United States District Court, D. Maryland
SANDRA R. PERRY,
STATE OF MARYLAND, et al.
L. Hollander United States District Judge.
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. 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
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.
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.
Factual Background 
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.
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.
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: email@example.com. 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.
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
firstname.lastname@example.org 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.
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.
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.
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.
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.
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.
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.”
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.
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
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.
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
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.
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.
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.
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.
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.”
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.
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.
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. The evidentiary record is also devoid of
any further sexually harassing communications directed to
plaintiff, either by Mr. Perdue or anyone else.
Standard of Review
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).
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.
“[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).
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 ...