United States District Court, D. Maryland
K. Bredar United States District Judge
alleges that his employer, Anne Arundel County, discriminated
against him in violation of Title 20 of the Maryland State
Government Article (Count I), Title VII of the Civil Rights
Act of 1964 (Count II), Article 24 of the Maryland
Declaration of Rights (Count III), and 42 U.S.C. § 1983
and the Fourteenth Amendment of the U.S. Constitution (Count
IV). (Compl., ECF No. 2.) The Defendant has moved for summary
judgment. (ECF No. 23.) That motion is fully briefed (ECF
Nos. 31, 39), and no hearing is necessary. See Local
Rule 105.6 (D. Md. 2016.) For the reasons stated below,
Defendant's motion will be granted, and judgment will be
entered in its favor.
STANDARD FOR SUMMARY JUDGMENT
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). 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. Id.
who is a white male, has been employed by the Anne Arundel
County Fire Department (“the Department”) since
1996. (Willis Depo. 25:12, ECF No. 31-3.) The Department
maintains 31 different fire stations located around the
county and employs over 800 professional firefighters and
emergency medical service providers, who are organized in a
rank structure and are supplemented by 450 volunteers.
(Graves Aff. ¶¶ 4, 5, ECF No. 23-3.) At the time of
the relevant events in this case, the record reflects that
Defendant was under public scrutiny for the lack of racial
and gender diversity among its employees. (Cox Depo. 155:8-
159:15, ECF No. 31-6; Articles from the Capital Gazette, ECF
began his career as a Firefighter II, the Department's
entry-level position for its professional employees. (Willis
Depo 25:5-10.) In April of 2005, Plaintiff was promoted to
Lieutenant, an officer's rank with supervisory
responsibilities over one shift at a given fire station.
(Id. at 34:17-20; Graves Aff. ¶¶ 13, 14.)
In March of 2008, he was promoted again to Captain, a rank
with responsibilities that overlap and exceed those of a
Lieutenant in that a Captain also directly supervises an
individual shift but also functions as the ranking officer at
a firehouse with supervisory responsibilities over the
Lieutenants. (Willis Depo. 44:6-7, 67:3-21; Graves Aff.
¶¶ 13-15.) Plaintiff held the rank of Captain until
he was demoted to Firefighter II effective November 27,
2013. (Cox/Willis Letter, ECF No. 31-29.)
demotion was the eventual consequence of a complaint filed by
one of his former subordinates on August 30, 2013. (Swindle
Rep. 1, ECF No. 31-16.) That complaint triggered an
investigation by Division Chief Keith Swindle, who was the
Department's Equal Employment Opportunity
(“EEO”) Officer at the time. (Swindle Depo.
16:17-21:18:, ECF No. 31-4.) As EEO Officer, Swindle was
responsible for, among other things, investigating alleged
violations of the Department's workplace harassment and
discrimination policy published in its Operating Procedural
Manual 7 (OPM-7). (Graves Aff. ¶¶ 8, 10.)
the investigation was pending, Plaintiff was assigned to the
Department's Logistical Support Center, which took him
off of his regular schedule and prevented him from earning
overtime. (Willis Depo. 276:19-277:6; Cox Depo. 78:5-11.)
Through interviews with several employees who had been under
Plaintiff's command, Swindle's investigation found
the following about Plaintiff:
1) He created a hostile work environment by regularly using
and permitting the use of profanity and inappropriate,
sexually explicit comments, often directed at a female
subordinate (Swindle Rep. 6);
2) He blew cigar smoke in the face of a subordinate
(id. at 7);
3) He smashed an egg on a subordinate's head
4) He enabled and agitated a contentious relationship between
subordinates (id. at 9). Swindle also found that
Plaintiff showed a lack of candor with investigators.
(Id. at 10.) As a consequence of these findings,
Swindle concluded that Plaintiff's actions were
inconsistent with his position as an officer and recommended
that the Department terminate Plaintiff's employment.
Department held a pre-discharge hearing on November 25, 2013,
at which Plaintiff and his union representative, Keith
Whalen, argued against Plaintiff's termination.
(Cox/Willis Letter; Willis Decl. ¶ 5, ECF No. 31-5.) Two
days later, on November 27, 2013, Whalen successfully
intervened on Plaintiff's behalf with Fire Chief Michael
Cox. (Cox Depo. 47:18- 49:14.) In lieu of termination, Cox
issued the lesser discipline of a demotion to the rank of
Firefighter II, a fifteen-day suspension, and an agreement
that Plaintiff would be ineligible to apply for an
officer-level promotion for three years. (Cox/Willis Letter.)
Whalen communicated this punishment to Plaintiff that same
day by telephone and e-mail (Willis Depo. 127:3-130:2; Whalen
E-mail, ECF No. 31-28), and Plaintiff received formal written
acknowledgment of the offer via certified mail on December 4,
2013 (Hahn Decl. ¶¶ 3-4, ECF No. 31-43).
September of 2014, Plaintiff learned of another Departmental
investigation into alleged misconduct by an African American
Lieutenant (“Lt. J.”). (Willis Depo. 220: 2-4.)
That investigation, conducted by Chief of Staff Carl Lee,
initiated when four of Lt. J.'s subordinates filed a
complaint on August 14, 2014. (Lee Aff. ¶ 7, ECF No.
23-4.) While the investigation was ongoing, Lt. J. was
temporarily assigned to another fire station, allowing him to
remain on his normal schedule and to accrue overtime.
(Id. at ¶ 9; Cox Depo. 174:10-175:4.) Lee's
report, submitted on November 17, 2014, found that Lt. J.
falsely accused and inappropriately singled out a subordinate
for punishment, subjected subordinates to undue scrutiny and
intimidation, and was less than forthcoming with
investigators. (Lee Rep., ECF No. 35.) The report concluded
that Lt. J. had employed a managerial style “consisting
of intimidation and threats, and lacking fairness, support,
and constructive guidance.” (Id. at 10-11.) On
November 19, consistent with Lee's recommendation, Chief
Cox issued Lt. J. the following discipline: a suspension for
one (twenty-four-hour) shift, a written reprimand, referral
for supervisory training, and a transfer to a different fire
station. (Lee Aff. ¶ 15.; Cox/Lt. J. Letter, ECF No.
September 25, 2014, Plaintiff filed a complaint with the
Equal Employment Opportunity Commission (“EEOC”),
alleging that the Department treated him less favorably than
it did Lt. J., who was similarly-situated, and that the
Department did so because of the respective races of the two
officers. (EEOC Charge, ECF No. 31-35.)
retired from the Department in January of 2014, and Chief
Allan C. Graves assumed command. (Cox Depo. 10:17-11:1;
Graves Aff. ¶ 2.) Subsequently, both Lt. J. and
Plaintiff appealed their respective disciplinary sanctions.
(Graves Aff. ¶¶ 17, 20.) Graves rescinded Lt.
J.'s discipline on February 2, 2015, but formally
declined to do so for Plaintiff on April 2, 2015.
(Id. at ¶¶ 18, 22.)