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Thomson v. Belton

United States District Court, D. Maryland

November 26, 2018

MARK BELTON Defendant.



         In this 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.

         Thomson 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.

         Pursuant 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.[1] Specifically, she seeks “reinstatement of her duties” and “expungement from her human resources records [of] all references to the incident in question.” Id. at 7.

         Along 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 (ECF 1-7).

         Of 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.

         In 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. Id.

         Plaintiff 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.

         The 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.[2]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.

         At the 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.[3]

         I. Factual Background[4]

         Mark 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 safety;
(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.

         For 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.

         The NRP's original position description for Thomson appears to reflect her actual duties and responsibilities.[5] 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 visitors.” Id.

         Thomson's 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.

         Notably, 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 8.[6]

         During 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.

         Plaintiff 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.

         In a 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, etc.)[.]
Bortz also commented on plaintiff's performance, id.:
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.

         Despite 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.

         Secretary 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.

         Despite 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.

         The 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.

         But, 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. Id.

         The 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.[7] 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.

         Thomson 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.

         The third incident involved a news article that appeared in the Capital Gazette that cast the NRP in an unfavorable light.[8] 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.

         Captain 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. at 58.

         Indeed, 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.

         At 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. at 39-40.

         At 4 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.

         The 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).

         Belton, 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 occurrence.

         According 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.[9] 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.[10] 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.

         Thomson 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 Policy).
, 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.

         Thomson 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 34-35.

         Then, 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.

         At 6:47 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.

         Governor Hogan's Deputy Chief of Staff, Jeannie Riccio, was copied on the email. Id.

         By 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.

         Belton 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.

         On 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).

         Plaintiff 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 1.[11]

         On Monday, September 24, 2018, at 5:42 a.m., Thomson emailed Belton, Throwe, Schatz, and others. ECF 20-6 at 2. She wrote, id.:

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?

         Throwe 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.

         In 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.

         That 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 weekend”).

         Thomson 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 ...

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