United States District Court, D. Maryland
L. Hollander, United States District Court.
employment discrimination case, Shirley Pettaway-Darden,
plaintiff, has sued her former employer, defendant Woodbourne
Center, Inc. (“Woodbourne”), under Title VII of
the Civil Rights Act of 1964, codified, as amended, at 42
U.S.C. §§ 2000e et seq. (“Title
VII”). ECF 1. She alleges that she was wrongfully
terminated on February 14, 2013, based on sex discrimination.
Plaintiff attached the Charge of Discrimination
(“Charge”), submitted to the Maryland Commission
on Civil Rights (“Maryland Commission”), as an
exhibit to the suit. ECF 1-1.
suit is rooted in events that occurred at Woodbourne's
Residential Treatment Center (“RTC”) in
Baltimore, where plaintiff worked as a Direct Care
Professional (“DCP”). The RTC is a facility for
adolescent males with severe emotional and behavioral issues.
While plaintiff was on duty during the overnight shift on
February 11 and 12, 2013, two boys engaged in sexual activity
in a bathroom. Defendant claims that the incident occurred
because plaintiff fell asleep. Pettaway-Darden vigorously
disputes that contention.
discovery, Woodbourne moved for summary judgment (ECF 25),
supported by a memorandum of law (ECF 25-1) (collectively,
the “Motion”) and numerous
exhibits. See ECF 25-2 through ECF 25-19.
Defendant maintains, inter alia, that
Pettaway-Darden was discharged for just cause and for
legitimate, nondiscriminatory business reasons. In addition,
defendant argues that plaintiff's suit contains claims
that were not stated in the Charge. In particular, defendant
challenges plaintiff's claims relating to the denial of
overtime based on sex and alleged harassment by a male
coworker. Pettaway-Darden opposes the Motion (ECF 30,
“Opposition”), supported by exhibits.
See ECF 34-1 through ECF 34-9. Woodbourne has
replied (ECF 37, “Reply”) and has provided an
additional exhibit. ECF 37-1.
hearing is necessary to resolve the Motion. See
Local Rule 105.6. For the reasons that follow, I shall grant
is a private non-profit corporation licensed by
Maryland's Department of Health. ECF 25-3 (Declaration of
Steven Schreiber, Woodbourne's Human Resources Director)
at 2-5, ¶ 4. Woodbourne provides residential treatment
for males aged 12 to 18 (the “clients”) who are
involved in the child welfare system, the juvenile justice
system, and/or the mental health system. ECF 25-3, ¶ 3.
In general, the clients have “severe behavioral and
emotional problems” and are considered to be “a
danger to themselves and others.” Id. at 2,
began working for Woodbourne in 1988 (ECF 25-5, Deposition of
Pettaway-Darden, at 7) and transferred to the RTC in 2000 or
2001, where she worked as a DCP. ECF 25-5 at 11, 16. At the
RTC, clients “live, eat and are educated 24 hours a
day, 7 days a week.” Id. at 3, ¶ 6.
Clients reside in one of four units that are staffed around
the clock by both male and female DCPs. ECF 25-3 at 3, ¶
7; ECF 25-12 (Declaration of Mackey-Jones), ¶ 5. One of
the units was known as the Poseidon Unit (ECF 25-1 at 9) and
is now known as the Game Changers Unit (ECF 25-3 at 3, ¶
6) (hereinafter, the “Unit”). The Unit houses
clients with harmful sexual behaviors. ECF 25-5 at 13; ECF
25-6 (Deposition of Plummer) at 4; ECF 25-7 (Deposition of
Vincent-Poehlman) at 23. It has twelve rooms, with one client
assigned per room. ECF 25-5 at 80.
are required, inter alia, to “provide timely
and accurate communication to supervisory and management
staff regarding significant events, ” including
“issues of safety regarding the clients and/or
staff.” ECF 25-5 (DCP Job Description) at 319. And,
DCPs are expected to “work with team members in order
to complete daily work load, especially during short staff
situations”, and “to ensure positive
communication, the safety of clients, and continuity of
care.” ECF 25-5 at 319. Plaintiff acknowledges she was
aware of these requirements and knew they were
“essential functions” and “core
competencies” that are “required” of a DCP.
ECF 39 (Deposition of Pettaway-Darden) at 3-4.
DCPs are covered by a collective bargaining agreement
(“CBA”) between United Food and Commercial
Workers Union Local 27 (“Union”) and Woodbourne.
ECF 25-3 at 3, ¶ 7; ECF 25-3 at 7-38 (CBA). Under the
CBA, Woodbourne may terminate an employee for violation of
policies described in the employee handbook
(“Handbook”). ECF 25-3 at 3, ¶¶ 7-8;
ECF 25-3 at 13 (CBA, Art. 3.2). The Handbook prohibits,
inter alia, “[s]leeping during working
hours”; “failing to perform [the] job in a
satisfactory manner”; and “failing to perform
reasonable duties.” ECF 25-5 (Handbook) at 234-35.
Additionally, the Handbook states: “All employees must
practice safety awareness by anticipating unsafe situations .
. . .” ECF 25-5 at 262-63. Further, employees are
admonished: “Violations of Woodbourne's safety
policies may lead to disciplinary action, up to and including
termination of employment.” ECF 25-5 at 262-63.
acknowledges receipt of the 2008 Handbook in 2008. ECF 25-5
at 43-44; ECF 25-5 (Proof of Receipt Form) at 194. She also
acknowledges receipt of an updated version of the Handbook on
February 6, 2013. ECF 25-5 at 54-55. Moreover, plaintiff
acknowledges that the Handbook requires employees to
“immediately report any perceived violations of
[Woodbourne's employee] policies.” ECF 25-5 at
43-44. For example, if a Woodbourne employee is concerned
that client care or safety is “falling short of
regulatory standards, he/she should bring that concern to the
attention of the supervisor, the program or department
director or a member of senior management.” ECF 25-5 at
76-77; ECF 25-5 (Handbook) at 261.
relevant time, Acquanetta Cabral was plaintiff's Shift
Supervisor. ECF 25-5 at 16. She reported to Margaret
Mackey-Jones, the Unit Coordinator. ECF 25-5 at 13; ECF 25-8
(Deposition of Cabral) at 7. Mackey-Jones reported to Maggie
Vincent-Poehlman, the RTC Supervisor. ECF 25-5 at 14. The
Human Resources Director was Elizabeth McMann. ECF 25-4
(Deposition of Patricia Nott) at 15. And, Patricia Nott, the
person who ultimately approved plaintiff's termination,
was Woodbourne's Vice President of Human Resources.
Id. at 20-21.
2013, the year in which Pettaway-Darden was terminated, 51%
of Woodbourne's staff was female. ECF 25-3 at 3, ¶
9; ECF 25-3 at 40. Since then, the percentage of female
employees has increased. ECF 25-3 at 3, ¶ 9. Steven
Schreiber, Woodbourne's current Human Resources Director,
avers in his Declaration: “Woodbourne has maintained
and enforced an equal employment opportunity (EEO) policy in
its employee handbook that forbids discrimination and
harassment based on any category protected by law, including
gender[.]” ECF 25-3 at 3, ¶ 8.
overnight shift at the RTC begins at 11:30 p.m. and runs to
7:30 a.m. Generally, either two or three DCPs staff the Unit
during that shift. ECF 25-8 at 3-5. During the overnight
shift in question, Pettaway-Darden worked with William
Plummer. ECF 25-5 at 111-12. Plummer has worked for
Woodbourne since 1997 and as an overnight DCP for the Unit
since 2001. ECF 25-6 at 4-5.
night in question, plaintiff was assigned to provide
“one on one” care for “Client R, ”
who was deemed a suicide risk. ECF 25-5 at 111-12. During the
shift, plaintiff completed and signed Client R's
“Care and Observation Record for Safe Prevention and
Intervention.” Id. at 99; ECF 25-5 (Client R
Observation Record) at 325-26. In 15 minute increments
between 11:45 p.m. on February 11, 2013, and 6:15 a.m. on
February 12, 2013, plaintiff reported that Client R was
asleep in his room. She did not describe any other behaviors
in the “Comments” section of the record. ECF 25-5
at 102; ECF 25-5 at 325-26.
was responsible for supervision of the other clients in the
Unit. ECF 25-6 at 4, 8-11. Plummer's Log Notes reflect
his observation at approximately 4:00 a.m. that the
“Unit [was] safe, secure” and that all of the
clients in the Unit appeared to be asleep. See ECF
25-6 (Plummer's Log) at 25; See also ECF 25-6
(Deposition of Plummer) at 8, 10-11.
thereafter, Plummer told plaintiff he had to use the
restroom, which was located in a staff area. ECF 25-6 at 9;
ECF 25-5 at 134; ECF 25-5 at 328-29; ECF 25-6 at 25.
Pettaway-Darden did not object or call a supervisor to
request assistance during Plummer's absence. ECF 25-5 at
116-17; ECF 25-7 at 23-24. It is undisputed that, while
Plummer was away from the Unit, two boys (“Client
A” and “Client B”) met in a bathroom and
engaged in a sexual act. See, e.g., ECF 1-1 at 2;
ECF 30 at 9; ECF 25-8 at 10-13.
estimated that he was “gone ten minutes, if that long,
” and returned to the Unit shortly before 4:19 a.m. ECF
25-6 at 9. Upon his return, he saw Client A and Client B exit
from the same bathroom. ECF 25-6 at 12-13; ECF 25-6 at 25.
Because it “look[ed] like they came out of the same
bathroom, ” Plummer told them to “hold up.”
ECF 25-6 at 13. Plummer immediately called Cabral, the
nightshift supervisor. Id. She arrived at the Unit
by 4:20 a.m.
notified the nurse on duty and members of management,
including Mackey-Jones and McMann, about the incident. ECF
25-8 at 11-13. Cabral also directed Plummer and
Pettaway-Darden to complete incident reports describing what
occurred. ECF 25-5 (Deposition of Pettaway-Darden) at 132-36;
ECF 25-5 (Pettaway-Darden Incident Report) at 328-29; ECF
25-6 (Deposition of Plummer) at 21-22; ECF 25-6 (Plummer
Incident Report) at 30.
prepared a report on February 12, 2013, detailing her
interviews with Pettaway-Darden, Plummer, Client A, and
Client B. ECF 25-8 at 19-20; ECF 26 (Cabral Incident Report).
Cabral submitted her report to McMann on the same date. ECF
25-8 at 23-24. According to Cabral's summary of her
interview of plaintiff, Pettaway-Darden gave Client A
permission to use the restroom and did not see Client B leave
his room. ECF 26.
import here, a client at the RTC cannot leave his room and
enter the hall without first obtaining permission from a DCP.
ECF 25-5 at 81. Plaintiff recounted at her deposition that
the procedure requires a client to announce, “Coming
out.” Id. This protocol allows the DCP to
track a client's whereabouts. ECF 25-5 at 81-82, 92; ECF
25-6 at 23. When a client leaves his room without permission,
a DCP is required to return him to his room and then assess
the client's reason for wanting to leave. ECF 25-5 at
81-82. Pettaway-Darden was aware of this protocol. ECF 25-5
at 81. When Client A initially left his room, shortly after
4:00 a.m. on the night in question, he did so without
Pettaway-Darden's approval. ECF 25-5 at 120. However,
plaintiff then gave Client A permission to use the bathroom.
deposition, plaintiff recalled that, during the relevant
time, she “happened” to see Client A's shadow
“over her shoulder” and said: “‘What
is it you want . . . .'” ECF 25-5 at 120. According
to plaintiff, Client A said: “‘I have to use the
bathroom.'” Id. Plaintiff responded:
“‘Okay.'” Id. Plaintiff
explained that she was by herself, Client A
“frightened” her, and Client A can be “very
combative.” Id. Plaintiff was aware that
Client A had shown sexual predatory tendencies toward other
boys on the Unit. ECF 25-5 at 81-89. She also knew he had
been aggressive with staff members in the past and that he
had a “bad temper.” Id. at 121-23.
conceded at her deposition that she did not observe Client A
after she gave him permission to use the restroom. ECF 25-5
at 121. She said: “[Y]ou don't have to watch them
like that.” Id. Notably, plaintiff claimed the
Unit was not a sex offender unit and therefore Client A was
not required to use a particular restroom. ECF 25-5 at 82.
Plaintiff allowed Client A to use a bathroom further from
where she sat in the Unit. ECF 25-6 at 23; ECF 25-13,
¶¶ 4-5; ECF 25-5 at 121-22. Pettaway-Darden also
acknowledged that she did not see Client B leave his room or
enter the bathroom where Client A was located. ECF 25-5 at
135-36; ECF 26. During the time period when the two boys were
in the bathroom, there is no record of any activity by Client
R that would have distracted plaintiff. ECF 25-5 at 102,
morning of February 12, 2013, Client A told Mackey-Jones that
Pettaway-Darden was asleep when he first left his room. ECF
25-9 at 11. He claimed that “he had to wake her
up” by “call[ing] her by her name” to
“ask her to go to the bathroom.” Id.
B also met with Mackey-Jones shortly after the incident. He
told Mackey-Jones that “he had a sexual encounter with
Client A” in the bathroom. ECF 25-9 (Deposition of
Mackey-Jones) at 17. Client B also reported that “when
he came out of his room Ms. Pettaway was sleeping. She did
not see him. He did not ask for permission to go to the
bathroom and said him and Client A waited until Ms. Pettaway
is asleep . . . .” Id. at 15-16. Moreover,
Client B recalled that “they have gotten away with a
number of [other past] behaviors, ” including
“[t]aking food out of the refrigerator” and
“sneaking in each other's room[s]” while
Pettaway-Darden was asleep during previous overnight shifts.
Id. at 16.
another interview on the date of the incident, Client B told
Woodbourne Therapist Lauren Rosier that he had been able to
leave his room and meet Client A in the bathroom because
Pettaway-Darden was asleep. ECF 25-14 (Rosier email to
McMann) at 9. In yet another interview of Client B on the day
of the incident, Cabral reported that Client B told her he
had called out to Pettaway-Darden but she “did not
answer because she was asleep, so he came out of his room and
went into the bathroom. [Client A] was in the bathroom
already.” ECF 26.
uses video surveillance to monitor and record activity in the
Unit. ECF 25-9 at 5-10; ECF 25-15 (Deposition of
Woodbourne's Corporate Designee) at 3. At the relevant
time, cameras were located on both ends of the Unit. ECF 25-7
at 12; ECF 25-15 at 5-6. However, the recordings are no
longer available. Defendant explains that in 2013 there was
no policy regarding preservation of such recordings (ECF 25-1
at 20 n.5), and, as a result, the video footage from the
night in question was not preserved. ECF 25-4 at
Notably, the recordings were shown to plaintiff shortly after
the occurrence. ECF 25-5 at 136-37.
testified that she viewed the recordings on the morning of
the incident. ECF 25-7 (Deposition of Vincent-Poehlman) at
8-11. Specifically, she stated that she “observed . . .
Ms. Darden at the table rocking back and forth, appearing to
be asleep . . . [n]odding her head.” Id. She
added, id.: “On the other camera, you could
see the client coming out of his room looking straight at Ms.
Darden . . . and just walking to the other bathroom.”
Vincent-Poehlman continued: “[Y]ou see another client
coming out of the bathroom, saying something to Ms. Darden
and then walking to the bathroom, the same bathroom that the
other young man was in which was not his assigned
bathroom.” Id. at 15-16.
also reviewed the videos. She testified at her deposition
that the video footage showed plaintiff sitting down while
“Client A c[a]me out of his room and walked towards the
bathroom at the other end of the unit.” ECF 25-9 at
6-7. Additionally, Mackey-Jones “saw Client B come out
of his room, look towards where Ms. Pettaway was sitting,
and walk to the same bathroom that Client A walked
into.” Id. at 7. Mackey-Jones “saw no
motion from Ms. Pettaway, ” even though “Client B
was looking directly at her . . . .” Id.
February 14, 2013, plaintiff met with Mackey-Jones, McMann,
Vincent-Poehlman, and Union Representative Ruben Lopez to
discuss the Woodbourne's investigation of the incident.
ECF 25-5 at 137-38. At this meeting, plaintiff viewed the
video footage. ECF 25-5 at 136-37. At her deposition,
plaintiff acknowledged that she did not “know Client B
was out of his room until [she had] seen the tape”
during the meeting. Id.
reviewing the video footage of the incident;
Pettaway-Darden's log of Client R's activity; and the
statements of Cabral, Plummer, Pettaway-Darden, Client A, and
Client B, Vincent-Poehlman “concluded that Ms.
Darden's failure to remain alert when two clients came
out of their rooms and went to the same bathroom for a sexual
encounter constituted gross neglect.” ECF 25-10
(Declaration of Vincent-Poehlman), ¶ 10.
Vincent-Poehlman recommended the termination of
Pettaway-Darden based on gross negligence. ECF 25-7 at 21-23;
ECF 25-4 at 7-24; ECF 25-9 at 20-26.
discussed the matter with Vincent-Poehlman and McMann;
reviewed evidence obtained during the investigation;
considered Pettaway-Darden's training, performance
history, and previous disciplinary history; took into account
the nature of the incident; and considered potential
alternative forms of discipline for Pettaway-Darden.
Ultimately, Nott determined that termination, rather than any
other form disciplinary action, was the most appropriate
course of action. ECF 25-4 at 19-24. At her deposition, Nott
testified that plaintiff's “performance
history” was a basis for the ultimate decision to
terminate Pettaway-Darden. Id. at 22.
respect to plaintiff's termination, the Union filed a
grievance on her behalf, in accordance with the CBA. ECF
25-14, ¶ 6; ECF 25-14 (Union Grievance Letter) at 7.
Nott responded to the grievance (ECF 25-14, ¶ 9),
stating: “An alert staff member . . . sitting where Ms.
Pettaway was sitting should have seen clients leaving their
rooms and/or restrooms.” See ECF 25-14
(Nott's Answer to Union Grievance Letter) at 13.
Additionally, Nott said, id.: “[T]ermination
[was] justified due to the fact that Ms. Pettaway was not
alert to the incident that occurred on the program while she
was on duty.” Id.
Union pursued the matter to arbitration on
Pettaway-Darden's behalf. Andrew Strongin, the
arbitrator, heard testimony, received other evidence, and
reviewed post-hearing briefs from both sides. ECF 25-5 at
152-55, 146; ECF 25-5 at 340-53 (Arbitration Decision). On
November 16, 2013, Strongin found just cause for
plaintiff's termination. ECF 25-5 at 152-55; ECF 25-5 at
340-53. He recognized that “it might have been
preferable for Plummer not to leave grievant alone on the
unit.” See ECF 25-5 (Arbitration Decision) at
351. But, he stated that “grievant clearly should not
thereafter have accepted responsibility for Client A while
she was alone on the Unit in the midst of a one-on-one
observation, that she had no good reason for having done so,
and that her decision to do so is the principal cause of the
sexual misbehavior that ensued between Clients A and
asserts that, on the night in question, she was assigned to
observe Client R, who required plaintiff's undivided
attention, and she was not responsible for other clients in
the Unit. ECF 30 at 14-15, 18. According to plaintiff, it was
Plummer's absence from the Unit that created the
circumstances in which clients A and B were able to engage in
a sexual act. Id. at 20. She maintains that she was
subjected to disparate treatment when she, rather than
Plummer, was punished for the sexual encounter between
clients A and B. Id.
testified that Cabral was biased against women. According to
plaintiff, Cabral “treated [male employees] like they
was [sic] kings, and treated females like they were lower
than the men.” ECF 25-5 at 17-18. Plaintiff
also said that “around the holidays” Cabral
“used to bake pies” for Plummer and another male
employee named Perry Bowles. ECF 25-5 at 18, 22-23. Plaintiff
speculated that Cabral also baked pies for other unidentified
male employees. ECF 25-5 at 23. Further, plaintiff testified
that Plummer often drove Cabral to work. ECF 25-5 at 18; ECF
25-6 at 6. However, plaintiff also believed that Cabral
favored Plummer over other male employees as well. ECF 25-5
generally, plaintiff said that female employees were afraid
to report the misconduct of male employees “because who
you going to go to if the females favor the males over the
females” and because female employees were
“afraid of losing their jobs.” ECF 25-5 at 26-27.
For example, Pettaway-Darden said that in 2012 she heard
about a female employee, Mazeline Roberts, getting into a
“physical fight” with a male employee inside
Woodbourne's gym. ECF 25-5 at 29-31. According to
plaintiff, Roberts's supervisor “did nothing”
after Roberts reported the fight; Roberts later filed an EEOC
complaint; and Roberts was passed over for a morning shift
position that ultimately went to the man with whom she
fought. ECF 25-5 at 30-31, 40. Additionally, plaintiff said
she heard that McMann wrote a letter to the EEOC,
“stating that [Roberts] started the fight.” ECF
25-5 at 29-30. But, plaintiff conceded that she never saw the
letter. ECF 25-5 at 30.
to plaintiff, male employees often arrived late to work
without consequence, but she was unable to recall examples of
such conduct. ECF 25-5 at 36-37. Nor could plaintiff recall
specific events, names, or dates associated with male
employees being treated more favorably than female employees.
ECF 25-5 at 37. Specifically, plaintiff said “it's
a general conversation females would have, and no particular
day. Just something somebody would bring up . . . .”
ECF 25-5 at 37-38.
plaintiff testified that in 2012 she was sexually harassed by
a coworker, Morris Jones. ECF 25-5 at 47-50. According to
Pettaway-Darden, Jones “asked [her] to be his
girlfriend . . . more than once, and then he started
retaliating against [her].” ECF 25-5 at 48-49.
Plaintiff allegedly told Jones: “‘[W]e can't
go out.'” ECF 25-5 at 49. Although plaintiff
acknowledges that Jones never did anything physically
threatening or humiliating, she alleges that he
“started refusing to do his part of the work, and [she]
was getting in trouble for it.” ECF 25-5 at 49. For