Opinion
Civil No. CCB-04-1.
March 31, 2005
MEMORANDUM
Dawn Bystry filed a complaint alleging that she was unlawfully discriminated against by her employer, Verizon Services Corp. ("Verizon"), on the basis of sex in violation of Title VII of the Civil Rights Act of 1964, and that Verizon violated Maryland's Wage Payment and Collection Law. In addition, Bystry alleges that she was defamed by Verizon and two of its employees, Linda Pabst and John Hundertmark. In response, Verizon, Pabst, and Hundertmark have denied the claims and have filed motions for summary judgment. Having reviewed the parties' briefs, I have concluded that Bystry has failed to produce evidence indicating that Verizon discriminated against her on the basis of sex; a genuine issue of material fact exists concerning the allegedly defamatory statements made by Pabst and Hundertmark; and a genuine issue of material fact exists concerning whether Verizon owes Bystry her performance bonus under Maryland's Wage Payment and Collection Law. Accordingly, Verizon's motion for summary judgment will be granted with respect to Bystry's sex discrimination claim (Count I); denied with respect to Bystry's defamation claims (Counts II, III, and IV); and denied with respect to Bystry's Wage Payment and Collection Law claim (Count V).
The defamation and wage payment claims are before the court pursuant to its supplemental jurisdiction. See 28 U.S.C. § 1367.
BACKGROUND
Bystry served as an employee for Verizon from 1986 until January 22, 2003, when she was terminated. While employed she received excellent evaluations and was considered an "emerging talent." (Pl.'s Reply in Opp. to Summ. Judg. ("Pl.'s Opp.") Exs. 2-4). At the time she was terminated, Bystry was serving as a manager at the Regional CLEC Coordination Center MidAtlantic ("RCCC"). ( Id. Ex. 1 ¶ 3).
Shortly before her termination but after the relevant facts occurred, Bystry was selected for transfer to Verizon's Silver Spring, MD office.
The problems encountered by Bystry stem from her actions with respect to another employee, Rafael Javier. Javier temporarily served in a management position as a team leader under Bystry's supervision but in April 2002 was returned to his non-management position with a lower salary. Because she felt Javier was a strong team leader and was concerned about the reduction in his compensation, Bystry assigned Javier to a permanent Management Relief ("MR") position, which resulted in an additional $10 a day. ( Id. ¶¶ 10-12). This position was created because two team leaders under Bystry, Gary Wright and Gary Sklar, requested additional help. ( Id. Ex. 9 at 31-32). At the meeting where she announced Javier's MR position, Bystry made a statement to the effect of "we'll take care of you" to Javier. ( Id. Ex. 1 ¶ 14). Bystry claims she made this statement because she was concerned about his return to the lower paying position. Soon after, Javier told Bystry that he was being paid incorrectly because payroll had failed to credit him properly for union wage credits based on seniority he had earned working for a subsidiary of Verizon. ( Id. Ex. 1 ¶¶ 15-31). Javier also told Bystry that he currently had a grievance pending regarding his seniority that would soon be approved. ( Id. ¶¶ 22, 25, 28). Based on Bystry's experience with Verizon, she believed that Javier was entitled to the additional credits. ( Id. ¶¶ 18-28). To fix the problem, Bystry advised Javier to make up this lost pay on his timesheet by using a "TI" code because it most closely matched what she believed he was entitled to be paid. ( Id. ¶¶ 29, 34). Bystry advised Sklar and Wright to approve these changes and instructed them that Javier was entitled to pay at a higher union grade in order to correct the earlier mistake. They went along with her instructions. ( Id. ¶¶ 33-34). At his deposition, Wright said that he did not know what he was approving but did so because he was told to by Bystry. ( Id. Ex. 9 at 18). In addition, Bystry explained the situation to Mary Gemill, the union shop steward, and Gemill told Bystry that she had no problem with the adjustments to Javier's pay. ( Id. Ex. 1 ¶ 43; Ex. 23 at 27-28).
While there is some dispute over exactly what Bystry said, the general consensus seems to be that Bystry told Javier he would be taken care of. ( Id. Ex. 10 at 11-12; Ex. 11 at 15; Ex. 12 at 34; Ex. 14 at 11; Ex. 15 at 145).
Wright noted that he had no reason to believe Bystry knowingly directed him to make false payments. ( Id. Ex. 9 at 39).
At one point, Javier recognized that he received an additional $20.80 in pay that he was not entitled to receive, and he notified Bystry of this error. She did not make any effort to recover this money, however, because she thought it would cost more administratively to make the change for such a small amount. ( Id. Ex. 1 ¶¶ 49-55).
At some point after Bystry made these adjustments to Javier's pay, Robert Jacobs, Verizon's Security Director in Boston, received an anonymous letter claiming that Bystry was giving Javier preferential treatment. ( Id. Ex. 27 at 536). This letter was forwarded to Bystry's supervisor, Carducci, who questioned Bystry about it. Bystry explained that she made the changes so that Javier would be compensated appropriately, because there had been an error regarding his pay and seniority. ( Id. Ex. 1 ¶¶ 74-75; Ex. 7 at 31, 41-44, 167-68). After her discussion with Carducci, Bystry continued to make the additional payments to Javier, because she claims she still believed that Javier was entitled to it. ( Id. Ex. 1 ¶ 78). There is no evidence that Carducci told Bystry to stop the additional payments.
In connection with a union grievance related to Javier's additional MR pay, on September 24, 2002, Donna McCreer, a team leader supervised by Bystry, told Bystry that she was not sure if Javier was entitled to the extra pay. McCreer asked Bystry if she should check with HR to see if the pay was correct and Bystry said yes. ( Id. Ex. 1 ¶¶ 100-01). Soon after, McCreer advised Bystry that Javier had incorrectly informed Bystry about his seniority and was being overpaid. ( Id. Ex. 19 at 129). McCreer told Bystry that she was "screwed." ( Id. at 176). Bystry immediately replied, "I swear to God Donna, that's what he told me." ( Id. at 177). As it turned out, the changes made by Bystry to Javier's status and pay were erroneous and Javier was not entitled to the extra pay. Bystry claims that she was not aware of her error until McCreer's conversation with her in September, and, following this notification, she immediately ceased the additional payments to Javier and notified the union. ( Id. at 130, 178). In addition, Bystry notified Carducci of her error. ( Id. Ex. 35; Ex. 1 ¶ 103).
In addition to the extra pay, Bystry gave Javier an additional week of vacation time that he was not entitled to receive. ( Id. Ex. 1 ¶¶ 56-60). Again, Gemill thought Bystry's interpretation of the rules was accurate and that Javier was entitled to the additional vacation time. ( Id. Ex. 23 at 13).
Verizon notes that even after she learned of her mistake, Bystry failed to take immediate action to recoup the overpayments to Javier. (Def.'s Mot. for Summ. Judg. ("Def.'s Mot.") Ex. 26; Ex. 7 at 234-35). It took Bystry almost two months from the time she became aware of her error to begin to recover the overpayments from Javier. Bystry claims that she did not attempt to recover the money immediately because she was awaiting the result of the pending grievance on Javier's MR pay. (Pl.'s Opp. Ex. 1 ¶ 112). Bystry also states that as soon as she was told to recoup the money from Javier, she immediately did so. ( Id. ¶ 114).
Bystry believes that two individuals, Linda Pabst and Donna McCreer, conspired against her at Verizon and sought to have her terminated. There were a variety of reasons why Bystry believed McCreer disliked her. Most notably, Bystry claims that McCreer disliked her because McCreer believed she was having an affair with Eli Diaz, a former supervisor of Bystry's, and that Bystry was "screwing her way to the top." ( Id. Ex. 16 at 101-02, 360-61; but see Ex. 19 at 49, 247). Similarly, Pabst told security investigators in a later interview that she believed Bystry had been involved in a sexual relationship with Diaz and was "screwing her way to the top." ( Id. Ex. 16 at 360-61).
Bystry attempts to portray McCreer as a good friend of Pabst's. While the closeness of this friendship is not clear, McCreer did attend Pabst's 50th birthday party. ( Id. Ex. 55 at 427; Ex. 21 at 33).
Bystry believed McCreer disliked her because of Bystry's investigation into McCreer's treatment of an African-American employee; ( id. Ex. 1 ¶¶ 79-81), Bystry's opposition to McCreer's attempt to take Shirley Shepperson's job, ( id. ¶ 82; Ex. 31 at 82-83), and Bystry's low evaluations of McCreer. ( Id. Ex. 1 ¶ 86). Furthermore, McCreer complained to Pabst that Bystry was out to get her. ( Id. Ex. 19 at 242-43; Ex. 32 at 430). According to Bystry, McCreer had a reputation for trying to get others in trouble, and one Verizon employee warned Bystry that McCreer was out to get her. ( Id. Ex. 12 at 15-17).
Bystry claims that in her attempt to destroy her, McCreer used Gemill to start a complaint. McCreer advised Gemill of the inappropriate pay given to Javier by Bystry and told her that she should be reported to Pabst, the primary Security representative in the building. Gemill did nothing with this information for six weeks, even though McCreer repeatedly asked Gemill if she had contacted Pabst yet. ( Id. Ex. 23 at 10-15). Company policy requires reporting such allegations and as McCreer's pressure continued, Gemill finally contacted Pabst because she was worried that she might get in trouble. ( Id. at 21). Once Gemill contacted Pabst, Pabst responded that she had been expecting her call. ( Id. at 22-23). Gemill believes that she was "set up" to report on Bystry. ( Id. at 45).
Following Gemill's call, Pabst commenced an investigation of Bystry. Her investigation led her to conclude that Bystry "knowingly authorized overpayments" of $1,632.60 to Javier, directed Sklar and Wright to approve the false time sheets "knowing they were fraudulently prepared," granted Javier "five days of excused paid time to which he was not entitled," and improperly disclosed "proprietary information." ( Id. Ex. 40 at 193).
Pabst's investigation contained numerous inconsistencies and flaws. For example, Pabst attributed numerous negative statements about Bystry to witnesses who deny making those statements. Pabst also misstated what Bystry reported in her contemporaneous interview, and she failed to consider Bystry's explanation or consider documents produced by Bystry. ( Compare id. Ex. 40 at 198 with Ex. 1 ¶ 107-08; Ex. 35; Ex. 40 at 212-14). Finally, Pabst made significant errors with respect to information provided by Lucetta McKenzie-Durham and Brooke Gallagher. For example, Pabst's Final Investigative Report ("FIR") states that McKenzie-Durham told Bystry in May 2002 that Javier's pay was correct. ( Id. Ex. 40 at 0197). In reaching this conclusion, however, Pabst apparently relied on an email from McKenzie-Durham to Bystry that does not support her conclusion. ( Id. Exs. 24-25). McKenzie-Durham has explained she did not inform Bystry that Javier was not entitled to an additional six months of wage credit seniority because she did not even know it was an issue. ( Id. Ex. 42 at 58, 62). Similarly, the FIR indicates that Gallagher informed Bystry that she was wrong to grant Javier the additional wage credits. ( Id. Ex. 40 at 197-98). Gallagher's statement, however, is somewhat less clear. While he told Bystry he disagreed with her decision, it is not clear he knew the pay was incorrect. ( Id. Ex. 49 at 143). In addition, the FIR failed to indicate Gallagher's bias towards Bystry.
In her report, Pabst attributed a number of statements to coworkers who denied ever making those statements to Pabst. For example, Pabst reported that Judy Grisso told her that Bystry had an affair with her former boss, Diaz. Grisso denies making these statements. ( Id. Ex. 17 at 86, 134). Pabst also said that Grisso told her an anonymous coworker complained to her about Javier's pay, while Grisso claims she told Pabst that it was McCreer who complained to her. ( Id. Ex. 17 at 110-111). Bystry argues this is an example of Pabst trying to cover up McCreer's role in the investigation. Similarly, Pabst reported that Sklar and Dana Baird had a conversation about Javier's timesheets. Both Baird and Sklar deny this. ( Id. Ex. 21 at 29; Ex. 31 at 187-88). See id. at 29-33 (documenting other instances in the report where Pabst mischaracterizes what others said).
The email exchange was not included with the FIR. ( Id. Exs. 24-25).
Pl.'s Opp. states "Gallagher also makes it clear that at the time he spoke with Bystry he did not know that she was doing anything wrong. Gallagher explained that he was communicating to Bystry that he did not agree with Bystry's policies if in fact they later turned out to be wrong." ( Id. at 40-41). In support of this claim, Bystry cites to Gallagher's deposition, ( id. Ex. 26 at 114-17), but Bystry failed to provide those pages with her exhibits.
Gallagher told Pabst that Bystry "is the most vindictive bitch he knows." ( Id. Ex. 14 at 10).
These errors may be Pabst's most significant, because the misleading statements included in the FIR regarding McKenzie-Durham and Gallagher were relied on by the decision makers in reaching the final decision to terminate Bystry. ( Id. Ex. 45 at 31-36; Ex. 47 at 66-68; Ex. 48 at 154-55). Furthermore, by failing to include information about Gallagher's bias, Bystry argues that the FIR presented a misleading factual picture to the ultimate decision makers, which made it less likely that readers of the FIR would recognize Gallagher's contradictory statements. ( Id. at 39-41).
Bystry has admitted that she made a mistake, primarily in trusting Javier and not verifying that what he told her was correct. But she adamantly denies that she knowingly overpaid him. In addition to the errors made by Pabst in her investigation, there is significant evidence supporting Bystry's claim that she did not knowingly overpay Javier. Bystry claims this evidence was ignored by Pabst in her report. For example, Bystry sent Carducci an email on September 27, 2002 upon learning about the Javier error that seems to provide a contemporaneous explanation for how the mistake was made. ( Id. Ex. 35). Similarly, Bystry's reaction of surprise when McCreer informed her of the error and told her that she was "screwed" indicates that Bystry did not knowingly make the mistakes she was found to have made in the FIR.
For example, Wright provided Pabst with a statement that "Bystry is a good leader and manager and I have never seen her perform a dishonest act," which was not included in Pabst's report. ( Id. Ex. 8 at 158).
In her email to Carducci, Bystry admits she made a mistake and explains how she made the error. ( Id. Ex. 35). Bystry also recognizes that some form of punishment may be warranted, stating "if you want to give me the [Reduction In Force] over this, I understand . . ." (Id. at 729.) Bystry's email, however, contains no admission that she knowingly overpaid Javier, or that she expected to be terminated for fraud. ( Id. Ex. 35).
The FIR was compiled by Pabst and provided to Mary Leone, the Employee Relations Group ("ERG") Director, as well as the other members of the ERG, Lavonne Norwood and Juliet Patterson, who handled Bystry's disciplinary case. Verizon's termination process is designed to standardize discipline. ( Id. Ex. 45 at 9-10). First, the ERG is supposed to recommend discipline based on the FIR. Then, this recommendation is shared with the employee's management team for acceptance or rejection. The second step is known as the Verizon Corrective Action Advisory Committee ("VCAAC"). ( Id. at 70).
Led by Leone, the ERG recommended that Bystry be terminated. ( Id. Ex. 75 at 426). The ERG's termination recommendation was then presented to Bystry's management team, which consisted of Carducci, Senior Vice-President of Wholesale Tom Maguire, and HR Manager Susan Powderly. Patterson's notes indicate that a lesser penalty was considered by Bystry's management and that other alternatives to termination were within their authority. ( Id. Ex. 45 at 76). Diaz, a Senior Director for Maguire, advised Maguire that he disagreed with the termination decision and that he thought some other punishment would be appropriate. ( Id. Ex. 5 at 27-28). Diaz stated that Maguire told him he was going to go back to the committee to oppose Bystry's termination based on Diaz's recommendation. After the decision to terminate Bystry was made Maguire told Diaz, "I went to bat [for Bystry] but I can't do no more." ( Id. at 40-41).
Ordinarily, the ERG provides mitigating and aggravating factors along with its recommendation. ( Id. Ex. 59). Though a number of mitigating factors arguably existed, Leone did not include any because she believed, based on the FIR, that Bystry knowingly made the errors. ( Id. Ex. 48 at 162-63).
The facts indicate that, of the three, Maguire was the leader.
John Hundertmark served as Pabst's supervisor during her investigation, but he had no formal role in the ERG or VCAAC. Pabst communicated to Hundertmark that there were rumors that Bystry was involved in a sexual relationship with Diaz. In addition, Pabst told Hundertmark that Bystry was hated by her coworkers. (Pl.'s Opp. Ex. 20 at 417; Ex. 53 at 453; Ex. 55 at 431). Hundertmark passed this information along to Leone. In fact, though he was not supposed to be part of the process, Hundertmark called Leone a number of times regarding Bystry's sexual relationship with Diaz and her termination. ( Id. Ex. 39 at 39-42). At the time when Maguire was going to bat for Bystry, Leone and Hundertmark had a conversation about the "push back" they were getting from Bystry's management. ( Id. Ex. 41 at 161-63; Ex. 54 at 433). Leone admits that it was inappropriate for Hundertmark to contact her regarding the investigation. ( Id. Ex. 48 at 110-112, 119-120).
The only evidence indicating that such a relationship existed were the rumors themselves, if they existed. Hundertmark stated that he had heard rumors of inappropriate activity between Javier and Bystry, ( id. Ex. 41 at 135-36), and claims to recall hearing from Pabst that a woman, he believes it was Grisso though she denies it, overheard a conversation in a bathroom indicating that Bystry may have been involved in an inappropriate relationship. ( Id. at 194-97). In Diaz's deposition, he noted that if there were any rumors, they probably came from his assistant, Odesta Turner. Diaz stated he had heard that when female employees called his office, including Bystry, Turner would tell them to give up trying for him because he was a married man. Diaz, however, noted that Turner did this with others who called and with others she worked for as well. (Def.'s Ex. 70 at 69-72).
This allegation was not substantiated in Pabst's interviews, and the depositions of Bystry's coworkers indicates that none of them communicated this opinion to Pabst.
Soon after the "push back" conversation between Hundertmark and Leone, Leone held a conference call with Bystry's management team and the decision to fire Bystry was finalized. According to Carducci, who was present for the call, Bystry's management team discussed lesser discipline, but Leone made a strong recommendation in favor of termination, stating that "a case like this has never been overturned" and that "these cases justify termination." ( Id. Ex. 75 at 426). Based on Leone's recommendation, Carducci believed she had no choice and that termination was the only option. ( Id. Ex. 7 at 196-97). Following the termination decision, Diaz told Bystry that Maguire "pursued it as far he as could." ( Id. Ex. 5 at 42-43). In his deposition, Maguire stated that he relied on Leone's termination recommendation. ( Id. Ex. 47 at 19). On Leone's notes from the conference call, she wrote "Elijah Diaz-old mgr/dir (prior relationship)." ( Id. Ex. 76). The notation, which Leone did not explain, ( id. Ex. 48 at 276-77), indicates that Leone's conversations with Hundertmark about the alleged relationship between Bystry and Diaz may have played a role in Leone's termination recommendation.
Verizon also investigated and terminated Javier. As to Javier, the investigation concluded that he fraudulently received additional compensation "due to erroneous wage credit information he provided to [Ms. Bystry]." ( Id. Ex. 40 at 193).
Following her termination, Bystry submitted a complaint to Verizon regarding the actions taken during the initial investigation by Pabst and about Hundertmark's improper contact with Leone. ( Id. Ex. 20). As a result, Verizon conducted a second investigation, which concluded that Pabst's investigation of Bystry was "incomplete and sloppy" (Def.'s Mot. Ex. 53 at 8769) and that Hundertmark should avoid contact with the VCAAC in the future. ( Id. Ex. 52 at 8765). James Kramarsic, the Director of Security at Verizon and Hundertmark's supervisor, told investigators that Hundertmark told him that Bystry and Javier were sleeping together, that everyone in Bystry's work group hated her, and that Hundertmark improperly revealed this information to Leone. (Pl.'s Opp. Ex. 53 at 453). Kramarsic determined that Hundertmark seemed to have a personal interest in the case. ( Id.). Hundertmark admits that he made these statements because there was "push back" from Bystry's management over the termination recommendation. ( Id. Ex. 54 at 433). The second investigation, however, concluded that these errors did not affect the outcome of the Bystry investigation. (Def.'s Mot. Exs. 37, 50).
Verizon provides a year end performance bonus to employees based on their performance evaluation. These performance evaluations are based on objectives set forth earlier in the year. (Pl.'s Opp. Ex. 1 ¶¶ 157-58; Pl.'s Surreply Ex. 2 ¶ 7). Employees who receive a final evaluation of DN, which stands for Does Not Meet Position Requirements, are not eligible for a bonus. (Def.'s Mot. Ex. 71 ¶ 4). Carducci and Bystry agreed on six performance objectives for Bystry for 2002. As of January 22, 2003, Carducci had completed a draft of Bystry's 2002 appraisal, which indicated that Bystry had met these objectives and her overall evaluation was VE for Very Effective. (Pl.'s Opp. Ex. 4). This would have entitled Bystry to a bonus if it was submitted as Bystry's final evaluation. Carducci drafted this evaluation for Bystry after she was aware of Bystry's errors with respect to Javier's pay. (Def.'s Reply Ex. 2 at 303-04).
Bystry claims that she received a document concerning the Verizon Incentive Plan that stated "[a]t the beginning of each year, you and your supervisor will establish your individual performance objectives. At the end of the year, your supervisor will determine your VIP award based on how well you performed against those objectives." (Pl.'s Surreply Ex. 2 ¶ 7).
Bystry's motion for leave to file surreply will be granted, but only to the extent of considering exhibits that respond to Verizon's reply.
Once Carducci realized that Bystry would be terminated, however, she realized she might need to alter Bystry's performance evaluation. ( Id. Ex. 1 ¶ 3). Carducci spoke with Powderly about how Bystry's termination should be reflected in her evaluation and, based on the advice she received, Carducci changed the evaluation. ( Id. ¶ 4). Bystry's final and official performance evaluation for 2002 rated her as DN. (Def.'s Mot. Ex. 72). It is not clear on what date Carducci revised Bystry's evaluation to reflect her performance as DN. (Def.'s Reply Ex. 2 at 296, 309-12). Based on her final evaluation of DN, Bystry did not receive a performance bonus.
Verizon argues that the change was made before Bystry was terminated while Bystry suggests it was adjusted after her termination. It is not disputed, however, that Carducci made this change at some point after she learned that Bystry would be terminated.
In her attempt to show that she was discriminated against based on her gender, Bystry claims a number of male employees at Verizon were not treated as harshly for similar or more serious acts. (Pl.'s Opp. at 56-65). The primary example Bystry focuses on is Phillip Rhodes, a male. Rhodes admitted to knowingly falsifying company records and overpaying another employee by more than the amount that Javier was overpaid, yet Rhodes was not terminated. ( Id. Ex. 60). In response, Verizon argues that the employees listed by Bystry did not commit similar violations, and provides examples of male employees who were terminated for the falsification of records, even when they did not receive personal financial benefits. (Def.'s Reply Exs. 3-4; Def.'s Mot. Exs. 64-67). Verizon also introduces evidence of numerous females who committed offenses similar to Bystry's who were not terminated. (Def.'s Reply Exs. 6, 9, 10, 11, 12, 14, 15, 17).
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
"A party opposing a properly supported motion for summary judgment 'may not rest upon the mere allegations or denials of [his] pleadings,' but rather must 'set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
I. Gender Discrimination Claim Under Title VII
Bystry claims that she suffered gender discrimination in violation of Title VII. A plaintiff may defeat a defendant's motion for summary judgment and establish a claim for intentional sex discrimination through either the "mixed-motive" or "pretext" methods of proof. See, e.g., Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir. 2004) (en banc). Under the mixed-motive method, a plaintiff avoids summary judgment by introducing sufficient direct or circumstantial evidence for a reasonable jury to conclude that an impermissible factor actually motivated an adverse employment decision. See id. at 286 (stating that a plaintiff "need not demonstrate that the prohibited characteristic was the sole motivating factor to prevail, so long as it was a motivating factor. . . . It is sufficient for the individual to demonstrate that the employer was motivated to take the adverse employment action by both permissible and forbidden reasons."); see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003).
"In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman." Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989).
Under the traditional "pretext" method of proof, a plaintiff establishes her claim under the burden-shifting scheme articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To demonstrate a prima facie case of sex discrimination under the pretext framework, Bystry must show that (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered an adverse employment action; and (4) similarly situated employees outside her protected class were treated more favorably. Frank v. England, 313 F.Supp.2d 532, 538 (D. Md. 2004); Carson v. Giant Food, Inc., 187 F.Supp.2d 462, 484 (D. Md. 2002); Hill, 354 F.3d at 285. Once the plaintiff establishes a prima facie case of unlawful discrimination, the burden of production then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Hill, 354 F.3d at 285. If the defendant articulates such an explanation, the burden shifts back to the plaintiff to show that the proffered reason is a pretext for impermissible discrimination. Id.
"At this point, the burden to demonstrate pretext 'merges with the ultimate burden of persuading the court that the plaintiff has been the victim of intentional discrimination.'" Id. (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)). To survive summary judgment, the plaintiff must show that the defendant's non-discriminatory explanation is "unworthy of credence" or offer "other forms of circumstantial evidence sufficiently probative" of discrimination. Mereish v. Walker, 359 F.3d 330, 336 (4th Cir. 2004). "In other words, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's stated reasons 'were not its true reasons, but were a pretext for discrimination.'" Hill, 354 F.3d at 285 (quoting Reeves v. Sanderson, 530 U.S. 133, 143 (2000)). The plaintiff must present admissible evidence that is more than selfserving opinions or speculation. See McCain v. Waste Mgmt., Inc., 115 F.Supp.2d 568, 574 (D. Md. 2000).
The Fourth Circuit has made it clear that an employer is not liable for all of the discriminatory acts of its employees. Hill, 354 F.3d at 287-91. Following the Supreme Court's guidance in Reeves, 530 U.S. at 151-2, Hill noted that to establish liability under Title VII,
the person allegedly acting pursuant to a discriminatory animus need not be the 'formal decisionmaker' to impose liability upon an employer for an adverse employment action, so long as the plaintiff presents sufficient evidence to establish that the subordinate was the one 'principally responsible' for, or the 'actual decisionmaker' behind, the action.Hill, 354 F.3d at 288-289 (quoting Reeves, 530 U.S. at 151-52). Hill concluded the issue by stating that
an employer will be liable not for the improperly motivated person who merely influences the decision, but for the person who in reality makes the decision. . . . In sum, to survive summary judgment, an aggrieved employee who rests a discrimination claim under Title VII. . . . upon the discriminatory motivations of a subordinate employee must come forward with sufficient evidence that the subordinate employee possessed such authority as to be viewed as the one principally responsible for the decision or the actual decisionmaker for the employer.Hill, 354 F.3d at 291.
When viewing the facts in the light most favorable to Bystry, the evidence indicates that the rumors of her alleged affair with Diaz were a motivating factor in Leone's decision to recommend Bystry's termination. Nonetheless, the conclusion that rumors of sexual conduct played a role in the adverse employment action is not sufficient to establish a claim under Title VII. Title VII prohibits discrimination on the basis of gender, but it does not prohibit employment decisions made on the basis of sexual activity or orientation. See Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (stating "Title VII does not proscribe harassment simply because of sexual orientation"); Hopkins v. Baltimore Gas Elec. Co., 77 F.3d 745, 751-52 (4th Cir. 1996) (stating "in prohibiting sex discrimination solely on the basis of whether the employee is a man or a woman, Title VII does not reach discrimination based on other reasons, such as the employee's sexual behavior, prudery, or vulnerability"); DeCintio v. Westchester County Medical Center, 807 F.2d 304, 306-07 (2nd Cir. 1986) (holding that sex under Title VII refers "to membership in a class delineated by gender, rather than sexual activity"). Consequently, Bystry's claims cannot rely solely on the fact that she may have been discriminated against based on rumors about her sexual activity.
While discrimination on the basis of sexual activity is not prohibited, discrimination on the basis of gender stereotypes is prohibited by Title VII. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251-55 (1989) (holding that Title VII bars discrimination on the basis of gender stereotypes and stating "[i]n forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes"); Higgins, 194 F.3d at 261 n. 4.
Following Price Waterhouse, a few courts have discussed whether employment decisions related to sexual rumors amount to impermissible gender discrimination based on gender stereotypes. Bystry relies on Spain v. Gallegos, 26 F.3d 439, 441-45 (3rd Cir. 1994) and Jew v. University of Iowa, 749 F.Supp. 946, 958-61 (S.D. Iowa 1990) to support her Title VII claim. Spain had been the subject of sexual rumors at work, and the court held that "a reasonable jury could conclude that Spain suffered the effects she alleges because she was a woman." Spain, 26 F.3d at 448. Similarly, Jew, 749 F.Supp. at 960-61, held that sex was a "motivating fact or played a significant role" in the department's decision not to promote Jew because of rumors that she was using a sexual relationship "to gain favor, influence, and power" with a superior. Jew, 749 F.Supp. at 958. Cf. Jackson v. Texas A M University System, 975 F.Supp. 943, 946-48 (S.D. Tex. 1996) (holding that despite sexual rumors about her at work, the "Plaintiff has failed to establish a prima facie case of sexual harassment, because she has proffered no evidence of discrimination on the basis of her sex).
Bystry's situation is distinguishable, because the plaintiffs in Spain and Jew were the victims of sexual harassment and subject to a hostile working environment. Spain, 26 F.3d at 446-52; Jew, 749 F.Supp. at 958-60. Bystry does not allege that she was harassed on the basis of gender or subject to a hostile work environment. In addition, Bystry's situation is distinguishable because she has not produced any evidence that her gender played a motivating role in the creation of the rumors or in Verizon's termination decision. See Jackson, 975 F.Supp. at 946-48. Unlike Bystry, the plaintiff in Jew was the subject of derogatory gender specific comments and the decision makers in Jew were aware of rumors that Jew was using sex to advance her position. Jew, 749 F.Supp. at 948-49, 958-61.
While sexual activity is often related to gender, liability under Title VII must be based on gender discrimination: discrimination based solely on sexual activity or rumors of sexual activity is insufficient. Though Bystry has produced evidence that the sexual rumors may have played a motivating role in Verizon's decision to fire her, she has failed to offer evidence indicating that the decision makers at Verizon were motivated by gender or gender stereotypes. Consequently, Bystry has failed to meet her burden under the mixed-motive method of proof.
Verizon argues that Maguire, who was unaware of the sexual rumors, was the actual decisionmaker. (Def.'s Mot. at 24-26). Bystry claims that Leone and Hundertmark were the decisionmakers and that Maguire merely served as a rubber stamp for Leone's recommendation. (Pl.'s Opp. at 110-114). Because Hundertmark had no authority over the termination decision, he cannot be regarded as a decisionmaker. Leone, however, could be considered a decision maker because there is substantial evidence that she "possessed such authority as to be viewed as the one principally responsible for the decision or the actual decisionmaker for the employer." Hill, 354 F.3d at 291. Consequently, Leone's knowledge of the sexual rumors will be considered.
The comment made by Pabst, and perhaps by McCreer, that Bystry was "sleeping her way to the top" does reflect antiquated gender stereotypes. If these statements were made by a decision maker at Verizon, Bystry would have a more persuasive argument that Verizon's decision was based on impermissible gender stereotypes. Neither Pabst nor McCreer, however, had actual decision making power or authority. Nor did they communicate this particular statement to Leone or Maguire. As a result, even if Pabst or McCreer acted with impermissible motives, Verizon cannot be held liable for their actions under Title VII. See Hill, 354 F.3d at 287-91.
Furthermore, it is reasonable to conclude that if Bystry were a man and rumors were circulating that he had been involved in a sexual relationship with a member of his management team, Leone would still have been concerned about preferential treatment and push back. Though the rumors may have been false, Leone was aware of the rumors and, as a result, regardless of whether Bystry was a man or a woman, Leone was concerned about the push back and its motivation. This situation is similar to Winsor v. Hinckley Dodge, Inc. 79 F.3d 996, 1001 n. 1 (10th Cir. 1996), which stated "although there was a sexual content to the rumors of a relationship between plaintiff and the sales manager, and the statements attributing her success to such a relationship, the district court's finding that the rumors and comments were gender neutral is not clearly erroneous. . . . It appears that such rumors and inferences would have occurred even if the roles were reversed and plaintiff were male."
Similarly, Bystry's claim fails under the pretext method of proof because she has failed to establish a prima facie case of gender discrimination. Even assuming that she was performing her job satisfactorily, Bystry has failed to show that similarly situated employees outside her protected class were treated more favorably. The males mentioned by Bystry were not similarly situated. Rhodes is the most similar example provided by Bystry but his error was confined to a single incident, (Def.'s Mot. Ex. 57), as opposed to the numerous incorrect time sheets authorized by Bystry over a period of months. Because Bystry has not produced evidence of similarly situated male employees, she has failed to establish a prima facie case of gender discrimination.
Diaz suffered no adverse employment action resulting from the rumors that he and Bystry were engaged in a sexual relationship. Bystry claims that the disparity in treatment between herself and Diaz indicates that she was discriminated against on the basis of gender. This argument is unpersuasive because, unlike Bystry, Diaz did not incorrectly overpay another employee and was not being investigated for errors in his work performance.
Bystry has failed to meet her burden under both the pretext and mixed motive methods of proof. Consequently, Verizon's motion for summary judgment will be granted with respect to Bystry's Title VII gender discrimination claims.
II. Defamation Claims
To establish a prima facie case of defamation under Maryland law,
a plaintiff must ordinarily establish that the defendant made a defamatory statement to a third person; that the statement was false; that the defendant was legally at fault in making the statement; and that the plaintiff thereby suffered harm.Gohari v. Darvish, 363 Md. 42, 54, 767 A.2d 321, 327 (2001) (quoting Rosenberg v. Helinski, 328 Md. 664, 675, 616 A.2d 866, 871 (1992)). "A defamatory statement is one 'which tends to expose a person to public scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or associating with, that person.'" Gohari, 363 Md. at 54, 767 A.2d at 327 (quoting Rosenberg, 328 Md. at 675, 616 A.2d at 871).
Maryland courts recognize a common law qualified privilege where an individual "publishes a statement in good faith in furtherance of . . . interests shared with others. . . ." Mareck v. Johns Hopkins University, 60 Md.App. 217, 224, 482 A.2d 17, 21 (Md. Ct. of Spec. App. 1984), cert. denied, 302 Md. 288, 487 A.2d 292 (1985) (citing case examples). The qualified privilege is available in the context of an employer-employee relationship, Happy 40, Inc. v. Miller, 63 Md.App. 24, 31, 491 A.2d 1210, 1214 (Md. Ct. of Spec. App. 1985) (listing cases), but may be used only where the defamatory statement was made in a "reasonable manner and for a proper purpose." Mareck, 60 Md.App. at 224, 482 A.2d at 21.
"Common interests are usually found among members of identifiable groups in which members share similar goals or values or cooperate in a single endeavor. . . . The idea is to promote free exchange of relevant information among those engaged in a common enterprise or activity and to permit them to make appropriate internal communications and share consultations without fear of suit. . . ." Gohari, 363 Md. at 58, 767 A.2d at 329 (quoting DAN B. DOBBS, THE LAW OF TORTS, § 414 at 1160-61 (2000)).
"Communications arising out of the employer-employee relationship 'clearly enjoy a qualified privilege.'" Gohari, 363 Md. at 56, 767 A.2d at 328 (quoting McDermott v. Hughley, 317 Md. 12, 28, 561 A.2d 1038, 1046 (1989)).
Unlike absolute privileges, qualified privileges can be lost in circumstances where:
(1) the publication is made with malice, that is, with 'knowledge of falsity or reckless disregard for truth . . .'; (2) the statement was not made in furtherance of the interest for which the privilege exists; (3) the statement is made to a third person other than one 'whose hearing is reasonably believed to be necessary or useful to the protection of the interest . . .'; and (4) the statement includes defamatory matter not reasonably believed to be in line with the purpose for which the privilege was granted.Mareck, 60 Md.App. at 224-25, 482 A.2d at 21 (citations omitted). See also Szot v. Allstate Ins. Co., 161 F.Supp.2d 596, 608 (D. Md. 2001). Actual malice "is established where the plaintiff shows that the defendant published the statement in issue either with reckless disregard for its truth or with actual knowledge of its falsity." Bagwell v. Peninsula Regional Medical Center, 106 Md.App. 470, 512, 665 A.2d 297, 318 (Md. Ct. of Spec. App. 1995).
The existence of a qualified privilege is a matter of law and the question of abuse of the privilege is usually reserved for the jury. See Gohari, 363 Md. at 63-64, 767 A.2d at 332-33; Jacron Sales Co. v. Sindorf, 276 Md. 580, 600, 350 A.2d 688, 700 (1976). Courts, however, can determine whether the plaintiff has produced sufficient evidence of malice. Macy v. Trans World Airlines, Inc., 381 F.Supp. 142, 148 (D. Md. 1974); see also De Leon v. St. Joseph Hosp., Inc., 871 F.2d 1229, 1238 (1989) (affirming summary judgment where plaintiff failed to support a claim of malice in a private defamation suit). "When the evidence in the record demonstrates that the defendant had a reasonable basis for believing the truth of the statement and there is no evidence impeaching the defendant's good faith, the court must enter judgment against the plaintiff." Bagwell, 106 Md.App. at 512, 665 A.2d at 318.
Bystry alleges that she was defamed by Pabst, Hundertmark, and Verizon based on their statements that she knowingly falsified documents, (Pl. Opp. Ex. 40 at 193), that there were rumors she was involved in sexual affairs with Diaz and Javier, (Def. Ex. 33 at 350-56; Def. Ex. 35 at 46-49), and that she was hated by her co-workers. (Pl.'s Opp. Ex. 20 at 417; Ex. 53 at 453; Ex. 55 at 431). Bystry has offered material evidence indicating that these statements were false, were defamatory and communicated to a third person, and that she suffered harm as a result of the statements.
Bystry claims that Verizon is vicariously liable for the defamatory statements made by Hundertmark and Pabst because the statements were made within the scope of their employment. (Pl.'s Opp. at 104-05 (citing Sawyer v. Humphries, 322 Md. 247, 255, 587 A.2d 467, 470-71 (1991); Citizens Bank of Md. v. Md. Indus. Finishing Co., 338 Md. 448, 463, 659 A.2d 313, 320 n. 9 (1995))). While Verizon disputes that the statements made by Pabst and Hundertmark constitute actionable defamation, Verizon does not argue that it would not be vicariously liable should the statements be found actionable.
Verizon argues that the statements that Bystry falsified documents is true and, therefore, is not actionable. While Verizon is correct that Bystry submitted inaccurate documents, Pabst reported that Bystry knowingly overpaid Javier. There is a genuine dispute of fact on this issue. Verizon also argues that the statements concerning the sexual rumors are not actionable because they are true. Whether the rumors even existed, however, is a matter in dispute. See notes 17 and 35.
The defendants argue that summary judgment is appropriate because the statements are protected by the common interest privilege. The communications made by Pabst and Hundertmark arose out of their employment relationship with Verizon, were related to Verizon's investigation of Bystry, and were made to other Verizon employees who were involved in the investigation. As a result, the statements fall within the common interest privilege. See McDermott v. Hughley, 317 Md. 12, 28-29, 561 A.2d 1038, 1046-47 (1989). The common interest privilege will not protect the defendants, however, if Pabst and Hundertmark made the statements with malice. Mareck, 60 Md.App. at 25, 482 A.2d at 21. Based on the record before the court, Bystry has produced sufficient evidence that the allegedly defamatory statements made by the defendants were made with malice.
The evidence indicates that Pabst's conclusions in the FIR may have been made with "reckless disregard for its truth or with actual knowledge of its falsity." Bagwell, 106 Md.App. at 512, 665 A.2d at 318. In the FIR, Pabst concluded that Bystry "knowingly authorized overpayments" and approved Javier's time sheets "knowing they were fraudulently prepared," (Pl.'s Opp. Ex. 40 at 193), but Pabst's investigation is filled with errors and inconsistencies. For example, Pabst inappropriately relied on an email from McKenzie-Durham that did not support her conclusion, Pabst failed to accept any of Bystry's or Javier's explanations for her mistake, and Pabst failed to acknowledge either Bystry's contemporaneous reaction of surprise to McCreer when Bystry was told of her mistake in September or Bystry's subsequent email to Carducci explaining the mistake. Pabst also failed to reveal Gallagher's bias against Bystry when presenting Gallagher's statements. Verizon's own investigation into Pabst's conduct led Verizon to conclude that Pabst's investigation was "incomplete and sloppy." (Def.'s Mot. Ex. 53 at 8769). This understates the errors made by Pabst. The evidence, when viewed in the light most favorable to Bystry, indicates that Pabst was, at a minimum, reckless in her investigation and in her conclusion that Bystry knowingly overpaid Javier.
Javier told Pabst that he provided false information to Bystry and Bystry told Pabst that she took Javier at his word. (Pl.'s Op. Ex. 40 at 198, 204). Pabst's interviews with Javier and Bystry do not support her conclusion that Bystry knew the changes she approved would result in overpayment.
Similarly, there is a genuine factual dispute as to whether the statements concerning the sexual rumors surrounding Bystry were made with malice. When Pabst was interviewed by Verizon, she stated that others told her that Bystry was screwing her way to the top and that this surfaced during her investigation. (Pl.'s Opp. Ex. 55 at 430-31). Pabst also stated that Grisso and McCreer told her about rumors of sexual activity between Bystry and Diaz. (Pabst Ex. 1 ¶¶ 3-4; Pabst Ex. 2 at 94-102; Pl.'s Opp. Ex. 55 at 431). Pabst told Hundertmark about these rumors and in a conference call, Hundertmark informed Leone. (Def.'s Mot. Ex. 33 at 350-56; Ex. 35 at 46-49). Both McCreer and Grisso, however, deny speaking with Pabst about these sexual rumors. (Pl.'s Opp. Ex. 17 at 86, 134; Ex. 19 at 49, 247; Def.'s Mot. n. 101 (admitting that Grisso and McCreer deny making those statements)). Furthermore, in her deposition, Pabst stated that no one told her Bystry was involved in a sexual relationship with Javier. (Pl. Opp. Ex. 16 at 142). Based on the record, a jury could reasonably conclude that Pabst intentionally or recklessly communicated to others false statements concerning the sexual rumors about Bystry.
In his deposition, Hundertmark admits that he told Leone about the sexual rumors. He told her that "there were indications that sexual things were going on between Bystry and others. He said that people alleged that it appeared that Ms. Bystry and Director Eli Diaz were having an affair." (Pl.'s Opp. Ex. 54 at 433).
In addition, numerous employees told Pabst that Bystry was not involved in a sexual affair with Javier. (Pl.'s Opp. at 91; Ex. 23 at 32; Ex. 10 at 9; Ex 21 at 16-17).
Verizon claims that the statements were not defamatory because Pabst and Hundertmark did not state that Bystry was actually involved in an inappropriate relationship. Verizon claims Pabst and Hundertmark merely stated that there were rumors of inappropriate relationships. (Def.'s Mot. at 34, 38; Pl.'s Opp. Ex. 41 at 46-49, 81-84, 194-97). The defendants' arguments are unpersuasive. There is evidence indicating that the alleged rumors may have been fabricated by Pabst because the individuals who Pabst claims told her about the rumors deny actually making those statements to Pabst. In addition, Kramarsic told Verizon investigators that Hundertmark told him directly that "Bystry and associate Rafael Javier were sleeping together." (Pl.'s Opp. Ex. 53 at 453).
The defendants also claim they had a legitimate reason to inform Leone of the rumors because such a relationship would violate Verizon's code of conduct. (Def.'s Mot. at 34-35). Leone would be the appropriate person to contact regarding the rumors, because Leone handles Verizon's EEO complaints. (Def.'s Ex. 36 ¶ 5). This argument is unpersuasive, however, because the facts indicate that Hundertmark was not merely informing Leone based on her status as an EEO representative; rather he was trying to influence Bystry's discipline process. (Pl.'s Opp. Ex 48 at 110-12, 119-20, 291; Ex 53 at 453).
Finally, there is evidence that Pabst's statement that Bystry was hated by her coworkers was made either recklessly or with actual knowledge of its falsity. Pabst said that "everybody told her that Ms. Bystry was hated in the workgroup." (Pl.'s Opp. Ex. 55 at 431). Pabst told this to Hundertmark, and Hundertmark communicated this information to Carducci and Leone. (Pl.'s Opp. Ex. 20 at 417; Ex. 53 at 453; Ex. 55 at 431). Pabst's investigation, however, revealed no evidence indicating that Bystry was hated by coworkers. In addition, in her deposition, Pabst states that she never even asked anyone "whether they liked or disliked Bystry." (Def.'s Mot. Ex. 33 at 294). Consequently, there is sufficient evidence for a jury to could conclude that Pabst and Hundertmark published the statements that Bystry was hated either knowing them to be false or with reckless disregard for their truth.
Verizon argues that the hate statements are not actionable because they are merely opinions. While such a statement may be opinion under some circumstances, it is not immune from liability as opinion here. Pabst's role was to investigate the allegations against Bystry. By stating that Bystry's group hated her, Pabst was purporting to communicate what she learned in her investigation as a fact that might bear on the disciplinary decision.
See Pl.'s Opp. at 91-93. No employees stated that they hated Bystry, and many of her coworkers told Pabst that they liked and respected Bystry. (Pl.'s Opp. Ex. 17 at 89; Ex 12 at 74; Ex. 21 at 8; Ex 13 at 11-12). Some employees, however, did say that they did not like Bystry's management style. (Def.'s Ex. 33 at 296-7).
Even if the comments were not made with malice, summary judgment would be inappropriate with respect to the hate statements and the comments concerning the sexual rumors because those statements may have exceeded the scope of the common interest privilege. Unlike Pabst's conclusion that Bystry acted knowingly in overpaying Javier, the rationale behind the privilege is less applicable regarding the sexual rumors and the hate statements, because the latter two statements had little to do with the investigation into Javier's overpayment. In McDermott v. Hughley, the defendant was asked to provide a psychological evaluation of the plaintiff regarding his fitness for duty as a mounted park police officer. The defendant then proceeded to comment on plaintiff's moral worth, capacity to work as an officer outside of the mounted police unit, and the likeness of his character to "criminal elements." McDermott v. Hughley, 317 Md. 12, 31, 561 A.2d 1038, 1048 (1989). McDermott found that the defendant's statements exceeded the scope of the privilege. Id.
Hundertmark claims that he did not act with malice because he merely relayed the information given to him by his subordinate, Pabst, to Leone. Hundertmark claims that, at worst, he was negligent in repeating what he learned from Pabst to Leone. (Def.'s. Mot. at 40, n. 103). While Hundertmark is correct that, in general, he may rely on information provided to him by subordinate investigators, Hundertmark relied on Pabst's statements that had no support in any of the investigation materials she provided. Considering also that Hundertmark seemed to take a personal interest in the case, (Pl.'s Opp. Ex. 53 at 453), and that he overstepped his bounds by repeatedly contacting Leone with information that was not part of the FIR, jurors could reasonably conclude that Hundertmark was reckless in affirming and publishing the unsupported statements and conclusions of his subordinate investigator.
For all the above reasons, the defendants' motions for summary judgment will be denied with respect to Bystry's defamation claims.
III. Wage Payment and Collection Law Claim
The Wage Payment and Collection Law ("the Act") provides that an "employer shall pay an employee . . . all wages due for work that the employee performed before the termination of employment." Md. Code Ann., Lab. Empl., § 3-505. "Restated simply, where an employee earns wages under the Act, the employer must pay them, regardless of the ensuing termination of the employee." Medex v. McCabe, 372 Md. 28, 39, 811 A.2d 297, 304 (Md. 2002). Under Md. Code Ann., Lab. Empl., § 3-507.1(a), an "employee may bring an action against the employer to recover the unpaid wages." Under the Act, wages may include a bonus. Md. Code Ann., Lab. Empl., § 3-501. Furthermore, Md. Code Ann., Lab. Empl., § 3-507.1(b) provides that if "a court finds that an employer withheld the wage of an employee in violation of this subtitle and not as a result of a bona fide dispute, the court may award the employee an amount not exceeding 3 times the wage, and reasonable counsel fees and other costs." The Maryland Court of Appeals has held that "the determination of a bona fide dispute and award of treble damages was for the jury." Medex, 372 Md. at 44, 811 A.2d at 307.
In Medex, the court explained that: "In Maryland, not all bonuses constitute wages. We have held that it is the exchange of remuneration for the employee's work that is crucial to the determination that compensation constitutes a wage. Where the payments are dependent upon conditions other than the employee's efforts, they lie outside of the definition." Medex, 372 Md. at 36, 811 A.2d at 302 (citing Whiting-Turner v. Fitzpatrick, 366 Md. 295, 303, 783 A.2d 667, 671-72 (2001)).
A bona fide dispute exists when there is "sufficient evidence adduced to permit a trier of fact to determine that [the employer] did not act in good faith when it refused to" pay the employee. Admiral Mortgage, 357 Md. 533, 543, 745 A.2d 1026, 1031 (2000).
Bystry claims that under the Act she is entitled to a bonus from Verizon based on the work she performed before she was terminated. (Pl. Opp. at 125-26). In addition to her bonus, Bystry is seeking treble damages, attorney's fees, and costs under the Act. (Pl.'s First Am. Compl. Count V). Verizon argues that Bystry is not entitled to a bonus because she was rated DN on her final evaluation. (Def.'s Mot. at 42-43). In response, Bystry argues that she is entitled to the bonus because her true evaluation was sufficient to merit a bonus and she satisfactorily met all of her employment objectives, but Verizon changed her evaluation once she was terminated to avoid paying her a bonus. (Pl.'s Opp. at 125-26).
"In accordance with the policy underlying the Maryland Act, an employee's right to compensation vests when the employee does everything required to earn the wages." Medex, 372 Md. at 41, 811 A.2d at 305. Based on the record, there is a genuine factual dispute as to whether Bystry had done everything she was required to do to earn the bonus, as she claims, or whether her true evaluation from Verizon actually was DN, as Verizon claims. The fact that Bystry was terminated is a strong indicator that Verizon believed Bystry was not performing satisfactory work and was not entitled to a bonus. At the same time, Bystry met her performance objectives, and Carducci originally gave her an excellent evaluation even though Carducci was aware of Bystry's errors regarding Javier's pay, which provides evidence that Bystry's work performance was sufficient to merit a bonus. (Pl.'s Opp. Ex. 4; Def.'s Reply Ex. 2 at 303-04).
Verizon is not required to provide bonuses to employees who are not meeting their expectations. The fact that Bystry was fired, however, does not necessarily mean that she is not entitled to a bonus; Verizon cannot change her evaluation to deny her a bonus merely because she was fired. Based on Carducci's inconsistent evaluations, there is a genuine factual dispute about whether Bystry's performance merited a bonus. Bystry is entitled to have a jury resolve this factual dispute.
Supplemental jurisdiction over Bystry's state law claims was proper under 28 U.S.C. § 1367. Though I now have discretion to decline to exercise supplemental jurisdiction over Bystry's state law claims, 28 U.S.C. § 1367(c)(3), I will maintain supplemental jurisdiction over the pending state law claims because to do otherwise at this stage of the process would be an inefficient use of judicial resources and unfair to the parties.
For the reasons stated above, the Defendants' motions for summary judgment will be granted with respect to Count I and denied with respect to Counts II, III, IV, and V.
A separate Order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:1. Verizon Services Corp.'s motion for summary judgment (docket entry no. 18) is GRANTED with respect to Count I;
2. Verizon Services Corp.'s motion for summary judgment (docket entry no. 18) is DENIED with respect to Counts II and V;
3. John C. Hundertmark's motion for summary judgment (docket entry no. 16) is DENIED;
5. Linda Pabst's motion for summary judgment (docket entry no. 17) is DENIED;
6. the plaintiff's motion for leave to file surreply (docket entry no. 32) is GRANTED in part; and
7. the Clerk shall send copies of this Order and the accompanying Memorandum to counsel of record.