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Thomas v. City of Annapolis

United States District Court, D. Maryland

September 4, 2018

JASON THOMAS, Plaintiff,
CITY OF ANNAPOLIS, et al., Defendants.


          Beth P. Gesner Chief United States Magistrate Judge.

         Plaintiff 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”), [1] (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).[2] 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.

         I. BACKGROUND

         In 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 (2007).

         Plaintiff 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).

         On 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).

         On May 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.” Id.

         On June 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).

         On June 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. Id.

         On July 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).

         On 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.[3] 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).

         In an 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 2016.

         On June 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).[4]

         In the 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”)[5] 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.


         Summary 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 (1986).

         When 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.


         A. Race Discrimination in Violation of Title VII ]

         Count I 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).

         Title 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.[6] Thus, elements one and three are satisfied.

         As to 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).

         Plaintiff 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.

         Although 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.

         When 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: ...

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