United States District Court, D. Maryland
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.
Memorandum Opinion, I shall elaborate as to the basis for my
oral ruling and Order of November 2, 2018 (ECF 25), granting
the motion for preliminary injunction (ECF 2) filed by Candus
Thomson, plaintiff. In the Order, I directed defendant Mark
Belton, Secretary of the Maryland Department of Natural
Resources (“DNR”), to restore plaintiff to the
job position she held with the agency on September 17, 2018,
when she posted an arguably inappropriate comment on Facebook
concerning a Maryland gubernatorial candidate.
served for several years as the “public information
officer” for the Natural Resources Police
(“NRP”), a subdivision of DNR (ECF 1-3, original
job description, at 2). On October 9, 2018, she filed suit
against Secretary Belton, both in his individual and official
capacity (ECF 1, “Complaint”), alleging that she
was unlawfully stripped of her media-related job duties
because, in the early hours of Monday, September 17, 2018,
while in her own living room, using her own device, she
responded to a Facebook post of a professional colleague by
referring to Maryland gubernatorial candidate Ben Jealous as
an “assclown.” ECF 35 (Transcript of November 1,
2018 hearing) at 44-45; ECF 20-5 at 2-3 (screenshot of
Facebook posts); see also ECF 1, ¶¶ 11,
12. Her comment was prompted by the candidate's decision
to veto reporter Tamela Baker's participation as a
panelist in the only gubernatorial debate with Governor Larry
Hogan. ECF 35 at 39-40; see also ECF 1, ¶¶
9, 10, 13.
to 42 U.S.C. § 1983, plaintiff alleges violations of her
rights under the First and Fourteenth Amendments. ECF 1,
¶¶ 31-32. She also seeks declaratory and injunctive
relief. Id. ¶¶ 33-35. Specifically, she
seeks “reinstatement of her duties” and
“expungement from her human resources records [of] all
references to the incident in question.” Id.
with her verified Complaint (ECF 1), plaintiff submitted
several exhibits: her fiscal year 2018 performance review
(ECF 1-2) (“performance review”); NRP's
official description of her position, signed February 19,
2016 (ECF 1-3); NRP's official description of
Thomson's position, signed September 28, 2018 (ECF 1-4)
(“new job description”); email correspondence
between Thomson and DNR Deputy Secretary Joanne Throwe (ECF
20-6); a letter from plaintiff's counsel to defendant,
dated September 27, 2018 (ECF 1-6); and a letter from
plaintiff's counsel to defendant, dated October 4, 2018
relevance here, plaintiff also filed a “Motion for
Temporary Restraining Order and/or Preliminary
Injunction” (ECF 2), as well as a memorandum of law.
ECF 2-1 (collectively, the “Motion”). In the
Motion, she sought to enjoin Belton “from continuing
any punishment of Plaintiff for her personal speech and
immediately restoring Plaintiff to her previous
responsibilities and duties as a Public Officer for the
Natural Resources Police.” ECF 2-1 at 2. She sought
reinstatement through November 6, 2018, which was previously
scheduled as her last date of employment with DNR.
response to the filings, on October 10, 2018, the Court held
an emergency telephone conference with counsel for both
sides. See ECF 7. At that time, counsel agreed to
proceed on the request for a preliminary injunction, rather
than the request for a temporary restraining order.
subsequently filed a supplemental memorandum to the Motion.
ECF 8. Defendant submitted its opposition. ECF 11
(“Opposition”). In response to plaintiff's
request for production of documents (ECF 12-1), I granted
limited documentary production by Order of October 24, 2018.
ECF 13. Plaintiff filed her reply (ECF 20,
“Reply”), along with multiple exhibits (ECF 20-1
to ECF 20-8), on October 29, 2018.
Court held a Motion hearing on November 1 and November 2,
2018, at which testimonial and documentary evidence and
argument were presented. See ECF 22; ECF
23.Plaintiff was the sole witness for her
side. Defense counsel called several witnesses: DNR Secretary
Belton; DNR Deputy Secretary Joanne Throwe; DNR Director of
Communications Stephen Schatz; and DNR Chief Public
Information Officer Gregg Bortz.
conclusion of the hearing, because of the urgency of the
matter, including plaintiff's impending departure from
DNR on November 6, 2018, I delivered a brief oral ruling,
granting the Motion, and issued an Order. See ECF
25. I also informed counsel and the parties that a written
ruling would follow, in order to amplify, clarify, and
explain the oral ruling.
Belton is the Secretary of DNR. The DNR is Maryland's
principal department for policy related to natural resources.
The DNR Secretary “is responsible for the enforcement
of all natural resource laws of the State[.]” Md. Code
(2018 Repl. Vol.), § 1-202 of the Natural Resources
Article (“N.R.”). The NRP, a subdivision of DNR,
“serves as a public safety agency with statewide
authority to enforce conservation, boating, and criminal
law.” N.R. § 1-201.1(a). Its responsibilities
include, id. § 1-201.1(b):
(1) Providing maritime and rural search and rescue services;
(2) Providing public education in hunting, boating, and water
(3) Providing primary law enforcement services for State
parks, State forests, wildlife management areas, and public
lands owned and managed by the Department; and
(4) Serving as the lead agency for maritime homeland security
on State waterways.
almost five years, Thomson served as the “public
information officer” with the NRP. See ECF 35
at 8; ECF 8 at 1. Plaintiff testified that she came to the
NRP after a long career as a newspaper reporter and editor,
including twenty-five years with The Baltimore Sun.
ECF 35 at 5-7; see also ECF 1, ¶ 3. At the
hearing, she testified that she was leaving the DNR on
November 6, 2018. ECF 35 at 6. That departure was scheduled
before the incident at issue. Id.
NRP's original position description for Thomson appears
to reflect her actual duties and
responsibilities. It states that the purpose of this
“mission critical” position “is to ensure
NRP's and DNR's external and internal messaging is
consistent with Administration priorities and NRP's &
DNR's mission and goals . . . .” ECF 1-3 at 3.
According to DNR, the “position directly impacts the
agency's ability to publicize services and activities
[as well as] educate, inform and encourage stewardship and
public safety among Maryland's citizens and
most significant duties included acting (1) “as a
spokesperson for the Department, responding to media
inquiries about breaking stories and proactive
initiatives” and (2) “as the administrator for
NRP's social media accounts (Face Book [sic] and
Twitter).” ECF 1-3 at 3. Thomson also had several other
responsibilities, including preparing and disseminating
“press releases about breaking stories involving the
NRP to inform the media/public about the incidents and
provide accurate, timely information”; “writ[ing]
speeches and messaging for the [NRP] Superintendent”
and keeping him abreast “of all media coverage
regarding the Department”; and “maintain[ing]
agency stats (such as fatal boating accidents, etc.).”
ECF 1-3 at 3-4.
Thomson was not a political appointee. ECF 35 at 18;
see ECF 1-3 at 2 (characterizing Thomson as a
“Management Service” employee). Compare
Md. Code (2015 Repl. Vol., 2018 Supp.), § 6-403 of State
Personnel and Pensions Article (“S.P.P.”)
(defining a “management service” position)
with S.P.P. § 6-405 (defining a “special
appointment” position). She was hired while Governor
Martin O'Malley, a Democrat, was in office, and she
continued to work for the NRP under Governor Larry Hogan, a
Republican, who took office in 2015. ECF 35 at
plaintiff's tenure at NRP, she consistently received high
praise and outstanding reviews from NRP and DNR personnel. On
June 2, 2014, in her end-of-cycle performance review, Captain
David Larsen, who was plaintiff's supervisor at the time,
described plaintiff as an “outstanding” employee
and indicated that her job performance was
“Exceptional.” Thomson Motion Ex. 2 (collection
of supervisor comments) at 5. Two months later, Colonel
George F. Johnson, IV wrote a letter to plaintiff to thank
her for “doing an outstanding job.” Id.
at 3. In the January 5, 2015, mid-cycle review, Larsen again
wrote that plaintiff “has done an excellent job.”
Id. at 4. He said the same thing in her reviews on
July 2, 2015, and January 11, 2016. Id. at 1, 2. In
2015, Larsen also nominated Thomson for 2014 DNR Employee of
the Year. Thomson Motion Ex. 7 (nomination letter). The
following year, NRP awarded plaintiff a raise and
retroactively applied it to 2015. Thomson Motion Ex.1 at 2-3
(raise paperwork). On January 20, 2017, NRP Colonel Robert K.
Ziegler, Jr., plaintiff's supervisor and the head of the
NRP, sent her a letter thanking her for her service on the
NRP Strategic Recruitment Plan Workgroup. Id. at 1
(letter from Ziegler). He included this letter in
plaintiff's personnel filed. Id.
continued to receive outstanding reviews in 2018. In
plaintiff's review dated January 24, 2018, Lieutenant
Colonel Ernest J. Leatherbury, Jr., then her supervisor,
rated Thomson as excellent, the highest possible score, on
all twenty “behavioral elements” used in the
performance review. Thomson Motion Ex. 3 (2018 mid-cycle
review) at 3. In his comments, Leatherbury stated that
Thomson's “quality and quantity of work continues
to exceed all expectations.” Id. at 4.
review dated July 31, 2018, Gregg Bortz, plaintiff's new
supervisor, rated her as excellent on fifteen behavioral
elements and as satisfactory on five behavioral elements. ECF
1-2 at 3. She received perfect ratings on all five behavioral
elements in the Customer Service category. Id.
According to the testimony, her “customers” were
primarily DNR and NRP leadership. ECF 35 at 160, 234. Unlike
in other reviews, Bortz provided plaintiff with tasks to
achieve. He wrote, ECF 1-2 at 5:
Attend Communications unit meetings and schedule more
facetime with the rest of the media relations team. Consider
spending a few hours a week in Communications to improve
coordination between offices and facilitate eventual
passdown. In addition to regular log updates, make sure
manager is informed of relevant/controversial inquiries that
may cross into other unit's area (wildlife, boating,
Bortz also commented on plaintiff's performance,
Candy's work output is professional and outstanding, as
is her work ethic in meeting a high volume of inquiries at
all times of day. I would like to make sure we have more
immediate heads-up of potentially controversial inquiries to
assure better coordination across all units. Overall,
Candy's skill, experience and institutional knowledge are
tremendous assets to the department.
plaintiff's positive performance review, Thomson declined
to sign the performance review because she had not been
notified that Bortz was her supervisor. ECF 35 at 20-22; ECF
1-2 at 5; Thomson Motion Ex. 5 at 5 (Bortz email regarding
review). Moreover, Thomson testified that she emailed Belton
and other senior DNR staff, requesting clarification of the
chain of command, including disclosure of the identity of her
supervisor. ECF 35 at 90-91. She also said that she noted in
her email that her “MS-22 was woefully out of
date” Id. at 90.
Belton promptly convened a meeting on August 1, 2018, at
least partly in response to plaintiff's email.
Id. at 133-34. Throwe, Ziegler, Schatz, Thomson, and
Gwen Schindler, the Director of Human Resources, also
attended the meeting. Id. at 90; Belton Motion Ex. 2
(Notes of Schindler from August 1, 2018 meeting). The
Secretary advised Thomson that she needed to do a better job
coordinating with DNR's Office of Communications. ECF 35
at 134. During the meeting, Belton informed plaintiff that
she would be reporting to Schatz and should “touch
base” with the Office of Communications about
“all messages.” Belton Motion Ex. 2.
Thomson's outstanding performance reviews, Secretary
Belton, Schatz and Throwe testified that they began
experiencing problems with plaintiff in 2018. ECF 35 at 116,
133-34 (Belton); 179-80 (Schatz); 219-220 (Throwe).
Specifically, they testified that plaintiff regularly failed
to communicate and coordinate with the DNR Office of
Communications and, by extension, DNR leadership.
Id. They claimed that on multiple occasions, they
were caught off guard as a result of a breakdown in
communication. Id. at 114-15 (Belton); 179-81
(Schatz); 230 (Throwe). For example, Secretary Belton
testified that plaintiff did not properly coordinate events,
press conferences, and social media posts for the NRP's
150th anniversary. Id. at 158-59. In their
testimony, Secretary Belton and DNR leadership highlighted
three instances when plaintiff did not coordinate with the
DNR Office of Communications, despite the instructions
provided to her at the meeting on August 1, 2018.
Id. at 114-16; 179, 188-91; 221-22.
first incident occurred on August 7, 2018, when a chest
containing human bones washed up on Stinky Beach in Ocean
City. Schatz complained that Thomson did not alert them to
NRP's participation in a press conference concerning the
incident. Id. at 186-87. On August 10, 2018, Schatz
emailed Bortz, Thomson's direct supervisor, to ask if
Bortz “ping[ed] Candy yesterday about the media
availability and utter lack of communication or coordination
with the office or her supervisor?” Belton Motion Ex. 3
(Schatz's emails) at 1. Schatz also wrote: “We need
to document all incidents and issues.” Id.
Thomson testified, without contradiction, that NRP never
participated in a press conference related to this event. ECF
34 (Transcript of November 2, 2018 hearing) at 80-81. Rather,
upon discovery of the bones, an NRP officer merely secured
the area until the Worcester County Sheriff's Office
could take over. Id. at 81. Although the
Sheriff's Office held a press conference, NRP did not
participate in it or hold its own press conference.
second incident occurred on August 28, 2018, when a child
tragically drowned at Sandy Point State Park. The next day,
Schatz emailed Thomson requesting details about a tweet,
presumably from NRP's Twitter handle. Belton Motion Ex. 3
(Schatz's emails) at 2. In response, plaintiff sent him a
detailed account of the occurrence. Id. Schatz then
directed plaintiff to “please coordinate media events
with Gregg [Bortz] before scheduling/publicizing.”
Id. According to Schatz's testimony, plaintiff
had not coordinated the press response with the DNR Office of
Communications. ECF 35 at 188-89.
testified, however, that she was on a prescheduled vacation
in Maine at the time of the incident, and was not working at
the time. ECF 34 at 77-78. However, Schatz was unaware that
she was on vacation. ECF 35 at 200. Thomson also testified
that no one at NRP or DNR ever complained to her about
NRP's media response. ECF 34 at 78.
third incident involved a news article that appeared in the
Capital Gazette that cast the NRP in an unfavorable
light. On Sunday, September 16, 2018, an NRP
officer drove through a red light while pursuing a suspect
and collided with a SUV crossing the intersection. Belton
Motion Ex. 1 (Schatz email containing news article); Thomson
Motion Ex. 22 (copy of news article). The SUV driver, along
with her mother, aunt, and a pet dog, were in the vehicle.
Belton Motion Ex. 1; Thomson Motion Ex. 22.
Unfortunately, the dog was killed in the accident. Belton
Motion Ex. 1; Thomson Motion Ex. 22. The next day, Monday,
September 17, 2018, Colonel Zeigler briefed Belton about the
accident during a regular weekly meeting. See ECF 35
at 114. Notably, Thomson had no knowledge about the accident
at that point in time. ECF 34 at 67-68.
Brian Rathgeb was the commander of the patrol area where the
accident occurred. Id. at 61-62. Typically, when
something of significance occurs concerning NRP, a message is
sent out to all commanders, as well as Thomson and Schatz.
Id. at 57. According to Thomson, she and Schatz are
included as “part of [Schatz's] no-surprises
motto.” Id. However, no command text was
disseminated on the date of the accident. Id.
Moreover, Thomson was never provided with a Form 504, which
provides her with the “who, what, where, when” of
an incident and what she may share with the press.
Id. at 57-58. Additionally, because Thomson did not
have access to dispatch as a civilian, she could not have
discovered the accident on her own initiative. Id.
Thomson never learned about the accident from NRP or DNR
staff. Rather, she learned of it from Chase Cook, a reporter
with the Capital Gazette. Cook called plaintiff on
Tuesday morning, September 18, 2018. ECF 34 at 62. Cook asked
her about the accident, specifically NRP's policies on
officers driving through red lights and its internal
investigation process. Id. at 63. In response, she
said that if there was an accident, a different agency would
investigate NRP, because it does not investigate itself.
Id. at 62-63. She then asked about his timeline, and
he replied that he was just starting to work on the article.
Id. at 63. Thomson told Cook she would call him
back. Id. After plaintiff hung up, she immediately
texted Rathgeb, Zeigler, and Leatherbury, who is
Rathgeb's supervisor. Id. at 64. She knew that
all of them were together at a command meeting. Id.
at 63-64. Major Kersey, in consultation with Thomson, decided
that Rathgeb should respond to the inquiry because he had
previously served in internal affairs and was the commanding
officer when the accident occurred. Id. at 64-65.
Thomson's request, Rathgeb notified her after speaking
with Cook and told her that nothing significant happened on
the call. Id. at 66. That is, Rathgeb neither
indicated that he expected a critical article nor provided
Thomson with any reason to expect one. Thomson then logged
the event on a computer program used by NRP and DNR media
personnel to record contacts with the media. Id. at
67. Bortz and Schatz have access to the program. Id.
p.m. that afternoon, September 18, 2018, the Capital
Gazette published an article titled “Family Dog
Killed, Two People Injured When Natural Resources Police
Officer Crashes into SUV.” Belton Motion Ex. 1; Thomson
Motion Ex. 22. Twelve minutes later, Thomson emailed a copy
of the article to Leatherbury, Rathgeb, and Zeigler. Belton
Motion Ex. 1. About thirty minutes later, Schatz emailed a
copy of the article to plaintiff. Belton Motion Ex. 3 at 4.
In the article, the driver of the SUV reportedly said that
the NRP officer who hit her vehicle “didn't offer
any help.” Belton Motion Ex. 1; Thomson Motion Ex.
22. She also alleged that the officer was
“‘out of his car and on his phone.'”
Id. Further, she complained that the NRP officer
“‘just had his lights on. No. siren, '”
and “‘was flying'” through the
intersection without hesitation. Id.
next day, Wednesday, September 19, 2018, Schatz emailed
Rathgeb, copying Thomson and Bortz and blind copying Belton
and Throwe, stating: “We are getting a lot of heat
regarding the Capital Gazette piece. Please
coordinate with my office before commenting
(or no[t] commenting) on this case (or any inquiry for that
matter). Our standing mantra is, ‘No
Surprises!'” Thomson Motion Ex. 23
(emphasis in original). He then separately emailed
Leatherbury and Ziegler, stating: “Please let the rest
of your staff know... all media inquiries/requests need to
flow through Communications.” Belton Motion Ex. 3 at 5
(ellipses in original).
Schatz, and Throwe testified that they were surprised to see
an article about the accident, and displeased to see that it
portrayed NRP in a negative light. ECF 35 at 122-23 (Belton);
190 (Schatz); 221-22, 242 (Throwe). Throwe testified that she
and DNR leadership knew of the accident and the dog's
death, but did not know that the officer had purportedly
“delayed assisting with the accident with, when [sic]
somebody was calling for help, or any of the details that
were claimed in that article.” Id. at 223.
Similarly, Schatz testified: “We should know
everything[.]” Id. at 191. According to the
testimony of both Schatz and Throwe, they were displeased
with Thomson for her failure to tell them about the accident
as soon as it occurred. Id. at 202-03 (Schatz);
224-25 (Throwe). Yet, the uncontroverted evidence showed that
Thomson had no knowledge of the occurrence until Tuesday,
September 18, 2018. Id. at 62. The defense witnesses
did not explain how Thomson could have known about the
accident on the date that it happened. Moreover, the record
contains no emails in which Belton, Bortz, Schatz, Throwe, or
any other DNR personnel claimed that Thomson mishandled the
to Thomson's testimony, one day after the vehicle
accident, at around 5 a.m. on Monday, September 17, 2018, she
was at home looking at Facebook on her personal iPad. ECF 35
at 44-45; see also ECF 1, ¶ 12. Her friend,
Bryan Sears, a news reporter, had posted a link on his
personal Facebook page to a Herald-Mail Media story
of September 17, 2018. ECF 20-5 at 2 (screenshot of the
post); ECF 2-1, ¶ 3. The story was titled
“Herald-Mail Media Reporter Vetoed from Gubernatorial
Debate Panel.” ECF 20-5 at 2. According to the story,
Herald-Mail Media, which primarily serves the
Hagerstown, Maryland area, selected news reporter Tamela
Baker to serve as the publication's panelist at the only
gubernatorial debate between candidate Ben Jealous and
Governor Larry Hogan. But, Mr. Jealous vetoed Baker,
requiring the publication to pick another person. Belton
Motion Ex. 1. In response to Sears' Facebook post,
someone commented: “Tamela Baker for President.”
Another person wrote: “If I were editor of the
Herald-Mail, I'd run a banner headline ‘Jealous
Bans Our Reporter!'” ECF 20-5 at 3.
joined in by posting a one-word response:
“Assclown.” Id. She used her personal
Facebook account and did not identify herself with her State
employment. Moreover, according to both Schatz and Thomson,
the Facebook post did not violate DNR's Social Media
Policy. Id. at 46-47 (Thomson); 212-213 (Schatz);
see also Thomson Motion Ex. 21 (DNR Social Media
an online dictionary produced by Oxford University Press,
defines an “assclown” as “a stupid or
contemptible person.” Thomson testified that she
intended her comment to describe Mr. Jealous as
“inept.” ECF 35 at 53.
testified that the next day, September 18, 2018, Ziegler
asked her whether she had posted “assclown” on
Facebook. ECF 20-4 at 2 (email from Ziegler to Throwe and
Belton, dated Tuesday, September 18, 2018). Thomson
acknowledged that she had. Id. Thomson offered to
delete her comment from Facebook, and she testified that, of
her own volition, she immediately did so. ECF 35 at
at 1:19 p.m. on Tuesday, September 18, 2018, Ziegler sent an
email to Belton and Throwe, with the subject line
“Candy and Facebook.” ECF 20-4. Ziegler recounted
his conversation with Thomson. Three minutes later, Throwe
forwarded the email to Schatz and to Allan Fisher, DNR
Assistant Secretary for Mission Support, stating:
“FYI.” Thomson Motion Ex. 10 at 1, 3. Two minutes
later, Schatz forwarded the email to Bortz, without comment.
Id. at 1.
p.m. on Tuesday, September 18, 2018, Amelia Chasse,
Communications Director for the Office of Governor Hogan,
sent an email to Schatz, including a screenshot of
Thomson's Facebook post. Chasse wrote, ECF 20-5 at 2
(line break omitted):
See below, this was brought to my attention earlier. I
believe it has been flagged for the Secretary and handled as
the comment has since been deleted, but wanted to make you
aware [of the Facebook post] as this type of language -
particularly about the governor's political opponent - is
extremely inappropriate from a state employee. Feel free to
call if you want to discuss.
Hogan's Deputy Chief of Staff, Jeannie Riccio, was copied
on the email. Id.
Thursday, September 20, 2018, Secretary Belton reassigned
Thomson. See ECF 20-3 at 2 (email from Throwe to
Ziegler, with copies to Belton, Leatherbury, and Schatz); ECF
20-1 at 2 (email from Schatz to Ziegler and Leatherbury, with
copies to Belton, Throwe, and Bortz). Notably, at 12:30 p.m.
on Thursday, Schatz emailed Chasse, stating: “As
instructed, we have reassigned Candy's duties to Lt.
Catherine Medellin.” ECF 20-8 at 2.
acknowledged that he was “not happy” about
Thomson's Facebook post. ECF 35 at 146. Schatz testified
that he discussed the Facebook post with Secretary Belton,
who was “not generally pleased” with it.
Id. at 205-206. According to Schatz,
Secretary Belton also said that he was going to call Colonel
Zeigler and discuss the post. Id. at 206. Throwe
also criticized the post. Id. at 248. Nevertheless,
Secretary Belton, Schatz, and Throwe denied that
Thomson's conduct played any role in her reassignment.
Id. at 117 (Belton); 208-09 (Schatz); 248 (Throwe).
Rather, Secretary Belton testified that the Capital
Gazette article was “the straw that broke the
camel's back” and caused him to reassign her.
Id. at 121. Schatz used the same phrase to
characterize the reason for Thomson's reassignment.
Id. at 193.
Thursday, Schatz instructed two DNR Police Commanders to take
over all of Thomson's media duties. ECF 20-6; see
also Thomson Motion Ex. 12 at 1 (Schatz email to
Ziegler, Belton, Throwe, Leatherbury, and Bortz, dated
Friday, September 21, 2018). The next day, September 21,
2018, while Thomson was at an NRP event in West Virginia, she
learned that her media relations responsibilities had been
reassigned. ECF 20-6 at 2 (email from Thomson to Belton,
Throwe, Schatz, and others, Monday, September 24, 2018).
asked Ziegler about the reassignment, and he referred her to
“‘the Fourth Floor, '” meaning DNR
headquarters, where the Secretary, Deputy Secretary, and
human resources are located. ECF 35 at 68; ECF 20-6 at 2. In
an email to Thomson dated Friday, September 21, 2018, Bortz
wrote: “The directive I'm given is that Rathgeb
(and also Medellin) are to be media points of contact and
spokespeople.” Thomson Motion Ex. 16 at
Monday, September 24, 2018, at 5:42 a.m., Thomson emailed
Belton, Throwe, Schatz, and others. ECF 20-6 at 2. She wrote,
I start this week not knowing what my job is or what my
duties are. Apparently last Thursday I was stripped of the
majority of my PIO duties . . . . I found this out more than
24 hours later by the two people who were assigned my duties,
who showed me emails from Stephen Schatz that carried a
Thursday time stamp.
After the graduation ceremony attended by command staff, I
asked Colonel Ziegler (who is on my MS-22 as my supervisor
and who supervises and pays for my PIN) why this was
happening so close to my final day at DNR. He told me I would
have to ask “the 4th floor and HR.” I later
emailed Gregg Bortz (who is listed as my supervisor in
Workday) about the matter. He replied that he
“hadn't had time to come up with a full plan”
and suggested we could meet Monday morning.
I figured one of you-or more than one-can take a few moments
and provide an answer.
Two questions, for starters:
1) Why is this being done?
2) What are my duties?
responded a day later. ECF 20-6 at 3. In response to
Thomson's first question, “Why is this being
done?”, Throwe wrote, “Answer: Because it is
management's prerogative. Management has reassigned your
duties and has the right to do so as stated in State
Personnel and Pensions (SPP) Article 7-602.” ECF 20-6
at 3. Further, she quoted S.P.P. § 7-602, id.:
“An appointing authority may reassign any employee
within the appointing authority's jurisdiction to another
position of equal grade and service for which the employee
meets the minimum qualifications within the appointing
authority's jurisdiction.” Id.
response to Thomson's second question, asking about her
duties, Thomson wrote, “Answer: You have received your
MS-22. If you still have questions, please contact your
supervisor, Gregg Bortz.” Id.
day, Tuesday, September 25, 2018, Zeigler also sent an email
to nearly all NRP personnel announcing that “any
matters that would require any requests dealing with
NRP's Public Information Officer, should be directed to
Lieutenant Catherine Medellin.” Thomson Motion Ex. 20
(Ziegler email to NRP) at 1. He also stated that Medellin
“will be covering NRP's PIO” and Tracy
Sweeney “will be handling any social media (Facebook
& Twitter) matters.” Id. Additionally, it
appeared from other emails that Rathgeb was to take on more
media responsibilities. See Thomson Motion Ex. 12 at
1 (Schatz email to Ziegler, Belton, Throwe, Leatherbury, and
Bortz, dated Friday, September 21, 2018) (“Only the
lieutenant [Medellin] or her designate (Capt. Rathgeb) will
serve in this ‘Public Information Officer'
capacity”); Thomson Motion Ex. 16 at 1 (Bortz email to
Ziegler, Leatherbury, Belton, Throwe, and Bortz, dated
Friday, September 1, 2018) (“The directive I'm
given is that Rathgeb (and also Medellin) are to be media
points of contact and spokespeople”); Thomson Motion
Ex. 14 at 1 (Schatz email to Thomson, dated Monday, September
24, 2018) (“Both [Sweeney and Bortz] will rely on Brian
[Rathgeb] and Catherine [Medellin] (copied here) to
facilitate any media inquiries or social media
posts.”); Thomson Motion Ex. 18 at 1 (Ziegler email to
Throwe, Belton, Schatz, and Leatherbury, dated September 25,
2018) (stating that Rathgeb “was acting PIO for last
testified that her new role consisted largely of clerical
duties and removed her main responsibilities. ECF 35 at 11.
The new job description for this ...