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Pettaway-Darden v. Woodbourne Center, Inc.

United States District Court, D. Maryland

November 28, 2017

SHIRLEY PETTAWAY-DARDEN Plaintiff
v.
WOODBOURNE CENTER, INC./NEXUS CENTER Defendant.

          MEMORANDUM OPINION

          Ellen L. Hollander, United States District Court.

         In this 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.[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.[2]

         The 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.

         Following discovery, Woodbourne moved for summary judgment (ECF 25), supported by a memorandum of law (ECF 25-1) (collectively, the “Motion”) and numerous exhibits.[3] 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.

         No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.

         I. Factual Background[4]

         A.

         Woodbourne is a private non-profit corporation licensed by Maryland's Department of Health.[5] 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, ¶¶ 4-5.

         Pettaway-Darden 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.

         DCPs 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.

         The 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.

         Plaintiff 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.

         At the 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.

         In 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.[6] 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.

         B.

         The 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.

         On the 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.

         Plummer 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.

         Shortly 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.

         Plummer 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.[7]

         Cabral 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.

         Cabral 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.

         Of 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. ECF 26.

         At her 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.

         Plaintiff 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, 325-26.

         On the 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.

         Client 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.

         In 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.

         The RTC 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 13.[8] Notably, the recordings were shown to plaintiff shortly after the occurrence. ECF 25-5 at 136-37.

         Vincent-Poehlman 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.

         Mackey-Jones 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.

         On 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.

         After 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.

         Nott 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;[9] 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.

         C.

         With 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.

         The 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 B.” Id.

         D.

         Pettaway-Darden 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.

         Plaintiff 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.[10] 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 at 24-25.

         More 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.

         According 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.

         Further, 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 ...


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