United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge
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.
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).
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
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).
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).
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).
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.
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. ¶
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).
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).