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Westbrooks v. Baltimore County

United States District Court, D. Maryland

August 20, 2019




         Plaintiff Lashawn M. Westbrooks (“Ms. Westbrooks”) filed this case against her former employer, Baltimore County, Maryland (“Defendant”), alleging interference with her rights under the Family and Medical Leave Act of 1993 (“FMLA”) (Count One); retaliation for exercising her FMLA rights (Count Two); intentional infliction of emotional distress (Count Three); and failure to make reasonable accommodations for her disability (Counts Four, Five, Six, and Seven, under state and federal law). ECF 18. On May 3, 2019, Defendant filed a Motion for Summary Judgment, ECF 25, along with a memorandum of law, ECF 25-1 (collectively, the “Motion”). Ms. Westbrooks opposed the motion (“Opposition”), ECF 28, and Defendant replied, ECF 29 (“Reply”). I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the reasons that follow, I will grant in part and deny in part the Motion.


         The facts below are taken in the light most favorable to Ms. Westbrooks, the non-moving party. In January of 2006, Ms. Westbrooks was hired as a Correctional Officer at the Baltimore County Detention Center (“BCDC”). ECF 28-1 ¶ 2. Throughout her tenure at the BCDC, Ms. Westbrooks received satisfactory annual performance evaluations, except for consistent concerns about her attendance. See ECF 25-2 (County Apx. 077-097). Since approximately 2014, Ms. Westbrooks has suffered from anxiety. ECF 28-1 ¶ 3. When her anxiety “flares up, ” she experiences “crying, sadness, dizziness, shortness of breath, excessive worry, insomnia, and an upset stomach.” Id. When she experiences these symptoms, she attests that she is also unable to work at the BCDC. Id.

         On May 13, 2017, Ms. Westbrooks applied for medical leave under the FMLA.[1] Id. ¶ 4; ECF 28-3. The application, completed by her Physician Assistant, Natalie Orbach, noted that Ms. Westbrooks has had permanent anxiety and insomnia for the past three years, with episodic flare-ups that made it medically necessary for her to be absent from work approximately two times per month, lasting three to five days per episode. Id. On June 1, 2017, the United States Department of Labor approved Ms. Westbrooks's FMLA request with a Designation Notice. ECF 28-1 ¶ 4; ECF 28-5. On June 26, 2017, the Director of Human Resources, George E. Gay, sent a letter to Ms. Westbrooks, approving her intermittent leave request from May 12, 2017 to May 11, 2018, pursuant to the Department of Labor's June 1, 2017 Designation Notice. ECF 28-1 ¶ 4; ECF 28-4. On five separate occasions, from May 13, 2017 through March 13, 2018, Ms. Westbrooks sought treatment for her anxiety from her physician, Manuel Ramos, and Orbach. ECF 28-1 ¶ 38; ECF 28-10.

         Starting in May of 2017, Ms. Westbrooks had 480[2] hours of FMLA leave. ECF 25-2 (County Apx. 005, 006). Whenever Ms. Westbrooks took FMLA leave, she was required to call in at least an hour before her shift started, to notify BCDC that she would be using her FMLA leave. Id. (County Apx. 005, 006, 150-154). If she ever called in absent for a reason other than her FMLA condition, she would use sick leave. Id. On May 28, 2017, Ms. Westbrooks was assigned to work in housing unit 3C/D, which was one of the smallest “pod” units. Id. (County Apx. 015). Ms. Westbrooks asked Lieutenant Tracey Merrill if she could be switched to another post that had more room for her to walk around. Id. According to Ms. Westbrooks, Lieutenant Merrill said, “Oh, no. I'm not moving you. Other people are on light duty as well.” Id. After roll call, Ms. Westbrooks informed Lieutenant Merrill that she would be taking FMLA leave for the day, to which Lieutenant Merrill responded, “[y]ou can do whatever it is you like, ” but that Ms. Westbrooks needed medical documentation if she had restrictions at work. Id.

         On June 1, 2017, Ms. Westbrooks visited Orbach, who wrote,

[Patient] presents for followup [sic] anxiety and insomnia. She missed 2 days last week from work due to anxiety about having to work in a confined area watching inmates. She cannot freely move around the area and she is very restless. She prefers to be in areas that she can freely move around and not be closed in or confined. She had to leave early on one of the days due to anxiety of the assignment she had.

ECF 28-10 at 6. On June 2, 2017, Ms. Westbrooks handed a note from Orbach to her shift supervisor Lieutenant Wilkerson stating, “[d]ue to chronic medical conditions, it is recommended that Lashawn Westbrooks work in areas that allow her to be able to move around freely.” ECF 25-2 (County Apx. 015, 161). When Lieutenant Wilkerson asked Ms. Westbrooks about the note, Ms. Westbrooks “felt offended that [Lieutenant Wilkerson] inquired about her medical history, ” and explained that she did not want to sit in a pod anymore. Id. (County Apx. 016, 162).

         On June 21, 2017, Ms. Westbrooks met with Captain Greer about the doctor's note she submitted to Lieutenant Wilkerson. Id. Captain Greer told Ms. Westbrooks that the note could not be honored because it was a recommendation, and that it must state why she has to be in an area that allows her to walk around. Id. (County Apx. 017, 163). Ms. Westbrooks was not assigned to work in the smaller pod units for the months of June and July. Id. (County Apx. 018-019). On July 30, 2017, Ms. Westbrooks brought another note from Orbach to work, which read, “[d]ue to chronic medical conditions, Lashawn Westbrooks should be assigned to areas at work that allow her to be able to move around freely. She will need restrictions for at least 3 months.” Id. (County Apx. 164).

         On August 1, 2017, then-Deputy Director of the BCDC, Gail Watts, emailed Ms. Westbrooks:

In response to your attached medical restriction documentation, which states “should be assigned to areas at work that allow her to be able to move around freely”; you will be assigned to areas throughout the facility to include housing units 2G/H, 3G/H, and 4G/H, which will allow you to move around freely while maintaining observation of inmates.

Id. (County Apx. 165). On August 24, 2017, Ms. Westbrooks was assigned to unit 3G/H. Id. (County Apx. 021-022, 166). She reported to her assigned unit, but asked Captain Greer to be switched to another housing unit “due to [her] FMLA.” Id. While on duty, Ms. Westbrooks experienced anxiety in the unit, feeling “dizzy and nauseated and just not feeling well, ” and was relieved from her duties to go to the hospital. Id. Before she left for the hospital, Lieutenant Merrill asked Ms. Westbrooks what type of leave she would be taking, and Ms. Westbrooks said that “she would use FMLA to avoid receiving a code X marking.” Id. Three days later, on August 27, 2017, Ms. Westbrooks was assigned again to unit 3G/H. Id. (County Apx. 022-023, 167-168). After explaining to her shift supervisor that she could not work in 3G/H because of her recent anxiety attack in that unit, Ms. Westbrooks was eventually reassigned to another larger unit. Id.

         After the August 24, 2017 incident, Ms. Westbrooks met with her union officials to discuss her situation at work. Id. (County Apx. 024). One of her union officials referred her to Dr. Aaron Noonberg for a psychological evaluation. Id. (County Apx. 024, 169-176). Dr. Noonberg's September 18, 2017 evaluation of Ms. Westbrooks provides,

Ms. Westbrooks requires psychological treatment for her anxiety at work, and a modified duty assignment in which she is placed on any walking post handling inmates, or in direct supervisory positions where she is handling groups of inmates in a space in which she is simply able to walk around as much as she needs. She has no problems dealing with inmates and requires no restrictions concerning inmates. She only requires the restriction against being confined in a pod, described as a control or observation position blocking her from being able to walk around, leading to anxiety that escalated to the panic attack on August 24, 2017. … She requires cognitively oriented psychotherapy for the consequences of her intolerance of placement in the pods along with desensitization hopefully reversing her intolerance, likely to need 12 to 16 visits of psychological treatment.

Id. (County Apx. 174). Ms. Westbrooks testified that she did not seek further treatment from a therapist. Id. (County Apx. 026). However, Dr. Noonberg wrote two notes on September 27, 2017, excusing Ms. Westbrooks's absences from September 25th through October 2nd, and noting that “Patient needs a walking post or direct supervisory assignment without ‘POD' placement due to anxiety disorder.” Id. (County Apx. 175-176). Ms. Westbrooks continued to use her FMLA leave until it ran out on January 18, 2018, and her supervisors continued to place her outside of the pods to accommodate her restrictions. Id. (County Apx. 027-028).

         On or about December 28, 2017, Ms. Westbrooks alleges that she requested FMLA leave for her anxiety. ECF 28-1 ¶ 9. Ms. Westbrooks attests that she was marked “Code X”[3] for that day, which she learned during a January 31, 2018 verbal counseling session with Lieutenant Merrill. Id. ¶ 10. The verbal counseling report from that session states, “On 12/28/2017 Officer Westbrooks accumulated her fourth occurrence of sick leave in a twelve month period … The fifth occurrence of sick time within a 12 month time period will result in [employee] being placed on Excessive Absenteeism Notice (EAN), and progressive discipline as per policy.” ECF 28-16. Defendant maintains that Ms. Westbrooks was not marked “Code X” on December 28, 2017, and that the “12/28/17” reference was a clerical error which should have read “01/28/18.” ECF 29 at 3 n.2; ECF 29-1 ¶ 4 (Affidavit of Lt. Tracey Merrill). Ms. Westbrooks's “hours detail” report and “activity detail” report, provided by Defendant, do not reflect “sick” or “FMLA” markings, as several other dates do. See ECF 25-2 (County Apx. 57, 107-108).

         Ms. Westbrooks testified that, during the January 31, 2018 meeting with Lieutenant Merrill, Ms. Westbrooks asked Lieutenant Merrill what to do if she ran out of FMLA leave for her anxiety condition, and that Lieutenant Merrill responded, “[i]t doesn't matter. You will be accommodated for that anyway.” ECF 25-2 (County Apx. 009). Defendant's attorney responded, “[w]ell, we'll get to that, ” but Lieutenant Merrill's statement is not addressed in the remainder of the deposition transcript provided to the Court. See Id. (County Apx. 001-054).

         On February 18, 2018, BCDC Director Watts submitted a “Notice of Excessive Absenteeism Due to Illness” to Human Resources Director George Gay. Id. (County Apx. 076). The notice, acknowledged and signed by Ms. Westbrooks, states,

On 02/16/2018, Officer Westbrooks accumulated her fifth occurrence of sick leave within a 12 month period….In accordance with [the Department's Absence Control Policy 1.3.15[4], our agency is requesting for Officer Westbrooks to be placed on Exceptional Absenteeism Notice. This notice requires the employee to provide his/her supervisor with a written physician's excuse from work for any sick leave used during the next 6-month period.

Id. Ms. Westbrooks attested that “[e]ven though [she] requested FMLA leave for [her] anxiety on February 16, 2018, [she] was marked Code X and received the Notice of Excessive Absenteeism.” ECF 28-1 ¶ 14.

         Although she was out of sick leave and FMLA leave, Ms. Westbrooks called out sick on March 4 and 5, 2018. See ECF 25-2 (County Apx. 007) (“Q: And then starting on 3/4, you're marked X, right? A: Yes. Q: That's because you were out of both sick leave and FMLA leave, correct? A: Yes.”). Her Absentee Report for March 5 reads, “Confirmed Westbrooks was advised that she doesn't have any sick time and will be marked Code X. Westbrooks advised she knows, will be under Dr.'s care.” Id. (County Apx. 073). Ms. Westbrooks ...

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