Opinion
Civil Action No.: RDB-06-1926.
March 20, 2008
MEMORANDUM OPINION
This employment discrimination action arises out of a three-count Complaint filed by Plaintiff Sherry Tucker ("Tucker" or "Plaintiff") against her former employer, the Parents Place of Maryland ("PPMD" or Defendant"). Plaintiff alleges that the Defendant discriminated and retaliated against her on the basis of her race, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e, et seq., and Article 49B of the Annotated Code of Maryland, and committed several intentional torts against her. Pending before this Court is Defendant's Motion for Summary Judgment. The parties' submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2008). For the reasons stated below, Defendant's Motion for Summary Judgment is GRANTED.
BACKGROUND
The facts must be viewed in a light most favorable to the Plaintiff as the nonmoving party. See Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Sherry Tucker, an African-American woman, began working as a Parent Educator at PPMD in September of 2004. (Foley Aff. ¶ 13.) At that time, compensation for such positions was provided by a grant from the U.S. Department of Education's Office of Special Education ("OSEP") which specified that work weeks were to be limited to twenty hours. ( Id. ¶ 11.) Tucker was instructed that she was to structure her caseload such that her work could be accomplished in that time period. In the event that her workload exceeded those limits, she was told that some of her work would be allocated to others. ( Id. ¶ 15.) Tucker's compensation consisted of a salary of $13.00 per hour as well as reimbursement for reasonable business expenses. ( Id. ¶ 13, 23.) Two of Tucker's white co-workers, who had worked for PPMD for a longer period of time, were paid at a slightly higher rate of $13.39 per hour, while an African-American co-worker with even more experience was paid $14.50 an hour. ( Id. ¶ 13-14.)
Parent Educators who work from home offices, are assigned, by geographic region, to assist families with children who have special needs. They support these families in several ways such as offering consultations, meeting with various schools and holding a variety of workshops. (Foley Aff. ¶¶ 5-6.)
Compensation Procedures
On the date she was hired, Tucker acknowledges having received, read, and understood a copy of the PPMD Personnel Handbook. (Def.'s Mem. Supp. Summ. J. Ex. 4.) As per that handbook, all PPMD employees are expected to fill out time sheets with the exact hours they work in a given week. (Def.'s Mem. Supp. Summ. J. Ex. 7.) Paychecks were to be handed out every other Friday, based on those time sheets, which were to be turned into the Director of Operations by 5:00 pm on the preceding Tuesday. ( Id.) In addition to being in the handbook, this policy was reiterated in an e-mail to Tucker which contained an August 2004 timekeeping memo outlining the time sheet requirements. (Foley Aff. ¶ 16.) On several occasions after receiving this memo, Tucker was further reminded to submit her completed time sheets on time. ( Id.)
Additionally, to receive reimbursement for reasonable business expenses, the personnel handbook required an official reimbursement request accompanied by original receipts. (Def.'s Mem. Supp. Summ. J. Ex. 10.) PPMD alerted employees that it would be unable to process such requests unless they included all of the information necessary to report to OSEP under the terms of the grant. (Foley Aff. ¶ 23.)
Tucker seems to have had some trouble getting her time sheets in on time. An October 2004 time sheet, which was due on October 26 by 5:00 p.m. was submitted instead at 6:51 p.m. (Foley Aff. ¶ 21; Def.'s Mem. Supp. Summ. J. Ex. 8.) A December 2004 time sheet was never received. ( Id.) Tucker's first January 2005 time sheet, which was due on the January 4, was not submitted until January 10. ( Id.) Her second January 2005 time sheet, which was due on January 18, was not submitted until January 19. ( Id.) A February 2005 time sheet, due February 1, was not submitted until February 14. ( Id.) A June 2005 time sheet, due on June 7, was not submitted until June 8. ( Id.)
Depending on how late a PPMD employee submitted a time sheet, he or she was often still paid on time. The PPMD payroll is reviewed by an accountant and then closed once that review is complete. (Foley Aff. ¶ 20.) If the payroll review was not complete by the time an employee handed in a late time sheet, he or she was paid on the regular schedule. If the review had already been completed, the employee was paid in the next pay cycle. Thus, in Tucker's case, in October and December of 2004, despite handing her time sheets in late, she was paid on time. The other four times, she was paid the following pay cycle. ( Id. ¶ 21.) Other employees who turned in their time sheets late were treated in a similar fashion. Thus, when Linda Pinos, a Hispanic woman, missed a December 7, 2004 time sheet due date, she was paid the next payroll period, and when Annette Maruits, a white woman, turned in a December 21, 2004 time sheet late, she was paid according to the regular schedule. (Foley Aff. ¶ 22; Def.'s Mem. Supp. Summ. J. Ex. 9.)
PPMD no longer applies this policy. Instead, any employee who submits a late time sheet is subjected to disciplinary action. (Foley Aff. ¶ 18.)
In addition to issues with her time sheets, Tucker also seems to have struggled with her reimbursement requests. A September 2004 request, for instance, did not include the required receipts. (Def.'s Mem. Supp. Summ. J. Ex. 11.) In November 2004, Tucker did not receive the required approval before buying office supplies. ( Id. at Ex. 12.) In March of 2005, Tucker's request for reimbursement for mileage did not include the required addresses. ( Id. at Ex. 14.) Despite these deficiencies, Tucker was ultimately reimbursed for all of her expenditures when she provided the requested additional information. ( Id. at Exs. 11-17; Foley Aff. ¶ 25.)
Termination of Employment
In February 2005, just five months after she started her employment, tensions began to rise between Tucker and her supervisors. Towards the beginning of the month, Susie Shannon, PPMD's Director of Operations, exchanged several e-mails with Julie Foley, the Human Resources Manager, outlining her recent requests to Tucker to correct errors in her time sheets and expense reports. (Def.'s Mem. Supp. Summ. J. Ex. 14.) After several failed attempts by Tucker to correct the mistakes, Shannon expressed her frustration to Foley stating "[Tucker] is not following my directions or instructions as detailed in the manual." ( Id.)
On February 16, Shannon sent an e-mail to Tucker asking her to call a parent who was seeking PPMD's help. (Foley Aff. ¶ 10; Def.'s Mem. Supp. Summ. J. Ex. 22.) Tucker responded that she had already called the woman and that the woman's cell phone had repeatedly cut off the conversation. ( Id.) Shannon then contacted the mother herself who claimed never to have been contacted by Tucker, which Shannon noted on a copy of Tucker's email. ( Id.) When Tucker could not be reached by telephone to follow up on this conversation, Shannon faxed her a reminder to contact the mother. ( Id.)
That evening, Tucker sent out an e-mail to several coworkers outlining what she did during her work hours on an average day, expressing her general frustrations with the time sheet and expense request requirements, and emphasizing that she knew what her job required and did not need anyone else to tell her. (Def.'s Mem. Supp. Summ. J. Ex. 25.) The tone of Tucker's email was generally abrasive and included underlining certain words, while placing others in upper case or larger type to add emphasis. ( Id.) Furthermore, the e-mail was sent to several people including at least one who no longer worked for PPMD. ( Id.)
In response to this e-mail, as well as complaints PPMD had received from parents, Tucker, Foley, and Josie Thomas, PPMD's Executive Director, agreed to hold a meeting. (Foley Aff. ¶ 30; Def.'s Mem. Supp. Summ. J. Ex. 28.) At the meeting, Tucker took responsibility for her imprudent use of e-mail and was issued a reprimand. (Def.'s Mem. Supp. Summ. J. Ex. 26.) Tucker's performance was also discussed and a Performance Improvement Plan was agreed on by the three. (Def.'s Mem. Supp. Summ. J. Ex. 27.)
Several months passed without further incident. However, in July 2005, tensions again erupted. On Friday, July 15, Shannon e-mailed Tucker asking for clarification of two matters on her June 2005 expense report. (Def.'s Mem. Supp. Summ. J. Ex. 30.) The first issue was that Tucker had listed sixty-five miles between her home and the PPMD office when the normal distance was forty-five miles, and the second issue was that Shannon was unable to identify the submitted phone bill as Tucker's, as it did not contain her name. ( Id.) In a response e-mail sent later that day with the word "Retaliation" in the subject line, Tucker berated Shannon, claiming that (1) she had sent similar copies of her phone bill for months without issue and (2) that a traffic accident had required her to use a detour on the date in question, thus explaining the discrepancy between the mileage between her home and the PPMD office. ( Id. at Ex. 31.) Tucker also emphasized that she believed Shannon's questions constituted "retaliation" though she never specified why Shannon would be retaliating against her. ( Id.)
Although previous bills submitted by Tucker had not included her name, they were all in reference to the same phone number: (301) 856-1224. (Def.'s Mem. Supp. Summ. J. Ex. 11-16.) Her June 2005 submission, in contrast, was in reference to a line whose number was (301) 856-7779. ( Id. at Ex. 30.)
In her deposition, Tucker claims that a co-worker who lived nearby, Missy Alexander, was forced to make the same detour and yet was not questioned by Shannon with regards to the differing mileage. (Tucker Dep. 32:6-14.) Alexander's expense reports from the date in question, however, do not reflect any change in mileage. (Def.'s Mem. Supp. Summ. J. Ex. 20.)
On Monday July 18, 2005, Foley e-mailed Tucker and attempted to set up another meeting with her. ( Id. at Ex. 32.) Tucker responded with two e-mails. The first stated that she had retained counsel and that any further communication needed to be with him or in writing, and the second stated that "[a]ll legal issues will be pass [sic] through Josie [Thomas]." ( Id. at Ex. 33.) On Tuesday July 19, 2005, Foley sent another e-mail to Tucker asking her if she was refusing to meet with her as requested. ( Id. at Ex. 34.) Tucker did not respond. (Foley Aff. ¶ 35.) On July 20, Foley called Tucker during her regular business hours and left a message when she did not answer asking Tucker to contact her as soon as possible. ( Id. ¶ 35-36.) Tucker again did not respond. ( Id. ¶ 36.) On July 21, Foley sent another e-mail to Tucker listing the various attempts to reach her and suspending her employment. (Def.'s Mem. Supp. Summ. J. Ex. 36.) Again, Tucker did not respond. (Foley Aff. ¶ 37.)
Tucker's attorney later denied having spoken with her during the time in question and knew nothing about her employment with PPMD. (Foley Aff. ¶ 39.)
It is unclear exactly what Tucker meant in her second e-mail, though her reference to Josie Thomas as the "Resident Agent for Parent's Place of Maryland, INC [sic]" seems to indicate that she was engaged in some type of legal research. A resident or registered agent is "a person authorized to accept service of process for another person, esp. a corporation, in a particular jurisdiction." See Black's Law Dictionary (8th ed. 2004). There was no particular legal reason why "all legal issues" that PPMD wanted to address with Tucker needed to pass through PPMD's registered agent.
On July 22, 2005, PPMD officially terminated Tucker's employment, sending a letter to that effect by certified mail to Tucker along with her final paycheck. (Def.'s Mem. Supp. Summ. J. Ex. 37.) The letter listed insubordination as the basis for Tucker's termination based on her refusal to meet or speak with PPMD management or staff. ( Id.) Tucker did not pick up her certified mail, and several e-mails alerting her to the fact that the piece of mail was waiting for her were ignored. (Foley Aff. ¶ 35.) The letter and check were re-sent by regular mail, and, although Tucker did not acknowledge having received them, the checks were cashed. ( Id. ¶ 39.)
In response to these events, Plaintiff filed a three-count Complaint (Paper No. 1) against Parents Place of Maryland in this Court on July 27, 2006. Count I alleges that Defendant "engaged in a pattern and practice of unlawful discrimination on the basis of race or national origin by willfully terminating plaintiff's position in an act of retaliation" in violation of Title VII and Article 49B of the Annotated Code of Maryland. (Compl. ¶ 25.) Count II alleges that Plaintiff's termination was wrongful as it was based on her race and her "having engaged in protected activities." ( Id. ¶ 35.) Count III purports to state a cause of action for breach of contract in that Plaintiff was terminated without having the "opportunity to challenge allegations made by Defendant through the company's disciplinary process as set forth in the PPMD Employee Handbook." ( Id. ¶ 41.) Defendant filed its Answer (Paper No. 3) to this Complaint on September 19, 2006. On July 20, 2007, Defendant filed the instant Motion for Summary Judgment (Paper No. 9) alleging primarily that Plaintiff was fired for legitimate reasons and that she could point to no facts which indicated that she was treated disparately. On August 25, 2007, Plaintiff filed her Opposition to Defendant's Motion for Summary Judgment (Paper No. 12) asserting that she had made out a prima facie case of discrimination based on PPMD's alleged "nitpicking and harassing conduct" directed only at Plaintiff who was African-American. Defendant filed a Reply on September 7, 2007 (Paper No. 13) reiterating its earlier arguments and emphasizing that Plaintiff had provided no evidence of her claims in her Opposition.
STANDARD OF REVIEW
Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil Procedure when there is no genuine issue as to any material fact, and the moving party is plainly entitled to judgment in its favor as a matter of law. In Anderson v. Liberty Lobby, Inc., the Supreme Court of the United States explained that, in considering a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 477 U.S. 242, 249 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Thus, "the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252.
In undertaking this inquiry, a court must view the facts and the reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also E.E.O.C. v. Navy Federal Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). However, the opponent must bring forth evidence upon which a reasonable fact finder could rely. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). "Once the movant has established the absence of any genuine issue of material fact, the opposing party has an obligation to present some type of evidence to the court demonstrating the existence of an issue of fact." Pension Benefit Guar. Corp. v. Beverley, 404 F.3d 243, 246-47 (4th Cir. 2005) (citing Pine Ridge Coal Co. v. Local 8377, UMW, 187 F.3d 415, 422 (4th Cir. 1999)). Rule 56(e) also requires that "affidavits submitted by the party defending against a summary-judgment motion contain specific facts, admissible in evidence, from an affiant competent to testify, `showing that there is a genuine issue for trial.'" Id. (quoting 10B Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2740, 399 (3d ed. 1998)). The mere existence of a "scintilla" of evidence in support of the nonmoving party's case is not sufficient to preclude an order granting summary judgment. Anderson, 477 U.S. at 252.
This Court has previously held that a "party cannot create a genuine dispute of material fact through mere speculation or compilation of inferences." Shin v. Shalala, 166 F. Supp. 2d 373, 375 (D. Md. 2001) (citations omitted). Indeed, this Court has an affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (quoting Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987)).
ANALYSIS
Defendant PPMD has moved for summary judgment on all three counts asserted in the Complaint.
I. Count I: Race Discrimination and Retaliation under Title VII
Initially, this Court notes that Count I sets forth a claim for race discrimination and retaliation under both Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e, et. seq. as well as Article 49B of the Maryland Annotated Code. Article 49B of the Maryland Annotated Code prohibits employment discrimination based on one's "race, color, religion, sex, age, national origin, marital status, sexual orientation, genetic information, or disability." Article 49B was amended in 2007 to permit a private cause of action against an employer for violations of Maryland's discrimination laws if "(1) The complainant initially filed an administrative charge or a complaint under federal, State, or local law alleging a discriminatory act by the respondent; and (2) At least 180 days have elapsed since the filing of the administrative charge or complaint." Md. Ann. Code art. 49B, § 11B (2007). Prior to the amendment's effective date of October 1, 2007, however, Article 49B did not offer a private cause of action, and the amendment was expressly limited to acts of discrimination occurring after that date. S. 678 H.R. 314, 422d Gen. Assem., Reg. Sess. (Md. 2007) (stating that the amendments to Article 49B "shall be construed to apply only prospectively and may not be applied or interpreted to have any effect on or application to any cause of action arising before the effective date of this Act"). Because all of the events leading to this lawsuit occurred before October 1, 2007, the amended version of the statute does not apply and Tucker cannot maintain a private cause of action against PPMD under Article 49B.
With respect to her claim under Title VII of the Civil Rights Act of 1964, Tucker alleges that PPMD engaged in a pattern "of constant nitpicking and harassing conduct which was only directed towards the Plaintiff who was the only African American being treated in this manner" and subsequently retaliated against her when she complained about this conduct by firing her. (Compl. ¶ 25; Pl.'s Mem. Opp'n Summ. J. 6.) Title VII claims must be based either on direct evidence of racial discrimination or on the three-step burden shifting test first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Plaintiff has not produced any direct evidence of racial discrimination, thus, she must satisfy the McDonnell test.
To satisfy this test, a plaintiff must first present enough evidence to prove a prima facie case of discrimination. Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 142-43 (2000). If she can do this, the burden then shifts to the defendant to produce evidence that the adverse employment action was taken against the plaintiff "for a legitimate, nondiscriminatory reason." Id. at 142 (citing Tex. Dept. Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). Once this reason has been put forward, the plaintiff is "afforded the `opportunity to prove by a preponderance of evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Id. (quoting Burdine, 450 U.S. at 253). A. Prima Facie Case
Plaintiff alleges two forms of discrimination — disparate treatment and discriminatory discharge — and retaliation. Each claim will be addressed separately.
1. Disparate Treatment
To establish a prima facie case of disparate treatment, Plaintiff must show that (1) she is a member of a protected class, (2) she was subjected to an adverse employment action, and (3) similarly situated employees not in the same protected class were not subjected to any adverse action. See, e.g., Carter v. Ball, 33 F.3d 450, 461 (4th Cir. 1994). As noted above, Plaintiff is African-American and thus satisfies the first element.
As to the second element, Plaintiff contends that she was subjected to constant "nitpicking and harassing" conduct by her supervisors at PPMD on a level not experienced by her fellow Parent Advocates. (Pl.'s Mem. Opp'n Summ. J. 6.) Additionally, she contends that PPMD failed to pay her for all of the hours she worked and responded threateningly whenever she raised the issue of her salary. ( Id. at 7.) However, Plaintiff offers no proof of these vague allegations in her Opposition to Defendant's Motion for Summary Judgment.
Defendant denies these bald assertions and points to several pieces of evidence which contradict Plaintiff's claims. With regard to the "nitpicking and harassing" conduct, it appears that Plaintiff is referring to the constant back-and-forth between herself and her supervisors with regards to her time sheets and reimbursement requests. As discussed supra, throughout her employment with PPMD, Plaintiff struggled with filling out her reimbursement requests correctly and turning in her time sheets on time. Time sheets were frequently handed in hours or even days late. (Def.'s Mem. Supp. Summ. J. Ex. 8.) Reimbursement requests often were improperly filled out. ( Id. at Exs. 11-17.) Despite these deficiencies, Plaintiff was ultimately paid for every hour that she reported on her time sheet and every reimbursement request she made. (Foley Aff. ¶ 16.) While being constantly reminded to comport with office policy may have been frustrating to Tucker, it did not rise to the level of an "adverse employment action." Without any evidence that PPMD violated the terms, conditions, or benefits of Tucker's employment, such reminders cannot be considered adverse employment actions. Munday v. Waste Mgmt. of N. Am., Inc., 126 F.3d 239, 243 (4th Cir. 1997).
With respect to proof of an alleged adverse employment action, the procedures of PPMD were based on requirements of federal government grant programs. As PPMD's budget was based totally on a grant from the federal government, it had to keep accurate records in order to comply with the terms of this grant. If employees were failing to properly handle their compensation documentation, PPMD was certainly justified in taking steps to ensure compliance with federal requirements. There is simply no genuine issue of material fact with respect to this matter. Such steps by PPMD could not possibly be found to rise to the level of adverse employment action. See, e.g., Munday, 126 F.3d at 243 (holding that yelling at an employee during a meeting, directing other employees to ignore her and to spy on her, and generally refusing to communicate with her concerning her employment-related complaints did not rise to the level of adverse employment action); Hopkins v. Baltimore Gas and Electric Co., 77 F.3d 745, 753 (1996) (holding that the fact that a supervisor bumped into an employee, positioned a magnifying glass over his crotch, flipped his tie over to see its label, gave him a congratulatory kiss in the receiving line at his wedding, and stared at him in the bathroom did not establish a prima facie case under Title VII). Thus, Plaintiff has failed to satisfy the second element of the prima facie disparate treatment claim.
As to the third element, Plaintiff, again without pointing to any specific evidence, alleges that Defendant's harassing conduct was directed only at her, as opposed to her similarly situated co-workers, and that an inordinate amount of responsibility was placed on her as well. (Compl. ¶ 19; Pl.'s Mem. Opp'n Summ. J. 6.) In terms of the "harassing" conduct, similarly situated employees seem to have been treated in similar fashion. As discussed infra, when employees handed in time sheets late, they were sometimes paid on time and sometimes were not paid until the following pay period depending on when the payroll was "closed." This was a general PPMD policy applied neutrally to all employees. Thus, when Linda Pinos, a Hispanic woman, missed a December 7, 2004 time sheet due date, she was paid the next payroll period. (Foley Aff. ¶ 22.) When Annette Maruits, a white woman, turned in a December 21, 2004 time sheet late she was paid according to the regular schedule. ( Id.) Similarly, all PPMD employees who made mistakes on their reimbursement requests were asked to make the necessary changes. (Def.'s Mem. Supp. Summ. J. Ex. 8.) Plaintiff was treated no differently in this regard.
Additionally, with respect to Plaintiff's claim that Defendant placed more responsibility on her then other Parent Advocates, there is simply no proof. For such an allegation to survive a Motion for Summary Judgment, Plaintiff must bring forth some evidence upon which a reasonable fact finder could rely. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Based on the fact that she has failed to satisfy either of these last two elements, this Court finds that Plaintiff has not satisfied her burden of showing a prima facie case of disparate treatment.
2. Discriminatory Discharge
A prima facie case of discriminatory discharge requires Plaintiff to show that: "(1) she is a member of a protected class; (2) she suffered adverse employment action; (3) she was performing her job duties at a level that met her employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class." Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004). Tucker, as an African-American, is obviously a member of a protected class. It is also undisputed that she was fired, in satisfaction of the second element.
As to the third element, Plaintiff contends her job performance was "acknowledged as exceptional to where Ms. Tucker was given additional duties which allowed her to work overtime hours." (Pl.'s Mem. Opp'n Summ. J. 6.) However, Plaintiff does not point to any evidence which confirms this characterization of her performance nor does she cite any case which supports the notion that the assigning of additional duties can itself serve as proof that an employee was performing her job duties at an acceptable level. In fact, the record clearly indicates that her supervisors had legitimate reasons for being dissatisfied with her performance. Plaintiff repeatedly neglected to turn her time sheets in on time. (Foley Aff. ¶ 21; Def.'s Mem. Supp. Summ. J. Ex. 8.) Her reimbursement requests were often vague and not in line with the PPMD Employee Handbook which Plaintiff acknowledges having received and understood. (Def.'s Mem. Supp. Summ. J. Exs. 11-17.) Numerous complaints were lodged against her by the families she was representing. ( Id. at Ex. 28.) Tucker also admits having violated PPMD's confidential e-mail policy. ( Id. at Ex. 26.) Finally, she repeatedly refused to show up for a requested meeting with her supervisors. ( Id. at Ex. 36.) As mentioned supra, this Court has previously held that a "party cannot create a genuine dispute of material fact through mere speculation." Shin v. Shalala, 166 F. Supp. 2d 373, 375 (D. Md. 2001) (citations omitted). However, in terms of the quality of her job performance, that is all Plaintiff has presented to this Court. She points to no evidence and merely asserts her opinion, which apparently was not shared by her supervisors. Thus, Plaintiff has failed to satisfy the third element of the discriminatory discharge test.
Even if Plaintiff could point to some evidence which would satisfy the third element of this test, she points to no facts with regards to the fourth element — the status of her position after her termination. Absent some proof that her position remained open or was filled by a similarly qualified applicant who was not African-American, Plaintiff cannot satisfy this element. Thus, based on her failure to satisfy the third or fourth elements of the test, Plaintiff has failed to demonstrate a prima facie case of discriminatory discharge.
3. Retaliation
Plaintiff also claims in Count I that Defendants discriminated against her by "willfully terminating [her] position in an act of retaliation." (Compl. ¶ 25.) The same McDonell Douglas balancing standard applies to this aspect of the claim. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Title VII provides that it is unlawful for "an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" involving Title VII violations. 42 U.S.C. § 2000e-3.
Plaintiff does not specify why Defendant retaliated against her. Defendant assumes, and, for purposes of this motion this Court will agree, that the basis for the retaliation claim is Plaintiff's February 16, 2005 e-mail in which she complained about her job conditions. However, as Defendant rightly points out, that communication does not mention anything about race or protected activities. In fact, none of Plaintiff's communications with Defendant mentioned race discrimination. (Def.'s Mem. Supp. Summ. J. 20.)
Applying the first phase of the McDonnell Douglas test, Plaintiff must make a prima facie showing of retaliation, namely (1) that she engaged in a protected activity, (2) that her employer took an employment action against her that a reasonable employee would have found materially adverse, and (3) that there was a causal connection between the protected activity and the adverse employment action. Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006); Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 298 (4th Cir. 2004) (en banc). As opposed to the previous claims, where she could satisfy at least some elements of the prime facie test, Plaintiff can establish none of the requisite elements of a retaliation claim.
With regards to the first element, Plaintiff points to no protected activity in her Complaint. Protected activity may fall into two categories, opposition and participation. The Fourth Circuit has held that "protected oppositional activities may include `staging informal protests and voicing one's own opinions in order to bring attention to an employer's discriminatory activities,' as well as `complaints . . . about suspected violations.'" EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 406 (4th Cir. 2005) (quoting Bryant v. Aiken Reg'l Med. Ctrs., Inc., 333 F.3d 536, 543-44 (4th Cir. 2003)). Defendant assumes that Plaintiff's February 16, 2005 e-mail is the basis of her claim. (Def.'s Mem. Supp. Summ. J. Ex. 25.) However, that e-mail is merely a collection of general complaints about her job and makes no mention of any discriminatory practices. For instance, at one point in her e-mail when addressing the reimbursement request requirements, Tucker contends that she was "merely handed a PPMD's [sic] handbook, and sent out to sea without a fishing rode [sic] and only after the problems arrived, then I was showed [sic] how to do certain things." ( Id.) With regards to asking for clarification of her time sheets and the complaints filed against her, Plaintiff asserts "I know what my job requires and for those of YOU that challenge me sometimes, I do a dam [sic] good job." ( Id.) Nowhere in the two-page e-mail does Plaintiff mention anything which even resembles a protected activity.
In her Opposition to Defendant's Motion for Summary Judgment, Plaintiff, for the first time, asserts that she filed an in-house complaint with regards to her treatment with PPMD and then followed up on that by filing complaints with the Maryland Commission on Human Relations ("MCHR") and the Equal Employment Opportunity Commission ("EEOC"). (Pl's Mem. Opp'n. Summ. J. 8.) First, Plaintiff did not even mention these filings in her Complaint and has not provided this Court with any physical evidence of their existence. Additionally, the MCHR complaint was filed on September 26, 2005 a full two months after Plaintiff's termination and therefore cannot serve as the basis of a retaliation claim. (Def.'s Reply 3.) To the degree that there was any "in house complaint" it was represented by the February 16, 2005 e-mail mentioned supra and contained no mention of Title VII protected activities. There is simply no protected activity at issue in this case and thus Plaintiff cannot establish a prima facie case of retaliation under the McDonnell-Douglas framework.
As to the second element, the Supreme Court has held that an adverse employment action, "the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment." Burlington Northern Santa Fe Ry. Co., 548 U.S. at ___, 126 S. Ct. at 2409. Rather, an adverse employment action occurs where "the employer's actions [are] harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." 548 U.S. at ___, 126 S. Ct. at 2412-13. In this case, most of PPMD's actions were quite minor. For example, Susie Shannon sent an e-mail and subsequently a fax to Tucker asking her to call a parent who was seeking PPMD's help. (Foley Aff. ¶ 10; Def.'s Mem. Supp. Summ. J. Ex. 22.) In addition, Tucker received a request to clarify a couple of entries on an expense report. (Def.'s Mem. Supp. Summ. J. Ex. 30.) She also received a reprimand for sending a harsh e-mail to her coworkers, but even that was an appropriate discipline. ( Id. at Ex. 26.) None of these actions rise to the level of an adverse employment action under the Burlington Northern standard. Only when she was terminated did PPMD take an adverse employment action.
As to the third element, without evidence of Tucker having engaged in protected activity, there is simply no evidence of a causal connection with her termination. Accordingly, Plaintiff has failed to satisfy the elements of a prima facie case of retaliation.
B. Legitimate, Nondiscriminatory Reason
Even if Plaintiff had established a prima facie case of race discrimination or retaliation, Defendant has articulated a clearly legitimate reason for firing Tucker, namely her refusal to carry out her job duties or communicate with her supervisors. (Def.'s Mem. Supp. Summ. J. 19.) As discussed supra, in response to an e-mail from PPMD's Director of Operations questioning several aspects of her June 2005 reimbursement request, Plaintiff asserted that she was being questioned in "retaliation" for some unnamed event and let it be known that all further communication with her should be through her attorney. ( Id. at Ex. 31.) Over the next several days, Plaintiff refused to respond to her supervisors' communications and did not answer her phone or fax machine during normal business hours. ( Id. at Ex. 36; Foley Aff. ¶ 37.) As a last resort, Defendant sent Tucker an e-mail suspending her employment and warning her that she would be terminated if she did not respond. (Def.'s Mem. Supp. Summ. J. Ex. 36). Tucker continued to ignore these communications and thus was fired. This Court thus finds that Defendant has articulated a legitimate, nondiscriminatory reason for firing Tucker.
C. Evidence of Pretext
Even assuming Plaintiff had met her burden of showing a prima facie case of racial discrimination or retaliation, she has not presented any evidence which indicates that Defendant's articulated reason for firing her — her insubordination and refusal to communicate with her supervisors — was a pretext for racial discrimination or retaliation. Tucker has failed to produce any evidence of racial discrimination or retaliation after having been afforded full discovery. Her own opinion, without more, is not enough to establish a prima facie case of discrimination, let alone enable a reasonable jury to find, by a preponderance of the evidence, that Defendant's purported reason for firing her was merely a pretext. See Goldberg v. B. Green and Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988). Thus, Plaintiff has failed to demonstrate by a preponderance of the evidence that Defendant's proffered reason for firing her was a pretext for either racial discrimination or retaliation.
In sum, Plaintiff has not made out a prima facie case of racial discrimination or retaliation, nor has she met her burden of showing that the Defendant's articulated reason for its behavior was pretextual. Accordingly, Defendant's Motion for Summary Judgment is GRANTED as to Count I.
II. Count II: Wrongful Termination
Although Count II cites to Title VII, it is in fact a common law wrongful termination claim. This Court chooses to exercise supplemental jurisdiction over Plaintiff's common law claims pursuant to 28 U.S.C. § 1367. Thus, the law of the State of Maryland applies.
As Defendant notes, the tort of wrongful discharge is not available where statutory remedies exist. See Chappell v. S. Md. Hosp., Inc., 578 A.2d 766, 773 (Md. 1990) (rejecting a wrongful discharge claim where the individual was able to "pursue a remedy under both the state and federal anti-discrimination statutes for his discharge from employment for apprising his employer of allegedly discriminatory employment practices"). It is well established in Maryland that "at-will employment `can be legally terminated at the pleasure of either party at any time.'" Makovi v. Sherwin-Williams Co., 561 A.2d 179, 182 (Md. 1989) (citation omitted). The Maryland Court of Appeals created an exception to this rule in Adler v. American Standard Corp., 432 A.2d 464 (Md. 1981), when it established a cause of action for abusive discharge. The tort of abusive discharge in Maryland requires a showing that the plaintiff was terminated in contravention of a "clear mandate of public policy." Id. at 473. The elements of this tort are (1) that the employee was discharged, (2) the basis for the discharge violated some clear mandate of public policy; and (3) that there is a nexus between the employee's conduct and the employer's decision to fire the employee. See, e.g., Shapiro v. Massengill, 661 A.2d 202, 213 (Md.Ct.Spec.App. 1995). The Court of Appeals has narrowly interpreted what constitutes a clear mandate of public policy, finding for employees primarily when they were discharged for refusing to act unlawfully, exercising a statutory duty, right, or privilege, and performing an important public function. See Makovi, 561 A.2d at 182.
In the Complaint, Plaintiff alleges that she was discriminated against because of her race and that she was retaliated against for opposing a discriminatory practice. Title VII provides a sufficient remedy for these claims, regardless of whether Plaintiff was able to prove them. See Chappell, 578 A.2d at 773. Count II of the Complaint, therefore, contains no statements of public policy that are not addressed by the federal statutes and Maryland counterparts.
Thus, there are no genuine issues of material fact and Defendant is entitled to judgment as a matter of law. Accordingly, Defendant's Motion for Summary Judgment is GRANTED as to Count Two.
III. Count III: Breach of Contract
In Count III, Plaintiff alleges that Defendant materially breached its employment agreement "by terminating Plaintiff's employment without cause and by not allowing Ms. Tucker an opportunity to challenge allegations made by Defendant through the company's disciplinary process set forth in the PPMD employee handbook." (Compl. ¶ 41.) Because this is a common law breach of contract claim, the law of the State of Maryland applies.
Defendant contends that Count III must fail in that "Plaintiff's employment was at will, and there is no contract that entitled Plaintiff to a hearing." (Def.'s Mem. Supp. Summ. J. 22.) They cite the introduction to the PPMD employee handbook which states explicitly "[t]his manual is not an express or implied employment contract or agreement of any kind, nor is it a guarantee of any benefits described." ( Id. at Ex. 38.) Additionally, Plaintiff signed an "Employee Acknowledgment Form" which stated that she understood that either she "or the Parent's place [could] terminate the relationship at will, with or without cause, at any time." ( Id. at Ex. 4.)
"[E]mployment is at-will in Maryland unless the employee can show that the contract has `been so modified by the personnel policy statement as to remove it from the full strictures of the common-law rule.'" Zahodnick v. IBM, 135 F.3d 911, 914 (4th Cir. 1997) (quoting Staggs v. Blue Cross of Md., Inc., 486 A.2d 798, 801 (Md.App. 1985)). Even if the contract has been modified by a personnel policy, the "employer may include a clear disclaimer, however, to avoid contractual liability for a personnel policy." Id. In Haselrig v. Public Storage, Inc., 585 A.2d 294 (Md. Ct. Spec. App. 1991), the Maryland Court of Special Appeals held that language in the policy manual that "the relationship between [employee] and [employer] is predicated on an at will basis" did not, as a matter of law, disclaim any implied contract created by the personnel policies. Indicating that it "must consider the nature of the provision, its apparent purpose and any facts and circumstances that bear on its meaning," the court specifically noted that the handbook used the phrase "predicated on" rather than a more unequivocal verb "is" in reaching its conclusion. Id. at 300-01. In contrast, in this case, the employee handbook states that employment with PPMD was at-will in multiple locations, and further states that the policies in the handbook are not meant to and do not change that at-will status. (Def.'s Mem. Supp. Summ. J. Exs. 4, 38, 39.)
In Fournier v. U.S. Fidelity Guaranty Co., 569 A.2d 1299, 1302 (Md.Ct.Spec.App. 1990), a case distinguished in the Haselrig opinion, the Maryland Court of Special Appeals held that a provision stating that the employer "intend[ed] to make every effort to avoid terminating an employee's service" was not sufficient to create an implied contract where employees were also informed that the employer could terminate them at any time. The personnel policies in this case contain even more frequent statements of at-will employment. In addition, Plaintiff explicitly signed a document indicating that she understood the policies and that her employment was capable of being terminated at any time with or without cause. Thus, this Court finds that the PPMD employee handbook unequivocally did not give rise to an employment contract.
Furthermore, with regards to the PPMD's disciplinary process, the employee handbook at issue specifically provides that if any of a particular list of violations occurs, disciplinary action may be taken, including "immediate dismissal without warning." (Def.'s Mem. Supp. Summ. J. Ex. 39.) A March 2004 supplement to this section, that tweaked the discipline policy and provided for a series of steps before termination also explicitly stated that certain unacceptable forms of behavior would still lead to "immediate termination." ( Id. at Ex. 40.) Thus, even if it were possible to characterize the employmee handbook as some sort of contract, PPMD still retained the right to immediately terminate certain employees based on particularly unacceptable forms of behavior. In a similar case, in which the plaintiff claimed that his employer had breached its employment contract in that it was company policy to engage in disciplinary action short of discharge for the first three offenses, the Maryland Court of Special Appeals focused on the fact that the policy in question specifically noted that "[s]erious offenses will result in immediate discharge." Silkworth v. Ryder Truck Rental, Inc., 520 A.2d 1124, 1128 (Md.Ct.Spec.App. 1987). In that he had refused to perform the work he had been hired to do, the Court had no problem finding a "serious offense justifying a dismissal." Id. In this case, Plaintiff engaged in similar behavior by repeatedly refusing to respond to her superiors or perform the work for which she was being paid. (Def.'s Mem. Supp. Summ. J. Ex. 30-37.) In light of the explicit language of PPMD's disciplinary policy, her immediate termination was more than justified.
Included as the second item on this list is "insubordination or refusing to obey instructions properly issued by the employee's supervisor" which is Defendant's stated reason for Plaintiff's termination. (Def.'s Mem. Supp. Summ. J. Ex. 39.)
The same section also emphasizes that "notwithstanding this list, all employees remain employed `at will.'" (Def.'s Mem. Supp. Summ. J. Ex. 39.)
Amongst these listed behaviors was "[d]irect insubordination or willfully not following the direction of a supervisor." (Def.'s. Mem. Supp. Summ. J. Ex. 40.)
Accordingly, Plaintiff has failed to present a genuine issue of material fact and Defendant's Motion for Summary Judgment is GRANTED as to Count Three.
CONCLUSION
For the reasons stated above, Defendant's Motion for Summary Judgment is GRANTED. A separate Order and Judgment follows.