United States District Court, D. Maryland
EDSON T. MUSEMA, Plaintiff.
BALTIMORE CITY POLICE DEPARTMENT, Defendant.
David Copperthite United States Magistrate Judge.
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.
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)
an African-American and native of the Democratic Republic of
the Congo,  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.
Plaintiffs Assignment In The North-East District
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 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.
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.
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.
March 6, 2014 Incident And Resulting BPD
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.
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.
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,
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.
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
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.
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, 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.
March 31, 2015. Plaintiffs police powers were suspended
temporarily, although he continued to work with
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.
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.
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. ECF No. 36-1 at 19.
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.
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