Opinion
Civ. No. DKC 97-2605.
December 1999.
MEMORANDUM OPINION
Plaintiff William Wells brings this action against Defendant Montgomery County, Maryland for violation of his civil rights by retaliating against him for engaging in activity protected by Title VII, 42 U.S.C. § 2000e et seq. Plaintiff also alleges a right to relief under 42 U.S.C. § 1983 for violations of the First and Fourteenth Amendment by the Laytonsville Volunteer Fire Department ("LVFD"), J.B. Kline, LVFD Board of Directors, Stanley Sutton, and Matt Montgomery. Finally, Plaintiff asserts a state law claim for wrongful interference in his employment relationship. All defendants have now moved for summary judgment on all claims. The matter is fully briefed, and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that now follow, the court will GRANT Defendants' motion for summary judgment.
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. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987). 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. Background
Plaintiff William Wells has been a career firefighter in Montgomery County since November 1973, serving in fire departments in Glen Echo, Bethesda, Wheaton, Hillandale, Laytonsville, and most recently Gaithersburg. From June 1994 to November 1996, Plaintiff worked at the Laytonsville Volunteer Fire Department ("LVFD") as Station Commander.
LVFD has both volunteer and career firefighters, and the record provides ample evidence of the ongoing tension between the two groups. In particular, Plaintiff described three incidents in 1996 which occurred while Plaintiff was the Station Commander at LVFD. On March 7, volunteer firefighters barricaded themselves in a bunkroom to protest career firefighters waking them up during the night. In May 1996, a second incident occurred when volunteer firefighters including Defendant Montgomery allegedly returned a self-contained breathing apparatus to the station without using the proper cleaning procedures. Plaintiff, as Station Commander, reported the volunteer firefighters for their conduct on each occasion.
Finally, on June 4, 1996, a group of volunteer firefighters allegedly held down and "spanked" Nancy Banks, a career firefighter, on her birthday. Although not present during the Banks incident, Plaintiff reported the event to his supervisors, encouraged Banks to file an EEOC complaint, and provided assistance in the EEOC investigation. On June 5, 1996, the day following the Banks incident, Defendant Chief J.B. Kline called Montgomery County Department of Fire and Rescue Services to request that Plaintiff be transferred. Defendants assert that Kline had on previous occasions mentioned the possibility of transferring Plaintiff, but the day after the Banks incident is the first time that Chief Kline mentioned that possibility to Plaintiff. On June 14, Kline, Defendant Sutton, and Defendant Board of Directors submitted the request in writing to the County for the first time.
The County initially resisted the suggestion, but after several months of consideration, ordered the transfer. Following the Banks incident and before the transfer, the conflict between the two groups worsened at LVFD. Volunteer firefighters allegedly violated rules and harassed the career firefighters, particularly Plaintiff, on an almost daily basis. The County finally offered Plaintiff two possible posts, at Gaithersburg Volunteer Fire Department or Hillandale Volunteer Fire Department. Plaintiff rejected the position at Hillandale, which would have offered similar hours and title as his previous position, because his son was a volunteer firefighter there. Plaintiff believed that County regulations forbade his working in a supervisory position where his son also worked. Therefore, the County transferred Plaintiff on November 24, 1996 to the Gaithersburg Volunteer Fire Department. There, Plaintiff is still at the captain level, but is no longer a Station Commander and therefore does not receive the 5% salary differential for that post. Furthermore, while previously Plaintiff worked four twelve-hour shifts per week, now Plaintiff works 24 hours on and 48 hours off — a schedule less desirable to him. Finally, Plaintiff claims that the Gaithersburg position offers significantly fewer overtime hours and, therefore, a lower net salary.
Plaintiff brought this case against the county for retaliation in violation of Title VII and against various other defendants for violation of 42 U.S.C. § 1983 and state law.
III. Retaliation
To prevail on a claim of retaliation under Title VII, Plaintiff must prove a three-part prima facie case: (1) that he engaged in protected activity; (2) that Montgomery County took adverse employment action against him; and (3) that a causal connection existed between the protected activity and the adverse action. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). Once Plaintiff establishes his prima facie case, the Defendant may rebut by offering a legitimate nonretaliatory reason for the adverse action. Id. Finally, after Defendant offers a nonretaliatory reason, the burden of proof rests with Plaintiff to establish by a preponderance of the evidence that the proffered reason is pretextual and the real reason for the action was retaliatory. Id. Assisting in the filing of an EEOC complaint is a protected activity, for which an employer may not retaliate. Therefore, Defendant Montgomery County does not contest that Plaintiff has met the first prong of the prima facie case.
Defendant argues that Plaintiff fails to prove an adverse employment action, but the court disagrees. A Title VII claim requires that "there has been discrimination in what could be characterized as ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating." Page v. Bolger, 645 F.2d 227, 233 (4th Cir. 1981). The Fourth Circuit has explained that an adverse employment action includes "discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion." Boone v. Goldin, 178 F.3d 253, 255 (4th Cir. 1999). Plaintiff has shown that his transfer included adverse actions, including loss of pay, loss of title, and change in shift hours. See Caussade v. Brown, 924 F. Supp. 693, 700-01 (D. Md. 1996) ("In cases involving transfers, as in the present case, courts have held that absent a change in title, compensation, responsibility or working conditions, a mere transfer does not amount to adverse employment action."). Therefore, Plaintiff has met his burden under the second prong of the prima facie case.
Defendant argues that Plaintiff did not suffer an adverse action because the County offered him an alternative reassignment at another station which would have included the same title and salary as his post at LVFD. However, Plaintiff has created sufficient doubt with respect to whether that offer was legitimate because of the nepotism policy in Montgomery County: "Personnel are not permitted to supervise another employee who is related to them by blood, marriage, or adoption." Montgomery County Department of Fire and Rescue Services Code of Conduct ¶ 5.15. Plaintiff could have in good faith believed that such a policy precluded him from supervising his son, a volunteer firefighter, at Hillandale. In Plaintiff's deposition, he explained that each station is organized differently with respect to whether the career Station Commander or volunteer Chief has supervisory authority over volunteer firefighters: "And station management is usually depending on the corporation, how they set it up. Some stations, the station commander is the daytime authority in the station. Other stations, it will be up to the direction of the fire chief." Plaintiff's Deposition at 18. The County has not presented evidence to contradict Plaintiff's assertion that he could not have supervised his son at Hillandale. Roger Strock, Assistant Chief of LVFD, testified that the County had not considered the potential conflict when they offered Plaintiff the position at Hillandale:
A. But Captain Wells did not choose to go there because of an issue with his son which we didn't realize when we offered it to him that his son was a Volunteer in Hillandale at that station.
Q. And that was appropriate for him not to go to the Station 24?
A. We wouldn't have had any problem with it but he felt uncomfortable and chose not to.
Q. Oh, you wouldn't have had any problem — would the Volunteer Fire Department have had any problem?
A. They may have but I don't think we ever got to the point of asking them.
Defendants' Exhibit S at 73. Defendant has not shown that the offer to be reassigned to Hillandale as Station Commander was a real choice as it might have required Plaintiff to violate County regulations.
The final element of Plaintiff's prima facie case is to prove that a causal connection exists between the adverse employment action and the protected activity. Plaintiff has met the burden with respect to this third prong simply through the timing of the action. Chief Kline submitted his written request for Plaintiff's transfer in writing within ten days of the Nancy Banks incident and Plaintiff's EEOC report. The County ordered the transfer several months later. The juxtaposition of the two events is enough to satisfy the prima facie case. In Williams, the Fourth Circuit held:
Appellant's proof of a causal connection between the protected activity and her discharge essentially was that she was fired after her employer became aware that she had filed a discrimination charge. While this proof far from conclusively establishes the requisite causal connection, it certainly satisfies the less onerous burden of making a prima facie case of causality.Williams, 871 F.2d at 457 (granting judgment for the defendant where plaintiff "produced no other evidence of retaliation").
In response to the prima facie case, Defendant has articulated a legitimate, nondiscriminatory reason for transferring Plaintiff: Plaintiff's transfer was intended to ease the substantial and growing tension at LVFD between career and volunteer firefighters. Because Defendant has proffered a nondiscriminatory reason, the ultimate burden rests upon Plaintiff to prove by a preponderance of the evidence that (1) Defendant's proffered reason is false and (2) discrimination in fact motivated the challenged action. Settle v. Baltimore County, 34 F. Supp.2d 969, 993 (D. Md. 1999). In order to avoid summary judgment, Plaintiff must raise a genuine issue of material fact as to the truth of the Defendant's proffered reason. See Tinsley v. First Union Nat'l Bank, 155 F.3d 435, 444 (4th Cir. 1998) ("Affirmative evidence of retaliation that makes up a prima facie case, even if it insufficient to prove discriminatory retaliation, may suffice to preclude summary judgment if the employer's asserted legitimate reasons for the action have been undermined."). Here, Plaintiff has failed to produce sufficient evidence to create a triable issue as to the reason that Defendant transferred Plaintiff.
The primary proof put forth by Plaintiff to show that his EEOC activity led to his transfer is the timing of the events. Mere timing will not avoid summary judgment on a claim of retaliation. Harris v. Baltimore County, 34 F. Supp.2d 969, 1009 (D. Md. 1999). Furthermore, the timing of the transfer supports Defendants' version of events as much as Plaintiff's. Chief Lou Boozer testified, and Plaintiff does not contest, that, prior to the Banks incident, there had already been discussion of transferring Plaintiff from LVFD. See Defendants' Exhibit F at 16 ("A couple of times they had asked."). Immediately after the Banks incident, the volunteer corporation requested in writing that the County transfer Plaintiff. See Plaintiff's Exhibits 5; Defendants' Exhibits A at 122 and G. However, the County resisted for several months, a period in which problems continued to escalate between volunteer and career firefighters. See Plaintiff's Opposition at 4; Defendants' Exhibits A at 129-60, I and O. Finally, on November 24, 1996, nearly five months after the EEOC report, the County transferred Plaintiff.
Plaintiff has failed to undermine the County's proffered reason for the transfer. Plaintiff himself has testified that there was a serious problem at LVFD of tension between volunteer and career firefighters. See Defendants' Exhibit A at 62-66 and C. LVFD President Sutton expressed concern over incidents as early as March 1996. See Plaintiff's Exhibit 2. The Banks incident may have led to Plaintiff's transfer indirectly because it signaled an increase in the tension between career and volunteer firefighters, but Plaintiff has produced no evidence that his EEOC report of that incident led to the transfer:
Q. Okay. Did the County view Captain Wells' report of the Banks incident as a bad thing?
A. No. He did exactly as he was supposed to.
Q. Okay, and did the County transfer Captain Wells because of the fact that he reported the Banks incident?
A. No.
Plaintiff's Exhibit 3 at 83-84 (Deposition of Roger Strock); see also Defendants' Exhibit F at 29 (Deposition of Lou Boozer). Other than the timing of his transfer, in proximity to both the EEO report and the mounting tension at LVFD, Plaintiff offers no evidence of retaliation other than his subjective impressions:
I think they were both [Chief Kline and President Sutton] angry at me. They didn't come right out and say that they were angry at me, but to me the body language spoke that here you go again. You know, we got an incident. You had to respond to it.
Defendants' Exhibit A at 121. Even if Kline and Sutton were angry concerning the EEOC report, their emotional reaction to the Banks incident does not attest to the reason that the County might transfer Plaintiff but only why members of the volunteer corporation might request his transfer. Plaintiff has not put forth adequate evidence that, "but for" the EEOC report, the County would not have transferred him. See Ross v. Communications Satellite Corp., 759 F.2d 355, 366 (4th Cir. 1985) ("[T]his circuit requires that the plaintiff prove that he would not have been discharged "but for" the filing of the charge."). Plaintiff has failed to produce evidence of animus on the part of the Defendant and thus cannot avoid summary judgment.
IV. Section 1983
In order to establish a cause of action under 42 U.S.C. § 1983, Plaintiff must establish (1) that Defendants deprived Plaintiff of a federally protected right; and (2) that Defendants acted under color of state law in the act of deprivation. See Letterman v. Terrence County Narcotics Intelligence Coordination Unit, 113 S.Ct. 1160 (1993). In order for conduct by a private actor to constitute state action under the second prong, the Plaintiff must satisfy one of three tests: the symbiotic relationship test; the regulation/public funding test; or the public function test. Conner v. Donnelly, 42 F.3d 220, 223-24 (4th Cir. 1994). Because the court now finds that Defendants LVFD, Kline, Board of Directors, Sutton and Montgomery were not state actors when they allegedly violated Plaintiff's rights, the court will grant summary judgment for Defendants on the § 1983 claim.
This case implicates the public function test, an inquiry into whether the action performed has traditionally been within the state's purview. In an order dated August 6, 1998, this court denied Defendants' motion to dismiss the claims under 42 U.S.C. § 1983 while recognizing that "the LVFD was most likely not a state actor when it retaliated against Plaintiff":
In order to demonstrate the required nexus between the conduct and the function, Plaintiff would have to demonstrate that the retaliatory conduct and reassignment had an identifiable effect on LVFD's conduct of firefighting. Absent such a showing, the Defendants were not state actors for the purpose of Plaintiff's claims.
Memorandum Opinion at 8. The court expressed skepticism that Plaintiff could meet this burden, but denied the motion to dismiss to give Plaintiff further opportunity to demonstrate the required nexus between the conduct and the function of firefighting. Id.
In Haavistola v. Community Fire Co. Of Rising Sun, Inc., the Fourth Circuit suggested that, under the public function test, the relevant analysis should include "review of the alleged misconduct, and not just the overall function of the alleged state actor." 6 F.3d 211, 216 (4th Cir. 1993). This court later elaborated:
Even if a defendant is deemed to be a state actor, a second inquiry should be made as to whether the conduct at issue in the litigation peculiarly relates to the defendant's performance of a public function. Under this approach a routine employment decision, alleged to have been motivated by unlawful discriminatory animus (such as the decisions involved in Haavistola and Goldstein I) would not be actionable under section 1983.Goldstein v. Chestnut Ridge Volunteer Fire Co., 984 F. Supp. 367, 373 (D. Md. 1997). This case presents just such a "routine employment decision." Plaintiff has brought suit alleging that the LVFD transferred him based upon an EEOC complaint. This alleged conduct, an internal administrative decision, does not directly relate to the public function of firefighting.
In Plaintiff's Opposition, he raises the argument that Defendants' conduct is state action because Defendants transferred Plaintiff in part due to tension over safety equipment. See Plaintiff's Opposition at 20. Plaintiff undoubtedly aims to fall within the scope of the state action in Goldstein, where the defendant's termination of the firefighter plaintiff for reporting other members for lack of training and qualifications constituted state action. 984 F. Supp. at 373. However, the crux of Plaintiff's claims is that LVFD transferred him to another station based upon his report of the Nancy Banks incident, not the other events involving the bunk room and safety equipment. See Plaintiff's Opposition at 11 ("The adverse action against Plaintiff had its genesis and causation as a direct result of his reporting the Nancy Banks incident."). According to Plaintiff's complaint, the transfer stemmed from the EEOC complaint, and thus the action was unrelated to the public function of firefighting. For that reason, the court will grant summary judgment for Defendants on the § 1983 claim.
V. State Law Claims
Defendants argue that this court should not exercise jurisdiction over Plaintiff's state law claims if summary judgment is entered against Plaintiff under § 1983. See Defendant's Motion for Summary Judgment at 18. Plaintiff has not contested this assertion. See Plaintiffs' Opposition at 21. As a result, in the exercise of its discretion, this court will decline pendent jurisdiction and dismiss without prejudice Plaintiff's remaining claims for wrongful interference with an employment relationship. See United Mine Workers v. Gibbs, 383 U.S. 715, 725-26 (1966); Ridenour v. Andrews Fed. Credit Union, 897 F.2d 715, 722 (4th Cir. 1990).
VI. Conclusion
For the foregoing reasons, the court will GRANT summary judgment for Defendants on claims under Title VII and § 1983 and dismiss the claims under state law. A separate Order shall be entered.
O R D E R
For the reasons stated in the accompanying Memorandum Opinion, IT IS this ____ day of December 1999, by the United States District Court for the District of Maryland, ORDERED that:
1. Defendants' Motion for Summary Judgment BE, and hereby IS, GRANTED with respect to claims under Title VII and 42 U.S.C. § 1983;
2. Judgment BE, and hereby IS, ENTERED in favor of Montgomery County, Laytonsville Volunteer Fire Department, J.B. Kline, Board of Directors, Stanley Sutton, and Matt Montgomery and against William Wells on the Title VII and 42 U.S.C. § 1983 claims;
3. Plaintiff's state law claim BE, and hereby IS, DISMISSED without prejudice; and
4. The Clerk is directed to mail a copy of this Order and the accompanying Memorandum Opinion to counsel for the parties and CLOSE this case.