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Musema v. Baltimore City Police Department

United States District Court, D. Maryland

February 5, 2019

EDSON T. MUSEMA, Plaintiff.


          A. David Copperthite United States Magistrate Judge.

         Defendant. Baltimore City Police Department ("Defendant"), moves this Court for summary judgment (the "Motion") (ECF No. 36). Defendant seeks a ruling from the Court that Plaintiff Edson T. Musema cannot prevail on his discrimination and hostile work environment claims because he cannot demonstrate the required elements of the claims. ECF No. 36-1 at 24- 35. Plaintiff filed an opposition to Defendant's Motion (ECF No. 39) and Defendant replied (ECF No. 53). After considering the Motion and responses thereto, the Court finds that no hearing is necessary. See Loc.R. 105.6 (D.Md. 2018). In addition, having reviewed the pleadings of record and all competent and admissible evidence submitted by the parties, the Court finds that there is insufficient evidence from which a jury could find in Plaintiffs favor on the discrimination and hostile work environment claims. Accordingly, the Court will GRANT Defendant's Motion (ECF No. 36). Because this Court will grant Defendant's Motion, the other pending motions. Plaintiffs Motion for Leave to File a Sur-Reply Memorandum in Support of Opposition to Motion for Summary Judgment (ECF No. 57) and Defendant's Motion to Strike Plaintiff's Leave to File Sur-Reply (ECF No. 58), are DISMISSED as MOOT.


         This lawsuit arises out of Plaintiffs allegations of discrimination based on race and national origin and hostile work environment against his current employer, the Baltimore City Pol ice Department ("BPD), in violation of Title VII of the Civil Rights Act. The tacts are viewed in a light most favorable to Plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted).

         Plaintiff, an African-American and native of the Democratic Republic of the Congo, [1] has been employed with the BPD since March 27, 2008 as a police officer. ECF No. 36-3 at 14. 16-17, 22. Plaintiffs claims stem from a series of events involving Tashawna Gaines, a sergeant with the BPD. that allegedly occurred when Plaintiff was assigned to the North-East District in 2011. as well as from a BPD investigation into Plaintiffs use of force in an incident on March 6, 2014. ECF No. 39-1 at 2-6.

         A. Plaintiffs Assignment In The North-East District

         Upon graduating from the BPD Police Academy in 2009 and completing his field training. Plaintiff was permanently assigned to the Patrol Division in the North-East District. ECF No. 36-3 at 23. At the time, Ms. Gaines was a sergeant in the North-East District. Id. at 25. Although Sgt. Gaines was never Plaintiffs direct supervisor, she would occasionally serve as "sergeant in charge"' of the patrol shift when no lieutenant was on duty. Id. at 25-26. In April 2011. Plaintiff was dispatched to a call for a reported armed robbery. ECF No. 36-25 at 2-3. After responding to the call. Plaintiff was preparing to write his "Part 1" report[2] when he was approached by Sgt. Gaines, who began to "rush'' Plaintiff to finish the report and threatened to "write [him] up" if the report was not completed within two hours. ECF No. 36-24 at 3-5. Per BPD policy. Part 1 reports are to be completed "within two hours of the completion of the call, unless extenuating circumstances exist" and officers are required to "[s]ubmit all reports without undue delay, but in any case before completion of the tour of duty." ECF No. 36-26 at 3. On April 13, 2011. Plaintiff submitted a letter to then-Deputy Major in the North-East District, Darryl DeSousa, about the incident, stating that he felt "intimidated" by Sgt. Gaines and that Sgt. Gaines must "'stop rushing and harassing new young officers." ECF No. 36-24 at 4, 7. This letter also described a separate incident in which Sgt. Gaines allegedly "rushed" Plaintiff to finish another Part I report after a dispatch call in January 2011. Id. at 5-6.

         Several months later, in July 2011. Plaintiff and Sgt. Gaines had a '"verbal disagreement" regarding Plaintiffs use of leave. ECF No. 36-27 at 2. Plaintiffs wife, who was pregnant at the time, had been admitted to the hospital. Id. Plaintiff contacted the officer in charge to request leave in order to stay with his wife and his request was granted. Id. However. the officer in charge was then "overruled" by Sgt. Gaines, acting as "sergeant in charge." and Plaintiff was ordered to return to service or face disciplinary action. Id. Upon returning to service. Plaintiff encountered another sergeant, who instructed Plaintiff to stay at the hospital with his wife and return to service at 5:00 AM. Id. Sgt. Gaines later discovered Plaintiff had "disobeyed her decisions." ECF No. 36-3 at 30. On another occasion. Plaintiff was present for roll call when Sgt. Gaines allegedly looked in Plaintiffs direction in an "open area at Northeastern District" and stated. "I don't understand these people." ECF No. 36-27 at 2; ECF No. 36-3 at 76-78. Plaintiff understood this remark, to refer to non-native born Americans. See ECF No. 36-3 at 43-44. Plaintiff detailed both of these incidents in a report to Major Marc Partee dated March 31, 2015. when he was assigned to the Patrol Division in the North-West District. ECF No. 36-27 at 2-3.

         Based on the events described. Plaintiff requested a transfer from the North-Hast District in 2011. ECF No. 36-3 at 84. His transfer request was granted, and he was then assigned to the North-West District. Id.

         B. March 6, 2014 Incident And Resulting BPD Investigation

         On March 6, 2014, Plaintiff was on day shift in the North-West District. Id. at 89. Plaintiff was at the North-West repair station waiting for his police vehicle to be repaired when a call came through for a reported stolen vehicle in progress. Id. at 89-92. Another North-West District officer, Fabien Milord, was present at the repair station when the call came in. and Plaintiff asked Officer Milord if they could use his vehicle to respond to the call as Plaintiffs vehicle was out of service. Id. at 90-92. Officer Milord agreed, and Plaintiff got into the front passenger seat of the vehicle. Id. at 93-94. Officer Milord and Plaintiff began pursuit and were then joined by Officers Jukam and Cohen in another police vehicle. Id. at 94. Officers Jukam and Cohen were able to stop the stolen vehicle, but the driver of the stolen vehicle drove off. which initiated a high-speed chase. Id. at 94-95.

         Officer Milord and Plaintiff pursued the stolen vehicle at a high rate of speed. Id. at 95. The stolen vehicle traveled north towards Baltimore County at which time the supervising lieutenant. George Hauf. ordered Officer Milord and Plaintiff to break off the pursuit. Id. at 96. However. Officer Milord and Plaintiff continued pursuit and observed the stolen vehicle make a turn to stay within city limits. Id. Due to the high rate of speed. Lieutenant Hauf again ordered Officer Milord and Plaintiff to break off the chase and repeated the order "four times." Id. At that time. Officer Milord turned off the police lights and siren, but the pair continued to pursue the stolen vehicle. Id. at 96-97. An officer on the radio reported that the stolen vehicle had become caught in heavy rush hour traffic, and Lieutenant Haul then permitted Officer Milord and Plaintiff to pick up pursuit if the vehicle was still in their sights. Id. at 97. Officer Milord reactivated the police lights and siren, and the pair caught up to the stolen vehicle. Id. at 97-98. As Officer Milord and Plaintiff approached the stolen vehicle, the suspect put the vehicle in reverse and accelerated towards the police vehicle. Id. at 98. Officer Milord and Plaintiff jumped out of the police vehicle before the collision, and Plaintiff drew his service weapon. Id. Plaintiff looked around for Officer Milord but did not see him and feared that Officer Milord had gotten caught under the stolen vehicle during the collision. Id. at 99-100. Plaintiff then pointed his weapon at the suspect's head, shouted at the suspect to stop, and fired his weapon into the right side of the stolen vehicle at the suspect. Id. at 99-101. Shortly thereafter. Officers Jukam and Cohen arrived at the scene and secured the suspect. Id. at 101-02.

         Pursuant to BPD policy, any discharge of a firearm by an officer must be reported and investigated. ECF No. 36-4 at 2. At the time of this incident, the unit that conducted use of force investigations was called the Force Investigation Team ("FIT"). ECF No. 36-3 at 105. This unit had recently been formed and taken over police-involved shooting investigations from the homicide unit. Id. at 126. At the time, FIT was commanded by Colonel Garnell Green and consisted of Lieutenant Michael Norris, Sgt. Tashawna Gaines, and Detective Charles Anderson, as well as other detectives. ECF No. 36-5 at 8-9. FIT investigations consist of two stages: (1) FIT conducts an initial investigation and forwards the results to the Baltimore City State's Attorney's Office to determine whether criminal charges will be brought; and (2) if the State's Attorney's Office declines to bring charges. FIT conducts further investigation to determine if any BPD policies have been violated. Id. at 15-16. FIT's findings in the second investigation are presented to the Categorical Use of Force Review Board, which reviews an incident for compliance with BPD policies. Id. at 23-25; ECF No. 36-6 at 2, ¶ 6.

         On March 6, 2014, the FIT unit responded to the scene to conduct the initial investigation. ECF No. 36-5 at 9. The results of that investigation were then sent to the Baltimore City State's Attorney's Office, which determined that there was insufficient evidence to pursue criminal charges in a letter dated July 11, 2014. ECF No. 36-8 at 2. Plaintiff was then ordered to appear at the Office of Internal Oversight to provide a statement on July 24, 2014. ECF No. 36-9 at 2. Plaintiff attended the hearing with counsel and was examined by Detective Anderson. ECF No. 36-3 at 110.

         Around July or August 2014, Plaintiff received a conditional offer for employment with the Louisville Police Department in Louisville. Kentucky. Id. at 106-07. The Louisville Police Department contacted the BPD regarding Plaintiffs application and learned Plaintiff was under investigation for the March 6, 2014 incident. Id. at 121-22. Thereafter, in August 2014. Plaintiff contacted Detective Anderson to inquire about the status of the investigation and stated that he was going to file an Equal Employment Opportunity Commission ("EEOC") complaint against Sgt. Gaines because "she [wa]s the reason why his case [wa]s still open." ECF No. 36-7 at 2, ¶ 6; ECF No. 36-10 at 2. Plaintiffs commanding officer. Major Marc Partee. learned of the contact and ordered Plaintiff not to personally contact the FIT detectives. ECF No. 36-11 at 2; ECF No. 36-12 at 2. In October 2014, Plaintiff then began making internal complaints about the length and pace of the ongoing investigation. ECF No. 36-13 at 2-3. At some time in 2014. Plaintiff also sat for the written sergeant examination, in which he was unsuccessful. ECF No. 36-3 at 192-94.

         On November 5, 2014. Detective Anderson presented FIT's investigation findings to the Categorical Use of Force Review Board. ECF No. 36-6 at 2, ¶ 7; ECF No. 36-7 at 3. ¶ 10; ECF No. 36-15 at 2. The Board concluded that Plaintiffs tactics and use of force during the March 6, 2014 incident violated BPD policy. ECF No. 36-15 at 2. The Board also found policy violations for Officer Milord. Id. at 3. Specifically, the Board found that "(Plaintiff] did not follow pursuit procedures, as he was told to break-off the pursuit by Lt. Hauf based on the speed of the fleeing vehicle. Not only did f Plaintiff] continue the pursuit, he did so without using emergency lighting, which is against policy." ECF No. 36-16 at 2. Additionally, the Board found that "[Plaintiff] shot at a moving vehicle, which is against policy." Id. at 3.

         After the Board issued its findings. Detective Anderson submitted a final report, dated December 16, 2014, and forwarded it to the BPD Internal Affairs for review. ECF No. 36-7 at 3, ¶ 12; ECF No. 36-17. Internal Affairs then reviewed the findings to determine whether disciplinary charges should be recommended to the Disciplinary Review Committee. See ECF No. 36-6 at 3, ¶ 10. On March 29, 2015, the Disciplinary Review Committee issued disciplinary charges against Plaintiff, including "fail[ing] to ensure that a vehicle pursuit was terminated after being ordered by Lieutenant George Hull' [sic] to do so." and "exercis[ing] poor tactics and/or judgment in the use of deadly force." ECF No. 36-18 at 2-3. According to the BPD Disciplinary Matrix, [3]violations relating to failure to obey an order are classified as "E" violations, and violations involving excessive force are classified as either "E" or "F" violations. ECF No. 36-19. Penalties recommended for "E" violations include any or all of the following: over fifteen days of loss of leave: a severe letter of reprimand; over fifteen days suspension: demotion; involuntary transfer when continued presence of the member would impact the unit's performance: and dismissal. Id. at 4. The only recommended penalty for an "F" violation is dismissal. Id. The Disciplinary Review Committee recommended that Plaintiff be terminated. ECF No. 36-18 at 7. Then-Deputy Commissioner Jeronimo Rodriguez approved the charging documents and termination recommendation. ECF No. 36-6 at 3, ¶ 11; ECF No. 36-18 at 5.

         On March 31, 2015. Plaintiffs police powers were suspended temporarily, although he continued to work with pay.[4] ECF No. 36-20 at 2. Pursuant to section 3-101 of the Public Safety Article of the Maryland Code. Plaintiff exercised his right to an administrative board hearing. ECF No. 36-18 at 6. The hearing was held on April 8, 2015, to review the suspension of Plaintiffs police powers. ECF No. 36-21 at 2. After conducting the hearing, then-Colonel Darryl DeSousa upheld the decision to suspend Plaintiffs police powers with pay pursuant to protocol. Id. at 3.

         Prior to the final determination on the disciplinary charges. then-Deputy Commissioner Rodriguez retired and Colonel DeSousa was promoted to serve as Deputy Commissioner, which included supervising and settling disciplinary matters. ECF No. 36-6 at 3. ¶ 14. On August 20, 2015, Deputy Commissioner DeSousa dismissed the charges against Plaintiff and instead ordered that he complete training in high risk vehicle stops, the same training the Categorical Use of Force Review Board recommended for the other officers involved in the March 6, 2014 incident. ECF No. 36-22 at 2; ECF No. 36-16 at 2. After initially refusing to sign the paperwork for dismissal of charges, ECF No. 36-3 at 185-86. Plaintiff completed the paperwork and training, and his police powers were reinstated on February 24. 2016, ECF No. 36-23 at 2.


         On July 22, 2015, Plaintiff filed a Charge of Discrimination against the BPD with the Baltimore Community Relations Commission and the EEOC. alleging continuing racial and national origin discrimination. ECF No. 36-31 at 2. In the charge. Plaintiff attributed the "false[J accusations] of misconduct" following the March 6, 2014 incident, his suspension, and recommended termination to Sgt. Gaines and her alleged bias towards "non-Americans." Id. Plaintiff filed a second Charge of Discrimination with the Baltimore Community Relations Commission and the EEOC on December 23, 2015, alleging racial and national origin discrimination and retaliation dating from March 31, 2015 through December 23, 2015. ECF No. 36-32 at 2. Specifically, Plaintiff stated that he was "forced to sign paperwork for the dismissal of the charges." was required to attend training on high risk vehicle stops, and did not have his police powers reinstated in a timely fashion after his disciplinary charges were dismissed on August 18, 2015. Id. at 2-3. Plaintiff compared his experience to an unrelated incident in which three BPD officers were investigated for their involvement in a high-speed chase that resulted in civilian fatalities and purportedly had their police powers reinstated two weeks after being cleared of charges. Id. at 3. On September 1, 2017. the United States Department of Justice issued a right-to-sue letter.[5] ECF No. 36-1 at 19.

         On January 18. 2018. after exhausting his administrative remedies. Plaintiff filed suit in this Court against Defendant alleging that he suffered race and national original discrimination and hostile work environment in his employment with the BPD. ECF No. 2.[6]

         On September 7, 2018. Defendant filed its Motion seeking summary judgment against Plaintiff for his claims of race and national origin discrimination and hostile work environment in violation of Title VII of the Civil Rights Act of 1964. ECF No. 36. On October 22, 2018, Plaintiff filed an ...

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