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Hamilton v. Prince George's County

United States District Court, D. Maryland

September 27, 2019

NARICA HAMILTON
v.
PRINCE GEORGE’S COUNTY, MARYLAND

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution are the motion for summary judgment filed by Defendant Prince George’s County, (ECF No. 40); the motion to strike or seal filed by Plaintiff NaRica Hamilton (ECF No. 44); the consent motion for leave to file excess pages filed by Plaintiff (ECF No. 46); the motion to seal filed by Defendant (ECF No. 52); the motion to seal filed by Plaintiff (ECF No. 54); and the motion for leave to file a sur-reply filed by Plaintiff (ECF No. 56). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant’s motion for summary judgment will be granted in part and denied in part; Plaintiff’s motion to strike will be denied; both Plaintiff’s and Defendant’s motions to seal will be granted; Plaintiff’s motion for leave to file excess pages will be granted; and Plaintiff’s motion for leave to file a sur-reply will be denied.

         I. Background

         A. Factual History

         The following facts are presented in the light most favorable to Plaintiff, the non-moving party for the purposes of Defendant’s summary judgment motion.

         Prince George’s County Police Department hired Plaintiff Corporal NaRica Hamilton (“Cpl. Hamilton”) in 2006. At all relevant times, Plaintiff was the only female in her unit, and her immediate supervisor was Sergeant Gerald Manley (“Sgt. Manley”), a male.

         Beginning in August of 2015, there was an escalation in tension between Cpl. Hamilton and Sgt. Manley. That month, Sgt. Manley made a joke about Cpl. Hamilton’s private life in front of other squad members. (ECF No. 49-1, at 30). In early October, Sgt. Manley instructed Cpl. Hamilton to visit Laurel High School and Cpl. Hamilton refused based on her discomfort being around the school’s principal. When Cpl. Hamilton turned up at the station after this refusal, Sgt. Manley yelled at her. (ECF No. 40-6, at 35). On October 7, 2015, Plaintiff expressed her concern about the discrimination she was experiencing to her Lieutenant, Lt. Adam Popielarcheck (“Lt. Popielarcheck”). On October 8, Cpl. Hamilton sent an e-mail to Shop Steward Gerald Knight of the Fraternal Order of Police (“FOP”) complaining of “sexist” behavior by Sgt. Manley. (ECF No. 49-13). In an October 14 squad meeting, Sgt. Manley spoke to Cpl. Hamilton in a demeaning tone, refusing to answer her questions, and referring to her repeatedly by her first name. (ECF No. 40-6, at 42-43). Cpl. Hamilton left the meeting to complain to Lt. Popielarcheck, only to have their one-on-one meeting interrupted by Captain Adam Parker (“Cpt. Parker”), who instructed them to return to Sgt. Manley’s meeting. Once they had returned, Cpt. Parker – addressing the entire squad – cautioned the squad about making complaints to the FOP. (ECF No. 49-1, at 31). Five days later, Cpl. Hamilton asked Sgt. Manley to turn down the volume of a radio program he was listening to which was demeaning to women and minorities. Sgt. Manley refused. (ECF No. 29, at 7). On October 22, Plaintiff filed a formal complaint with the police department. (ECF No. 49-11)

         On October 26, Plaintiff found out she was pregnant, and her doctor told her that she needed to be placed on light duty because of complications from the pregnancy. Plaintiff requested an accommodation to ensure she did not have to a) stand for long periods, b) drive more than 60 miles each day (i.e., drive more than her roughly 25-30 mile commute each way to and from work), or c) lift more than twenty pounds. The request was granted on November 2, and Plaintiff was transferred to the Records Department. Even though Plaintiff was not supposed to drive other than from home to work and back, she was asked to drive to the station on November 10, 11, and 12. (ECF No. 40-6, at 75-78). Cpl. Hamilton was asked to make these additional drives to review and sign her performance review. On that performance review, Cpl. Hamilton received an overall score of 2.7, which is labelled as “SATSIFACTORY”. (ECF No. 49-24, at 1). Cpl. Hamilton complained about this score, however, and it was ultimately revised upward to a score of 2.85 which “EXCEEDS SATISFACTORY”. Id. Cpl. Hamilton was nonetheless unhappy with both scores and with the substantive comments on her performance review, as they were worse than in all her previous reviews. (ECF No. 40-6, at 26).

         Plaintiff found out that she had had a miscarriage on or about November 16. Id. at 60. Plaintiff then went on leave due to the complications from her pregnancy and miscarriage. When she returned, Cpl. Hamilton immediately sought a transfer from her COPS unit to a patrol unit. Id. at 62. Cpl. Hamilton was ultimately granted a transfer request to a patrol assignment and involuntarily reassigned to the night shift. Id. at 62-63.

         B. Procedural Background

         On June 23, 2017, Plaintiff filed suit in the Circuit Court for Prince George’s County, Maryland, against Prince George’s County and the Prince George’s County Police Department. (ECF No. 2). Plaintiff brought 16 claims under an assortment of federal and state laws alleging discrimination on the basis of sex, pregnancy, disability and related claims of retaliation. On August 11, Defendant Prince George’s County removed the case. Defendant Prince George’s County moved to dismiss, or in the alternative, for summary judgment on September 15. (ECF No. 14). Plaintiff responded (ECF No. 17), and Defendant replied (ECF No. 20).

         On April 16, 2018, the court granted in part and denied in part Defendant’s motion for summary judgment. (ECF No. 23). Plaintiff subsequently requested and was granted leave to file an Amended Complaint. (ECF No. 29). Plaintiff’s remaining claims in the Amended Complaint are 1) Gender Discrimination under Title VII of the Civil Rights Act (“Title VII”) (Count I); 2) Hostile Work Environment under Title VII (Count II); 3) Retaliation under Title VII (Counts III and VIII); 3) Disability Discrimination and Failure to Accommodate under the Americans with Disabilities Act (the “ADA”) (Counts IV and VI); 4) Retaliation under the ADA (Count V); and 5) Discrimination on the Basis of Pregnancy under Title VII (Count VII). Defendant moved for summary judgment on all counts of the Amended Complaint on January 15, 2019. (ECF No. 40). The parties agreed by a consent motion to grant Plaintiff an extension of time to file her opposition. (ECF No. 41). That motion sought an extension for Plaintiff to file her opposition to the motion for summary judgment until February 15 and for Defendant to reply by March 1. Id. The court’s paperless order erroneously granted Plaintiff until March 1, 2019 to file her Opposition, simply inserting the date of the reply (ECF No. 43). The court apologizes for this error. Neither Plaintiff nor Defendant opposed this order nor raised the issue with the court.

         On February 15, 2019, Plaintiff moved to strike certain sections of the motion for summary judgment. (ECF No. 44). The court issued a paperless order on the same day, directing the Clerk to place Defendant’s motion for summary judgment, and plaintiff’s motion to strike and/or seal temporarily under seal until the resolution of the motion to strike and/or seal. (ECF No. 45). The court also directed the parties to file redacted versions of the papers on the public docket (ECFs No. 47 & 48). Plaintiff then filed a consent motion for leave to file excess pages in its Opposition to Defendant’s motion for summary judgment. (ECF No. 46). Plaintiff subsequently filed her over-long opposition on February 27, 2019. (ECF No. 49). Defendant filed a motion to seal its opposition to plaintiff’s motion to strike on March 5, 2019, (ECF No. 52), and then filed its reply in support of its motion for summary judgment on March 13. (ECF No. 53). Plaintiff then filed her own motion to seal her reply to Defendant’s opposition to motion to strike or seal on the same day. (ECF No. 54). Finally, Plaintiff filed a motion for leave to file a sur-reply, (ECF No. 56), which Defendant opposed (ECF No. 57).

         II. Motion for Summary Judgment A. Standard of Review

          Summary judgment will be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 249. In undertaking this inquiry, a court must view the facts “in the light most favorable to the party opposing the motion, ” Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005), but a “party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences, ” Shina v. Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).

         To prevail on a motion for summary judgment, the moving party generally bears the burden of showing that there is no genuine dispute as to any material fact. No. genuine dispute of material fact exists, however, if the nonmoving party fails to make a sufficient showing on an essential element of his case as to which he would have the burden of proof. Celotex, 477 U.S. at 322–23.

         B. Analysis

         1. The Retaliation Claims

         Cpl. Hamilton brings three separate retaliation claims: two of them under Title VII and one under the ADA.

         To establish a prima facie case of retaliation under Title VII, a plaintiff must show that: 1) she engaged in a protected activity, 2) her employer took a materially adverse action against her and 3) a causal connection existed between the activity and the adverse action. See Adams v. Anne Arundel County Public Schools, 789 F.3d 422, 429 (4th Cir. 2015).

         Cpl. Hamilton brings two distinct, but similar, Title VII claims. Cpl. Hamilton contends that 1) she engaged in a protected activity when she complained publicly about her treatment, when she sought assistance from Lt. Popielarcheck, when she e-mailed Shop Steward Knight, and when she complained to the EEOC coordinator; 2) she suffered an adverse employment action in the form of a lower Past Performance Appraisal, a “subsequent hostile work environment, ” the “denial of request for assistance, and revised workload” and a “threat by Captain Parker, ” (ECF No. 29, at 11); and that there was a causal connection between 1) and 2). As to her second Title VII retaliation claim, brought pursuant to the Pregnancy Discrimination Act, Cpl. Hamilton claims that she: 1) engaged in a protected activity by requesting light duty due to her high risk pregnancy, 2) suffered an adverse employment action in the form of a lower performance evaluation, transfer to the Records Department, and “subsequent hostile work environment, denial of request for assistance, and revised workload[, ]” id. at 18, and 3) that 1) and 2) were causally linked. Id.

         An action is sufficiently “adverse” to support a Title VII retaliation claim if it “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Booth v. Cty. Exec., 186 F.Supp.3d 479, 488 (D.Md. 2016) (citing Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006) (“Burlington Northern”). This standard is easier for plaintiffs to meet than in the Title VII discrimination context, as it encompasses actions “beyond workplace-related or employment related retaliatory acts and harm.” Wonasue v. University of Maryland Alumni Ass’n, 984 F.Supp.2d 480, 492 (D.Md. 2013) (citing Burlington Northern, 548 U.S. at 67-70). That does not mean, however, that any retaliatory actions will suffice. Id. Employees are only protected “from retaliation that produces an injury or harm, ” i.e. “materially adverse actions, ” as opposed to “trivial” ones. Cepada v. Bd. Of Educ. of Baltimore Cty., 814 F.Supp.2d 500, 515 (D.Md. 2011) (citing Burlington Northern, 548 U.S. at 67-69).

         a. Adverse Employment Actions

          Cpl. Hamilton bases her Title VII retaliation claims on several alleged “adverse employment actions”: 1) the drop-off in her performance review, 2) the “hostile work environment” she suffered from after taking her protected action, 3) denial of a request for assistance, 4) her “revised workload”, 5) her “transfer to the Records Department, ” and 6) a “threat” from Cpt. Parker. (ECF No. 29 at 11, 18). Again, in order to establish a prima facie case, Plaintiff must show that each of these actions was materially adverse and causally linked to a protected activity. With regard to all but one of these actions, Plaintiff has failed to make a sufficient showing on at least one of the essential elements of a retaliation claim. Celotex, 477 U.S. at 322-23.

         1) Lower Performance Reviews

         In support of her Title VII retaliation claims, Cpl. Hamilton argues that “negative comments [on her performance reviews] would be concerning during transfer requests or other employment opportunities” and that this “demonstrate[s] the negative effect of the score on Plaintiff.” (ECF No. 49-1, at 33). Plaintiff cites an out-of-circuit opinion from the United States District Court for the District of Columbia for the proposition that “[a]n improperly lowered Part Performance Appraisal score can constitute an adverse job action, particularly when it causes the employee to lose a performance award.” id., at 32 (citing Vance v. Chao, 496 F.Supp.2d 182, 185-86 (D.D.C. 2007)). That early case, however, was resolving a motion to dismiss and the plaintiff had also alleged that the lower rating resulted in the loss or deniel of a bonus and being placed on a performance improvement plan.

         Courts in this district have rejected retaliation claims based on poor or poorer performance reviews, even after Burlington Northern. In Van Story v. Washington Cty. Health Dept, No. CV ELH-17-3590, 2019 WL 3340656, at *18 (D. Md. July 25, 2019), Judge Hollander explained:

In [Strothers v. City of Laurel, Maryland, 895 F.3d 317, 327 (4th Cir. 2018)], the Fourth Circuit explained that an “adverse employment action” is not the standard in a retaliation case. (Emphasis added.) In other words, the adverse action “need not be employment or workplace-related in order to sustain a retaliation claim.” Id. In a retaliation claim, the standard for an adverse action is more lenient than for a substantive discrimination claim. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (“Burlington Northern”) (“[T]he antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.”).
In the retaliation context, the plaintiff must show merely that the challenged action “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Id. at 68, 126 S.Ct. 2405 (quotation marks and citations omitted). In the context of Title VII, the antiretaliation provision “does not protect against ‘petty slights, minor annoyances, and simple lack of good manners.’ ” Geist v. Gill/Kardash P’ship, 671 F.Supp.2d 729, 738 (D. Md. 2009) (quoting Burlington Northern, 548 U.S. at 68, 126 S.Ct. 2405). Nor do any of the following constitute an adverse action in a retaliation claim: “failing to issue a performance appraisal; moving an employee to an inferior office or eliminating the employee’s work station; considering the employee ‘AWOL’; or issuing a personal improvement plan, ‘an Attendance Warning, ’ a verbal reprimand, ‘a formal letter of reprimand, ’ or ‘a proposed termination.’ ” Wonasue v. Univ. of Maryland Alumni Ass’n, 984 F.Supp.2d 480, 492 (D. Md. 2013) (internal quotation marks omitted in part) (quoting Rock v. McHugh, 819 F.Supp.2d 456, 470-71 (D. Md. 2011)). A poor performance review or reprimand does not constitute an adverse action unless it causes “real harm to [the plaintiff’s] employment or is an intermediate step to discharge.” Amirmokri v. Abraham, 437 F.Supp.2d 414, 423 (D. Md. 2006), aff’d, 266 Fed.App’x 274 (4th Cir. 2008) (citation omitted); see also Jeffers v. Thompson, 264 F.Supp.2d 314, 330 (D. Md. 2003) (“Like a reprimand, a poor performance rating does not in itself constitute an adverse employment action.
‘Rather, it is a mediate step, which, if relied upon for a true adverse employment action (e.g., discharge, demotion, etc.) becomes relevant evidence.’”) (internal citation omitted) (quoting Settle v. ...

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