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Whitt v. R & G Strategic Enterprises, LLC

United States District Court, D. Maryland

January 11, 2018



          Richard D. Bennett United States District Judge

         Plaintiff Sabrena Whitt (“Whitt” or “Plaintiff”) brought this action against Defendant R&G Strategic Enterprises, LLC (“R&G” or “Defendant”), alleging violations of the Family and Medical Leave Act of 1993, 29 U.S.C §§ 2601 et seq. (“FMLA”) and defamation. (ECF No. 2.) Specifically, Plaintiff alleges that R&G interfered with the exercise of her FMLA rights (Count I), retaliated against her for exercising her FMLA rights (Count II), and defamed her under Maryland state law (Count III)[1]. Currently pending before this Court is Defendant's Motion for Summary Judgment on all three claims. (ECF No. 26.) The parties' submissions have been reviewed, and no hearing is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons stated below, Defendant's Motion for Summary Judgment (ECF No. 26) is DENIED in part and GRANTED in part. Specifically, Defendant's Motion is DENIED as to Counts I and II, and this case will proceed to trial on Plaintiff's FMLA interference and retaliation claims. Defendant's Motion is GRANTED however, as to Count III, and judgment is ENTERED in favor of Defendant on Plaintiff's defamation claim.


         In ruling on a motion for summary judgment, the court reviews the facts and all reasonable inferences in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007); Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). In 2010, Plaintiff began working for Baltimore Security Consultants, LLC (“BSC”), which operated under the franchise name Signal 88 Security. (Whitt Aff., ECF No. 27-1 at ¶ 2.) At the time, BSC had contracts with approximately twenty apartment complexes, office buildings, schools, and retail facilities. (Id. at ¶ 3.) In January of 2015, BSC sold some of those contracts to Defendant R&G, which provides security services for residential, commercial, retail, and institutional customers and also operates as a franchise of Signal 88 Security. (Id. at ¶ 4; Lemmer Aff., ECF No. 26-4 at ¶ 3.) The Chief Executive Officer of R&G is Ryan Lemmer, who is based in Boston, Massachusetts. (ECF No. 26-4 at ¶ 3; ECF No. 27-1 at ¶ 11.)

         As a result of the above sale to R&G, Whitt became Director of Operations for R&G. (ECF No. 26-4 at ¶ 4.) The “Office and Time Off Policy” provided that offices were to be staffed from 8:30 a.m. to 5:00 p.m. Monday through Friday, teleworking or flexibility in office hours required approval by Ryan Lemmer, and an employee in Whitt's position was given four sick days and ten vacation days. (Whitt Dep., ECF No. 26-3 at 23; Exh. 9, ECF No. 26-3 at 69-71.) Aside from this policy, Plaintiff testified that she never received an employment manual or any written disciplinary rules or guidelines. (ECF No. 27-1 at ¶ 14.) In her capacity as Director of Operations, Whitt's roles were maintaining the office, running the fingerprint business, hiring security personnel, account management, and summiting paperwork including hiring packets in a timely fashion. (ECF No. 26-3 at 12-13.) On or around December 1, 2015, however, several new hire packets were not timely submitted, which resulted in a few employees not getting timely paid. (Id. at 17.) This was brought to the attention of Whitt's supervisor, Mike McNamara, Director of Operations of Lemmer's franchises who like Lemmer, is also based in Boston. (ECF No. 26-3 at 58-60.) McNamara sent an email regarding the new hire packets to Whitt, who explained that the packets were not submitted because they were not complete prior to her going on a scheduled vacation.[2](Id.) Under the prior management, she would not submit incomplete packets. (ECF No. 27-1 at ¶ 30.) Lemmer was copied on this email exchange in addition to being copied on or forwarded all of the below email exchanges between McNamara and Whitt.

         In late December of 2015, Whitt became Regional Manager for the Southern Division. (ECF No. 27-1 at ¶ 9; ECF No. 26-1 at 2.) Subsequently, she was advised in an email from McNamara on January 12, 2016 that her responsibilities would be overseeing five properties and that she was responsible for, among other things, staffing the properties, making at least twenty client contacts per week, following up with clients concerning client issues, and ensuring employee training and performance standards were met. (ECF No. 26-3 at 21, 64; ECF No. 27-3.) One of the five properties was the Enclave Apartments, a new contract acquired by R&G and an apartment complex located in Silver Spring, Maryland with approximately 1100 apartments. (ECF No. 27-1 at ¶¶ 6, 12; ECF No. 27-2 at ¶1.) The email also stated “anytime you need additional training on ANYTHING, let me know. Your team should all receive 2 days of training before being left on a property to service the client alone.” (ECF No. 26-3 at 64; ECF No. 27-3.)

         On January 11, 2016, one day before McNamara sent Whitt that email detailing her new responsibilities, her husband, also an employee of R&G, received a CT scan which showed large calcified lesions. (ECF No. 27-1 at ¶ 16.) On or about January 15, 2016, Plaintiff telephoned McNamara to tell him that her husband had two brain tumors which would probably need to be surgically removed. (Id. at ¶ 18.) On January 17, her husband was admitted for further evaluation. (Id. at ¶ 17.) On January 18, McNamara responded to Plaintiff with a two-fold response. (ECF No. 26-3 at 73-74; ECF No. 27-4.) First, he wrote that her husband's shifts had been taken care of so that he could recover and “his job is presently awaiting his return.”[3] (ECF No. 26-3 at 73-74; ECF No. 27-4.) Second, he asked what the company was “to expect” from Plaintiff during this time. (ECF No. 26-3 at 73-74; ECF No. 27-4.) In response, Plaintiff stated that she would need to take the week off, from January 19 to January 22, 2016. (ECF No. 26-3 at 73-74; ECF No. 27-1 at ¶ 18). She took paid leave for these days. (McNamara Aff., ECF No. 26-5 at ¶ 5.)

         During this paid leave, on January 21, 2016, McNamara emailed Whitt explaining that her sick time expired that Friday, January 22, and “any additional time w[ould] need to be vacation or unpaid time off.” (ECF No. 26-3 at 78; ECF No. 27-6.) On Monday, January 25, 2016, she wrote back that she would need that Monday and possibly Tuesday off and that her husband needed surgery but it had not yet been scheduled. (ECF No. 26-3 at 78; ECF No. 27-6.) However, she stated that she would still be working on the payroll and checklist. (ECF No. 26-3 at 78; ECF No. 27-6.) McNamara wrote back that same day, again stating that any additional time beyond Whitt's sick time would “be accounted for either as used vacation time, or, if you need an unpaid leave with your job waiting for you, you're free to take what time you need.” (ECF No. 26-3 at 78; ECF No. 27-6.) From the time when Plaintiff came back from leave and through February of 2016, Plaintiff testified that she continued working and performing her responsibilities as Regional Manager. (Whitt Depo., ECF No. 26-3 at 30-31.) She worked daily at the Enclave property from 7:30 a.m. to 12 p.m., and then she would work from home.[4] (ECF No. 27-1 at ¶ 35.)

         On or around February 11, 2016, Whitt learned that her husband's surgery would be in two weeks. (ECF No. 27-1 at ¶ 19.) On February 18, she told McNamara the scheduled date, and on February 22 told him that she would not be available from the evening of February 24 to at least March 1, 2016. (ECF No. 27-1 at ¶ 19; ECF No. 27-9.) Accordingly, Whitt again went on paid leave during that time. (McNamara Aff., ECF No. 26-5 at ¶ 7.) It is during this time of her second leave that McNamara testified that he learned of several deficiencies in Plaintiff's work performance, which he ultimately reported to Ryan Lemmer. (Id. at ¶¶ 9-15.)

         On March 1, 2016, McNamara emailed Plaintiff stating that according to Human Resources, she had five days left of paid time off (PTO). (ECF No. 26-2 at 79; ECF No. 27- 10.) However, because PTO was frozen company wide, the company needed her back at work or to suspend PTO. (ECF No. 27-10.) The next day, March 2, 2016, Plaintiff responded that she wanted her vacation time released because “an interruption in pay would put [her] family in further turmoil.” (Id.) She also stated that she would be submitting FMLA paperwork as soon as she received her husband's doctor's signature. (Id.) In response, that same day on March 2, 2016, McNamara wrote Plaintiff that the company expected her to return to work, or she was “free to decline, and cite FMLA as [she] deem[ed] necessary, and within those guidelines we will authorize you to assume unpaid leave and tend to your family. . . . [W]e simply ask that you return to work or continue your leave of absence unpaid and return at your earliest.” (Id.) When Whitt did not respond within a few hours, McNamara again wrote to her stating that “we are left to assume that you're in need of additional time, ” and, although “this is not a termination notice, ” mandated that she return all company keys and equipment by Friday, March 4, 2016. (Id.)[5]

         Whitt did not return the company keys or equipment by that Friday. (Exh. 14, ECF No. 26-3 at 85-86.) On March 7, 2016, she wrote to McNamara indicating that she was not in a position to return to work and would update him after her husband's upcoming appointment. (Id.) McNamara responded that day saying that he had been trying to contact Whitt and needed a timeline on when she would be able to return all company equipment and FMLA paperwork. (Id.) The next day, March 8, 2016, Defendant sent two employees and police officers to retrieve the equipment from Whitt's home. (ECF No. 27-1 at ¶ 27; Exh. 1, ECF No. 26-5.)

         On March 9, 2016, McNamara filled out Whitt's termination notice. (ECF No. 26-5.) Plaintiff testified that also on that day, Nickol Grenaway, an Assistant Manager at the Enclave, told her that an HR manager had said that Plaintiff “had stolen time and had been terminated.” (ECF No. 27-1 at ¶ 28; see also Grenaway Aff., ECF No. 27-2 at ¶ 8.) On March 17, 2016, Plaintiff received her termination notice. (ECF No. 27-1 at ¶ 29.) In the termination notice, McNamara observed that:

On more than one occasion it was noted that Sabrena Whitt offered no training to her officers, minimal direction on their mission and no follow ups. All strategies of leadership were ineffective as she delegated to individuals who reported minimal instruction and no training or set expectations of their duties. On more than one occasion multiple employees were not paid for their time due to her inability to provide prompt submission of documentation within very specific deadlines. . . . To date, Sabrena has made 0 sales contacts. . . . [D]uring the month of February, [Supervisor Isaac Baccarezza] had only been in contact with [Plaintiff] in person a handful of times and never for a substantial amount of time. Leading Office Concierge Danielle Carter stated similarly that Sabrena was observed on the property until no later than noon and was hardly seen on property during the month of February. . . . [Clients] further stated their email communications contained issues and after their attempts to reach out to Sabrena, no results concerning service related issues were forthcoming. Clients had also stated they had on more than one occasion met with Officers and advised [that] the Security Officer was unable to identify why they were on the property, what their mission was and received no training on the property - just provided an address and a time to report for duty. . . . A client requirement on one of the properties is to patrol at night with a marked company vehicle. [The Operations Manager at Signal 88 Security, however, ] reported that he had reason to believe that vehicle had not moved in several weeks. . . .

(ECF No. 26-5, Exh. 1.)

         On July 6, 2016, Plaintiff brought the instant suit in the Circuit Court for Baltimore City. (ECF No. 2.) Defendant removed the case to this Court based on diversity of citizenship and federal question jurisdiction, pursuant to 28 U.S.C. §§ 1331, 1332. (ECF No. 2.) Plaintiff alleges that Defendant interfered with her rights under the Family and Medical Leave Act, retaliated against her for exercising those rights, and defamed her under Maryland state law. (Id.) Defendant moves for summary judgment on all three claims. (ECF No. 26.)

         STANDARD ...

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