United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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.
following facts are presented in the light most favorable to
Plaintiff, the non-moving party for the purposes of
Defendant’s summary judgment motion.
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.
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)
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,
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.
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).
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.
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).
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
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.
The Retaliation Claims
Hamilton brings three separate retaliation claims: two of
them under Title VII and one under the ADA.
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).
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.
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).
Adverse Employment Actions
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.
Lower Performance Reviews
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
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. ...