United States District Court, D. Maryland
P. Gesner Chief United States Magistrate Judge.
Jason Thomas (“Thomas, ” or
“plaintiff”) brings this employment
discrimination action against defendants City of Annapolis,
Maryland (“City”), City of Annapolis Police
Department (“APD”), and APD Chief Michael
Pristoop (“Chief Pristoop”),  (collectively,
“defendants”), alleging violations of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. §§ 2000e, et seq., the Americans
with Disabilities Act (“ADA”), 42 U.S.C. §
12111, et seq., 42 U.S.C. § 1981, and 42 U.S.C.
§ 1983, based on a series of events which resulted in
his termination from his position as a police officer with
APD. Currently pending before the court are: (1)
Defendants' Motion for Summary Judgment
(“Defendants' Motion”) (ECF No. 51); (2)
Plaintiff's Opposition to Defendants' Motion
(“Plaintiff's Opposition”) (ECF No. 54); and
(3) Defendants' Reply in Further Support of Its Motion
for Summary Judgment (“Reply”) (ECF No. 52). A
hearing was held on February 13, 2018. (ECF No. 47). After
the hearing, the court reopened discovery to allow for
additional discovery and asked for supplemental briefing on
the results of the additional discovery. (ECF No. 48). These
supplemental briefs were also considered in resolving this
Motion. (ECF Nos. 55 and 60). The issues have now been fully
briefed, and no additional hearing is necessary. Loc. R.
105.6. For the reasons stated below, Defendants' Motion
(ECF No. 51) is granted.
ruling on a motion for summary judgment, this court considers
the facts and draws all reasonable inferences in the light
most favorable to the nonmoving party, which is the plaintiff
in this case. Scott v. Harris, 550 U.S. 372, 378
was hired by APD on February 12, 2013. (ECF No. 51-7). On
March 9, 2014, plaintiff sustained an injury to his left knee
and lower back while on the job. (ECF No. 54 at 2, ECF No.
54-4). Plaintiff sought treatment from Dr. Joel Fetcher for
these injuries. (ECF No. 54-4). On April 24, 2014, Chief
Michael Pristoop assigned plaintiff to the
“Administrative Support/Medical” section, also
known as light duty work. (ECF No. 54-5). Dr. Fletcher
performed surgery on plaintiff's knee on June 10, 2014.
(ECF No. 51-14). Plaintiff returned to light duty on August
12, 2014. (ECF No. 51-1 at 3).
November 10, 2014, Dr. Mark Rosenthal conducted an
independent medical examination (“IME”) of the
plaintiff, in connection with plaintiff's workers'
compensation request from the March 9 injury, to determine
whether plaintiff could return to full duty. (ECF No. 51-9).
Dr. Rosenthal concluded that plaintiff could return to work
“full time, full duty, limited only by his knee”
and that “[t]here is 0% impairment due to the injury of
March 9, 2014.” Id. On April 29, 2015,
plaintiff had a follow up appointment with Dr. Fetcher during
which the doctor recommended plaintiff undergo a functional
capacity evaluation (“FCE”) to better determine
his functional limitations, determine if a second surgery was
necessary, and assess plaintiff's continued pain and
difficulty post-surgery. (ECF No. 1-7).
13, 2015, while still on light duty, plaintiff filed an
application with the City's Human Resources Director, Mr.
Paul Rensted, for a service-connected disability retirement.
(ECF No. 51-12). On May 18, 2015, Dr. Stanley Friedler
conducted a second IME of the plaintiff in connection with
plaintiff's application for a service-connected
disability retirement. (ECF No. 51-14). Dr. Friedler was
provided with all of plaintiff's medical records and
concluded that plaintiff “is able to work . . . [but]
he should avoid squatting and kneeling, when possible.”
Id. Two days later, on May 20, 2015, plaintiff
returned to Dr. Fetcher complaining of continued pain and
difficulty in his left knee. (ECF No. 59-4). Dr. Fetcher
recommended that plaintiff be restricted “on a
permanent basis to light duty work with no standing or
walking more than 30 minutes without a break.”
2, 2015, Mr. Rensted denied plaintiff's application for a
service-connected disability retirement because he did not
meet the criteria under Annapolis City Code. (ECF No. 51-16).
Mr. Rensted informed Chief Pristoop and Captain Amoia that
plaintiff had undergone an IME, that his application for
disability retirement had been denied, and that Dr. Friedler
had cleared plaintiff to return to full duty work. (ECF No.
51-19). On June 3, 2015, Captain Amoia and Lieutenant Brian
Antal met with plaintiff to discuss the results of his IME,
his disability application, and his returning to work.
Id. Based on the results of the IME and Mr.
Rensted's denial of plaintiff's disability retirement
application, plaintiff was ordered to return to work on June
7, 2015. Id. Plaintiff, however, did not feel he was
ready to return to full duty work and voiced these concerns
at this meeting. Id. Due to minor requalification
issues, plaintiff returned to work on June 9, 2015 and
reinjured his knee that day getting into his patrol car.
Id. Plaintiff returned to light duty thereafter.
(ECF No. 51-20).
11, 2015, plaintiff filed an appeal of Mr. Rensted's
decision denying his disability retirement application with
the Annapolis City Public Safety Disability Retirement Board.
(ECF No. 51-22). On July 1, 2015 a conference call took place
between Mr. Rensted, Chief Pristoop, Captain Amoia,
Lieutenant Antal, and Mary O'Brien, the City's Risk
Analyst, to discuss plaintiff's situation. (ECF No.
51-23). It was decided plaintiff would be offered the role of
Police Records Specialist, which plaintiff had been doing
while on light duty, to allow plaintiff to remain employed
without impacting his reported physical limitations.
Id. On July 7, 2015, Chief Pristoop and Lieutenant
Antal met with plaintiff to offer him the vacant position of
Police Records Specialist. (ECF No. 51-25). They explained
that while this job was at a lower grade than his current
role as police officer, plaintiff was being offered the role
at the highest grade possible for the position so he could
remain close to the grade he had as a police officer.
20, 2015, plaintiff declined the offer of Police Records
Specialist in a meeting with Captain Amoia and Corporal
Justin Klinedinst. (ECF No. 51-26). Captain Amoia informed
plaintiff that the City could not continue to employ
plaintiff in a light duty position. Id. Captain
Amoia informed plaintiff he could use up any remaining paid
leave time or that he could go on leave without pay because
the most recent injury was not covered as a new work related
injury, because it was related to plaintiff's first
injury on March 9, 2014. Id. Plaintiff asked how
much leave time he had available, which Captain Amoia
provided, and then the meeting concluded. Id.
Plaintiff was on FMLA leave from July 21, 2015 to October 13,
2015. (ECF No. 51-27). Plaintiff also applied for and
received short term disability payments from August 4, 2015
to November 8, 2015. (ECF No. 51-28).
October 20, 2015, plaintiff filed a charge of discrimination
with the Maryland Commission on Civil Rights
(“MCCR”) against the APD, alleging discrimination
on the basis of race and disability, as well as retaliation.
(ECF No. 51-29). Plaintiff requested that this charge also be
filed with the Equal Employment Opportunity Commission
(“EEOC”). Id. On October 26, 2015, Dr.
Leslie Matthews conducted a third IME of plaintiff to get an
updated medical evaluation of plaintiff for his workers'
compensation claim from the second injury. (ECF No. 54-11).
Dr. Matthews concluded that plaintiff was not capable of
returning to full duty police work due to his knee and that
he should avoid running, prolonged standing, climbing hills
or stairs, squatting, stooping or kneeling. Id. On
April 29, 2016, plaintiff's appeal of Mr. Rensted's
decision denying his disability retirement application was
affirmed by the Public Safety Disability Retirement Board of
the City of Annapolis. (ECF No. 51-31).
effort to obtain updated medical information and doctors'
notes while plaintiff was on leave, Lieutenant Brian Antal,
per his affidavit, called plaintiff six times (November 5,
2015; November 23, 2015; January 11, 2016; February 11, 2016;
May 13, 2016; and May 31, 2016) and left a voicemail each
time. (ECF No. 51-32). None of his calls were returned.
Id. On November 23, 2015, Ms. Kimberly Ellis, the
Police Administrative Specialist, sent plaintiff an email
requesting current medical documentation. (ECF No. 51-33).
Defendants allege plaintiff never responded to this email and
plaintiff has offered no proof that he did. (ECF No. 51-1 at
9- 10). On November 24, 2015 and January 12, 2016, Captain
Amoia spoke with plaintiff during the appeal hearings before
the Public Safety Disability Retirement Board of the City of
Annapolis. (ECF No. 51-34). Captain Amoia informed plaintiff
that he was still an APD employee and that he was required to
provide the department with updated information concerning
his physical status for departmental needs. Id.
There is no evidence of record that plaintiff ever responded
to any communications from the APD, provided the APD with any
updated medical information, or communicated with the APD at
any time after the interaction with Captain Amoia in January
13, 2016, Chief Pristoop sent plaintiff a notice of
termination of employment with the City effective July 1,
2016. (ECF No. 51-35). The stated reason for termination was
unsatisfactory work performance in connection with
plaintiff's “unwillingness to return to work as a
police officer” and refusal to contact or return
communications from his superiors. Id. On August 26,
2016, the EEOC issued a Notice of Right to Sue to plaintiff.
(ECF 1-8, at 4). Plaintiff filed the instant case before this
court on November, 28, 2016. (ECF No. 1).
Amended Complaint, plaintiff alleges that he suffered race
and disability based employment discrimination as well as
retaliation. (ECF No. 16 at 14-24). Specifically, plaintiff
alleges that the decisions to deny him service-connected
disability retirement and to deny his request for a
functional capacity evaluation
(“FCE”) were racially motivated as he is African
American and that comparable Caucasian officers are not
denied such requests. Id. at 14. Plaintiff contends
that Caucasian officers receive better treatment in the
disability retirement application review process because
defendants afford greater weight to the opinions of Caucasian
officers' treating physicians than to the opinions of
African American officers' treating physicians.
Id. More specifically, plaintiff alleges that, when
reviewing his application for disability retirement,
defendants ignored the diagnosis and recommendations of his
treating physician, yet gave more weight to the opinions of
the treating physicians of the Caucasian officers when
reviewing their applications. Id. Plaintiff alleges
that defendants discriminated against him on the basis of his
disability and failed to properly accommodate him.
Id. at 16-17. Finally, plaintiff alleges that
defendants retaliated against plaintiff by not approving his
FCE request, ignoring his treating physician's
recommendations when denying his retirement disability,
placing plaintiff on leave without pay, and terminating him
in violation of Title VII and the ADA. Id. at 18.
STANDARD OF REVIEW
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine dispute remains “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A fact is properly considered
“material” only if it might affect the outcome of
the case under the governing law. Id. The party
moving for summary judgment has the burden of demonstrating
the absence of any genuine issue of material fact.
Fed.R.Civ.P. 56(a); Pulliam Inv. Co., Inc. v. Cameo
Props., 810 F.2d 1282, 1286 (4th Cir. 1987). On those
issues for which the non-moving party will have the burden of
proof, however, it is his or her responsibility to oppose the
motion for summary judgment with affidavits or other
admissible evidence specified in Federal Rule of Civil
Procedure 56. Fed.R.Civ.P. 56(c); Mitchell v. Data Gen.
Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993). If a party
fails to make a showing sufficient to establish the existence
of an essential element on which that party will bear the
burden of proof at trial, summary judgment is proper.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
reviewing a motion for summary judgment, the court does not
evaluate whether the evidence favors the moving or non-moving
party, but considers whether a fair-minded jury could return
a verdict for the non-moving party on the evidence presented.
Anderson, 477 U.S. at 252. In undertaking this
inquiry, the court views all facts and makes all reasonable
inferences in the light most favorable to the non-moving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The non-moving party,
however, may not rest on its pleadings, but must show that
specific, material facts exist to create a genuine, triable
issue. Celotex, 477 U.S. at 324. A
“scintilla” of evidence in favor of the
non-moving party, however, is insufficient to prevent an
award of summary judgment. Anderson, 477 U.S. at
252. Further, “mere speculation” by the
non-moving party or the “building of one inference upon
another” cannot create a genuine issue of material
fact. Cox v. Cnty. of Prince William, 249 F.3d 295,
299-300 (4th Cir. 2001). Summary judgment should be denied
only where a court concludes that a reasonable jury could
find in favor of the non-moving party. Anderson, 477
U.S. at 252.
Race Discrimination in Violation of Title
of plaintiff's Amended Complaint alleges the City and APD
discriminated against him on the basis of his race in
violation of Title VII. (ECF No. 16 at 14-15). Discrimination
under Title VII may be proved either by direct or indirect
evidence of discrimination or by utilizing the McDonnell
Douglas burden-shifting framework. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the
McDonnell Douglas burden-shifting framework, the
plaintiff must first establish a prima facie case for
discrimination. Id. If the plaintiff proves a prima
face case, the burden shifts to the employer to produce
evidence of a non-discriminatory, legitimate reason for the
action. Hoyle v. Freightliner, LLC, 650 F.3d 321,
336 (4th Cir. 2011). If the employer provides such a reason,
the burden shifts back to the plaintiff to prove that
defendant's reason was pretext for unlawful
discrimination. Love-Lane v. Martin, 355 F.3d 766,
786 (4th Cir. 2004).
VII prohibits an employer from “discharg[ing] any
individual, or otherwise ... discriminat[ing] against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race.” 42 U.S.C.A. § 2000e-2(a).
In his Amended Complaint, plaintiff asserts that he was
discriminated against on the basis of his race when
defendants ignored his treating physicians' opinions in
connection with the review of his application for a
service-connected retirement disability, when they placed him
on leave without pay, and when they terminated him. (ECF No.
16 at 14). Plaintiff does not claim he has direct or indirect
evidence of discrimination, and, thus, he relies on the
McDonnell-Douglas framework. (ECF No. 54 at 13). In
order to prove a prima facie case of discrimination,
plaintiff must prove: (1) membership in a protected class;
(2) satisfactory job performance; (3) adverse employment
action; and (4) different treatment from similarly situated
employees outside the protected class. Coleman v.
Maryland Court of Appeals, 626 F.3d 187, 190 (4th Cir.
2010). In this case, it is undisputed that plaintiff, an
African American male, is a member of a protected class. It
is also undisputed that he suffered an adverse employment
action when he was placed on administrative leave without pay
and, ultimately, when he was terminated. Thus, elements
one and three are satisfied.
the second factor, whether plaintiff was satisfactorily
performing his job, plaintiff provides evidence of positive
employee reviews from earlier in his employment with the
City. (ECF No. 54-15). Plaintiff, however, misconstrues the
time frame applicable in analyzing this element. The time
frame relevant to assessing the employee's performance is
“at the time of the adverse employment action, ”
not earlier in the employee's employment history.
Holland v. Washington Homes, Inc., 487 F.3d 208, 214
(4th Cir. 2007). Here, the relevant time frame for the two
adverse employment actions were when plaintiff: (1) was
placed on administrative leave without pay and (2) was
terminated. Between November 2015 and June 2016, the dates of
the two adverse employment actions, plaintiff was on
administrative leave without pay, but still employed by the
City. (ECF No. 51-25; 51-27; 51-28). Defendants attempted to
contact plaintiff on multiple occasions to receive updates on
plaintiff's status and get updated medical documentation
from plaintiff. (ECF No. 51-32; 51-33; 51-34). Defendants
left multiple voicemail messages, emailed plaintiff several
times, and reminded plaintiff in person at his disability
appeal hearing of the need to stay in contact with the City.
Id. None of the messages were returned. (ECF No.
51-1 at 15). Defendants maintain that during this time
period, plaintiff was not meeting defendants' legitimate
expectations. (ECF No. 51-1 at 13-16).
contends that there was “no legitimate basis” for
these repeated communications, that defendants were informed
to communicate through plaintiff's counsel, that
plaintiff had never received a poor performance review, and
that any failure to return phone calls “could not be
considered unsatisfactory performance.” (ECF No. 51-1
at 21). Plaintiff's claim of satisfactory performance
“cannot establish a genuine issue as to whether
[plaintiff] was meeting [his employer's]
expectations.” King v. Rumsfeld, 328 F.3d 145,
149 (4th Cir. 2003) (citing Evans v. Technologies
Applications & Serv. Co., 80 F.3d 954, 960-61 (4th
Cir. 1996)). It is the perception of the employer, not the
employee, that matters. Id. As a result,
plaintiff's own claim of satisfactory performance is
insufficient to generate a factual issue on this second
element of a prima facie case. See Morrall v. Gates,
370 Fed. App'x 396, 398 (4th Cir. 2010). In
Morrall, an African American female employee sued
her former employer, the Department of Defense, for race
discrimination in connection with her termination.
Id. at 398. The district court granted summary
judgment, and the Fourth Circuit affirmed. Id. The
main issue on appeal was whether the district court correctly
determined that plaintiff failed to prove that she was
performing her job at a satisfactory level at the time she
was terminated. Id. The Fourth Circuit reiterated
that “[w]hether an employee is performing at a level
that meets legitimate expectations is based on the
employer's perception, and [plaintiff's] own,
unsubstantiated assertions to the contrary are insufficient
to stave off summary judgment.” Id. Here, as
in Morrall, plaintiff has failed to satisfy the
second element because he cannot establish a genuine issue as
to whether he was satisfactorily performing his job at the
time of the adverse employment actions. Thus, plaintiff
cannot establish a prima facie case of race discrimination.
the inquiry could end here, the court, in light of the
extensive discussion by the parties, turns to an analysis of
the fourth and final element of a prima facie case of race
discrimination, that plaintiff was treated differently from
similarly situated employees outside the protected class. At
the outset, it should be noted that this issue was the
subject of supplemental discovery and briefing by the
parties. As detailed in an earlier opinion, the parties'
initial summary judgment papers did not include a discussion
of comparators because defendant had not produced discovery
regarding comparators. (ECF No. 48 at 3-7). The court ordered
that supplemental discovery regarding comparators be
conducted and that supplemental briefs be filed by the
parties regarding the comparator discovery. (Id. at
8-10) Plaintiff's supplemental brief addressing the
comparators focuses on the alleged disparate treatment
between plaintiff and the comparators as it relates to the
denial of disability retirement which, as noted above, likely
does not constitute an adverse employment action. Plaintiff
does not detail any disparate treatment between the plaintiff
and the comparators as it relates to plaintiff being placed
on leave without pay and or being terminated, the two adverse
employment actions at issue in this case. Plaintiff's
lack of analysis on this issue makes it both difficult to
discern the nature of plaintiff's claims and challenging
to discuss the comparator evidence within the applicable
legal framework. Notwithstanding these challenges, an
analysis of plaintiff's proffered comparator evidence
clearly reveals that plaintiff was not treated differently
from similarly situated employee outside the protected class.
analyzing the fourth factor, plaintiff need not point to a
similarly situated comparator, as a matter of law, to succeed
on a claim based upon discrimination. Bryant v. Aiken
Reg'l Med. Ctrs., Inc., 333 F.3d 536, 545 (4th Cir.
2003). But when plaintiff's allegations, as here, are
based “completely upon a comparison to an employee from
a nonprotected class . . . the validity of their prima facie
case depends upon whether that comparator is indeed similarly
situated.” Haywood v. Locke, 387 Fed.
App'x 355, 359 (4th Cir. 2010) (citing Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248,
258 (1981)). A plaintiff, therefore, must show that he or she
is similar in all relevant aspects to their
comparators. See Haywood, 387 Fed. App'x at 359
(emphasis added). This type of showing by plaintiff would
“include evidence that the employees ‘dealt with
the same supervisor, [were] subject to the same standards and
. . . engaged in the same conduct without such
differentiating or mitigating circumstances that would
distinguish their conduct or the employer's treatment of
them for it.'” Id. (citing Mitchell v.
Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992));
see also Humphries v. CBOCS W., Inc., 474 F.3d 387,
405 (7th Cir. 2007) (“[T]he purpose of the similarly
situated requirement is to eliminate confounding variables,
such as differing roles, performance histories, or
decision-making personnel, which helps isolate the critical
independent variable: ...