United States District Court, D. Maryland
LASHAWN M. WESTBROOKS Plaintiff,
BALTIMORE COUNTY, MARYLAND Defendant.
STEPHANIE A. GALLAGHER UNITED STATES MAGISTRATE JUDGE.
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.
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.
13, 2017, Ms. Westbrooks applied for medical leave under the
FMLA. 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.
in May of 2017, Ms. Westbrooks had 480 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.
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).
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).
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.
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.
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
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.
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” 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).
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
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.
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, 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.
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 ...