Opinion
Civil Action No. DKC 97-3062.
February 26, 2001
MEMORANDUM OPINION
Plaintiff, a deputy first class with the St. Mary's County Sheriff's office, filed suit alleging constitutional violations, pursuant to 42 U.S.C. § 1983, against Defendants Sheriff Richard J. Voorhaar and Captain James K. Raley ("the individual Defendants"). Presently pending before the court is the individual Defendants' Motion for Summary Judgment. Plaintiff has moved for leave to file a surreply to its brief in opposition to Defendants' motion, which Defendants oppose. The Board of County Commissioners of St. Mary's County ("County"), a co-defendant, also has moved to adopt the summary judgment motion filed by the individual Defendants. The County's position is that if the court grants summary judgment as to Voorhaar and Raley on the theories they advance, then it too is entitled to summary judgment on the same bases. Plaintiff opposes this motion. The issues have been fully briefed and no hearing is deemed necessary. For the reasons that follow the court shall grant the motions for summary judgment of the County and individual Defendants and grant Plaintiff's motion for leave to file surreply.
Defendants originally filed this motion with this court on July 2, 1999. However, the court denied the motion without prejudice pending discovery. Paper no. 77. Discovery is now closed and Defendants have renewed their motion. Paper no. 79.
The court earlier dismissed counts I, II and VI of Plaintiff's first amended complaint against the County. Paper no. 16.
I. 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).
II. Analysis
A detailed factual background is provided in the court's memorandum opinion of September 23, 1998 at 2-4. Paper no. 15. When necessary, additional facts are provided below for purposes of this analysis.
In their motion, the individual Defendants assert that Plaintiff's 42 U.S.C. § 1983 claims are preempted by Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and that she has failed to produce sufficient direct or indirect evidence of discrimination to support her disparate treatment and retaliation claims. The court addresses each argument in turn.
A. Title VII preemption
Defendants' first argument essentially rehashes issues already decided by this court. They assert that Plaintiff's 42 U.S.C. § 1983 claims are preempted by Title VII. The court disagrees. An individual employee/supervisor is not liable for Title VII violations, even if he or she had authority to hire and fire the plaintiff. Lissau v. S. Food Serv. Inc., 159 F.3d 177, 178-79 (4th Cir. 1998). However, an individual can be sued in his personal capacity for employment discrimination under 42 U.S.C. § 1983, Beardsley v. Webb, 30 F.3d 524, 527, 531 (4th Cir. 1994) (explaining that Title VII is not the exclusive remedy for employment discrimination, and affirming district court's ruling that a female officer could proceed with her § 1983 sexual harassment suit against her supervisor), as long as the suit against the individual is not preempted by Title VII, Hughes v. Bedsole, 48 F.3d 1376, 1383 n. 6 (4th Cir. 1995) (plaintiff's § 1983 claim failed as she could have brought the claim pursuant to Title VII); see also Haynie v. St. Mary's County, No. DKC 97-3062 at 7 n. 4 (D.Md. January 29, 1999) ("Hughes precludes a § 1983 claim only if the plaintiff was able to bring a claim under Title VII.") (citation omitted). Title VII allows a plaintiff to sue only her "employer" for unlawful discrimination. 42 U.S.C. § 2000e-2 (a); Lissau, 159 F.3d at 180. Defendants claim that Plaintiff's § 1983 suit is preempted primarily for two reasons: (1) she could have sued Defendants in their official capacities under Title VII, and (2) they are her employers, and thus should have been sued under Title VII.
Defendants also appear to assert that Plaintiff's suit is barred because Title VII provides a comprehensive statutory scheme for employment discrimination suits and thus represents her exclusive remedy for such claims. However, they cite no authority, supporting their argument that a Title VII suit against an employer precludes a § 1983 suit against individual defendants in their personal capacity. See Weberg v. Franks, 229 F.3d 514, 522 n. 7 (6th Cir. 2000) (while individual employees cannot be sued under Title VII, individual liability is permitted under § 1983) (citation omitted).
Like the Plaintiff in Beardsley, Haynie brought suit against Voorhaar and Raley in their personal capacities. However, had she sued them pursuant to Title VII in their official capacities, her suit still would have been against the County, if that entity was in fact her employer. See Saurers v. Salt Lake County, 1 F.3d 1122, 1125 (10th Cir. 1993) (determining that because in her complaint, plaintiff named as defendant the county attorney in his official capacity, the suit operated "as a suit against Salt Lake County itself") (citing Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985)); see also Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) ("We think the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly."). Consequently, whether Haynie's suit against Raley and Voorhaar is preempted by Title VII turns on whether they or the County are her employers. In an order dated March 29, 2000, this court determined that a triable issue of fact existed as to whether the County or the sheriff's office is Plaintiff's employer for purposes of Title VII. If a trier of fact were to determine the County instead of the sheriff's office to be her employer, then there would be no reason why Plaintiff's § 1983 claims against Defendants should be preempted by Title VII.
The individual Defendants present no new facts or law that would prompt the court to vacate the March 29, 2000 order. Essentially, Defendants argue that the sheriff has full power to hire, promote and discharge deputies, as well as the authority to control the conditions of their employment. Paper no. 56 at 36-41. These are the same arguments the court considered and rejected in the County's motion for summary judgment, in which it contended that the sheriff's office, and not the County, was Plaintiff's employer. Paper no. 54 ¶¶ 55-58.
B. Plaintiff's claims of disparate treatment
1. Direct evidence of discrimination
"Courts may apply the standards developed in Title VII litigation to similar litigation under § 1983." Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994) (citing Boutros v. Canton Regional Transit Auth., 997 F.2d 198, 202-03 (6th Cir. 1993); Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir. 1990)). Thus, the court will analyze Plaintiff's § 1983 claims using standards developed in Title VII cases. Plaintiff can prove intentional discrimination in two ways under Title VII. First, she may use "principles of proof using any direct or indirect evidence relevant to and sufficiently probative of the issue." Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999) (citing Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir. 1992)). To survive summary judgment based on this method, a plaintiff "must produce direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact." Brinkley, 180 F.3d at 607 (citing Goldberg v. B. Green Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988)). Moreover, this standard requires that Plaintiff present "evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision." Id. (quoting Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)) (emphasis added). If Plaintiff fails to meet this burden, she can nevertheless proceed with her case under the burden shifting scheme established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).
Haynie contends that she presents direct evidence of discrimination, and thus does not need to resort to the McDonnell Douglas burden shifting scheme. The court disagrees because she has failed to show that any of Defendants' alleged conduct or statements bore directly on any employment decision she contests. Plaintiff proffers evidence that in or about 1994, Raley stated on several occasions that women should not be police officers or corporals. Retired officer Donald Purdy says that he heard Raley say "women have no place in law enforcement." Paper no. 83, Plaintiff's exhibit 2. Former Officer William Bell claims that Raley once told him that "women are not fit for law enforcement duty," and "should be at home in the kitchen, barefoot and pregnant." Id., Plaintiff's exhibit 3 ¶ 9. Officer Deborah Milam stated that her husband, also an officer, told her Raley once stated that except for Milam "most of the women in the agency don't belong there." Id.,
Plaintiff's exhibit 9 at 39-40. Haynie claims that Raley told her that women should not be made corporal under any circumstances and should be barefoot and pregnant. Id., Plaintiff's exhibit 1 ¶ 5. None of the officers state when Raley made these comments. Haynie, however, asserts that these statements were made in or about 1993 and 1994.
Defendants assert, and Haynie does not dispute, that they had no control over who was promoted in 1993 and 1994. The first promotion Haynie challenges according to her first amended complaint occurred in 1995. Haynie claims, however, that Raley's statements in 1993 and 1994 show that when Defendants later had the authority to make employment decisions, Raley had no intention of promoting her because she is a woman. In other words, the earlier statements are said to be proof of Raley's later state of mind. Under the standard explained above, such evidence will not survive summary judgment.
While this may be so, Defendants also assert that a candidate's promotion is directly related to her promotion eligibility rating (discussed later in this opinion). An officer's performance evaluation factors into this rating. Thus, although neither Raley nor Voorhaar were decisionmakers in 1993 and 1994, Haynie's performance evaluations, conducted by Raley, apparently played a role as to whether she would have received a promotion.
In Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir. 1999), a Title VII action, the plaintiff, a female patrol officer, argued that she had presented direct evidence of discrimination when her supervisor stated that he would never send a female to the police academy. Although Taylor also wanted to attend the academy, her supervisor made the statement in response to being asked whether he would send another female officer to the academy. Taylor argued that because she presented direct evidence of discrimination, she was entitled to Title VII's mixed-motive analysis. The Fourth Circuit held that because the supervisor's statement did not bear directly on whether he would send Taylor, in particular, to the academy, but rather on whether he would send another female officer, the mixed-motive standard was inapplicable. Likewise, in the present case, while Raley's alleged general, derogatory statements show that he had a discriminatory attitude toward women, there is no evidence that these statements made in 1993 or 1994 bore directly on any particular promotion decision regarding Haynie in subsequent years.
"The bonus for plaintiffs able to invoke the standard of liability applicable in mixed-motive cases is that proof by the employer that it would have reached the same determination without any discriminatory animus does not allow the employer to avoid liability altogether." Taylor, 193 F.3d at 232. In the present case, Haynie also argues that because she presents direct evidence of discrimination, she is entitled to mixed-motive analysis.
Further, the statements were not made during the decision making process, i.e., at a time when decision makers were deciding whether to promote Haynie. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), modified by 42 U.S.C. § 2000e-2(m), (mixed-motive analysis used when decision makers decided to fire plaintiff based on comments in her evaluations that included impermissible sexual stereotypes that were an integral part of the decision process); Hook v. Ernst Young, 28 F.3d 366, 375 (3d Cir. 1994) ("Although . . . [alleged discriminatory comments] were made by a decisionmaker, there is no evidence they were related to the decision process."); see also Cason Enterprises, Inc. v. Metropolitan Dade County, 20 F. Supp.2d 1331, 1339 (S.D.Fla. 1998) ("To constitute direct evidence of discrimination . . . [discriminatory comments] must be made in the course of the decisional process under challenge.") (citations omitted)).
Because none of the statements relate directly to any specific employment decision made regarding Haynie and were not made during the decisional process, she must rely on the burden shifting scheme established in McDonnell Douglas.
2. McDonnell Douglas analysis
To establish a prima facie case of discriminatory failure to promote, a plaintiff must prove she (1) is a member of a protected group; (2) applied for the position in question; (3) was qualified for the position; and (4) was rejected for the position under circumstances giving rise to an inference of unlawful discrimination. Brown v. Mclean, 159 F.3d 898, 902 (4th Cir. 1998) (citing McDonnell Douglas, 411 U.S. at 802; Alvarado v. Board of Trustees of Montgomery Community College, 928 F.2d 118, 121 (4th Cir. 1991)). If Haynie establishes a prima facie case of discrimination, Defendant must advance a legitimate nondiscriminatory reason for the employment decision at issue. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2106 (2000) (citation omitted). The presumption of discrimination drops out once a defendant has advanced such a reason. Id. A plaintiff must then be allowed to show by a preponderance of the evidence that the defendant's reasons were pretext for discrimination. Id. (citations omitted). Haynie maintains the ultimate burden of persuading the trier of fact that Defendant purposefully discriminated against her. Id.
Plaintiff has moved for leave to file a surreply in opposition to Defendants' motion for summary judgment on the basis that Defendants failed to cite Reeves in their memorandum in support of their motion for summary judgment. This court is well aware of Reeves and will apply it in analyzing Plaintiff's claims. Thus, the court grants Plaintiff's motion, and will consider the arguments she presents to support her claims in her memorandum in support of her surreply motion, as well as those Defendants present in their memorandum in support of their opposition motion.
Defendants assert that Haynie has not established a prima facie case because she has not shown that she was qualified for the corporal position. They contend that because Haynie was less qualified than males who were promoted, her prima facie case fails. Defendants misconstrue Plaintiff's burden, which is not onerous to establish a prima facie case. Texas Dep't. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). Despite Defendants' claims that Haynie was not qualified for the position, each promotions eligibility ratings form lists her as being eligible for promotion. Paper no. 56, Defendants' exhibits, 12, 14, 17, 20, 39. Thus, she apparently met the minimum qualifications to become a corporal. See Taylor, 193 F.3d at 231 (explaining that plaintiff failed to establish prima facie case as she received only a marginal rating on her most recent performance evaluation when a rating of at least "satisfactory" was required to be qualified for promotion); Nichols v. Comcast Cablevision of Maryland, 84 F. Supp.2d 642, 649 (D.Md. 2000) (explaining that because plaintiff lacked a college degree or requisite experience, he did not have the minimum qualifications for the job).
As noted previously, the first employment decision Plaintiff challenges according to her first amended complaint occurred in 1995.
The relative qualifications of Plaintiff and those officers actually promoted are more appropriately analyzed "as part of the defendant's response to the prima facie case and as part of the plaintiff's efforts to prove pretext." Barbara Linderman Paul Grossman, Employment Discrimination Law 15 n. 40 (Paul W. Cane, Jr. et al. eds.3d ed. 1996) (1976); see also Jefferies v. Harris County Community Action Association, 693 F.2d 589, 590 (5th Cir. 1982) ("[T]he promotion of a better qualified applicant is a legitimate and nondiscriminatory reason for preferring the successful applicant over the rejected employee who claims that the rejection was discriminatory.") (citing Burdine, 450 U.S. at 253, 101 S.Ct. at 1096).
Assuming Haynie has established a prima facie case, Defendants also use the fact that Haynie allegedly was less qualified as their legitimate, nondiscriminatory reason for failing to promote her. As evidence, they raise the fact that she ranked lower on the promotion eligibility ratings list than any male who was promoted. According to sheriff department regulations, a candidate's scores on her last two performance evaluations divided by two and on a written exam combined are the primary factors considered in promotion decisions. Paper no. 56, Defendants' exhibit 4, § 6.03.007. These combined scores comprise the officer's promotion eligibility rating. The score on the corporal's test comprises 40 percent of the total score, while the performance evaluations make up the other 60 percent. Other factors that may be considered in promotion decisions are knowledge, ability and formal education. Id. § 6.03.006. Haynie attacks Defendants' argument by claiming (1) that from 1993 to present Raley ordered her supervisors to lower her performance evaluation scores, thus automatically lowering her promotions eligibility rating; and (2) that the promotions eligibility ratings list is bogus, and that Voorhaar and Raley promoted whomever they wanted despite that list.
Haynie also argues that she has proven discriminatory intent because around the time Raley gave this order, he had made repeated derogatory comments about women police officers. Paper no. 83 at 24.
There is no basis in the record to support Haynie's first argument. Haynie has not identified a single supervisor who was told to lower her performance evaluation scores. In 1994, Officer Kenneth Cusic supervised Plaintiff, and at his deposition, he expressly stated that Raley never directed him to lower Haynie's performance evaluation scores. Paper no. 56, Defendants' exhibit 36 at 23. Retired Officer Joseph Maloy supervised Plaintiff in 1996, and, while in his affidavit he is critical of the evaluation system in general, he does not claim that Raley asked him to give Plaintiff a particular evaluation score. Paper no. 83, Plaintiff's exhibit 5. In fact, the opposite is true. He says that he found her work to be "above average" and graded her accordingly. Milam supervised Plaintiff in 1997, and also failed to state in her deposition that she was asked to lower Plaintiff's score. Id., Plaintiff's exhibit 9. Raley evaluated Plaintiff directly from July 1993 to March 1994, immediately before Cusic. However, Haynie presents no evidence that he gave her lower performance evaluation scores because she is a woman during this period. In her deposition, Haynie states that both men and women complained that Raley was a tough evaluator. Paper no. 56, Defendants' exhibit 1 at 34. When asked for the basis of her claim that Raley graded women lower than men, Haynie stated "[h]e just does." Id. at 33. She admitted that she had never seen any evaluations he had given to men or compared them to evaluations he had given to women. Thus, she has produced no evidence that Raley graded her lower than similarly situated male officers who performed in the same manner as she did.
Officers Charles Malone and Steven Dolan also supervised and evaluated Plaintiff after 1993. Plaintiff does not state that Raley told either of them to lower her performance evaluation scores.
Plaintiff states that during the time Raley evaluated her, he "routinely" would allow other officers to transport prisoners that she had arrested. The number of arrests an officer makes comprises part of her performance evaluation score. Plaintiff, however, fails to state that Raley treated similarly situated men differently.
Defendants assert in their memorandum that 10 officers were promoted between 1993 and 1998. None of the officers promoted ranked lower than Plaintiff on the promotions eligibility lists.
In fact, most of the officers on the promotions lists were ranked well above Plaintiff, with one exception. In 1995, Oliver Stewart ranked 17 on the list when promoted, while Plaintiff ranked 22. Defendants support their decision to promote Stewart because he had 17 years of experience as a deputy first class at the time, which they assert necessarily corresponded with his ability to do and knowledge of his job. As noted above, other than her rating, a candidate's knowledge and ability are factors considered in promotion decisions. In contrast to Stewart, in 1995, Plaintiff had been a deputy first class for a little over two years. Because a candidate's rating on the promotions list is a primary consideration for promotion, and Plaintiff ranked lower than all officers who were promoted, she fails to show she was equally or better qualified for the position than most other applicants. Thus, she fails to rebut Defendants' legitimate reason for not promoting her to corporal. Cf. Reeves, 120 S. Ct. at 2107-08 (explaining that in addition to derogatory age-related comments directed at Reeves and other evidence showing that defendant treated him harsher than younger employees, Reeves had presented substantial evidence that the defendant's purported nondiscriminatory reasons for firing him were false; such evidence and a plaintiff's prima facie case may be sufficient to allow a fact finder to determine whether there was unlawful discrimination).
Scores from the July 29, 1993 written exam were used to compile the November 4, 1994 promotions eligibility ratings list. Rankings from the 1994 list were used when Stewart was promoted in 1995. Plaintiff scored one point higher than Stewart on the 1993 written exam. However, Stewart's performance evaluation average was 92.63, while Plaintiff's average was 84.28. Thus, on the 1994 list, her total promotions eligibility rating was 78.17, while his was 82.78. Paper no. 56, Defendants' exhibit 12.
Plaintiff claims that during his deposition testimony, Voorhaar admitted that even had Plaintiff ranked in the top five, he may not have promoted her. Paper no. 83, Plaintiff's exhibit 7 at 33. However, Voorhaar explained that he felt Haynie lacked such traits as leadership skills and the respect of her coworkers, which he deemed important qualifications for a corporal, as the first level supervisory position in the sheriff's office. Moreover, he answered this question hypothetically. He expressly stated that the primary reason Haynie was not promoted was her position on the ratings list. Id. at 29. Further, while Voorhaar admitted saying that if Plaintiff was promoted, the men in the department would throw him out the window, he explained that he made the statement because he believed there would be resentment from men who scored higher than she did on the list, but who were not promoted while she was. Id. at 188.
As noted above, Haynie also attacks the entire promotional system. She asserts that the promotions list is bogus and that Voorhaar and Raley ignored the rankings and promoted whomever they wanted as corporal. Paper no. 83 at 26 ("In the end, the scores mean little, and the Sheriff promotes whoever he and Captain Raley choose. The promotional ratings are pretext."). To support this contention, Plaintiff offers affidavits from several officers. Maloy states in his affidavit that, in his opinion, sheriffs have "at times disregarded test scores and evaluations and promoted whoever they wish." Paper no. 83, Plaintiff's exhibit 5 ¶ 7. Retired Officer Ernest Carter stated that test scores and evaluations are ignored and that the sheriff and captain promote who they want. Id., Plaintiff's exhibit 4 6 8. Finally, Retired Officer William Bell stated Voorhaar and Raley could promote whoever they wanted regardless of merit. Id., Plaintiff's exhibit 3 ¶ 7. Moreover, when Voorhaar approached Milam about her promotion to corporal in 1997, he told her he had to do it "because of this Haynie thing." Paper no. 83 at 19. Although Milam ranked fifth out of 28 officers on the 1997 promotions list, if Voorhaar made this statement, it casts some doubt on whether her promotion was based primarily on her promotions list rating.
Retired Officer Donald W. Purdy was also critical of the promotion system. However, he did not state that test scores and evaluations were completely ignored, but rather that Voorhaar and Raley "used the evaluation system to systematically promote only those officers they wanted to see promoted and not promoting those officers they personally did not like." Id., Plaintiff's exhibit 2 at 2. Some of the officers also stated that Raley and Voorhaar put pressure on certain supervisors to keep the performance evaluation scores of certain officers low. However, they fail to name a single supervisor who was asked to lower a candidate's performance evaluation score or state that Raley or Voorhaar asked any supervisor to lower Haynie's scores.
Plaintiff cites to pages 54-55 of Milam's transcript for these remarks. Paper no. 83 at 18-19. Yet, those pages are absent from the transcript included in Plaintiff's exhibits. The court assumes that Plaintiff inadvertently forgot to include these pages, but quoted the deposition transcript accurately in her memorandum.
Despite the officers' comments that Voorhaar and Raley, or previous sheriffs, ignored the promotions eligibility ratings list when making promotions, the lists for the years 1993 to 1998 show that of the 25 plus officers on each list who were eligible for promotion, everyone promoted ranked higher than Plaintiff, and, with the exception of Stewart, ranked within the top five of all candidates. See paper no. 56, Defendants' exhibits 12, 14, 17, 20, 22, 39. The promotions lists also show that for each promotion Plaintiff challenges, there were other officers, including Milam, a woman, who ranked much higher than Plaintiff, but who also were not promoted. Plaintiff has failed to produce sufficient evidence that Defendants did not rely primarily on the list in making promotion decisions. Moreover, as noted above, while other officers who were not promoted in 1995 ranked above Stewart, Plaintiff was not among them. The burden is on Plaintiff to prove by a preponderance of the evidence that Defendants' nondiscriminatory reason is false. It is difficult to discern how she can make this showing as the overwhelming majority of officers promoted ranked high on the list and she consistently ranked well below them. Thus, her sex discrimination claim fails.
As noted earlier, Milam was eventually promoted in 1997.
C. Retaliation
The court will analyze Haynie's § 1983 retaliation claims using the same standards utilized in Title VII litigation. Beardsley, 30 F.3d at 529 (citation omitted). "[T]o establish a prima facie claim of retaliation in violation of Title VII, . . . a plaintiff must show that `1) the employee engaged in protected activity; 2) the employer took adverse employment action against the employee; and 3) a causal connection existed 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)). The McDonnell Douglass burden shifting scheme also applies to retaliation claims. Smith v. First Union Nat'l Bank, 202 F.3d 234, 248 (4th Cir. 2000) (citations omitted). Thus, once a plaintiff produces a prima facie claim, the burden shifting process applies, i.e., if the defendant shows a legitimate nondiscriminatory reason for an action, the plaintiff must show that the defendant's reason was a pretext. Reeves, 120 S.Ct. at 2106.
Plaintiff points to various actions as retaliatory. Some of them fail to meet the standard of "adverse employment actions." Others are not sufficiently linked to her protected activity to meet the causation prima facie case. For those that might meet the prima facie test, she has failed to demonstrate that the proffered nondiscriminatory reasons were pretextual.
Haynie contends that in retaliation for filing her discrimination suit, Defendants reassigned her from road patrol to court security and later transferred her from the domestic violence unit in 1997. She fails to meet prong two of her prima facie case as she presents no evidence that these transfers resulted in the loss of a promotion or any other adverse employment action. See Boone v. Goldin, 178 F.3d 253, 255-56 (4th Cir. 1999) (employee's transfer may have caused her more stress, but did not result in an adverse employment action because there was no evidence that it had a detrimental effect on her, such as a decrease in compensation, job title, level of responsibility or opportunity for promotion) (citing v. Bolger, 645 F.2d 227, 256-57 (4th Cir. 1981)). She also asserts that Defendants tried to transfer her in 1996 to the corrections division but did not. Thus, that attempted transfer also did not result in an adverse employment action.
Other incidents Haynie claims occurred also fail to classify as adverse employment actions. For instance, Haynie states that Voorhaar promoted Milam in retaliation for her filing her lawsuit and that someone put a mock gift certificate and an obscene cartoon in her mailbox.
Plaintiff further claims that Voorhaar told Officer Vandervender that he would never promote Haynie unless a court ordered him to do so. She states, without providing any evidence, that he said this because of her suit. A Title VII plaintiff must produce more than speculative assertions to survive summary judgment. Afande v. National Lutheran Home for the Aged, 868 F. Supp. 795, 802 (D.Md. 1994) (citing Matsushita Electric Industrial Co., LTD v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Anderson, 477 U.S. at 251, 106 S.Ct. at 2511-12)). Apparently, with respect to Voorhaar's alleged statement, the adverse employment action she challenges is that she was not promoted. As noted above, Plaintiff scored consistently low on the promotions eligibility ratings list, and Voorhaar admitted saying that because of her scores if he promoted her, it would anger officers who scored higher. Thus, the statement Voorhaar made to Vandervender easily could have meant he would not promote her because of her consistently low scores unless a court ordered him to do so. Moreover, as explained previously, she has failed to show that Defendants' nondiscriminatory reason for not promoting her, i.e., her low ratings, was pretext for discrimination.
In her deposition transcript, Haynie also claims that while at a store that her best friend's sons own, Voorhaar told a Danny Raley that he would not promote Haynie's husband because of Haynie's lawsuit. She does not state how she learned this information. Even if her husband's promotion status is an adverse employment action as to Haynie, this hearsay statement, which she heard from an unidentified person, does not establish a prima facie case. Taylor, 193 F.3d at 234 (plaintiff must advance more than vague hearsay assertions from an unidentified person to establish a prima facie case under Title VII) (citing Guthrie v. Tifco Industries, 941 F.2d 374, 379 (5th Cir. 1991) (statements that are "vague and remote in time . . . are insufficient to establish discrimination"); Simpson v. Welch, 900 F.2d 33, 35 (4th Cir. 1990) (holding mere allegations without descriptions of specific incidents . . . insufficient to state a claim under Title VII)).
Haynie further asserts that she was denied "disability leave to which she is entitled as a result of a job-related injury," and charged sick leave instead. This language from her amended complaint is repeated verbatim in her opposition motion. She offers her own affidavit as evidence. Plaintiff, however, fails to meet prong two of her prima facie case. It is undisputed that she received compensation for her leave. Her issue appears to be that Defendants charged her sick leave instead of disability leave. It is Plaintiff's burden to show that this action was adverse. Boone, 178 F.3d at 255 (affirming district court's dismissal of plaintiff's retaliation claim as she failed to show that employer's action was adverse). She offers no proof regarding the specific illness or injury to which the contested leave relates. She provides no proof that charging disability leave as opposed to sick leave for whatever ailment she suffered was more appropriate. Further, Defendants expressly challenge Plaintiff to come forward with evidence that she even was entitled to this sick leave or that it was wrongly assessed against her. She fails to meet this challenge. Consequently, the vague facts upon she relies to support her claim do not suffice to establish an adverse employment action.
Haynie also asserts that after she filed her discrimination claim, Defendants forced her to retire for medical reasons. However, she fails to rebut Defendant's nondiscriminatory reason for her retirement, i.e., her own injuries. In or about 1995, Plaintiff suffered a knee injury in the line of duty. Voorhaar admitted that two other officers were allowed to take leave because of injuries and were given extensive time to recover before returning to duty. Plaintiff asserts that, unlike these similarly situated male officers, she was forced to take an independent medical examination ("IME") to determine whether she was permanently disabled and had to retire. To support her claim, Haynie offers a letter dated April 6, 1998, from Voorhaar to Human Resources Director Melvin McClintock. In the letter, Voorhaar stated that Plaintiff had been on worker's compensation leave since March 24, 1997, except when she returned to work on "light-duty" from January 23, 1998 to March 3, 1998. Voorhaar stated that the most recent disability certificate he had received from Plaintiff's doctor failed to indicate when she would be able to return to work. He further stated:
Plaintiff's memorandum in support of her opposition motion states that this injury occurred in 1997. However, during the deposition of Dr. Paul Griffith, Plaintiff's personal physician, counsel stated that Plaintiff's knee injury occurred in 1995. Paper no. 56, Defendants' exhibit 35 at 11.
I request that you take appropriate action to as certain if and when Dfc. Haynie will be able to return to full duty as a Deputy Sheriff. If she will not be able to return to full duty, then consideration needs to be given to retiring her. I remind you that Dfc. Haynie has an active EEOC discrimination complaint filed in the US District Court, Baltimore, Maryland against Captain James K. Raley, Jr, and myself.
Paper no. 83, Plaintiff's exhibit 17. McClintock noted in his deposition that the statement was irrelevant to any action he was asked to take in the letter. Id., Plaintiff's exhibit 16 at 76-78.
Plaintiff asserts that this statement is proof that Voorhaar intended to retaliate against her. Defendants, however, argue that the statement is vague and not probative of discrimination. Voorhaar contends that he made the statement only as "a reminder that the case was going on independent of this [retirement issue]." Id., Plaintiff's exhibit 7 at 63. The court agrees that Voorhaar had no reason to include this statement in the letter. Nevertheless, Defendants assert, and Plaintiff does not dispute, that unlike male officers who took disability leave, Plaintiff never indicated when she might return to work or whether she even wanted to return. Thus, it was not necessarily adverse that she was asked to take an IME or to consider retirement, when male officers with whom she was not similarly situated were not asked to do the same. Moreover, it is undisputed that in February 1999, Plaintiff's own doctor declared her permanently disabled, and noted that her disabling conditions were long term and that she would not be able to perform the full range of her duties. Paper no. 56, Defendants' exhibit 35 at 43. Thus, Plaintiff's own injuries forced her to retire, not any adverse action by Defendants. Consequently, her retaliation claim fails.
D. Claims against the County
The County asserts that if the court grants summary judgment in favor of the individual Defendants, that it too is entitled to summary judgment. Plaintiff opposes the County's motion "on the same grounds set forth in" her opposition motion and memorandum to the individual Defendants' motion. Plaintiff also opposes the motion as untimely under the court's scheduling order. The court will nevertheless consider the motion.
Counts I and II, respectively, of Plaintiff's first amended complaint are Title VII disparate treatment and retaliation claims against the County. Plaintiff maintains that she is a County employee, and seeks to hold it liable for Voorhaar and Raley's actions. Because Plaintiff has failed to prove her disparate treatment or retaliation claims against the individual Defendants, summary judgment is granted in favor of the County as to counts I and II as well.
IV. Conclusion
For the foregoing reasons, the court shall grant the motions for summary judgment of the individual Defendants and the County and grant Plaintiff's motion for leave to file a surreply in opposition to the individual Defendants' motion for summary judgment.
A separate Order will be entered.
ORDER
In accordance with the accompanying Memorandum Opinion, IT IS this day ___ of February, 2001, by the United States District Court for the District of Maryland, ORDERED that:
1. The Motion by Plaintiff Sharon L. Haynie, for leave to file Surreply brief in opposition to Defendants Captain James K. Raley, Jr. and Sheriff Richard J. Voorhaar's Summary Judgment Motion BE, and the same hereby IS, GRANTED;
2. The Motion for Summary Judgment by Defendants Captain James K. Raley, Jr. and Sheriff Richard J. Voorhaar BE, and the same hereby IS, GRANTED;
3. The Motion for Summary Judgment by Defendant Board of County Commissioners of St. Mary's County BE, and the same hereby IS, GRANTED;
4. Judgment BE, and the same hereby IS, ENTERED in favor of Defendants Captain James K. Raley, Jr., Sheriff Richard J. Voorhaar, and the Board of County Commissioners of St. Mary's County and against Plaintiff Sharon L. Haynie; and
5. The Clerk is directed to transmit a copy of the Memorandum Opinion and this Order to counsel for both parties and CLOSE this case.