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Dent v. University of Maryland

United States District Court, D. Maryland

June 12, 2017

MELISSA DENT
v.
UNIVERSITY OF MARYLAND, COLLEGE PARK

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW United States District Judge

         Presently pending and ready for resolution in this employment discrimination case are: (1) the motion for an emergency pendente lite hearing by Plaintiff Melissa Dent (“Plaintiff”) (ECF No. 22); (2) the motion to dismiss filed by Defendant University of Maryland (“Defendant”) (ECF No. 24); and (3) Defendant's motion to strike a surreply (ECF No. 31). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted, the motion to strike will be granted, and the motion for a pendente lite hearing will be denied.

         I. Background

         A. Factual Background[1]

         Plaintiff is an African American female who worked for the Maryland Small Business Development Center (“SBDC”), a statewide non-profit entity within the University of Maryland that operates a regional headquarters on Defendant's College Park campus. (ECF No. 10 ¶¶ 1, 13, 20). Plaintiff was employed as a business consultant by SBDC for four years until she was terminated in May 2016. (Id. ¶ 31). In her role at SBDC, Plaintiff assisted small businesses in a variety of ways, including counseling on revenue generation, helping with funding opportunities, developing strategic partnerships, and generating exposure for their businesses. (Id. ¶ 32). Until the spring of 2015, Plaintiff had received positive performance reviews, and she was awarded SBDC's Business Counseling State Star in September of 2014. (Id. ¶ 34).

         On March 30, 2015, Plaintiff submitted a self-assessment for the previous rating period to SBDC management in which she was critical of her supervisor, Bret Kyle Bayliss. (Id. ¶ 33). Among the problems she identified were “challenges in communication between her and Mr. Bayliss, a lack of resources and resource allocation, and issues regarding employee morale.” (Id.). Plaintiff did not mention any discrimination in her self-assessment.

         Shortly after Plaintiff's self-assessment was submitted, Mr. Bayliss gave Plaintiff a “below expectations” performance review for the previous rating period. (Id. ¶ 34). When Mr. Bayliss met with Plaintiff to explain the poor evaluation, she found him to be unreasonably hostile, “rais[ing] his voice, flail[ing] his arms, and knock[ing] items over on his desk, making [Plaintiff] extremely uncomfortable.” (Id.). Plaintiff responded by emailing Mr. Bayliss's superiors, Renee Sprow and Lora Brown, to challenge his evaluation of her performance. (Id. ¶ 35). Specifically, she argued that Mr. Bayliss's poor evaluation was unfounded and that several reportable accomplishments on her scorecard had been altered to make it seem as though she was performing worse than she had been. (Id. ¶ 35). She later discovered that Mr. Bayliss had manipulated six of her performance milestones without notifying her, which ultimately adjusted her score. (Id. ¶ 37). Plaintiff explained this to Ms. Sprow, Ms. Brown, and Jeff Snider, a human resources representative, but there was no further action on the matter by SBDC management for several weeks. (Id. ¶¶ 37-38).

         Plaintiff then filed a grievance against Mr. Bayliss regarding the matter. (Id. ¶ 39). Two Step 1 grievance meetings were held in May 2015 with Plaintiff, Mr. Bayliss, Ms. Sprow, Ms. Brown, Mr. Snider, and Patrick Laden, an attorney for the human resources department. (Id. ¶ 41). At one hearing, management agreed to adjust Plaintiff's performance evaluation to “Exceeds Expectations.” (Id.). After Mr. Bayliss revised Plaintiff's performance review, however, he also asked Plaintiff to revise her evaluation of him in her self-assessment, a “quid pro quo” arrangement that she refused. (Id. ¶¶ 44-45). In her grievance, Plaintiff also had sought to be moved out of Mr. Bayliss's supervision or to be permitted to bring representation to any meeting with Mr. Bayliss so that she would not be alone with him. Defendant refused these requests and instead referred Plaintiff and Mr. Bayliss to arbitration with the University Ombudsman. (Id. ¶¶ 41, 43). Other than amending her performance evaluation, Defendant denied Plaintiff's grievance. (Id. ¶¶ 46). Finding SBDC management's response inadequate, Plaintiff filed an internal whistleblower complaint with Denise Clark, the Associate Vice President of the division that oversees the SBDC, on June 4, 2015. (Id. ¶ 47-49).

         Plaintiff remained under Mr. Bayliss's supervision, and the conflict between the two continued. In August, Mr. Bayliss denied a reimbursement request for training expenses that would normally have been reimbursed. (Id. ¶ 50). In September, Plaintiff was accused of calling Mr. Bayliss a liar in a staff meeting. (Id. ¶¶ 51-52). During her mid-September performance review, Plaintiff discovered once again that one of her employment milestones had been made “non-reportable” without notifying her and needed to be amended. (Id. ¶ 53). Mr. Bayliss later required staff to read a book and watch a video that Plaintiff suggests “insinuated [her] situation of a divorcee being fired for not trusting those with whom she worked.” (Id. ¶ 56). He also increased the frequency of performance reviews for the entire staff to monthly reviews, then ceased the monthly review process when Plaintiff went on medical leave. (Id. ¶ 60). In November, Defendant conducted a Step 2 hearing for Plaintiff's grievance, at which the grievance was dismissed without her having an opportunity to speak. (Id. ¶¶ 64-65). When she followed up with a new, revised grievance in which she again sought to be relieved from meeting with Mr. Bayliss alone, Defendant refused to consider it. (Id. ¶ 66).

         On December 14, 2015, Defendant denied Plaintiff's internal whistleblower complaint. (Id. ¶ 70). When Plaintiff threatened to file a federal whistleblower complaint, Defendant scheduled a mandatory meeting with her, but would not allow her to bring an attorney. (Id. ¶¶ 71-73). Plaintiff refused to attend this meeting, and was issued a one-day suspension for insubordination. (Id. ¶ 74). On January 14, 2016, Plaintiff filed a federal whistleblower complaint with the Office of the Inspector General (“OIG”) of the federal Small Business Administration (“SBA”). (ECF No. 10 ¶ 78). The OIG decided not to pursue an investigation into the matter. (Id. ¶ 96).

         As this dispute unfolded, the stress of her work environment began to wear on Plaintiff. In the summer of 2015, she began to see a doctor for emotional distress and physical manifestations including pain, rashes, and hair loss. (Id. ¶ 54). After her suspension, Plaintiff's conditions were severe enough to warrant approved leave under the Family Medical Leave Act (“FMLA”) from January 7 to January 19, 2016. (Id. ¶ 75). After returning for a short period of time, Plaintiff was again placed on FMLA leave from February 9 until May 3. (Id. ¶ 77).

         On March 8, 2016, while Plaintiff was out on FMLA leave, Defendant sent her a “Last Chance Agreement” indicating that she would be reprimanded if she continued to refuse to meet with Mr. Bayliss alone. (Id. ¶ 81). Plaintiff then filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on March 28. (Id. ¶ 26). On March 31, the EEOC dismissed her complaint and issued a right to sue notice. (Id. ¶ 27). After Plaintiff returned on May 3, Mr. Bayliss sought to meet with her and she refused. (Id. ¶¶ 85-86). Citing violation of the Last Chance Agreement, Defendant terminated Plaintiff's employment on May 11. (Id. ¶ 85). Even after Plaintiff was terminated, Defendant's reports relating to her termination caused her to be denied certain unemployment benefits. (Id. ¶ 97).

         B. Procedural Background

         Plaintiff filed this suit on June 29, 2016, against Defendant and SBDC, alleging race discrimination (Count I), sex discrimination (Count II), and retaliation (Count III), in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. (ECF No. 1). On November 14, SBDC and Defendant filed a motion to dismiss. (ECF No. 8). Plaintiff responded in opposition to the motion and filed an amended complaint, adding a claim for retaliation and wrongful termination (Count IV) in violation of the Whistleblower Protection Enhancement Act of 2012 (“WPEA”), an amendment to the Federal Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302, and the whistleblower provisions in Section 1553 of the American Recovery and Reinvestment Act of 2009 (“ARRA”), Pub. L. No. 111-5, § 1553(a) (2009). (ECF Nos. 10, 11). The court granted the motion to dismiss as to SBDC because it operates as an entity within the University. (ECF No. 17, at 4). On December 6, Plaintiff filed the pending motion for a pendente lite hearing. (ECF No. 22). Defendant responded (ECF No. 26), and Plaintiff replied (ECF No. 30). Defendant filed the instant motion to dismiss the amended complaint on December 16 (ECF No. 24), and Plaintiff responded on December 20 (ECF No. 27). After Defendant replied on December 22 (ECF No. 28), Plaintiff filed a separate “Memorandum of Law in Support of Plaintiff's Motion to Deny Defendant's Motion to Dismiss” on January 3, 2017 (ECF No. 29). Defendant then filed the instant motion to strike Plaintiff's January 3 filing as a surreply. (ECF No. 31). Plaintiff responded to the motion to strike (ECF No. 32), and Defendant replied (ECF No. 33).

         II. ...


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