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O'Connor v. Cameron

United States District Court, D. Maryland

March 11, 2019

ELIZABETH O'CONNOR
v.
TIMOTHY K. CAMERON, [1] Individually and in his Official Capacity as Sheriff, St. Mary's County

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution in this discrimination case are: (1) the motion to dismiss or in the alternative for summary judgment filed by Defendant Timothy K. Cameron, St. Mary's County Sheriff, (“Defendant”) (ECF No. 16); and (2) the motion to strike Plaintiff Elizabeth O'Connor's surreply also filed by Defendant (ECF No. 23). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss or in the alternative for summary judgment will be granted in part and denied in part and the motion to strike will be granted.

         I. Background

         Unless otherwise noted, the facts outlined here are set forth in the amended complaint, albeit in a somewhat confused manner, and construed in the light most favorable to Plaintiff. Plaintiff is a female police officer who joined the St. Mary's County Sheriff's Department in 2000. She initially sought a position in the K-9 Division in 2007, but was not selected. Eventually [date not specified in complaint] she became the first female canine handler in the St. Mary's County Sheriff's Department. After she joined the K-9 unit, her coworkers and supervisors made a number of sexually disparaging comments. In 2008, Plaintiff complained about mistreatment from her supervisor, and the supervisor was removed. Plaintiff was labelled a troublemaker because of the complaint.

         A new supervisor was appointed who also made disparaging comments along with male coworkers. For example, coworkers said “women could never advance ‘without spreading [their] legs.'” (ECF No. 15 ¶ 15). Other times coworkers treated her less favorably and used gender-based slurs. One of her supervisors slapped her on the buttocks with a water jug. When Plaintiff's dog had a tooth problem, she was forced to take him to the veterinarian on her own time although a male coworker was given a “duty day.” (Id. ¶ 21). She asserts that this caused a loss of pay.

         Plaintiff complained to a supervisor on May 13, 2011. No. investigation took place. Instead, Plaintiff was repeatedly investigated for de minimis violations. After her complaint, Plaintiff was ordered to undergo a psychological evaluation to determine her fitness for duty. Her dog retired that summer, and Plaintiff was not given another dog. A new male officer was instead assigned to the K-9 unit, and Plaintiff was assigned to patrol. (ECF No. 15 ¶¶ 22, 23).[2] Plaintiff filed a charge with the EEOC alleging discrimination on the basis of gender on July 18, 2011. The charge alleged that the discrimination began November 1, 2010 and took place as late as June 13, 2011, and was a continuing action. She did allege, however, that she had been treated differently due to gender from the beginning of her employment. Plaintiff received her notice of right to sue from the EEOC on August 18, 2017. Plaintiff filed suit on November 14, 2017. (ECF No. 1). Defendant moved to dismiss or in the alternative for summary judgment (ECF No. 10), and Plaintiff filed an amended complaint (ECF No. 15). Defendant again moved to dismiss or in the alternative for summary judgment (ECF No. 16), Plaintiff responded (ECF No. 18), and Defendant replied (ECF No. 21). Plaintiff filed a surreply (ECF No. 22), Defendant moved to strike the surreply (ECF No. 23), and Plaintiff responded (ECF No. 24).

         The Amended Complaint contains two counts. Count One is entitled Title VII-Gender, and asserts that Plaintiff was subjected to (1) unequal treatment with regard to pay for taking her canine to the veterinarian, (2) inappropriate sexual comments about women in the workplace that were humiliating, (3) direct harassment by her co-workers by inappropriate touching, lewd sexual comments, and threats if she became pregnant, (4) retaliation after complaining to her supervisor, and (5) unequal treatment and retaliation when she was not given another dog when her canine retired and she was removed from the K-9 unit and replaced with a male officer. Count Two asserts a violation of the Law Enforcement Officer's Bill of Rights (“LEOBR”), due to retaliation and lack of due process. She seeks reinstatement to a position within the canine unit, front and back pay, a show cause order related to the LEOBR claim, compensatory damages for humiliation and emotional distress, punitive damages, employment benefits, costs and attorney's fees, and injunctive relief prohibiting further discriminatory conduct.

         II. Standards of Review

         Defendant moved to dismiss or in the alternative for summary judgment. (ECF No. 16). Like the complaint, Defendant's motion is difficult to assess because the arguments meander between evidence-based assertions and pleading deficiencies. For example, the motion contends, with respect to count I, that “the claims made for ‘gender discrimination,' which include allegations of harassment and retaliation, are all squarely refuted by the Plaintiff's undisputed statements contained in her personnel records. In addition, the employment actions claimed to be retaliatory occurred before the Sheriff had notice of any protected activity by the Plaintiff. The only claimed instances of alleged discrimination not squarely refuted by Plaintiff's own admissions fail to state a claim because the employment decision at issue was not, as a matter of law, an adverse employment action.” (ECF No. 16). Despite the difficulty in deciphering both the complaint and the motion papers, the court will endeavor to resolve the motion on the merits and streamline the issues remaining for litigation. A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quotation omitted). A court must consider all well-pleaded allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe factual allegations in the light most favorable to the plaintiff, see Lambeth v. Bd. of Comm'rs of Davidson Cnty., 407 F.3d 266, 268 (4th Cir. 2005). Nevertheless, a court is not required to accept as true “a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).

         When deciding a motion to dismiss under Rule 12(b)(6), courts may only consider the facts contained in plaintiff's complaint. When “matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” Fed.R.Civ.P. 12; see Talbot v. U.S. Foodservice, Inc., 191 F.Supp.2d 637, 639 (D.Md. 2002) (treating motion to dismiss as motion for summary judgment where the court had to consider “two items of evidence extrinsic to the pleadings”).

         Plaintiff has not requested discovery and instead has attached her own exhibits in opposition to Defendant's motion. Thus, Plaintiff appears to acquiesce to the motion being treated as a motion for summary judgment, at least in part.

         A motion for summary judgment will be granted only if there exists no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). To prevail on a motion for summary judgment, the moving party generally bears the burden of showing that there is no genuine dispute as to any material fact. Liberty Lobby, 477 U.S. at 248-50. A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom “in the light most favorable to the party opposing the motion, ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005), but a “party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences.” Shin v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).

         III. Count One-Title VII

         In a single count, Plaintiff purports to bring claims against Defendant in his individual and official capacities for a variety of forms of gender-based discrimination and for retaliation. (ECF No. 15 ¶¶ 34-41).

         A. Individual Capacity Claims Against Defendant

         Defendant moves to dismiss the individual capacity claims, arguing that Defendant, in his individual capacity, is not an employer. (ECF No. 16-1, at 14). Plaintiff does not appear to contest this point. (ECF No. 18). “An individual person can only be liable under Title VII if that person qualifies as an ‘employer' within the meaning of the statute.” Weathersbee v. Balt. City Fire Dep't, 970 F.Supp.2d 418, 425 (D.Md. 2013). Defendant, in his individual capacity, was not Plaintiff's employer, and, therefore, he cannot be held liable for violations of Title VII. See Lissau v. S. Food Serv., Inc., 159 F.3d 177, 181 (4th Cir. 1998). Plaintiff's Title VII claims against Defendant in his individual capacity will be dismissed.

         B. Disparate Treatment

         As noted above, Defendant argues that he is entitled to dismissal or summary judgment on the disparate treatment claim for a variety of reasons. In addition to the reasons outlined before, Defendant asserts that the harassment claim is subject to a Faragher-Ellerth affirmative defense, the retaliation claims are refuted by other information in the case, the challenged personnel orders were disciplinary actions, and the claims based on being denied a “duty day” to ...


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