United States District Court, D. Maryland
RUDY RICE, Plaintiff.
HOWARD COUNTY GOVERNMENT, Defendant.
Copperwnte United States Magistrate Judge
Howard County. Maryland ("Defendant"), moves this
Court for summary judgment in favor of Defendant and against
Plaintiff Rudy Rice ("Plaintiff") (the
"Motion") (ECF No. 45). Defendant seeks a ruling
from the Court that Plaintiff cannot prevail on his hostile
work environment discrimination and retaliation claims
against Defendant, his former employer, because he cannot
demonstrate required elements of these claims. ECF No. 45-1
at 1-2. Plaintiff filed an opposition to Defendant's
Motion (ECF No. 46). After considering the Motion and
responses thereto (ECF Nos. 46-47), the Court finds that no
hearing is necessary. See Loc.R. 105.6 (D.Md. 2016).
In addition, having reviewed the pleadings of record and all
competent and admissible evidence submitted by the parties,
the Court finds that there is insufficient evidence from
which a jury could find in Plaintiffs favor on the hostile
work environment claims, and insufficient evidence from which
a jury could find in Plaintiffs favor on the retaliation
claim. Accordingly, the Court will GRANT Defendant's
Motion (ECF No. 45).
lawsuit arises out of Plaintiffs allegations of hostile work
environment discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964 and the Maryland
Human Relations Act ("MHRA"). The facts are viewed
in a light most favorable to Plaintiff. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574. 587
(1986) (citation omitted).
an African-American, worked at the Howard County Bureau of
Water and Wastewater Utilities (the "Bureau").
Defendant's Workplace Harassment Policy explains the
informal and formal procedures for reporting harassment
• Informal Procedure
The County encourages individuals who believe they are being
harassed ("Reporting Individual s)") to directly
and promptly notify the harasser or offender that his or her
behav ior is unwelcome. If for any reason a Reporting
Individual does not wish to approach the harasser or offender
directly, or if such discussion does not successfully end the
harassment, the Reporting Individual should notify either the
Human Resources Administrator or any Human Resources
professional. the Appointing Authority for his/her
department, or his/her supervisor, for purposes of speaking
with the alleged harasser. While this informal procedure is
encouraged, it is not a required first step for a Reporting
Individual wishing to report an incident of harassment using
the formal complaint procedure outlined below. If the Human
Resources Administrator, or the Reporting Individual's
Appointing Authority or supervisor is successful in
informally resolving a report of harassment, a written report
summarizing the complaint made and resolution achieved shall
be promptly forwarded to and maintained by the Human
• Formal Procedure
In the event that a Reporting Individual does not wish to
pursue the informal procedure described above, or in the
event that the informal procedure does not produce a result
satisfactory to a Reporting Individual, the following steps
should be followed to report the harassment complaint:
1. A Reporting Individual who believes he or she has been
subjected to harassment should promptly report the incident
to the Human Resources Administrator or his/her designee.
2. A Reporting Individual also has the option of reporting an
incident of harassment to the Reporting Individual's
Appointing Authority, or the individual's immediate
supervisor. When a report of harassment is made to either an
Appointing Authority or supervisor, the Appointing Authority
or supervisor must immediately file with the Human Resources
Administrator a written report of the complaint. as the
Office of Human Resources is responsible for overseeing
3. All complaints of harassment must be reduced to writing by
either the Reporting Individual or the individuals designated
above who are authorized to receive complaints. The written
Complaint is to contain a detailed record or account of the
behavior found objectionable. and shall be signed by the
4. The prompt reporting of harassment complaints is strongly
encouraged by the County. While the County will investigate
all complaints of harassment, the late reporting of
complaints or information may affect the County's ability
to conduct a thorough investigation, and may
thereby impair the County's ability to take effective
remedial action. Additionally, and while the County has
chosen not to impose a specific time frame in which to report
harassment complaints, a Reporting Individual should be aware
that applicable statutes of limitation may constrain the time
for instituting outside legal action.
ECF No. 45-10 at 2-4. The policy also includes information
about the investigative process for complaints, including
listing steps for ordinarily investigating complaints,
resolving complaints, and disciplining individuals found to
have engaged in misconduct constituting harassment under the
policy. Id. at 4-5. Furthermore, the policy lays out
categories for immediate discharge of an employee, including
insubordination, which includes "a failure or refusal to
follow directions or to perform assigned work." ECF No.
46-12 at 6-7.
worked in the main office of the administrative building at
the Little Patuxent Water Reclamation Plant
("LPWRP"). ECF No. 45-5 at 5. Maria Madison, an
African-American, was Plaintiffs immediate supervisor and she
evaluated Plaintiff, with the approval of her supervisor, the
Bureau Chief, Stephen Gerwin. ECF Nos. 45-3 at 2-5 & 45-4
at 2. Ms. Madison and Mr. Gerwin worked at a different
location than Plaintiff. ECF No. 45-3 at 2. Plaintiffs office
included Paul Tomaskovic, a superintendent for the
operational side of LPWRP, Denis Junis. another timekeeper,
and a woman who sat at the front desk. ECF Nos. 45-3 at 22
& 45-5 at 3, 5-6. Plaintiff was the only African-American
in the main office area. ECF No. 45-5 at 5-6.
Administrative Technician III, Plaintiffs responsibilities
included timekeeping and submitting payroll for LPWRP. ECF
No. 45-3 at 2, 16. Plaintiff, as well as other LPWRP
employees, received direction and assignments from Mr.
Tomaskovic and other LPWRP superintendents. ECF No. 46-5 at
5, 9. Specifically, Plaintiff administratively supported Mr.
Tomaskovic and other LPWRP superintendents by doing payroll
for their personnel. ECF No. 46-3 at 5. As a result.
Plaintiff had a "significant amount" of contact
with other employees in performing his duties. ECF No. 45-4
20. 2014, Mr. Tomaskovic said, "Rudy, 1 swear to lucking
God, if you have that heater on, I am going to kick your
black ass." ECF No. 45-6 at 8. Mr. Tomaskovic repeated
the comment at Mr. Rice's request and Mr. Rice said
something to the effect of "You can try."
Id. Mr. Tomaskovic made another comment under his
breath and then went to his office. Id.
thereafter. Plaintiff informed Ms. Madison of this incident
with Mr. Tomaskovic. ECF No. 45-3 at 9. Plaintiff told Ms.
Madison that the tone of Mr. Tomaskovic's voice led him
to believe that Mr. Tomaskovic would escalate the incident to
a physical altercation. ECF No. 45-5 at 6. Plaintiff also
told Ms. Madison about two other incidents involving Mr.
Tomaskovic: (1) in early March 2014, Mr. Tomaskovic said to a
coworker's dog, Jade, "[L]ook out Jade, there is a
black man coming;" and (2) on February 25, 2014, Mr.
Tomaskovic told Plaintiff that instead of hiring him. he
wanted to "hire this smoking hot, white young
lady." ECF No. 45-6 at 9. Plaintiff had not previously
reported these incidents and said that he had ignored them
when they were made. Id. Plaintiff further told Ms.
Madison about three earlier incidents involving Ms. Junis:
(1) that in March 2014, Ms. Junis shouted that "black
people don't look good in camouflage:" (2) that Ms.
Junis shouted at Plaintiff that "black people don't
celebrate Saint Patrick's Day:" and (3) that in
April 2014. Ms. Junis said to Plaintiff. "Rudy, since
the power is out. I cannot see you; you are too
black." ECF No. 45-5 at 5. None of these instances
were physically threatening. ECF No. 45-3 at 26. Once he
finished his report on May 20, Plaintiff asked to leave work
for the rest of the day because he felt "disgusted by
the whole situation" and was afraid for his safety.
Id. at 10.
Madison immediately reported the incident to Mr. Gerwin and
Mr. Gerwin notified Human Resources ("HR"). ECF No.
45-4 at 4, 6. Because Plaintiff did not want to return to
LPWRP, he also took off from work on May 21. ECF No. 45-3 at
10. Ms. Madison called Plaintiff at his home and told him
that pending the investigation into his complaint, he would
report to the Bureau's headquarters on Old Montgomery
Road. ECF Nos. 45-3 at 12 & 45-5 at 9.
Plaintiff returned to work on May 22, 2014 at Old Montgomery
Road, he was asked to submit a written harassment complaint
against Mr. Tomaskovic to Ms. Madison and Mr. Gerwin. ECF No.
45-3 at 10-12; see also ECF No. 46-5 at 16-17. Ms.
Madison and Mr. Gerwin reviewed Plaintiffs written complaint
and revised it, offering edits, see ECF No. 46-5 at
20-21, which Plaintiff accepted before the complaint was
submitted to HR on May 27, 2014, ECF No. 45-3
at 11; see ECF No. 46-3 at 35-36.
Montgomery Road, Plaintiff was assigned a desk without a
computer. ECF No. 45-3 at 12. During the next two weeks while
Plaintiff did not have a computer, Mr. Gerwin directed
Plaintiff to take pictures of work crews at their sites.
Id. at 5. In order to do so, Plaintiff's start
time was changed to an hour earlier. ECF No. 46-3 at 23. Also
during this time. Plaintiff performed his timekeeper job
duties by using other employees* computers while they were at
lunch or off" from work and by asking other employees if
he could use their computers. ECF No. 45-3 at 13. Plaintiff
eventually moved his own computer at night and received
overtime pay for doing so. Id.
Plaintiff was working from Old Montgomery Road, other
administrative assistants handled Plaintiffs responsibilities
which had to be performed at LPWRP. including transporting
confidential documents regarding payroll to Plaintiff at Old
Montgomery Road. ECF Nos. 45-4 at 8 & 45-5 at 9-10. Also
during this time. Plaintiff communicated with Mr. Tomaskovic
by email, mostly through Ms. Madison. ECF No. 45-3 at 23.
There were attempts to switch personnel between LPWRP and Old
Montgomery Road so that Plaintiff could stay at Old
Montgomery Road and to move Plaintiff to a trailer office at
LPWRP, but these plans were rejected because other employees
expressed disapproval. ECF Nos. 45-6 at 6 & 46-3 at
Ellen Gray, the Senior HR Administrative Analyst and an
African-American, investigated Plaintiffs complaint.
Id. at 3. As part of Dr. Gray's investigation,
on May 28, 2014, Mr. Gerwin and Dr. Gray obtained statements
from Plaintiff and Mr. Tomaskovic. Id. at 8. Within
the next week, Mr. Gerwin and Dr. Gray also interviewed three
other employees with knowledge of the facts relevant to
Plaintiffs complaint. ECF No. 46-6 at 7. As a result of her
investigation. Dr. Gray "determined that Mr. Tomaskovic
did not violate the County's workplace harassment policy;
however, his comment to Mr. Rice was offensive and demeaning
and warrants disciplinary action." ECF No. 45-6 at 8. On
June 3, 2014, Mr. Tomaskovic was suspended for Five days
without pay. ECF No. 46-13 at 2-A.
around mid-June. Plaintiff alleges that he found "a
picture of a noose and the 'N' word on a napkin"
in his desk drawer at Old Montgomery Road. ECF No. 46-3 at
23. Plaintiff threw this napkin away without showing it to
anyone. Id. at 28. Plaintiff spoke to Dr. Gray about
the note, ECF No. 45-3 at 24. Dr. Gray testified in
deposition that she did not remember Plaintiff mentioning a
napkin note and there is no mention of it in any report.
16. 2014, Dr. Gray produced her final written report
regarding her investigation to Lonnie Robbins. the
Bureau's Chief Administrative Officer. ECF No. 45-6 at 8.
In her report, Dr. Gray summarized her interviews, which
raised doubts regarding whether Mr. Tomaskovic's alleged
statements were racially motivated, and concluded that Mr.
Tomaskovic's racially insensitive remark did not
constitute workplace harassment as defined in Defendant's
Workplace Harassment Policy. Id. at 11.
Specifically, Dr. Gray determined that the alleged behavior
was not severe, extensive, or widespread enough to
substantiate a violation of the workplace harassment policy
by Mr. Tomaskovic. Id. at 12. Dr. Gray, however,
found Mr. Tomaskovic's remark to be racially insensitive,
demeaning, and inappropriate for the workplace, which she
recommended warranted a five day suspension without pay.
Gerwin sought to set up a meeting between Plaintiff and Mr.
Tomaskovic so that Mr. Tomaskovic could apologize to
Plaintiff. On July 18, 2014, Plaintiff refused to meet with
Mr. Tomaskovic and expressed his displeasure over Mr. Gerwin
scheduling a meeting without informing Plaintiff of Mr.
Tomaskovic's presence. ECF No. 45-5 at 13.
during late summer. Mr. Gerwin determined that having a
timekeeper who was not located at LPWRP was not working. ECF
No. 45-4 at 9. Thus, he decided that Plaintiff could not stay
at Old Montgomery Road. Id. Mr. Gerwin and Ms.
Madison informed Plaintiff that his computer would be moved
back to LPWRP on August 26, 2014. ECF No. 45-3 at 14.
Plaintiff informed Ms. Madison that August 26 was in the
middle of payroll and that a move on that day would interfere
with his ability to complete payroll. Id. Thus, the
move did not occur on August 26. Id. at 14-15.
the investigation, on June 5, 2014, Mr. Gerwin and Ms.
Madison visited Plaintiffs house because Mr. Gerwin was
concerned that Plaintiff had not reported for work and was
not answering any of his communication devices. ECF No. 46-4
at 5-6. After this visit. Plaintiff returned to work.
August 28, 2014, Plaintiff met with Mr. Robbins, Nancy Gray,
the Deputy County Administrative Officer, and a union
representative and he told them about his situation at
I.PWRP: ECF No. 45-8 at 3. Specifically, Plaintiff told them
that he felt that he was being retaliated against by Ms.
Madison and Mr. Gerwin because he thought that they were both
trying to force him to accept Mr. ...