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Malry v. Montgomery County Board of Education

United States District Court, D. Maryland

December 11, 2018




         Pending in this employment discrimination case is Defendant Montgomery County Board of Education's (“BOE”) motion for summary judgment. ECF No. 15. The motion is fully briefed, and no hearing is necessary. See Loc. R. 105.6. For the reasons that follow, the Court grants the BOE's motion.

         I. Overview

         A. Factual Background

         Plaintiff Michael Malry (“Malry”) is an African American and Hispanic man, born on October 27, 1954. ECF No. 1 ¶ 9, 41. The BOE hired Malry in 1996 to provide technology support at Seneca Valley High School (the “School”). ECF No. 17-10 at 5. Malry was promoted to his current position-Information Technology System Specialist Two in 2008. ECF No. 1 ¶ 106.

         After his promotion, and after the School hired a new principal, Dennis Queen (ECF No. 17-10 at 5), Malry began behaving inappropriately toward students and staff. In August 2008, a teacher complained that Malry asked if she had a boyfriend, made “lewd” remarks, touched her arm and shoulder, and referred to another teacher as a “white bitch.” ECF No. 17-1 at 1. When School officials met with Malry, he denied the allegations and instead accused the teacher of being “forward and fast.” ECF No. 17-2 at 1. The School counseled Malry in a written memorandum and directed that he avoid “behaviors toward this individual that might be construed as inappropriate behavior.” ECF No. 17-2 at 2.

         On January 8, 2009, [1] Malry showed a para-educator explicit photos of his private parts. According to the para-educator, this incident was preceded by years of Malry asking her on dates and for oral sex, commenting on her body, and discussing his purported sexual relationship with another woman at the School. ECF No. 17-6 at 1-2. School officials met with Malry about this incident, and again Malry retorted that the para-educator had made sexual advances on him. ECF No. 17-8. Malry also solicited another employee to lie on Malry's behalf to say that he (the employee) witnessed the para-educator making such advances on Malry. ECF No. 17-9. Again, in a written memorandum, Malry was reprimanded and the School forbade Malry from having any contact with the para-educator. ECF No. 17-8.

         On February 10, 2009, the Montgomery County Public Schools' Office of Human Resources (“OHR”) investigated Malry's unauthorized presence at the home of a female student. ECF No. 17-12. Malry was placed on administrative leave during the investigation. Ultimately, the School allowed Malry to return to work, after OHR found that Malry had been at the student's home in an effort to provide “crisis counseling.” Id. In a written memorandum, OHR reminded Malry that his job as an IT Systems Specialist does not entail crisis counseling, and that in the future he must involve School administrators in any similar situations. Id.

         On November 18, 2009, Malry, during a discussion with a teacher and two students, called the principal a racist “country bumpkin, ” insinuated the principal had improper relationships with female coworkers, and said younger female coworkers were more like maids than workers. ECF No. 17-16 at 2. Malry denied making these statements, and again OHR reprimanded him. ECF No. 17-17. Malry then went on sick leave for the balance of the school year. ECF No. 17-16 at 3.

         On September 3, 2010, the School enrolled Malry in the Peer Assistance and Review Program to address several performance deficiencies, including his unwillingness to complete his job in a timely and effective manner and his disruptive, inappropriate behavior. ECF No. 17-19. This program is designed to address employment related deficiencies and improve employee performance. ECF No. 17-67 at 3. The participating employee is assigned a mentor and is given performance goals to attain. ECF No. 17-66 at 8. After an employee completes the program, a panel of school administrators and union members determine whether the employee should return to work or be recommended to human resources for dismissal. ECF No. 17-67 at 5.

         Malry's professional growth consultant, Monique Riddick, determined that Malry met the competency requirements in performing his job and maintaining a positive demeanor. ECF No. 17-20 at 3, 6. Accordingly, the panel recommended that Malry keep his job. On July 1, 2011, Riddick became Malry's supervisor. ECF No. 17-67 at 6. This same year, the School hired a new principal, Dr. Marc Cohen. ECF No. 1 ¶ 11; ECF No. 17-66 at 3.

         On February 16, 2012, Malry touched a religious garment worn on the head of a female student whose religion forbade such contact. ECF No. 17-26 at 2. The librarian who witnessed the incident asked Malry why he was “disrespecting [the student] like that.” ECF No. 17-30 at 2. Malry did not deny touching the student, but he argued that the student had not been upset about it. However, Malry also admits that “[t]he day after the incident [the student] was scared to speak to [him].” Id.

         On May 11, 2012, another student complained by email of several incidents involving Malry, which “creeped [her] out.” ECF No. 17-21. The student described standing with a friend who had been stretching. Id. Malry asked the student why she did not also perform the stretch. Id. The student responded that she was wearing a skirt, to which Malry replied, “so?” Id. Malry denied making these comments. ECF No. 17-29 at 1. The student also reported that Malry had told her to get her “big butt” off a table. ECF No. 17-21, 17-27. Malry admitted to reprimanding the student but maintained that his actions were appropriate. ECF No. 24-1 ¶ 76. Malry also had, on a separate occasion, lifted the same student's leg off the ground and struck the bottom of her shoe. ECF No. 17-21. The student reported that she believed Malry to be “joking” but that she nonetheless “felt uncomfortable.” Id. Other students corroborated, either wholly or partially, each of these incidents (ECF Nos. 17-23, 17-24, 17-25) and security footage captured Malry lifting the student's leg. ECF No. 17-67 at 13. Malry initially admitted to lifting the student's leg but later denied that he touched her. ECF No. 17-27; ECF No. 17-65 at 24.

         As a result of the above student complaints and after the School conducted an investigation, the School reprimanded Malry, directing him to limit his student interactions to only those directly associated with his job duties and “to refrain from touching students at all times.” ECF No. 17-26 at 2. The School also warned Malry that “further instances of this type of behavior will be grounds for more severe disciplinary action, up to and including dismissal.” Id. Malry filed a grievance over this reprimand, but after an administrative hearing, the reprimand was upheld. ECF No. 17-31, ECF No. 17-32 at 3.

         On March 1, 2013, Malry reportedly remarked to co-worker that the co-worker should contact a former student to “play with that pussy.” ECF No. 17-35 at 1. A security assistant overheard the conversation and reported a slightly different version in which Malry asked if another coworker would “let me taste that pussy.” ECF No. 17-34 at 1. This conversation occurred in the cafeteria where students often congregate, although no student was reportedly present. ECF No. 17-39 at 2. Malry denied using “the objectionable word cited in the two witness statements.” Id. The School issued Malry another reprimand for using inappropriate sexually explicit language, and again warned him that further similar behavior may lead to his termination. The School noted that this was Malry's second reprimand for similar behavior within the past year. ECF No. 17-37 at 1. Malry filed a grievance over this reprimand (ECF No. 17-38). The School upheld the discipline but clarified that Malry had been talking about a former student, rather than a coworker. ECF No. 39 at 3 (grievance denied at step two); see also ECF No. 17-40 at 3 (grievance denied at step three). On May 28, 2013, Malry was directed to stay out of the cafeteria during the students' lunch period and again to limit his interactions with students. ECF No. 17-42 at 2.

         Despite this series of increasingly disturbing and inappropriate interactions with students and staff, Riddick found that Malry met “all seven core competencies”[2] as reflected in his Spring 2013 employment evaluation. Riddick noted in deposition, however, that Malry needed to improve his knowledge of the job and professionalism. ECF No. 17-67 at 23. Riddick further explained that her evaluation reflected her desire to give Malry more time to address his shortcomings instead of referring him again to the performance improvement process, which may have resulted in his termination. Id. Malry then took another period of extended sick leave, returning to work on August 21, 2013. ECF No. 17-48 at 1.

         Upon Malry's return to work, the cafeteria manager reported that Malry had been seen in the cafeteria socializing with female students on three or four occasions and had been hugging students. ECF No. 17-44 at 2. OHR conducted another investigation for, among other things, insubordination, and confirmed that Malry had been seen in the cafeteria during lunch on several occasions in April, May, and August. ECF No. 17-44; ECF No. 17-47 at 1. Most of these instances took place before he had been forbidden from entering the cafeteria during lunch, but all occurred after he had been told to limit his interactions with students. The School again directed Malry to not enter the cafeteria during lunch, to work only from his office, and to maintain a log of his work assignments. ECF No. 17-43 at 1, 3. Around this same time, a substitute employee also discovered a knife and an empty video camera box in Malry's office.[3]ECF No. 17-45. Although OHR could not conclude that the knife or camera box belonged to Malry, OHR nonetheless found that Malry had “clearly been insubordinate” for failing to limit interactions with students. ECF No. 17-48 at 3-4. As a sanction, Malry was suspended for three days without pay. ECF No. 17-49.

         Undeterred, Malry once again was observed socializing with students without authorization, this time at a school luncheon on October 10, 2013. ECF No. 17-51 at 2. Although Malry contended that he had just been “passing through” to fix a technology problem nearby, he could not substantiate what specific technology problem he had to fix, and it was apparent that he could have reached his claimed destination through another route. ECF No. 17-62 at 2-3. The principal, who had been at the luncheon, witnessed Malry socializing with the students. ECF No. 17-52.

         On November 13, 2013, Malry was referred to the performance improvement process for a second time, even though employees generally are given one opportunity to engage in this remedial process. ECF No. 17-55; ECF No. 17-67 at 23. A week later, Malry was seen driving a student in his personal vehicle. ECF No. 17-56. Montgomery County Public Schools' policy prohibits staff from “transport[ing] a student in a personal vehicle without permission from a parent/guardian and a school administrator, and, if possible, arrang[ing] for a second adult to accompany the driver and the student.” ECF No. 15-7 at 9. Although Malry argued that he had permission to drive the student, the student's guardian claimed not to know Malry nor to have given him any such permission. ECF No. 24-1 ...

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