When Soverns raised
the issue of Saah's comment in the break room, Saah
explained that she had not made the alleged “talking
shit” comment and relayed to Soverns her concerns about
Grap's attitude toward her in the final months of her
pregnancy. She also told Dr. Soverns that Grap had called her
“lazy” over the phone when Saah complained to her
about her treatment. Saah Dep., p. 194, ECF No. 18-12. In
response, Dr. Soverns cited Saah's lateness and eating
during work hours as additional grounds for her termination.
Saah responded that the lateness issue was not discussed in
her 2013 performance review, that other employees were late,
and that she ate at work because she needed to eat more
during her pregnancy. Roberta's Statement, p. 3, ECF No.
filed a formal charge with the Howard County Office of Human
Rights (“HC-OHR”) on April 9, 2014, alleging
discrimination based on sex, pregnancy, disability, and
retaliation. Compl., ¶¶ 11-15, ECF No. 1. That
charge was cross-filed with the United States Equal
Employment Opportunity Commission (“EEOC”).
Id. at ¶ 15. The HC-OHR conducted an
investigation and ultimately concluded that there was
“no reasonable cause” to believe that unlawful
discrimination or retaliation had occurred. See
HC-OHR Decision and Order, March 27, 2014, p. 18. The EEOC
issued Saah a right to sue letter on May 15, 2015. Compl.,
¶ 18, ECF No. 1. Saah proceeded to file the pending
lawsuit on August 14, 2015, alleging pregnancy
discrimination, disability discrimination, and retaliation
for protected activity in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e,
et seq. (“Title VII”), the Americans with
Disabilities Act, 42 U.S.C. §§ 12101, et seq.
(“ADA”), the Maryland Fair Employment Practices
Act, MD. CODE ANN., STATE GOV'T §§ 20-601, et
seq. (“MFEPA”), and the Howard County Human
Rights Act, Howard County Code §§ 12.200, et
Id. at ¶¶ 105-120.
of the Federal Rules of Civil Procedure provides that a court
“shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). A material fact is one that “might
affect the outcome of the suit under the governing
law.” Libertarian Party of Va. v. Judd, 718
F.3d 308, 313 (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). A genuine issue over a
material fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248. When
considering a motion for summary judgment, a ...