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Perry v. State

United States District Court, D. Maryland

May 17, 2019



          Ellen L. Hollander United States District Judge.

         In this employment discrimination case, plaintiff Sandra R. Perry has sued the State of Maryland (the “State”), the Maryland Department of Health (“MDH” or the “Department”), and the Deer's Head Hospital Center (“Deer's Head”), alleging retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.[1] The parties agree that the three remaining defendants should be treated as a single defendant, because the Department is a principal department of the State, and Deer's Head is operated by the Department. See ECF 28-1 at 20; ECF 31 at 23-24; see also Bd. of Educ. of Prince George's Cty. v. Town of Riverdale, 320 Md. 384, 388-89 (1990) (“State agencies exist merely as the State's ‘hands or instruments to execute [the State's] will....'”) (quoting Baltimore v. State, 173 Md. 267, 271, 195 A. 571 (1937)). Therefore, I shall refer to the defendants collectively as the “State.”

         After the conclusion of discovery, the State moved for summary judgment (ECF 28), supported by a memorandum of law (ECF 28-1) (collectively, the “Motion”) and numerous exhibits. Plaintiff opposes the Motion (ECF 31, the “Opposition”), supported by voluminous exhibits. Defendants have replied. ECF 33.

         The Motion is fully briefed, and no hearing is necessary to resolve it. See Local Rule 105(6) (D. Md. 2018). For the reasons that follow, I shall grant the Motion.

         I. Factual Background [2]

         Plaintiff began working as an agency procurement associate at Deer's Head in 2009. ECF 31-1 at 4. During the time leading up to the events described herein, Beth Perdue served as plaintiff's direct supervisor, although her supervision consisted primarily of approving plaintiff's timesheets and leave requests and completing her performance evaluations. Id. at 5. Plaintiff and Ms. Perdue essentially worked side by side, in adjoining offices, and each worked on and approved her own procurement contracts. Id. at 5-7. Ms. Perdue was supposed to approve plaintiff's contracts. But, prior to October 1, 2015, she authorized plaintiff to use her approval authority and approve her own contracts. ECF 31-3 at 5; ECF 31-2 at 8; ECF 31-11 at 4.

         The Department head, Ken Waller, functioned as Ms. Perdue's direct supervisor. ECF 31-1 at 5. Either Mr. Waller or Ms. Perdue would determine whether Ms. Perdue or plaintiff would handle an incoming contract. ECF 31-1 at 6.

         On October 1, 2015, plaintiff received a sexually explicit email at her work email address. Id. at 9. The sender's name appeared as “johnjohn leggs” with the following email address: ECF 28-11. The email said, id.:

are you an exhibitionist? love those short skirts and your long legs. when you bent over your cheeks looked great. do you go commando? my picture says so? need more personal contact. you might agree by sending me proof and if you shave. I know you don't want this circulated.

         Ms. Perry showed the email, on her computer screen, to Ms. Perdue and Mr. Waller. ECF 31-1 at 9. Mr. Waller discussed reporting the incident to the Deer's Head Information Technology (“IT”) Department. Id.; ECF 31-2 at 9. After doing some online research, plaintiff believed that the email address was associated with Ms. Perdue's husband, Allen John Perdue. ECF 31-1 at 9. Mr. Perdue did not work for Deer's Head or for the State in October 2015. ECF 28-9 at 7. Plaintiff forwarded the information she had discovered about Mr. Perdue and the email address to Mac Beattie and Phil Adkins in IT. ECF 31-1 at 10.

         Plaintiff also reported the email to Luanne Dashield in the Human Resources (“HR”) Department at Deer's Head. Id. at 11. While plaintiff was in Ms. Dashield's office to report the incident, Mr. Waller and Mr. Beattie, from IT, arrived to discuss the matter with Ms. Dashield. ECF 31-9 at 3. Ms. Dashield suggested that plaintiff contact the police about the email, and offered to walk plaintiff to her car after work. ECF 31-1 at 11, 12; ECF 28-13 at 7-8.

         On October 5, 2015, after plaintiff took some time to think over the situation, plaintiff asked to have a joint meeting with Ms. Dashield and Ms. Perdue, although she did not wish to hold the meeting that day. ECF 31-1 at 12. Ms. Dashield advised plaintiff that she preferred a one-on-one meeting. She met alone with Ms. Perdue on October 6, 2015, to advise her that the email had likely come from her husband, and to ask Ms. Perdue to tell her husband not to come to Deer's Head. Id. at 12-13. Ms. Perdue subsequently reported that her husband had agreed to stay away. ECF 28-13 at 11; ECF 31-2 at 10. Ms. Dashield also informed the front desk at Deer's Head that Mr. Perdue should not be allowed into the building, and that any strange telephone calls should be reported to her. ECF 31-9 at 3, 4.

         In October 2015, following Beattie's investigation into the email, Beattie informed plaintiff that he had not been able to identify “the owner of the email address . . . .” ECF 31-1 at 13. Plaintiff characterized Beattie as “dismissive.” Id. She also referred the email to the IT Director for the entire Department, who could not “confirm” the sender's identity. Id.

         Plaintiff did not immediately report the incident to any outside authorities. In early to mid-November of 2015, plaintiff went to the Maryland State Police to report the email incident, and to the state District Court in Salisbury to seek a protective order against Mr. Perdue. Id. at 14-15. The judge told plaintiff that the time to report the incident had expired; she had to apply within thirty days of the harassing email. Id. at 15.

         After the incident, the working relationship between Ms. Perdue and plaintiff became strained. ECF 31-1 at 15. Plaintiff asserted that Ms. Perdue was “avoiding conversation” and had altered her body language. Id.; ECF 31-12. On October 30, 2015, plaintiff asked Ms. Dashield and Mr. Waller to change her supervision so that she could report directly to Mr. Waller. ECF 31-12; ECF 31-1 at 16. Before receiving a response to her request, plaintiff sought the assistance of a union representative, Caroline Davis. ECF 31-1 at 16. On November 14, 2015, plaintiff, Ms. Davis, Mr. Waller, and Ms. Dashield met to discuss the possible change in plaintiff's line of supervision. Id. at 16-17.

         After some additional discussions, on November 24, 2015, Ms. Dashield wrote a letter to plaintiff advising that although “neither Deer's Head management nor the DHMH Office of Equal Opportunity Program can pinpoint tangible evidence of a hostile work environment created by Mrs. Perdue, we can empathize with your feelings and concerns and have carefully considered your request to not be supervised by Mrs. Perdue. Unfortunately, we are unable to carve out any procurement work here for you since Mrs. Perdue is involved in all aspects of purchase orders, contracts and management of supplies.” ECF 31-15; see also ECF 28-13 at 12-18. The letter went on to state that Deer's Head “can, however, accommodate a temporary assignment” by having plaintiff report directly to Mr. Waller, beginning November 30, 2015, performing timekeeping tasks while another employee, Alysia Pinder, took leave. ECF 31-15. In addition, the letter stated: “It is our hope that before Ms. Pinder's return, a position more suited to your experience will be found.” Id. Ms. Dashield added that “a physical separation will be beneficial, ” and indicated that a workspace would be provided for plaintiff “on the north wing on the third floor in the currently vacant nurses' station.” Id.

         Plaintiff told Ms. Dashield that she did not view the proposed arrangement as satisfactory. ECF 31-5 at 3. She described the “timekeeping” duty as “clerical” and a “lower-level, data entry position . . . .” Id. In her view, she was being punished when she was the victim. Id.

         Keneithia Taylor, the Executive Director and Fair Practices Officer of the Office of Equal Opportunity Programs at MDH, emailed plaintiff on November 24, 2015, stating: “Please advise what it is you are seeking, as I believed the most critical component of your request was removing you from Beth Perdue's chain of supervision, which is what the facility has done. . . We have reviewed many possibilities, locations, positions, and duties to assist you. If you have another suggestion, please feel free to share it.” ECF 31-16 at 2. Taylor also said: “What we do know is that someone sent you a repulsive email and there is a high assumption that is was [sic] Beth's husband . . . . However, you rejected DoIT's offer to look further into the matter.” Id.

         Plaintiff again expressed her desire to be transferred to Mr. Waller's supervision, without changes to her job tasks or location. ECF 31-16 at 3-5. However, Ms. Dashield sent a letter to plaintiff on December 4, 2015, stating: “After careful consideration of your concerns, the issues involved, the current distribution of procurement tasks, and a desire to minimize conflict in the workplace, Deer's Head Hospital Center feels that the original plan for resolution of the matter is the most appropriate for all parties involved at this time.” ECF 31-17. The letter directed plaintiff to “report for duty at 7:30 am December 7, 2015 to perform the temporary assignment of timekeeping while Alysia Pinder is on leave. Your earnings and job classification will not be impacted by this assignment.” Id. At some point, a decision may have been made not to move plaintiff to the third-floor workspace, but no new workplace had been chosen for her timekeeping assignment. ECF 31-14 at 3.

         However, on December 6, 2015, before plaintiff began the temporary timekeeping assignment, she requested and received leave under the Family and Medical Leave Act (“FMLA”), due to stress. ECF 31-1 at 18. On February 11, 2016, while on FMLA leave, plaintiff filed an EEOC charge in which she alleged that she had suffered sex discrimination and retaliation after reporting the email of October 1, 2015. ECF 28-24.

         Plaintiff's FMLA leave lasted approximately twelve weeks. ECF 31-1 at 18. While plaintiff was on leave, the procurement department began cross-training other employees to handle procurement tasks, and made some changes to procedures for handling certain contracts and assignments. ECF 28-7 at 9-10, 15; ECF 31-9 at 7. For example, on February 26, 2016, Ms. Perdue sent an email stating that all requests for purchase orders had to be sent to her, not to any other employees. ECF 31-18. Ms. Perdue testified that the purpose of the change was so that she could keep track of all of the projects and assign appropriate ones to the person in training, RJ Coulbourn. ECF 28-6 at 14-15. The email also noted that Ms. Perdue's office door would remain closed, and employees would be unable to cut through to the business office. ECF 31-18.

         Plaintiff was scheduled to return to work on February 29, 2016, to her original procurement position, under the supervision of Ms. Purdue. ECF 31-1 at 18. When plaintiff returned from leave, she had no access to various computer files and programs required to perform her job tasks, a printer that had formerly been located in her office had been moved, and her State credit card had been terminated. ECF 28-7 at 11; ECF 31-4 at 4; ECF 31-1 at 18-19. Plaintiff's access to all of those items was eventually reinstated, except for the printer, because the agencies had moved to using copiers for printing in order to save costs. ECF 28-22, at 1-2; ECF 31-1 at 19; ECF 31-11 at 3.

         Upon plaintiff's return to work, she was required to report the status of her contracts to Ms. Perdue, using a spreadsheet, every two weeks. ECF 31-1 at 20. Plaintiff described the new system as a change in “the functionality of the department from shared responsibility between Mrs. Perdue and me (working independently) to Mrs. Perdue now assigning and approving all work (increased supervision).” ECF 31-5 at 4.

         In June 2016, Ms. Perdue completed plaintiff's personnel evaluation and rated her, overall, as “Satisfactory.” ECF 28-23; ECF 31-5 at 5. Plaintiff's prior annual evaluations reflected ratings of “Outstanding.” ECF 31-1 at 22.

         Months later, on March 9, 2017, during an exchange about contract assignments, plaintiff sent an email to Ms. Perdue that stated, in relevant part, “After I filed my complaint of discrimination and retaliation after your husband's lewd e mail to me and your hostile behavior toward me because of it, you removed all of my contracts from the Contract log that we shared and you and Ken made it a requirement that you assign all contracts.” ECF 28-25 at 2. Mr. Waller was cc'd on that email. Id. On March 15, 2017, Mr. Waller met with plaintiff to discuss the “tone” of the email, which he regarded as “negative.” ECF 28-26.

         On April 6, 2017, Ms. Perdue submitted paperwork announcing her intent to retire, effective December 31, 2017. ECF 28-27. The next day, April 7, 2017, Mr. Waller and Ms. Dashield issued a “memorandum of written counseling” to plaintiff regarding the email she had sent to Ms. Perdue on March 9, 2017. ECF 28-26. Three days later, on April 10, 2017, plaintiff again took FMLA leave, citing stress, anxiety, and depression. ECF 31-5 at 5. On April 24, 2017, while plaintiff was on leave, Mr. Waller announced the upcoming vacancy and solicited applications to replace Ms. Perdue. ECF 28-14 at 17; ECF 31-22. Plaintiff did not hear of the process during the application window, and did not apply for the supervisory position. ECF 31-5 at 5.

         Plaintiff was scheduled to return from twelve weeks of FMLA leave on July 5, 2017. ECF 31-5 at 5. Because she was not medically cleared to return by that date, the State requested a Task Analysis from her physician. Id. The State then scheduled an appointment with the State Medical Director, pursuant to the State's standard policy when an employee's FMLA leave has expired. Id.; ECF 31-9 at 12. The State Medical Director examined plaintiff on August 14, 2017, and again on September 7, 2017, following intervening psychological testing. ECF 31-26; ECF 31-27. In a report issued on September 7, 2017, the State Medical Director concluded: “[I]t is my impression that Ms. Perry is not likely psychologically fit to efficiently perform her job duties at her current location . . . It is my opinion that Ms. Perry will not likely return to work in her current position at Deer's Head Hospital Center in the near or foreseeable future.” ECF 31-27 at 4. On October 7, 2017, citing the State Medical Director's opinion, the State terminated plaintiff's employment. ECF 28-28. However, plaintiff had applied for, and was granted, disability retirement. ECF 28-14 at 14, 21.

         Notably, after the incident of October 1, 2015, plaintiff never saw Mr. Perdue at Deer's Head again. ECF 31-1 at 13; ECF 28-13 at 11.[3] The evidentiary record is also devoid of any further sexually harassing communications directed to plaintiff, either by Mr. Perdue or anyone else.

         II. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); see also Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (“A court can grant summary judgment only if, viewing the evidence in the light most favorable to the non-moving party, the case presents no genuine issues of material fact and the moving party demonstrates entitlement to judgment as a matter of law.”). The nonmoving party must demonstrate that there are disputes of material fact so as to preclude the award of summary judgment as a matter of law. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).

         The Supreme Court has clarified that not every factual dispute will defeat a summary judgment motion. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see Sharif v. United Airlines, Inc., 841 F.3d 199, 204 (4th Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence “is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252. And, “[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id.

         Notably, “[a] party opposing a properly supported motion for summary judgment ‘may not rest upon the mere allegations or denials of [her] pleadings,' but rather must ‘set forth specific facts showing that there is a genuine issue for trial.'” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)), cert. denied, 541 U.S. 1042 (May 17, 2004); see also Celotex, 477 U.S. at 322-24. And, as indicated, the court must view all of the facts, including any reasonable inferences to be drawn, in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587; accord Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

         The district court's “function” is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249; accord Haynes v. Waste Connections, Inc., ___ F.3d ___, 2019 1768918, at *2 (4th Cir. April 23, 2019); Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, in considering a summary judgment motion, the court may not make credibility determinations. Jacobs v. N.C. Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); MercantilePeninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007). Where there is conflicting evidence, such as competing affidavits, summary judgment ordinarily is not appropriate, because it is the function of the fact-finder to resolve factual ...

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