United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE.
an employment dispute. Plaintiff Kira Caban worked for
Defendant MET Laboratories ("MET") for four days in
2016 before MET terminated her employment. Caban sued MET,
claiming sex discrimination pursuant to Title VII of the
Civil Rights Act of 1964 and the Pregnancy Discrimination Act
of 1978. 42 U.S.C. §§ 2000e-2(a), 2000e(k).
Following discovery, MET has moved for summary judgment.
Caban opposes summary judgment and, in response to MET's
reply, seeks to file a surreply. The motions have been fully
briefed, and no hearing is required. See Local Rule
105.6 (D. Md. 2019). For the reasons set forth below, the
Court will deny Caban's motion for leave to file a
surreply and deny MET's motion for summary judgment.
February 25, 2016, MET hired Caban for the role of Marketing
Manager in its Sales Department. (Def. Exh. 1, Caban Dep. at
34:6-18, ECF No. 33-3; Def. Exh. 2, Offer Ltr., ECF No.
33-4.) MET has nearly 200 employees and provides engineering
and testing services to corporate and government clients.
(Pl. Exh. 12, Position Statement at 3, ECF No. 40-12.)
MET's Vice President Kevin Harbarger recommended Caban
for the j ob, and Rob Frier, MET's President, hired her.
(Pl. Exh. 2, Frier Dep. at 17:2-18:20, ECF No. 40-2.) Frier
does not remember why he chose to hire her specifically.
(Id.) Harbarger extended Caban the employment offer
and became her direct supervisor. (Def. Exh. 2, Offer Ltr.)
Frier was not a direct supervisor, but he actively
participated in employee discipline at MET. (Pl. Exh. 6,
Pitta Dep. at 50:5-8, ECF No. 40-6.)
gave Caban a start date of March 7, 2016. (Def. Exh. 2, Offer
Ltr.) Because Harbarger was scheduled to be in China and,
thus, out of the office from March 7 to March 10, Harbarger
met with Caban the week before to discuss Caban's work
assignments in his absence. (Def. Exh. 1, Caban Dep. at
70:11-71:20.) Harbarger showed Caban the facilities,
described the industry, and discussed upcoming projects and
during the week preceding her first day, Caban asked
Harbarger if she could work from home on Wednesday, March 9,
because she had a doctor's appointment midday. (Def. Exh.
8, Email re: March 9th, ECF No. 33-10.) Harbarger denied this
request, saying that he would normally be fine with her
working from home but that, on only her third day, she would
have a lot of catching up to do. (Id.) Caban later
informed Harbarger that she would be in the office before and
after her Wednesday appointment. (Pl. Exh. 24, ECF No. 40-24;
Def. Exh. 13, ECF No. 33-15 (hereinafter "Email re:
Caban's First Day
Monday, March 7, Caban participated in an onboarding meeting.
(Def. Exh, 1, Caban Dep. at 37:13-19.) Sherry Sailing,
MET's Human Resources Director, conducted the meeting,
which lasted between thirty minutes to an hour. (Id.
at 39:4-8.) Sara Lincoln, the Marketing Coordinator, who
would be Caban's subordinate, also attended.
(Id. at 38:1-2, 44:14-15, 46:9-13.) Sailing,
Lincoln, and Caban each provided statements as to what
occurred at this meeting.
limited the onboarding discussion to human resources issues,
(Pl. Exh. 3, Sailing Dep. at 51:2-5, ECF No. 40-3.) Sailing
told Caban that she had two options for her work hours: Caban
could either work the 8:00AM to 4:30PM shift or the 8:30AM to
5:00PM shift. (Id. at 51:4-12.) In her deposition,
Sailing testified that she told Caban that she could work
either shift for the first week and that, once Harbarger
returned, he would tell her which shift to work.
(Id.) By contrast, in answering the interrogatories,
MET stated that Sailing described the two shifts but-instead
of telling Caban to work either one-instructed Caban to ask
Harbarger, who was regularly responding to emails, which
shift to work. (Pl. Exh. 10, Interrogs. at 8, ECF No. 40-10.)
Caban characterized this discussion differently, stating that
she asked about her working hours, but Sailing told her she
would have to work them out with Harbarger. (Pl. Exh. 1,
Caban Decl. ¶ 7, ECF No. 40-1.) Sailing instructed
Lincoln to show Caban how to log her hours, and Lincoln did
so, explaining that Caban should log eight hours a day. (Def.
Exh. 1, Caban Dep. at 44:7-20.)
referred Caban to the employee manual. When onboarding new
employees, Sailing generally "just touch[es] on the main
points" and "let[s] the employees know that it is
on the internet." (Pl. Exh. 3, Sailing Dep. at 59:4-11.)
Sailing testified that she told Caban that the manual was on
the internet. (Id.) By contrast, Caban testified
that Sailing said she would send Caban the manual. (Def. Exh.
1, Caban Dep. at 38:3-11.) When asked about that statement in
her deposition, Sailing responded, "I don't send out
copies of the employee manual." (Def. Exh. 4, Sailing
Dep. at 59:18-21, ECF No. 33-6.) It is undisputed that
Sailing did not show Caban a copy of the manual at the
onboarding meeting; nonetheless, Caban signed a form stating
that she had reviewed the manual and discussed it with her
supervisor. (Def. Exh. 5, ECF No. 33-7; Pl. Exh. 9, ECF No.
40-9 (hereinafter "Form"); Def. Exh. 1, Caban Dep.
at 36:4-37:9 ("I signed the form but I had not received
the actual employee manual.").) According to Caban, she
did not see the employee manual until after her termination.
(Def. Exh. 1, Caban Dep. at 37:5-9.)
The Employee Manual
employee manual is an online document. (Pl. Exh. 2, Frier
Dep. at 75:2-3; Def. Exh. 6, ECF No. 33-8; Pl. Exh. 13, ECF
No. 40-13 (hereinafter "Manual").) The manual
applies to all employees, including managerial employees.
(Pl. Exh. 2, Frier Dep. at 19:13-20.)
"Regular Working Hours," the manual states that
exempt employees, like Caban, "are expected to work at
least 8 hours per day and must properly record their
time." (Manual at 31.) "All employees are
responsible for honestly and completely recording their
time.... on a daily basis." (Id.) "The
normal workday for all employees is 8 hours not including
lunch." (Id.) "The duration of the lunch
break is typically 30 minutes," and "[a]ny extended
break will need to be compensated for on the same day."
(Id. at 32.) The manual notes that "[p]oor
attendance and excessive tardiness are disruptive," and
either one or the "[f]ailure to properly account for
one's time can be cause for discipline or termination of
employment." (Id. at 31, 32.)
eight hours must generally be worked at the office. "All
salaried employees are expected to work on the company
premises during normal work hours," (Id. at
32.) "If salaried personnel are not present for whatever
reason during the normal work hours, then the time must be
accounted for as personal time on their time sheets."
(Id.) Under "Working from a Remote
Location," the manual states, "MET encourages
employees to work in the office versus working at a remote
location during normal business hours." (Id. at
37.) To work remotely, employees must seek approval from
their managers in advance. (Id.)
policies support MET's goal of creating an office in
which employees are always present during core business
hours. (See Pl. Exh. 2, Frier Dep. at 56:14-20 ("[W]e
try to maintain core hours when everyone is in the office so
there's not perfect overlap, ... but we do like to have
core hours where everyone's in the office and those core
hours would be starting at 8:30.").) All MET employees
are expected to work regular 8.5-hour shifts, with a
mandatory half hour lunch break, at the office. (Id.
at 49:13-50:5; see also Id. at 57:15-18 ("If
you come in a certain time you leave at least 8 and a half
hours after the time you arrived.").) Frier clarified,
"In other words, you can't work through lunch."
(Id. at 102:10-11.)
supervisors warned or disciplined their subordinates for not
working eight hours during regular working hours. (See,
e.g., Pl. Exh. 8, Kekovski Dep. at 6:1-7:16, ECF No.
40-8 (giving subordinate an official write-up about working a
full day when subordinate left 45 minutes before her
scheduled departure and 30 minutes before 8.5 hours).)
Sailing testified that MET is "very, very strict"
about its attendance policy. (Pl. Exh. 3, Sailing Dep. at
27:3-7.) By contrast, Lincoln stated that timekeeping was
sporadically enforced. (Pl. Exh. 5, Lincoln Deck ¶ 5,
ECF No. 40-5; see Id. ¶ 11 ("It was
routine for employees to be a few minutes later than their
scheduled start time and they were not routinely punished for
Caban started working at MET, she had a six-month-old child.
(Pl. Exh. 1, Caban Deck ¶ 2-3.) Harbarger testifies that
he knew Caban had an infant at the time he recommended her
for hire. (Pl. Exh. 4, Harbarger Dep. at 19:21-20:11.) No.
one else at MET knew that Caban was a mother. No. one, even
Harbarger, knew that Caban was breastfeeding when she was
hired. (Def. Exh. 1, Caban Dep. at 80:12-18 ("I
didn't tell them.").)
onboarding meeting, Caban informed Sailing that she would
need a private space where she could pump breast milk at
work. (Def. Exh. 1, Caban Dep. at 76:8-10.) Because Caban
shared an office with Lincoln, Sailing found Caban an unused
file room on Caban's hallway. (Id. at 77:2-19.)
Sailing kept the file room key, and Caban retrieved it each
time she needed to pump. (Id. at 77:20-78:8.) Caban
found the file room an appropriate accommodation.
(Id. at 80:3-6.) Caban stuck a post-it note on the
door, saying "Pumping in Progress." (Id.
at 110:7-8.) During her four days at MET, Caban went to the
file room to pump every two to three hours for a daily total
of "45 minutes maybe." (Id. at
accommodated several women who pumped during the workday.
(Pl. Exh. 10, Interrogs. at 7-8.) One employee pumped for
three of her children during her time at MET and continues to
work there. (Id.) Another pumped for a year as a MET
employee and continues to work there. (Id.) A third
MET employee requested and received pumping accommodations,
but she voluntarily resigned in 2016 to accept a job closer
to home. (Id.) Unlike Caban, all of these women had
their own office in which they pumped, so they did not have
to retrieve a key and go to an unused room each time they
pumped. (Def. Exh. 1, Caban Dep. at 79:17-19.)
told Frier that Caban was pumping at work. On the Tuesday of
the week at issue, Frier emailed Harbarger to inform him.
(Def. Exh. 12, ECF No. 33-14; Pl. Exh. 26, ECF No. 40- 26
(hereinafter "Email re: A word about Kira").) Frier
mentioned pumping in the context of letting Harbarger know
that his subordinate was not working enough:
Today (Tuesday) I saw her arrive at about 8:45.1 just noticed
at 4:45 that she was gone. I did not see her leave. Also, you
may not be aware but she is "pumping" several times
a day. Sherry set her up with the accounting file room. She
certainly has every right to do that and I believe it can be
done in work time. However, if I were pumping (which I am
not). I would try to make sure I put in a solid
(Id.) Frier told Harbarger that Caban was pumping
because he "thought it was interesting and important for
a supervisor to know what's going on with their
employees." (Pl. Exh. 2, Frier Dep. at
101:1-6.) On Thursday, Frier again emailed Harbarger to note
that Caban was working insufficient hours and again mentioned
pumping, saying that he would check with Sailing about the
rules for paying employees while they were pumping. (Def.
Exh. 14, ECF No. 33-16; Pl. Exh. 23, ECF No. 40-23
(hereinafter "Email re: Kira").) But, Caban did get
paid during the time that she pumped. Sailing testified that
Frier had asked her about the policy and she had clarified
that Caban should get paid: "Everyone else got paid. She
was going to get paid. He just didn't know, so."
(Def. Exh. 4, Sailing Dep. at 127:13-18.)
March 9, Caban found Frier outside the file room. Having
finished pumping, Caban opened the door and found Frier
reading the "Pumping in Progress" post-it note.
(Def. Exh. 1, Caban Dep. at 110:6-13.). Caban could not tell
exactly what he was doing-whether he was listening at the
door or simply reading the note. (Id. at
110:17-111:6.) Caban offers two versions of this incident. In
one, she remembers that she said hello and that "he
snapped up and said hello and walked away." (/rf. at
110:12-13.) In another, Caban states that Frier did not
respond to Caban's greeting at all and walked away. (Pl.
Exh. 1, Caban Decl. ¶ 13.) Frier does not recall the
incident. (Pl. Exh. 2, Frier Dep. at 108:16.)
Caban's First Week Attendance
parties dispute what hours Caban worked during her first and
only week at MET. A series of emails between Frier,
Harbarger, and Sailing reveal that they were tracking
Caban's comings and goings from the office.
Tuesday, Frier emailed Harbarger to inform him of Caban's
hours. (Email re: A word about Kira.) He wrote that, on
Monday, "she was gone by 4:30," and that, on
Tuesday, she arrived at 8:45AM and was gone by 4:45PM.
(Id.) On Wednesday, Frier emailed Harbarger
documenting that Caban arrived at 8:45AM, left at 11:45AM,
returned at 2:30PM, and was gone for the day by 4:20PM.
(Email re: Kira's time.) That day, Caban recorded two
hours of personal time to go to the doctor's
appointment. (Def. Exh. 11, ETimesheet, ECF No. 33-13;
Email re: Kira's time.)
Thursday, Frier emailed Harbarger, saying that Caban arrived
at 8:45AM and left at 4:10PM with at least an hour for lunch.
(Email re: Kira.) The full email reads:
Sherry is quite annoyed about Kira's hours. According to
Sherry, Kira came in at 8:45, took at least an hour out for
lunch with Sara and was gone sometime before 4:10. She pumps
for at least an hour a day. Sherry needs to check the rules
about pay during pumping. I'm not too happy about it
(Id.) When asked what he meant by "I am not too
happy about it either," Frier explained, "I was
referring to Kira's hours. As in Sherry's quite
annoyed and I am not too happy about it either... I was
neutral on the pumping, neither happy nor sad about the
pumping. I support pumping in the workplace as a matter of