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Rice v. Howard County Government

United States District Court, D. Maryland

December 21, 2017

RUDY RICE, Plaintiff.
v.
HOWARD COUNTY GOVERNMENT, Defendant.

          MEMORANDUM OPINION

          David Copperwnte United States Magistrate Judge

         Defendant, 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).

         Factual Background

         This 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).

         Plaintiff, 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 complaints:

         COMPLAINTS

• 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 Resources Administrator.
• 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 harassment investigations.
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 Reporting Individual.
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.

         Plaintiff 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.

         As an 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 at 7.

         A. The Offending Comments

         On May 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.

         Shortly 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."[1] 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.

         Ms. 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.

         B. Defendant's Investigations

         When 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.

         At Old 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.[2] 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.

         While 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 16-17.

         Dr. Jo 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.

         In or 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.

         On June 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. Id.

         Mr. 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.

         Sometime 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.

         During 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.

         On 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. ...


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