United States District Court, D. Maryland
XINIS UNITED STATES DISTRICT JUDGE.
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.
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.
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.
January 8, 2009,  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.
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
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
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.
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
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.
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.
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.
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.
this series of increasingly disturbing and inappropriate
interactions with students and staff, Riddick found that
Malry met “all seven core
competencies” 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.
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.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
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.
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 ...