Opinion
Civil No. JFM 07-1701.
November 5, 2008
MEMORANDUM
Plaintiff Miriam Grice ("Grice") brings suit against her former employer Baltimore County, Maryland and two Baltimore County employees, Fred Homan ("Homan") and Suzanne Berger ("Berger"), both individually and in their official capacity. Grice's complaint contains two counts of intentional sex discrimination and retaliation in violation of Section 1983 of the Civil Rights Act of 1871 ("Section 1983"), 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and one count of intentional interference with contractual relations under Maryland common law. Defendants move for summary judgment on all three counts.
The issues have been fully briefed and no hearing is deemed necessary. Local Rule 105.6 (D. Md. 2008). For the reasons set forth in this opinion, I will grant summary judgment in favor of defendants as to Grice's federal claims and dismiss her state law claim pursuant to 28 U.S.C. § 1367(c)(3).
At an earlier stage of these proceedings, I forecast that I would dismiss Plaintiff's claim for intentional interference with contractual relations in the event that I granted summary judgment as to her federal law claims. The tortious interference claim involves a rather close question of Maryland law, raising questions of state policy and arising from circumstances of a peculiarly local nature, that is best litigated in the Maryland courts. As I previously indicated to counsel, if Plaintiff wishes to pursue that claim, she may do so without concern that the claim is time-barred. See Maryland Rule 2-101(b).
I. FACTS
The following facts are uncontroverted or set forth in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). Miriam Grice, a female, worked for Defendant Baltimore County from March 1998 until the termination of her employment in June 2007. (Am. Compl. ¶¶ 4, 22.) Throughout the relevant period, Defendant Fred Homan was a senior administrator with Defendant Baltimore County, and Defendant Suzanne Berger worked as an attorney in the Baltimore County Office of Law. (Am. Compl. ¶¶ 6-7.)Grice was employed as Claims Manager from March 1998 until October 2005 and was responsible for managing the Workers' Compensation Claims Unit for Baltimore County. (Am. Compl. ¶ 8.) In August 2005, Grice learned that her position, along with others in the unit, was being converted from part-time (working thirty-four hours a week) (Def.'s Mem. 2) to a position covered by Baltimore County's merit system. (Am. Compl. ¶ 9; Def.'s Mem. Supp. Summ. J. ("Def.'s Mem.") at 2.) When creating positions in the merit system, Baltimore County's policy is to "post" the position to the general public and interview the top three candidates. (Def.'s Mem. 2; Def.'s Mem. Ex. 2 at Rules 4 and 6.02.) In accordance with this procedure, the Claims Manager position was posted for competitive application. (Am. Compl. ¶ 9.)
Grice applied for the Claims Manager job, which she believed to be her former position. ( Id.) Defendants contend that the Claims Manager position would have been a promotion from Grice's former job because it would involve overseeing both the Workers' Compensation Unit and the Liability Claims Unit of the Insurance Department, whereas Grice had previously only overseen the Workers' Compensation Unit. (Def.'s Mem. 2.) Grice was notified by Human Resources prior to the interview that she was rated as the best-qualified applicant. (Am. Compl. ¶ 9.)
Three individuals were interviewed for the position by an interview panel composed of Defendants Berger and Homan and Bob Behler ("Behler"), whose title was Insurance Administrator and who was at that time responsible for overseeing the entire Insurance Department, including Grice's department. (Am. Compl. ¶ 11; Def.'s Mem. 2.) Kent Underwood, a male with supervisory experience at AIG, was ultimately selected for the position on October 13, 2005. (Pl.'s Opp'n, Ex. 7; Def.'s Mem. 3.)
Grice claims that the selection panel was biased against her. (Am. Compl. ¶ 11.) She asserts that in 1999 she conveyed a report to Homan from an employee in her unit that Behler, Grice's supervisor at that time, was romantically involved with a secretary. ( Id. ¶ 12.) Grice was subsequently reassigned to report directly to Homan instead of Behler until 2004. ( Id. ¶¶ 12-13.) Grice claims that after she returned to reporting to Behler in 2004, he treated her disfavorably, cutting her out of important meetings and decisions. ( Id. ¶ 13.) Grice contends that Homan and Berger's bias against her arose after she had accidentally interrupted them in an "awkward scene after work hours" in Berger's office in April 2005. (Am. Compl. ¶ 15; Def.'s Mem. 3.)
Upon Homan's suggestion, Grice later applied for the position of Assistant Claims Manager and was selected on February 11, 2006. (Pl.'s Opp'n 7-8.) Grice views the transfer as a demotion because the salary for the new position was approximately $5,000 less than her previous salary. ( Id. 8.) However, Grice's salary as Assistant Claims Manager was the highest rate available for the position's pay grade under the legislatively-created pay scales applied to merit system employees in Baltimore County. (Def.'s Reply Supp. Summ. J. ("Def.'s Reply") at 9; Def.'s Reply, Ex. 6.) Additionally, whereas her previous position was part-time and "at will," the new salary was accompanied by benefits provided only to employees covered by the merit system, including a property interest in their employment. (Def.'s Mem. 2.)
In March 2006, Grice complained to the County Executive that she had been subjected to sex discrimination on the basis of the selection of Underwood for what she believed to be her position, along with her demotion to Assistant Claims Manager and resulting decrease in salary. (Pl.'s Opp'n 8.) Grice subsequently sought relief through the Equal Employment Opportunity Commission ("EEOC"), completing an Intake Questionnaire on August 2, 2006 and filing formal charges on September 27, 2006. (Pl.'s Opp'n, Ex. 19; Def.'s Mem., Ex. 6.) In response to these charges, Defendant Homan removed himself from his position as a supervisor of Grice's unit and selected Keith Dorsey to serve in his stead. (Pl.'s Opp'n 9.)
On February 1, 2007, Dorsey received a complaint from one of Grice's co-workers that Grice had been harassing the co-worker in an effort to gain information about Kent Underwood. (Def.'s Mem., Ex. 7.) In order to assess the validity of the accusation, Dorsey interviewed several of Grice's co-workers. ( Id.) The concerns raised during these interviews prompted Dorsey to place Grice on paid leave while further investigation was conducted. ( Id.) On February 27, 2007, Grice received a written reprimand for harassing her co-worker. ( Id.) Grice amended her EEOC charge to include a claim for retaliation on the basis of her suspension. (Pl.'s Opp'n 14.) In the months that followed, Grice felt that her responsibilities were being curtailed and her expertise ignored, and that she could lose her job at any moment. ( Id. 15.)
On June 13, 2007, Grice was called into the office of Underwood's successor, Mary Ellen Niles. (Pl.'s Opp'n 14, 16.) When Grice arrived at Niles' office, her supervisor, Dorsey, was there, and Grice observed disciplinary papers on the desk. ( Id. 16.) Grice did not know what the papers contained, but she told Niles and Dorsey that she viewed the discipline as retaliation and that she wanted to have her lawyer present at the meeting. ( Id.) Dorsey directed Grice to take the papers with her, but Grice refused. ( Id.) Dorsey then ordered Grice to go home and informed her that she was suspended. ( Id.) The next day, Grice was discharged for insubordination. ( Id. 17.) Grice again amended her EEOC charge to include claims of retaliation and illegal termination based on these events. (Am. Compl. ¶ 23; Pl.'s Opp'n, Ex. 29.)
One of the papers is entitled "Supervisor's Notes on Oral Counseling" and describes an incident that occurred on May 22, 2007 in which Grice "made inappropriate statements regarding [Niles's] role as a supervisor and made false allegations regarding the motivation for counseling her." (Def.'s Mem., Ex. 29.) Additionally, the counseling notes state that from the time of the May 22, 2007 incident until June 13, 2007, Niles received multiple unnecessary daily emails from Grice. ( Id.) The second paper is a Written Reprimand from Niles. (Def.'s Mem., Ex. 30.) The reprimand states that Grice failed to comply with Niles's request that Grice direct all concerns found during file audits solely to her supervisor, rather than to claims auditors. ( Id.) The reprimand characterizes Grice's continued direct communication with claims auditors as "unacceptable behavior" and states that such continued behavior could lead to suspension or dismissal. ( Id.)
Grice filed this lawsuit in federal court on June 27, 2007, the effective date of her discharge. (Pl.'s Opp'n 19.) Grice's Title VII claim was initially dismissed for failure to exhaust. The U.S. Department of Justice issued Grice a Notice of Right to Sue on April 28, 2008. (Am. Compl. ¶ 3.) Grice then filed an amended complaint on June 3, 2008 after her administrative remedies had been properly exhausted. ( Id.) Grice's claims are now properly before this Court.
II. LEGAL STANDARD
Summary judgment is appropriate when there is no genuine issue of material fact, and the moving party can demonstrate that it is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A material fact is one that may affect the outcome of the suit. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The facts will be construed in the light most favorable to, and all justifiable inferences will be drawn in favor of, the non-moving party. See Matsushita, 475 U.S. at 587. Summary judgment is appropriate in an employment discrimination case "if the plaintiff fails to establish a prima facie case of discrimination or fails to raise a factual dispute regarding the employer's proffered reasons for the alleged discriminatory act." Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995).
III. ANALYSIS
A. Title VII
Grice's claims against Baltimore County alleging gender discrimination are based on Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (2000). Title VII also contains an anti-retaliation provision, making it unlawful for an employer "to discriminate against any of his employees or applicants for employment . . . because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). Defendant moves for summary judgment on the ground that Grice's claims are time barred, or, in the alternative, on the ground that Grice has failed to meet her ultimate burden of proving that the employment actions at issue were discriminatory or retaliatory.
1. Non-selection
To assert a Title VII claim in federal court, a plaintiff must first exhaust her administrative remedies by filing a timely charge with the EEOC. Chacko v. Patuxent Inst., 429 F.3d 505, 508 (4th Cir. 2005). For cases arising in Maryland, an administrative charge of discrimination must be filed with the EEOC within 300 days of the alleged violation. 42 U.S.C. § 2000e-5(e)(1). Title VII further requires that a "charge" of discrimination "shall be in writing under oath or affirmation and shall contain such information and be in such form as the [EEOC] requires." 42 U.S.C. § 2000e-5(b).
(a)
Defendant argues that Grice's first gender discrimination claim is time-barred because she learned of her non-selection for the Claims Manager position on October 13, 2005 and filed with the EEOC on September 27, 2006, 349 days after the event. Grice completed an EEOC Intake Questionnaire on August 2, 2006 (Pl.'s Opp'n, Ex. 19), less than 300 days after Grice learned of the alleged discrimination. Grice argues that the timely filing of this form prevents the claim from being time-barred.
The Supreme Court recently addressed the issue of whether an EEOC Intake Questionnaire can constitute the filing of a "charge" for purposes of the Age Discrimination in Employment Act ("ADEA"). Federal Exp. Corp. v. Holowecki, 128 S. Ct. 1147 (2008). The Court found that an Intake Questionnaire supplemented by a detailed six-page affidavit supporting the contention of discrimination and asking the EEOC to "force Federal Express to end their age discrimination," id. at 1159-60, was a sufficiently clear request for action by the EEOC to constitute a charge. Id. at 1160. However, the Court noted that such Intake Questionnaires do not typically constitute charges: "There might be instances where the indicated discrimination is so clear or pervasive that the agency could infer from the allegations themselves that action is requested and required, but the agency is not required to treat every completed Intake Questionnaire as a charge." Id. at 1159.
The Court in Holowecki cautions that "[w]hile there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination." 128 S. Ct. at 1153. The ADEA's exhaustion of administrative remedies requirement is nearly identical to that of Title VII. See 42 U.S.C. § 2000e-5; 29 U.S.C. § 626. Title VII and the ADEA do not define what constitutes a charge, 128 S. Ct. at 1154, but the EEOC's regulations setting forth the basic information required of a charge are almost identical under both statutes. See 29 C.F.R. §§ 1601.12 1626.8 (2007). Furthermore, several district courts have already applied Holowecki in Title VII cases. See, e.g., Evenson v. Sprint/United Mgmt. Co., No. 3:08-CV-0759-D, 2008 U.S. Dist. LEXIS 65661 (N.D. Tex. Aug. 21, 2008); Grigsby v. Pratt Whitney Amercon, Inc., No. 1:CV-07-0785, 2008 U.S. Dist. LEXIS 40914 (M.D. Pa. May 21, 2008); Broxterman v. Falley's Inc., No. 07-2439, 2008 U.S. Dist. LEXIS 39027 (D. Kan. May 12, 2008); Ellington v. Murray Energy Corp., No. 2:07CV766, 2008 U.S. Dist. LEXIS 37997 (D. Utah May 9, 2008). This Court finds Holowecki applicable in the context of Grice's Title VII claim.
As in Holowecki, the Intake Questionnaire completed by Grice states that its purposes are to facilitate "pre-charge filing counseling" and to enable the agency to determine whether it has jurisdiction over "potential charges," and is not labeled as a "Charge of Discrimination." (Pl.'s Opp'n, Ex. 19.) Unlike the filing in Holowecki, however, Grice did not supplement her Intake Questionnaire with a detailed affidavit. The Court cautioned in Holowecki that "were the Intake Questionnaire the only document before us we might agree its handwritten statements do not request action." 128 S. Ct. at 1159.
EEOC Form 5 is the form used to file a formal charge of employment discrimination and is labeled as such.
Because Grice's Intake Questionnaire does not contain a clear "request for agency action" like the one found in Holowecki, the Court will not treat this filing as a charge of discrimination. Grice's formal charge was not filed until September 27, 2006, more than 300 days after she learned that Underwood had been selected for the Claims Manager position. Grice's non-selection claim is therefore time-barred.
However, if a prior discrete act that a plaintiff has failed to exhaust is found to be discriminatory, it can still be used as background evidence in support of exhausted claims. See Amtrak v. Morgan, 536 U.S. 101 (2002).
(b)
Even if Grice's non-selection claim were not time-barred, the Defendants would still be entitled to summary judgment on this claim as well as on Grice's timely filed demotion, suspension, discharge and retaliation claims, as discussed below.
Grice may prove her case of sex discrimination in one of two ways: first, by offering direct evidence of discrimination under the ordinary standards of proof; or, second, by proceeding under the burden-shifting approach articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, the plaintiff must first demonstrate a prima facie case of discrimination. Id. at 802. If a prima facie case is established, an inference of discrimination arises that may be rebutted by an employer on a showing of legitimate, non-discriminatory reasons for the adverse employment actions. Id. If the employer makes this showing, the plaintiff must prove by a preponderance of the evidence that the employer's proffered reasons for the adverse employment action are pretextual. Id. at 804. "Although the evidentiary burdens shift back and forth under the McDonnell Douglas framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Love-Lane v. Martin, 355 F.3d 766, 786 (4th Cir. 2004) (internal quotation marks omitted).
In order to state a prima facie case of discrimination under Title VII, a plaintiff must establish that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was performing her job satisfactorily at the time of the adverse employment action; and (4) similarly-situated employees outside her protected class received more favorable treatment. See McDonnell Douglas Corp., 411 U.S. at 802; White v. BFI Waste Services, LLC, 375 F.3d 288 (4th Cir. 2004).
Grice's first claim of gender discrimination arises from the hiring of Underwood, a man, instead of Grice for the position of Claims Manager in October 2005. This Court assumes without deciding that Grice has established her prima facie case on this claim. The burden then shifts back to Defendant to articulate a legitimate, non-discriminatory reason for its actions. McDonnell Douglas, 411 U.S. at 802. Defendant meets this burden.
Underwood, the individual hired for the position, had worked at AIG for nearly 23 years, served as the claims manager and assistant vice president (Def.'s Mem., Ex. 5 at 13-14), and according to Homan, had "a strong technical background" (Def.'s Mem., Ex. 1 at 124) and an excellent interview. ( Id. 125.) Grice, on the other hand, was seen by Homan as "very deficient in terms of employee relations." ( Id. 126.) Berger similarly stated that she "had never interviewed anybody who reacted so incredibly hostile to an interviewer's questions." (Def.'s Mem., Ex. 4 at 23.) Defendant has therefore articulated a legitimate, non-discriminatory reason for the decision: namely that while both Grice and Underwood were strong applicants on paper, Underwood had a much better interview; his experience was better-suited for the position; and he did not have a history of problematic employee relations as did Grice.
Because Defendant has provided legitimate, non-discriminatory reasons for selecting Underwood instead of Grice, the presumption of discrimination drops out and the burden shifts back to Grice to prove by a preponderance of the evidence that Defendant's stated reasons are pretextual and that the decision was actually made because of Grice's sex. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Grice fails to satisfy this burden.
The fact that Grice was ranked as the best-qualified applicant prior to the interviews but was rejected in favor of a male applicant does not refute the legitimate reasons provided by Defendant. "Interviews are an important tool that employers use to make all sorts of hiring decisions, and [the court] may not lightly overturn the reasonable conclusions an employer reaches after actually meeting with a candidate face-to-face." Hux v. City of Newport News, 451 F.3d 311, 319 (4th Cir. 2006). The evidence of Grice's pre-interview ranking is therefore not sufficient to permit a rational fact finder to conclude that the stated reasons are a pretext for gender discrimination.
Grice also alleges that the interview panel was biased against her, but does not provide any evidence that the bias was based on her gender. She claims that the bias stemmed from her accidental interruption of Defendants Homan and Berger in an awkward scene after work hours in April 2005 and would have arisen regardless of her gender. A showing of bias is not sufficient to prove that an employer has violated Title VII unless the bias is based on the plaintiff's membership in a protected class. See Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1994) ("Title VII does not grant relief to a plaintiff who has been discharged unfairly, even by the most irrational managers, unless the facts and circumstances indicate that discriminatory animus [here, gender] was the reason for the decision."). "Mere speculation by the plaintiff that the defendant had a discriminatory motive is not enough to withstand a motion for summary judgment." Coates v. Virginia Power Co., 2000 U.S. App. LEXIS 8619, at *7 (4th Cir. May 2, 2000) (unpublished).
Plaintiff testified during her deposition as follows:
Q: And why do you think she didn't — why do you think she [Defendant Berger] discriminated against you?
A: I think it was in her best interest not to have me there because I walked in on Fred Homan and Suzanne Berger in a compromising position.
Q: And had a man walked in on them, do you think that she would have been okay with that?
A: I think it would have been the same if it had been anyone, but I also think the sequence of events afterward were handled differently with me because I was a woman rather than someone else if they had been male.
(Def.'s Mem., Ex. 11 at 50:11-51:2.)
The Fifth Circuit addressed a similar set of facts and found that the plaintiff had failed to present a case of discrimination based on the defendant's sexual conduct with another employee. Ellert v. University of Texas, 52 F.3d 543 (5th Cir. 1995). Much like Grice, the plaintiff in Ellert claimed that after walking in on her supervisor embracing a female assistant, she began receiving worse treatment from the supervisor, which adversely affected the conditions of her employment and eventually led, at least in part, to her termination. 52 F.3d at 544. There, the court explained that "[e]ven if her knowledge of the affair was the true animus behind the discharge decision, it was a motivation that did not rely upon her gender and, as such, it was not within the ambit of Title VII's protections." Id. at 546. For similar reasons, this Court finds that Grice has failed to prove that her employer's selection of a male candidate instead of Grice for the Claims Manager position constituted discrimination in violation of Title VII.
2. Demotion
Grice alleges that her non-selection for the Claims Manager position led to further gender discrimination in February 2006 when Grice applied for and was hired as Assistant Claims Manager, which Grice characterizes as a demotion. In support of this view, Grice points out that her previous job title was Claims Manager, whereas her new title was Assistant Claims Manager, and that her new salary was approximately $5,000 lower than her previous salary. (Pl.'s Opp'n 7-8.) However, under her new title, Grice still maintained her role overseeing the Workers' Compensation Unit (Def.'s Reply, Ex. 5 at 2), and the lower salary was the result of the unit's conversion to the merit system, which included greater job security and accompanying benefits. (Def.'s Mem. 2.) Furthermore, as discussed above, Grice has failed to show that the selection of Underwood for the position of Claims Manager was an act of discrimination against Grice. Thus, the subsequent selection of Grice for the position of Assistant Claims Manager, which followed from this nondiscriminatory employment action, is also nondiscriminatory.
3. Suspension
Grice's next claim of discrimination arises from her suspension in February 2007, which she avers was an act of retaliation in response to her filing of EEOC charges the previous September. Retaliation claims, like substantive discrimination claims, are analyzed under the McDonnell Douglas burden-shifting framework, but the requirements for a prima facie case of retaliation differ. To make a prima facie case of retaliation under Title VII, Grice must show that: (1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) there is a causal nexus between the protected activity and the adverse action. McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991). Grice is able to satisfy the first element of the prima facie case, but fails to satisfy the second and third elements.
Grice's filing with the EEOC constitutes a protected activity sufficient to satisfy the first element. 42 U.S.C. § 2000e-3(a) (protected activity includes making "a charge . . . or participat[ing] in any manner in an investigation, proceeding, or hearing under 42 U.S.C. § 2000e, et seq."); see also Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (filing an EEOC charge is a protected activity).
As to the second element, Defendant argues that a suspension with pay cannot constitute an adverse employment action. The Supreme Court recently explained that the standard for showing an adverse employment action in the retaliation context is less strenuous than in the substantive discrimination context. See Burlington Northern Santa Fe Ry. v. White, 548 U.S. 53 (2006). Nonetheless, the Court emphasized that the action must produce a material consequence for the employee, as opposed to "trivial harms." Id. at 68. The "plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it might well have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id.
Several courts, including some post- Burlington Northern, have held that "a suspension with pay pending a prompt investigation into allegations of wrong-doing does not constitute an adverse employment action." Solomon v. Phila. Newspapers, Inc., No. 05-05326, 2008 U.S. Dist. LEXIS 41978, at *49 (E.D. Pa. May 21, 2008); see also Scott v. Metro. Health Corp., 234 Fed. Appx. 341, 349 (6th Cir. 2007) (finding that placing an employee on paid administrative leave was not a materially adverse employment action for purposes of a retaliation claim); Singletary v. Mo. Dep't of Corr., 423 F.3d 886, 891-92 (8th Cir. 2005) (concluding that a suspension with pay and benefits for eighty-nine days did not constitute an adverse action for retaliation purposes); Helmi v. Solvay Pharms., Inc., No. 5:05-CV-36, 2006 U.S. Dist. LEXIS 84562, at *38-40 (W.D. Mich. Nov. 21, 2006) (finding that a two-day suspension with pay did not constitute an adverse employment action for retaliation purposes).
Grice's February 2007 paid leave was such a suspension. Grice was put on paid leave in "an effort to defuse the situation until [Grice's supervisor, Keith Dorsey, Deputy Director of Budget Finance] had had an opportunity to investigate further" the complaints made by Grice's co-workers against Grice. (Def.'s Mem., Ex. 7.) The present case is distinguishable from Burlington Northern, in which a thirty-seven day suspension without pay that was later rescinded was found to be materially adverse. 548 U.S. at 70. The Court's finding in Burlington Northern was based on the conclusion that "[m]any reasonable employees would find a month without a paycheck to be a serious hardship." Id. at 72. Grice maintained her salary during her suspension and thus was not subjected to this "serious hardship." Grice has not shown that she has suffered an adverse employment action.
The third element of Grice's retaliatory suspension claim requires that Grice allege a causal connection between her EEOC filing and the allegedly adverse action. "To satisfy the third element, the employer must have taken the adverse employment action because the plaintiff engaged in a protected activity." Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). However, the burden at this stage is not onerous, Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989), and is met when a plaintiff can show that the "defendant was aware of her engaging in the protected activity" and that there was "some degree of temporal proximity to suggest a causal connection." Constantine v. Rectors Visitors of George Mason Univ., 411 F.3d 474, 501 (4th Cir. 2005).
Defendant does not dispute that it was aware of Grice's EEOC filing or that the filing constitutes a protected activity. Nonetheless, Grice cannot demonstrate a causal connection. Though Grice's suspension occurred less than six months after she filed her EEOC charge against Defendant, a lapse of nearly six months on its own is not sufficient to satisfy the causation requirement. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (citing examples in which a three or four month lag between the protected activity and the adverse employment action without other evidence could not establish causation). "In cases where temporal proximity between protected activity and allegedly retaliatory conduct is missing, courts may look to the intervening period for other evidence of retaliatory animus," and such evidence "can be sufficient to satisfy the element of causation." Lettieri v. Equant, Inc., 478 F.3d 640, 650 (4th Cir. 2007). But in this case, evidence of retaliatory animus in the period between the filing of Grice's EEOC charge and her suspension is lacking. Grice has asserted no "pattern of adverse employment actions" such that "a reasonable jury could find that her [suspension] was causally connected to a protected activity." Webb v. Md. Dep't of Health Mental Hygiene, No. 04-387, 2006 U.S. Dist. LEXIS 71135, at *34 (D. Md. Sept. 14, 2006); ( see Am Compl. ¶¶ 20-21; Pl.'s Opp'n 10-12). Thus, Grice has not established the third element of her prima facie case.
Even assuming that Grice has presented a prima facie case of retaliatory suspension, her claim does not survive summary judgment. Defendant has articulated legitimate, non-retaliatory reasons for the suspension, namely the harassment claim made by one of Grice's co-workers and the subsequent complaints made by other co-workers during the investigation of the harassment claim.
To avoid summary judgment, Grice must show that Defendant's non-retaliatory reasons are pretextual, but Grice has failed to do so, and even admits to the questioning of the co-worker that spurred the harassment complaint. Grice's assertions that the harassment charge was "overblown" (Pl.'s Opp'n 37) and the extent of the investigation "unprecedented" ( Id. 42) are insufficient to show that Grice's EEOC charge filed the previous September was the actual cause of the suspension, rather than the harassment complaint and ensuing investigation. Grice admits asking her co-worker about Underwood and admits that it was in response to the subsequent conversation that the co-worker "blew up." (Def.'s Mem., Ex. 11 at 67-68.) The co-worker informed Dorsey that Grice's probing for information about Underwood was the primary reason for her decision to leave her employment with Baltimore County. (Def.'s Mem., Ex. 7.) Grice's suspension and the reprimand that followed were the result of the investigation of the co-worker's harassment claim along with the other claims against Grice brought to light by this investigation and were not connected to Grice's EEOC charge. Accordingly, Grice is unable to meet her ultimate burden of persuasion that the legitimate, nondiscriminatory reasons proffered by her employer were pretextual, and summary judgment will be granted on this claim in favor of Baltimore County.
4. Termination
Grice's final claim is based on the termination of her employment in June 2007, which she alleges was also in retaliation for her EEOC charge. The first two elements of the prima facie case are easily satisfied; Grice's filing of an amended EEOC charge following her suspension in February 2007 is a protected activity and her discharge constitutes an adverse employment action. See Hartsell v. Duplex Products, Inc., 123 F.3d 766, 775 (4th Cir. 1997). As to the third element — the causal connection between the protected activity and the adverse employment action — Grice's amended EEOC charge was filed less than four months before the termination, and her supervisor was aware of the filing. (Pl.'s Opp'n 9.) Grice has alleged sufficient evidence of retaliatory animus in the form of her curtailed responsibilities and disregarded expertise in the intervening period to meet the minimal burden required at this stage. However, Grice's retaliatory discharge claim ultimately fails because Grice has failed to prove that the legitimate, nondiscriminatory reason articulated by Defendant is pretextual.
Grice's Notice of Dismissal states that she was discharged for insubordination because she refused to meet with Niles, her supervisor, and Dorsey until her attorney could be present, and she refused to take a copy of the material to be reviewed at the meeting. (Def.'s Mem., Ex. 9.) Under Baltimore County's Personnel Rules for employees in the merit system, an employee may be dismissed for cause if she "fail[s] to obey any lawful and reasonable direction given by [her] supervisor." (Def.'s Mem., Ex. 2.) Grice's refusal to accept the papers as directed by Dorsey constituted a violation of this rule. Defendant has therefore satisfied its burden.
Grice alleges that Defendant's "ever-shifting reasons" for firing Grice indicate pretext. (Pl.'s Opp'n 49.) Grice cites to Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 646 (4th Cir. 2002), and EEOC v. Sears Roebuck Co., 243 F.3d 846, 852-53 (4th Cir. 2001), in support of this argument. However, Grice's reliance on these cases is misplaced. In Dennis, a supervisor gave one reason for a promotion decision during deposition, but stated an additional and entirely different reason at trial. 290 F.3d at 646. In Sears Roebuck, the defendant gave inconsistent and false reasons over the course of discovery and offered some of its reasons for the first time during litigation. 243 F.3d at 852-853.
The same situation does not exist in the present case. Grice has not shown that the reasons for her dismissal have been "developed over time to counter the evidence suggesting . . . discrimination." EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994). On the contrary, Defendant has consistently stated that the reason for termination was Grice's insubordination in refusing to meet with Dorsey and Niles without her attorney present and her refusal to take from Dorsey the materials to be discussed at the meeting. ( See Def.'s Mem. 3; Def.'s Mem., Ex. 9; Def.'s Mem., Ex. 10 at 158:18-160:17; Def.'s Reply 21.) While Grice's attempted postponement of the meeting is sometimes referred to by Defendant as a refusal to meet and other times a refusal to meet without her lawyer present, (Def.'s Mem, Ex. 10; Def.'s Mem. 22), these discrepancies in the characterization of Grice's act do not amount to the type of inconsistent post-hoc explanations present in Dennis and Sears Roebuck. As the Fourth Circuit noted in Hux v. City of Newport News, 451 F.3d 311, 315 (4th Cir. 2006), "[o]nce an employer has provided a non-discriminatory explanation for its decision, the plaintiff cannot seek to expose that rationale as pretextual by focusing on minor discrepancies that do not cast doubt on the explanation's validity. . . ." The "minor discrepancies" which Grice has noted in Defendant's explanation are not evidence of pretext.
Grice notes that Dorsey agreed to her request to postpone the meeting until her lawyer could be present. Grice cites this as evidence that she was not in fact insubordinate or that Defendant's reason for firing her has been "reduced to" her refusal to take the papers from Dorsey. (Pl.'s Opp'n 49.) However, the refusal to take the papers still constitutes an act of insubordination in violation of Baltimore County's Personnel Rules and was sufficient cause for dismissal. "[W]hen an employer articulates a reason for discharging the plaintiff not forbidden by law, it is not our province to decide whether the reason was wise, fair, or even correct, ultimately, so long as it truly was the reason for the plaintiff's termination." Dejarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998).
Grice also attempts to demonstrate pretext by providing evidence of male employees who received "soft landings" in comparison to the treatment Grice received. However, as Defendant points out, none of the male comparators listed by Grice was suspended for harassing a co-worker and none was insubordinate. (Def.'s Mem. 23.) While the determination of appropriate comparators requires a flexible, common-sense factual inquiry, Humphries v. CBOCS West, Inc., 474 F.3d 387, 405 (7th Cir. 2007), aff'd, 128 S. Ct. 1951 (2008), Grice must still show "that she was similarly situated to those men in terms of performance, qualifications and conduct, without such differentiating or mitigating circumstances that would distinguish their situations" in order for the comparison to be meaningful. Smith v. Stratus Computer, 40 F.3d 11, 17 (1st Cir. 1994) (internal quotation and citation omitted). Because the comparators cited by Grice are not sufficiently similar in their performance or conduct, reference to these individuals does not provide evidence that Grice's insubordination was a pretextual reason for her termination.
Defendant argues that, as a disparate discipline claim, this argument is barred for failure to exhaust because it was never raised by Grice in her EEOC charge. (Def.'s Mem. 22-23.) This Court will only address the argument as it relates to Grice's claim that the reason given for her discharge is pretextual.
Underwood was "let go" (allowed to resign in lieu of discharge) for failing to respond to the harassment complaints about Grice in February 2007 and for lying during the investigation of the alleged harassment by Grice. (Pl.'s Opp'n 13; Def.'s Mem., Ex. 1 at 95:11-98:12.) A second male employee was dismissed for unsatisfactory performance, but his separation was recorded as a resignation and he was allowed to continue working while he looked for other employment. (Def.'s Mem., Ex. 8 at 85:18-86:7.) However, before his dismissal, he had never been disciplined or notified of any problems with his performance. ( Id. at 86:2-7.) Another male employee was reprimanded and transferred from a merit system position to part-time for engaging in a relationship with his secretary. (Pl.'s Opp'n 20.)
Grice has not presented sufficient evidence to prove that Defendant's stated reason for her dismissal is a pretext for retaliation. Defendant's Motion for Summary Judgment on this claim will therefore be granted.
B. Section 1983
Grice's Section 1983 claims against Defendants Homan and Berger are based on the Equal Protection Clause and the Due Process Clause of the United States Constitution. (Am. Compl. ¶ 29.) "The equal protection clause confers a right to be free from gender discrimination that is not substantially related to important government objectives." Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994). The elements a plaintiff must prove and the standards applied in assessing a Section 1983 gender discrimination claim are the same as in the Title VII context. Id. If a plaintiff fails to establish that the defendants violated her rights under Title VII, then her similar Section 1983 claims must also fail. Causey v. Balog, 162 F.3d 795, 804 (4th Cir. 1998). Therefore, Defendants Homan and Berger are entitled to summary judgment on the federal constitutional claims asserted against them under Section 1983 for the same reasons that Defendant Baltimore County is entitled to summary judgment for the claims asserted against it under Title VII.
A separate order effecting the rulings made in this opinion is being entered herewith.
ORDER
For the reasons stated in the accompanying Memorandum, it is, this 5th day of November 2008ORDERED
1. Defendant's motion for summary judgment is granted as to plaintiff's federal claims for sex discrimination and retaliation;
2. Judgment is entered in favor of defendants against plaintiff as to the two federal claims; and
3. Plaintiff's claim for intentional interference with contractual relations is dismissed pursuant to 28 U.S.C. § 1367(c)(3).