Opinion
Civil Action No. DKC 98-2434.
January 31, 2001
MEMORANDUM OPINION
Pending before the court and ready for resolution is the Motion for Summary Judgment of Defendants Prince George's County ("County") and Theresa Lloyd, Ronald Hassan and John Fletcher of the Prince George's County Fire Department ("Department"). No hearing is deemed necessary, and the court now rules pursuant to Local Rule 105.6. For the reasons that follow, the court shall grant the motion.
Plaintiffs filed an amended complaint on October 27, 1998. Paper no. 15. On July 23, 1999, Plaintiffs filed a motion for leave to amend their amended complaint. Paper no. 43. That motion was not ruled on before their case was dismissed on December 30, 1999, Paper no. 51, or since the dismissal was vacated, Paper no. 56. In the current matter, neither party expressly refers to the unverified, proposed amended complaint. Thus, for purposes of this motion, the court considers the facts and counts as set forth in Plaintiff's amended complaint, i.e., Paper no. 15. Nevertheless, even if the court considered the facts alleged in the proposed amended complaint, the outcome would not change.
I. Background
Plaintiffs, Andre and Paulette Hunter, assert various claims against Defendants under federal civil rights statutes and the United States Constitution arising from Mr. Hunter's service as a firefighter. Mr. Hunter's claims against Defendants Lloyd, Hassan and Fletcher (the "individual Defendants") are (a) under 42 U.S.C. § 1981 for hostile work environment and retaliation (count III); (b) under 42 U.S.C. § 1983 for violation of his Fifth Amendment due process rights (count IV); and (c) under 42 U.S.C. § 1985 (3) for conspiracy to deprive him of his constitutional rights while acting under color of law (count V). Mrs. Hunter asserts that the County violated her Thirteenth, Fourteenth and Fourth Amendment rights, pursuant to 42 U.S.C. § 1981 and 1983 (count VI). The following facts surrounding these myriad claims are undisputed or presented in the light most favorable to Plaintiffs.
Counts I and II of the amended complaint previously were dismissed. Count I involved a § 1981 claim against the Ritchie Volunteer Fire Company, which was dismissed as a defendant by stipulation of the parties. Paper no. 34. Count II raised claims of race discrimination and retaliation, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"). Chief Judge J. Frederick Motz issued an order on February 22, 1999 dismissing the Prince George's County Fire Department as a defendant, and dismissing Plaintiffs' Title VII claims as to all defendants. Paper no. 36.
A. Facts pertaining to Mr. Hunter's claims
Mr. Hunter has served as a firefighter with the Department since February 16, 1988. At some point between 1988 and 1996, he worked at the Ritchie Volunteer Fire Company ("Ritchie"). In 1996, he broke his ankle and requested light-duty work. He was reassigned to the Department's Communications facility, where his supervisors were the individual Defendants, Lloyd, Hassan, and Fletcher.
It is unclear from the record at which facility Mr. Hunter was assigned when he broke his ankle.
While at work on the morning of July 8, 1996, Mr. Hunter spoke with a dispatcher, Venecia Collins, who later reported to Lieutenant Earl Schubert that she smelled alcohol on Plaintiff's breath. Schubert approached Mr. Hunter to check the veracity of Collins' claim and he too smelled alcohol. Lloyd also saw that Mr. Hunter's eyes were red, that he seemed to be staring into space, and that he made frequent trips to the water fountain. Mr. Hunter does not deny that Lloyd's observations may have been correct but asserts that he was on allergy medication, which caused eye redness and other symptoms. Mr. Hunter gave his written permission to a drug and alcohol test. Plaintiff tested positive for alcohol on the breath, and formally was charged with being unfit for duty.
Concerned by the fact that he was asked to take an alcohol test, Mr. Hunter again requested to be reassigned, and approximately a week later, he was placed in the Fire Training Academy. The new department is at a different location than the Communications facility. Before Plaintiff left the Communications facility, Glenita Ray, a coworker, heard him say that he felt that some staff members were out to get him and that if given the chance, he would hurt them, specifically stating that he would hurt Lloyd. Ray reported what Mr. Hunter said to Lieutenant Linda Jarboe and Lloyd.
Mr. Hunter does not explain why he was concerned. He claims that he requested the transfer "[b]ecause I felt as though something was not right here by them sending me down for this testing and — I just didn't — something didn't feel right." Paper no. 62, Defendant's exhibit 1 (Dep. of Andre B. Hunter) at 100.
Plaintiffs argue that Glenita Ray's affidavit is inadequate because it is not dated. Paper no. 62, Defendant's exhibit 12. Ray's affidavit, however, appears to meet the requirements of Fed.R.Civ.P. 56(e). Affidavits must be based on personal knowledge, set forth facts that would be admissible in evidence, and show that the affiant is competent to testify. Moreover, the document meets the requirements of 28 U.S.C. § 1746(2) (requirement of a sworn declaration is satisfied by signing and dating an unsworn document containing the words "I declare . . . under penalty of perjury . . . the foregoing is true and correct."). Ray's affidavit substantially complies with this requirement. The lack of a date is not fatal. EEOC v. World's Finest Chocolate, Inc., 701 F. Supp. 637, 639 (N.D.Ill. 1988). Finally, contrary to Plaintiffs' assertions, affidavits need not be notarized.
Hassan was informed of Mr. Hunter's remarks and relayed them to then coordinator of the Department's Employee Assistance Program ("EAP"), Captain Elizabeth Redding. Hassan and Redding also discussed that Mr. Hunter was being investigated for bribing the employee who conducted his alcohol test. Redding stated that Mr. Hunter immediately would be placed on administrative leave and be barred from entering the Communications facility if he received the second set of charges. To that end, Hassan and Redding discussed taking security measures to keep Mr. Hunter from being able to enter the building if, in fact, he received those charges.
On September 23, Mr. Hunter was acquitted both of the bribery charge and the charge of being unfit for duty because of intoxication. Paper no. 69 at 8. Moreover, an EAP evaluation showed that he was not a threat to himself or others. Paper no. 62, Defendant's exhibit 13 (Aff. of Elizabeth Redding) ¶ 9.
As a result of the discussion with Redding, Hassan spoke with a police officer in the building about the appropriate security measures to take to keep an unauthorized employee from entering the building. The officer requested a picture of Mr. Hunter. Within a few days, Hassan and Fletcher met with two other police officers and gave them Mr. Hunter's picture. One of the officers wrote a short memorandum about Mr. Hunter and attached his picture to it. Hassan claims that the document stated that Mr. Hunter was no longer assigned to the Communications facility and that if he attempted to enter the building, officers were to notify the fire communications supervisor. Mr. Hunter never saw the memorandum. Defendants claim that, without their knowledge, officers posted the memorandum in the switchboard office.
On July 22, 1996, Mr. Hunter called Lloyd and told her he wanted to come to the Communications facility on July 24 to pick up his military orders and to clean out his locker. Lloyd informed him that she would be in and out of the building that day, but that he should see one of the supervisors to get his orders.
When Mr. Hunter arrived on July 24, he rang the bell and was allowed to enter. He cleaned out his locker and later looked to see whether Lloyd was in her office. He says he saw her leave her office at a very rapid pace toward the police communications area. Moments later, he says that he saw a County police officer approach Lieutenant Shubert, who told the officer that Mr. Hunter was on suspension and that the "Major" did not want him in the building. The officer told Mr. Hunter that he was suspended and to leave the premises. Mr. Hunter responded that he had not been told that he was suspended. He says the officer again told him to leave the premises. He claims that as he turned to leave, another officer appeared and also told him to leave and pulled out his metal baton. Mr. Hunter began gathering his belongings as the second police officer began to draw his service revolver.
Lloyd asserts that upon seeing Mr. Hunter, she feared for her safety and headed for the "major's" office.
Mr. Hunter then left the building and got into the fire utility truck that he had driven to the Communications facility from the Training facility. Two other officers ran from the building and told him to turn off the motor and to place the keys on the front seat. He was asked whether he had stolen the vehicle and why he had come to the Communications facility. He was also told that there was a memo circulating around about a disgruntled employee. One of the officers went back inside to investigate the matter, and minutes later a civilian fire employee told Mr. Hunter that he was free to go. Neither Fletcher nor Hassan were at the facility when Mr. Hunter was told to leave.
B. Facts pertaining to Mrs. Hunter's claims
Mrs. Hunter, who worked for the County from 1988 to 1990, claims that in July and August 1996, members of the Department made several phone calls and visits to her home requesting to speak with Mr. Hunter. On July 29, Major Nichols called Plaintiffs' house to tell Mr. Hunter that he was being placed on administrative leave. Mr. Hunter was not at home. On August 8, Mrs. Hunter claims that she received several more phone calls from Department personnel looking for her husband. She explained that he was in Baltimore. She then told her husband about the calls. Soon after, Redding called Mrs. Hunter and told her that, per a Lieutenant Colonel Sarnicki, no one else from the Department would contact her regarding her husband's whereabouts. Nevertheless, Mrs. Hunter claims that she received another visit on August 10 from a captain at the Department, and several more phone calls between August 12-15. Mrs. Hunter discovered in early July that she was pregnant. On August 21, Mrs. Hunter suffered a miscarriage, which she asserts she suffered due to the stress of the phone calls and visits.
II. Standard of Review
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co., Inc. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., Ltd., 601 F.2d 139, 141 (4th Cir. 1979); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394 (4th Cir. 1950). The moving party bears the burden of showing that there is no genuine issue of material fact. Fed.R.Civ.P. 56(c); Pulliam, 810 F.2d at 1286 (citing Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)).
When ruling on a motion for summary judgment, the court must draw all reasonable inferences in favor of and construe the facts in the light most favorable to the non-moving party. Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 437 (4th Cir. 1998). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence. Anderson, 477 U.S. at 256.
In Celotex, the Supreme Court stated:
In cases like the instant one, where the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the "pleadings, depositions, answers to interrogatories, and admissions on file." Such a motion, whether or not accompanied by affidavits, will be "made and supported as provided in this rule," and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial."Celotex, 477 U.S. at 324. However, "`a mere scintilla of evidence is not enough to create a fact issue.'" Barwick v. Celotex Corp., 736 F.2d 946, 958-59 (4th Cir. 1984) (quoting Seago v. North Carolina Theatres, Inc., 42 F.R.D. 627, 632 (E.D.N.C. 1966), aff'd, 388 F.2d 987 (4th Cir. 1967)). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
III. Analysis
A. Mr. Hunter's work-related discrimination claims
1. 42 U.S.C. § 1981 and 1983
Mr. Hunter claims that he was discriminated against on account of his race because Defendants created a hostile work environment. He claims the following actions were taken because of his race: (1) he was falsely accused of coming to work intoxicated; (2) he was asked to take a Breathalyzer examination, which humiliated him; (3) he was defamed when a memorandum, which he claims described him as a person who was a threat to others, was circulated; and (4) he was forcibly removed from the premises by police.
Mr. Hunter also claims that Defendants prevented him from receiving a reasonable accommodation for his advancement examination, forced him to use 170 hours of sick leave when he was excused from duty, and falsely accused him of bribing the Breathalyzer administrator. Defendants argue that the court should not consider these actions because Mr. Hunter, among other things, failed to cite these acts in his complaint as examples of Defendants' alleged discrimination. Mr. Hunter also failed to mention them in discovery materials in response to Defendants' inquiries as to all incidents that form the basis of the discrimination and retaliation claims. After reviewing the record, the court finds Defendants' argument has merit and will not consider these events. However, despite Defendants' protest, the court will consider the fact that Defendants accused Mr. Hunter of coming to work intoxicated, as Plaintiffs aver this fact in their amended complaint. Paper no. 15 ¶ 11.
Generally, courts analyze §§ 1981 and 1983 claims of discrimination by employing the same statutory scheme used in cases brought under Title VII. Hawkins v. Pepsico, Inc., 203 F.3d 274, 278 (4th Cir. 2000) (§ 1981 claims are reviewed under the burden shifting scheme of McDonnell Douglas, 411 U.S. 792 (1973)) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)); Abasiekong v. City of Shelby, 744 F.2d 1055, 1058 (4th Cir. 1984) (analyzing §§ 1981 and 1983 claims under the McDonnell Douglas three-step format). The McDonnell Douglas framework requires that (1) a plaintiff establish a prima facie case of discrimination; (2) a defendant articulate a non-discriminatory reason for its actions; and (3) a plaintiff then show the reason given by defendant was pretext. Hawkins, 203 F.3d at 278 (citing O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)).
To establish a prima facie case for a hostile work environment claim, Plaintiffs must show that (1) the harassment was based on race; (2) the harassment was unwelcome; (3) the harassment was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive working environment; and (4) there exists some basis for imposing liability on the employer. Causey v. Balog, 162 F.3d 795, 801 (4th Cir. 1998) (citing Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772 (4th Cir. 1997)). Moreover, Plaintiffs must show that but for race, Mr. Hunter would not have suffered the alleged discriminatory treatment. Id. Plaintiffs present no evidence that race played a role in any of the alleged discriminatory actions.
With respect to the intoxication charge, Plaintiffs contend that whites came to work at the Department intoxicated but were never asked to take a Breathalyzer examination or removed from the premises. They fail, however, to support this allegation with proof. They do not identify these employees or even allege that they worked for the Communications facility. See Lilly v. Harris-Teeter Supermarket, 842 F.2d 1496, 1508 (4th Cir. 1988) (plaintiff failed to show he was denied promotion for discriminatory reasons; he offered neither names, experience, nor any other information about whites he claims were promoted).
With regard to the memorandum defaming him, Mr. Hunter admits that he never saw it. He does not claim that the document contained any remarks regarding his race. He also does not allege that any reference was made to his race while he was being escorted off the premises by police on July 24.
Plaintiffs urge the court to consider the findings of an alleged EEO report that found that Mr. Hunter had been the victim of discrimination with respect to his being escorted off the premises of the Communications facility. Paper no. 68 at 8. Plaintiffs have not provided the court with a copy of the report, and fail to indicate specifically what about the incident was found to be discriminatory. Moreover, the court has no way to gage how probative the report's findings are of discrimination under federal law. See Goldberg v. B. Green and Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988) (commission's report repeating facts plaintiff had alleged, and then summarily concluding that those facts reflected age discrimination, standing alone, was insufficient to support the claim for purposes of summary judgment) (citing Johnson v. Yellow Freight System, Inc., 734 F.2d 1304, 1309 (8th Cir.), cert. denied, 469 U.S. 1041, 105 S.Ct. 525, 83 L.Ed.2d 413 (1984)).
Plaintiffs seek to prove that Defendants' actions were racially motivated because Mr. Hunter is African American and Defendants are white. Paper no. 68 at 21. Such facts, without more, do not constitute sufficient evidence to survive a summary judgment motion. See e.g., Gumbs v. Hall, 51 F. Supp.2d 275, 280 (W.D.N.Y. 1999) ("[P]laintiff relies on little more than the evidence that she . . . is a black female, and that Hall, a white male, chose another white male for the Vice President position. That is not enough . . . [to survive summary judgment] absent evidence suggestive of race or sex discrimination."). Thus, Plaintiffs fail to meet prong one of their prima facie case.
Moreover, Defendants present legitimate reasons for the actions taken, and Plaintiffs offer no evidence to rebut these reasons. With respect to Mr. Hunter's Breathalyzer examination, Collins stated that she smelled alcohol on his breath. This was later substantiated by Schubert. Lloyd says that she noticed that Hunter's eyes were red, that he stared into space and made frequent trips to the water fountain. For those reasons, Defendants claim Mr. Hunter was asked to take a Breathalyzer exam. While he argues that he was later cleared of the intoxication charge, he does not appear to contend that he did not have alcohol on his breath on the morning of July 8. He also does not argue that Lloyd's observations were incorrect. He instead attempts to justify why his eyes were red and he was thirsty, by stating that he had taken allergy medication. These facts would seem to justify Defendants' request that Mr. Hunter submit to a Breathalyzer test.
With respect to the memorandum, based on his conversation with Redding concerning additional charges against Mr. Hunter, Hassan approached police about securing the premises. Defendants claim for that reason, police requested a picture of Mr. Hunter and drafted the memorandum. Other than conclusory charges of discrimination, Plaintiffs have presented no evidence to suggest another reason existed. Defendants state that police officers posted the memorandum without their knowledge. Plaintiffs again present no evidence to the contrary. Moreover, it is undisputed that police officers escorted Mr. Hunter from the building because of the memorandum, which he has not shown was created because of his race. Consequently, without evidence that race played role in any of Defendants' actions, his discrimination claim fails.
2. 42 U.S.C. § 1981 and 1983 Retaliation claim
The McDonnell Douglas framework applies to §§ 1981 and 1983 retaliation claims. Holder v. City of Raliegh, 867 F.2d 823, 828 (4th Cir. 1989). To establish a prima facie claim of retaliation, the Hunters must show that 1) Mr. Hunter was engaged in a protected activity; 2) Defendants took an adverse employment action against him; and 3) there exists a causal connection between the protected activity and the adverse action. Munday v. Waste Management of North America, Inc., 126 F.3d 239, 242 (4th Cir. 1997) (quoting Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985)).
Plaintiffs present no legal argument in their opposition memorandum to support their retaliation claim. However, in their amended complaint, Plaintiffs appear to assert that Defendants retaliated against Mr. Hunter for participating in an Equal Employment Opportunity Commission ("EEOC") proceeding. In 1991, while working at Ritchie, Mr. Hunter found a statue of a black man painted to look like him with a mop in his hand. He filed charges with the EEOC regarding this incident. He received a right to sue letter in October 1994, but failed to bring a Title VII suit at that time. Plaintiffs do not argue, and Defendants expressly deny, that Fletcher, Hassan or Lloyd were involved in the Ritchie incident. Paper no. 62 at 28-29 n. 6.
With regard to the more recent events at the Communications Center, it is unlikely that the actions about which Mr. Hunter now complains meet the definition of adverse employment actions. He has not alleged that he was fired or demoted, and he was transferred only upon his own request. See Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999) (explaining that adverse employment actions include discharge, demotion, decrease in pay or benefits, loss of job title or supervisory duties, significant change in benefits and, in some cases, reassignment) (citations omitted).
Even assuming these actions are adverse, they all occurred in 1996. To the extent he argues that these actions were taken as a result of the EEOC charges he filed several years earlier regarding the events at Ritchie, he fails to establish a causal connection between the protected activity and the adverse actions. See Causey, 162 F.3d at 803 (explaining that a 13-month interval between filing a charge and termination was too tenuous absent other evidence to show causation) (citing Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998); Conner v. Schmuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997) (four-month lapse too long)).
Plaintiffs also claim that Defendants retaliated against Mr. Hunter because he testified at a hearing before the Maryland State Senate on issues regarding race relations at the Department in February 1996. Defendants have conceded for purposes of this motion that Mr. Hunter's testifying was a protected activity. Assuming that to be the case, Mr. Hunter still fails to meet prong three. Defendants have submitted affidavits stating that they did not know that Mr. Hunter testified before the state senate, and Plaintiffs present no evidence proving otherwise. Proof that a defendant knew about the protected activity before taking an adverse action is "absolutely" necessary to satisfy the third prong of a plaintiff's prima facie case. Dowe, 145 F.3d at 657 (citing Grizzle v. Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir. 1994); Hudson v. Southern Ductile Casting Corp., 849 F.2d 1372, 1376 (11th Cir. 1988); Talley v. United States Postal Serv., 720 F.2d 505, 508 (8th Cir. 1983)). For the foregoing reasons, Mr. Hunter's retaliation claim fails.
To state a § 1985(3) claim, Plaintiffs must prove: (1) a conspiracy of two or more people (2) motivated by a specific class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal enjoyment of rights secured by law to all, (4) which results in injury to the plaintiff as a consequence of an overt act committed by the defendants in connection with the conspiracy. Simmons v. Poe, 47 F.3d 1370, 1376-77 (4th Cir. 1995) (citing Buschi v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985); Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971)); see also Mears v. Town of Oxford, Maryland, 762 F.2d 368, 374 (4th Cir. 1985) (explaining that plaintiff must show that a defendant's actions were motivated by race) (citations omitted). Moreover, "mere allegations of conspiracy, backed up by no factual showing of participation in a conspiracy, are insufficient to support such an action against a motion for summary judgment based on affidavits establishing the absence of any participation." Ballinger v. North Carolina Agricultural Extension Service, 815 F.2d 1001, 1007 (4th Cir. 1987) (quoting Buschi, 775 F.2d at 1248). Plaintiffs' burden is high. In this circuit, rarely has a plaintiff set forth sufficient facts in a § 1985(3) action to survive summary judgment. Simmons, 47 F.3d at 1377.
Plaintiffs assert that Defendants conspired against Mr. Hunter when Ray told Jarboe and Lloyd about his threats, which "sets forth the chain of events which leads to the July 24th incident." He seems also to argue that the manner in which Ray reported the incident did not comply with Department regulations. Further, Plaintiffs assert that a conspiracy is shown by the creation and destruction of the memorandum. Plaintiffs contend that Hassan and Police Officer Gordon conspired to create the memorandum, which continued when Fletcher destroyed it.
Mr. Hunter does not appear to deny making these threats. While he initially asserts in his opposition motion that Ray's affidavit is untrue, he later explains that the fact that he may have made these comments shows his frustration at the situation. Cf. Paper no. 68 at 12 (claiming Ray's affidavit is untrue) with id. at 22 ("Although he expressed in vague language . . . his anger at the treatment which he was receiving on the part of these individuals, it shows that the conduct of the certain fire department personnel he identified were acting in a manner he found to be unwelcome"); and id. at 23 (explaining that he considered his treatment "severe and/or pervasive" and "if this was not the case, then he would not have expressed such strong feelings he [is] alleged to have made about individuals he is alleged to have threatened."). Moreover, Plaintiffs do not support their argument that Ray's sworn affidavit is untrue by submitting an affidavit or other evidence of their own. See Fed.R.Civ.P. 56(e) (when summary judgment motion is supported as provided in this rule, an adverse party cannot rest on allegations or denials in the pleadings, but must also respond by affidavit or as otherwise provided in the rule).
Plaintiffs' allegation of conspiracy is wholly conclusory, and fails to meet the stringent standard necessary to state a valid § 1985(3) claim. In her affidavit, Lloyd states that she did not know about the memorandum until after the July 24 incident. Hassan states in his affidavit that he instructed officers not to post the memorandum or picture of Mr. Hunter until it was determined that Mr. Hunter, in fact, was barred from the premises. He further, states that he was on vacation on July 24. Likewise, Fletcher states in his affidavit that he did not know that the memorandum had been posted or that Plaintiff was forced to leave the premises until after both incidents had occurred. These statements show an absence of a conspiracy, and Plaintiffs have failed to offer any evidence to the contrary.
Moreover, Plaintiffs have presented no evidence showing that race was the motivating force behind Ray's remarks to Lloyd and Jarboe, the creation or destruction of the memorandum, or any other actions taken by Defendants. Consequently, Plaintiffs have failed to produce sufficient evidence to support the § 1985(3) claim.
B. Mrs. Hunter's discrimination and constitutional claims
1. 42 U.S.C. § 1981 claim of discrimination
Defendants contend that Mrs. Hunter's § 1981 claim against the County must fail as she was not employed by the County at the time of the visits and calls from Department personnel. Plaintiffs do not dispute that Mrs. Hunter was no longer an employee of Prince George's County in 1996. They argue, however, that the Hunters' marriage contract should be considered to support her § 1981 claim. Specifically, they contend, without legal authority, that Defendants' alleged discrimination caused physical and psychological harm to Mr. Hunter, which affected the Hunters' relationship, and consequently, their marriage contract. The court rejects this argument.
42 U.S.C. § 1981 actions involve the right to make and enforce various contracts, including employment contracts and those involved in retail purchases. Morris v. Office Max, Inc., 89 F.3d 411, 413 (7th Cir. 1996) (citing Rivers v. Roadway Express, Inc., 511 U.S. 298, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994); Washington v. Duty Free Shoppers, Ltd., 710 F. Supp. 1288 (N.D.Cal. 1988); Shen v. A P Food Stores, No. 93 CV-1184 (FB), 1995 WL 728416 (E.D.N.Y. Nov. 21, 1995); Flowers v. The TJX Companies, No. 91-CV-1339, 1994 WL 382515 (N.D.N.Y. July 15, 1994); Roberts v. Walmart Stores, Inc., 769 F. Supp. 1086 (E.D.Mo. 1991)). Plaintiffs creatively argue that the County can be liable for interfering with their marriage contract. Section 1981, however, requires proof of intentional racial discrimination. Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018 (4th Cir. 1999) (citing General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982)). It is undisputed that Mrs. Hunter had no actual or potential contractual relationship, employment or otherwise, with Prince George's County in 1996, and she fails to explain how her marriage contract supports her § 1981 claim. Moreover, she has set forth no facts that show the visits and calls were prompted by racial animus. Consequently, her § 1981 claim fails.
Plaintiffs assert that in July 1996, while Mr. Hunter was away from home on military drill duty, someone blew up their mailbox. Plaintiffs also claim that in or around August 1996, someone put a picture of a black man hung from a tree in an envelope and placed it in their screen door. They do not allege that Defendants committed these acts or even knew about them before they occurred.
2. Constitutional violations, pursuant to 42 U.S.C. § 1983
In their opposition motion, Plaintiffs appear to argue that the County violated Mrs. Hunter's constitutional right of privacy when Department personnel visited and called her home looking for Mr. Hunter in July and August of 1996. Defendants claim that the officers, who varied in rank, were trying to contact Mr. Hunter to inform him that there were two sets of charges pending against him and to inform him of his disciplinary hearing dates. Defendants fail to explain why it required numerous calls and visits to Plaintiffs' home from the Department's personnel to deliver this message.
Nevertheless, to prevail against the County in a § 1983 action, Plaintiffs must plead and prove that the Department's staff caused the alleged constitutional violations while acting pursuant to an official policy or custom of the County. Semple v. City of Moundsville, 195 F.3d 708, 712 (4th Cir. 1999) (citing Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). "Municipal liability attaches only where a decision maker has final authority to establish municipal policy with respect to the action ordered." Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986).
Plaintiffs have not alleged that Department staff visited or called Mrs. Hunter to locate her husband pursuant to an official policy or custom of the County. Plaintiffs have offered no evidence as to who, if anyone, made the decision authorizing these visits and calls. When asked which of the County's policies violated her rights, Mrs. Hunter cited Department regulations regarding violence, discrimination and sexual harassment in the workplace. Paper no. 62, Defendant's exhibit 18 (Paulette Hunter's Supp. Interr. Resp. no. 7) at 6-7. She fails to explain how those policies relate to her claim. Moreover, Plaintiffs' amended complaint states that on or about August 8, a Lieutenant Colonel Sarnicki ordered that there be no further phone calls from the Department to Mrs. Hunter regarding her husband's whereabouts. Unfortunately, that did not happen. Without more, however, these facts fail to show that the staff's actions were sanctioned by policy makers at the Department or the result of any official policy or custom of the County.
IV. Conclusion
For the foregoing reasons, the court shall grant Defendants' motion for summary judgment. A separate Order will be entered.
ORDER
In accordance with the accompanying Memorandum Opinion, IT IS this 00** day of January, 2001, by the United States District Court for the District of Maryland, ORDERED that:
1. The Motion for Summary Judgment by Defendants, Prince George's County, Theresa Lloyd, Ronald Hassan, and John Fletcher, and the same hereby IS, GRANTED;
2. Judgment BE, and the same hereby IS, ENTERED in favor of Theresa Lloyd, Ronald Hassan, and John Fletcher and against Andre B. Hunter;
3. Judgment BE, and the same hereby IS, ENTERED in favor of Prince George's County and against Paulette I. Hunter;
4. All prior rulings are incorporated herein and this is a final judgment for purposes of Fed.R.Civ.P. 58; and
5. The Clerk is directed to transmit a copy of the Memorandum Opinion and this Order to counsel for the parties and CLOSE this case.