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Townes v. MD. Dep't of Juvenile Servs.

United States District Court, D. Maryland

February 8, 2017



          James K. Bredar United States District Judge

         I. Background

         In this removed case, Plaintiff Adrienne Gross Townes complains that Defendant, the Maryland Department of Juvenile Services (the “Department”), violated her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2615, and under the Maryland Fair Employment Practices Act (“MFEPA”), Md. Code Ann., State Gov't § 20-606, in connection with her leaves of absence while she was employed with the Department. (Compl., ECF No. 2.) Earlier, the Court granted the Department's motion to dismiss with respect to Count I, which alleged the Department violated the FMLA by not providing Townes adequate notice of her rights under that statute. (ECF Nos. 19 & 20.) Remaining in the case are Count II (retaliation in violation of the FMLA) and Count III (failure to accommodate in violation of MFEPA).

         Now pending before the Court is the Department's motion for summary judgment (ECF No. 37), which has been briefed by the parties (ECF Nos. 45 & 46). No hearing is required. Local Rule 105.6 (D. Md. 2016). The motion will be granted as to Count II and denied as to Count III.

         II. Standard for Summary Judgment

         “The 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(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere existence of a scintilla of evidence in support of the [opposing party's] position” is insufficient to defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting and opposing affidavits are to be made on personal knowledge, contain such facts as would be admissible in evidence, and show affirmatively the competence of the affiant to testify to the matters stated in the affidavit. Fed.R.Civ.P. 56(c)(4).

         III. Analysis

         A. Count II - Retaliation under the FMLA

         In her opposition to the Department's motion for summary judgment, Townes contends the Department retaliated against her, in violation of the FMLA, by issuing her a letter of reprimand as well as an unsatisfactory performance evaluation shortly after returning to work from her second leave of absence, thereby preventing her from utilizing sick leave from the State Employees' Leave Bank. (Pl.'s Opp'n 24-25.) The evidence does not support her argument.

         A claim of retaliation under the FMLA is brought pursuant to 29 U.S.C. § 2615(a)(2), which provides, “It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.” Such a claim is analyzed according to the proof requirements for Title VII claims. Yashenko v. Harrah's NC Casino Co., 446 F.3d 541, 551 (4th Cir. 2006). Thus, a plaintiff may establish her claim through direct or circumstantial evidence of an improper motivating factor for an adverse employment action or she may utilize the burden-shifting analytical framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Holland v. Washington Homes, Inc., 487 F.3d 208, 213-14 (4th Cir. 2007).

         Townes has provided neither direct nor circumstantial evidence of an improper motive by the Department to retaliate against her for taking protected leave. Consequently, she may only prevail on her claim by showing (1) she engaged in protected activity, (2) her employer took adverse action against her, and (3) the adverse action was causally connected to her protected activity. Yashenko, 446 F.3d at 551. If Townes were to establish her prima facie case, then the burden would shift to the Department to proffer a legitimate reason for its adverse action. Following that proffer, the burden would shift back to Townes, who bears the ultimate burden of persuasion, to prove the Department's proffered reason is merely pretextual. Id.

         As was noted in Yashenko, taking FMLA leave constitutes engagement in protected activity. Id. Thus, the first element is undisputed in this case in which Townes had three separate leaves of absence for health reasons. However, Townes fails to establish the second element of her prima facie case, i.e., an adverse employment action.

         “An adverse employment action is a discriminatory act which adversely affects the terms, conditions, or benefits of the plaintiff's employment.” James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004) (internal quotation marks omitted). Here, Townes asserts both the letter of reprimand and the unsatisfactory performance evaluation constitute adverse employment actions because they adversely affected her ability to draw leave from the Leave Bank. “A ‘downgrade of a performance evaluation could [a]ffect a term, condition, or benefit of employment' if it has a tangible effect on the terms or conditions of employment. However, a poor performance evaluation ‘is actionable only where the employer subsequently uses the evaluation as a basis to detrimentally alter the terms or conditions of the recipient's employment.'” Id. at 377 (citations omitted).

         Deposition testimony established that an employee with an unsatisfactory performance evaluation or any discipline would not be eligible for the Leave Bank. (Pl.'s Opp'n, Ex. 12, Deitchman Dep. 39:7-10.) Even if she had had no negative disciplinary record, however, Townes would have been eligible to draw leave from the Leave Bank only if she had exhausted all other forms of leave, see Md. Code Ann., State Pers. & Pens. § 9-603(c)(1) (LexisNexis 2015) (leave from Leave Bank granted to employee who “has exhausted all forms of annual, personal, sick, and compensatory leave because of a serious and prolonged medical condition”), a fact she acknowledged in her deposition testimony (Def.'s Reply, Ex. 42, Townes Dep. 259:10-11).

         Townes's argument focuses on her status in September 2012 when she says she was prevented from accessing the Leave Bank because of the letter of reprimand and the unsatisfactory evaluation. However, the Department has provided clear evidence that Townes had many hours of various kinds of unexhausted leave in the relevant time period. Specifically, her Bi-weekly Time and Attendance Reports reveal that, as of June 26, 2012, Townes had returned to work from her second leave of absence and had 189.23 annual, 10.82 sick, 40 personal, and 80 holiday hours of leave. (Id. Ex. 43, DJS001112.) The Department does not have this same report for September 2012, but it has her report for the pay period from October 31, 2012, through November 13, 2012, and that report shows she had, as of November 13, 2012, 97.73 annual, 38.32 sick, 16.50 personal, 20.20 compensatory, and 56 holiday hours of leave. (Id. Ex. 44, DJS001099.) The Department points out that Townes earned annual leave at the rate of 6.15 hours and sick leave at the rate of 4.62 hours per two-week pay period. (Id.) Consequently, it was “mathematically impossible for her to have exhausted sick and annual leave in September 2012, but to then have accrued close to 100 hours of annual leave and close to 40 hours of sick leave by the end of October, 2012.” (Def.'s Reply 4.)[1]

         The Department's point is well taken. It is reasonable, therefore, to conclude that Townes's inability to access the Leave Bank was caused not by negative disciplinary action but by the operation of state law making her ineligible to draw leave as long as she possessed unexhausted hours of leave. As a result, Townes has failed to establish the Department ...

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