WILLIAM M. NICKERSON, Senior District Judge.
Before the Court are Plaintiff Doreen Maynard's "Motion for Judgement upon the Pleadings," (MJP) ECF No. 75, and a Cross Motion for Summary Judgment (Cross Motion) filed by Defendant St. Stephen's Reformed Episcopal Church (Defendant or St. Stephen's). ECF No. 98. Also pending is Plaintiff's motion to strike declarations and many of the exhibits that Defendant submitted with its Cross Motion. ECF No. 103. All of the motions are now ripe. Upon review of the pleadings and the relevant case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that Plaintiff's motions will be denied and Defendant's motion will be granted.
Proceeding
St. Stephen's is a church located in Eldersburg, Maryland, which operates a school for students from kindergarten through eighth grade — the St. Stephen's Classical Christian Academy (SSCCA). The St. Anselm program is a program within the school that serves students with language-based learning differences. John Dykes is the headmaster of SSCCA and Johanna Judy is the Lead Teacher for the St. Anselm program. Eric Jorgensen is the pastor of St. Stephen's and the Chairman of the SSCCA Board.
In September of 2013, Plaintiff was hired to work as a part-time teacher at SSCCA in the St. Anselm program. Johanna Judy was Plaintiff's immediate supervisor. As a part-time teacher working 4 hours and 45 minutes per day, Plaintiff was paid a salary of $15,000 for the nine month school year. After requesting that she be moved to a full-time teaching position, Plaintiff signed a new contract on September 4, 2014, with a salary of $22,000. Shortly after the start of the school year, however, in early October, Plaintiff requested that she be returned to part-time status.
In response to Plaintiff's decision to return to part-time status and an increase in the number of students enrolled at SSCCA, Dykes decided to hire another part-time teacher. Dykes and Judy then began the process of revising the teaching schedule to accommodate Plaintiff's part-time status and the addition of the new part-time teacher. Plaintiff was not pleased with the proposed schedule and voiced that displeasure in a series of emails that quickly escalated in their level of contentiousness. On October 7, 2015, Plaintiff emailed Dykes and stated that, while she was "happy to hear" that a new part-time teacher would be hired, she wanted to take the opportunity to remind Dykes that they had previously discussed Plaintiff teaching four morning classes and the new teacher taking Plaintiff's afternoon classes so that Plaintiff's hours were not stretched out all day. Dykes Decl., Ex. E. She also requested that she be included in the scheduling process. The next afternoon around 1 o'clock, Plaintiff sent Dykes an email informing him that she had shared some of her ideas for a workable schedule with Judy and again asked to be allowed to give input into the scheduling changes.
Around 4:30 in the afternoon of October 8, 2014, Dykes responded and provided the schedule for the four classes that Plaintiff would be teaching, a schedule which would require her to be at the school from 9:00 to 1:40 each day.
Dykes responded at 8:01 that evening and stated that he had read 1/3 of the email but would not have time to read and decipher the rest until the next week. He also declared, that "[t]he schedule is already set," and that Plaintiff's plan, which had her coming in at 8:00 in the morning for a planning period, instead of 9:00 to teach, was unacceptable.
Plaintiff responded by email about an hour later. The email began:
One hour later, at 10:01 p.m., Dykes responded:
One hour later, at 10:54, Dykes sent another email. By this time, Dykes had read Plaintiff's long email of October 7, and responded that the option for Plaintiff to work full time had passed and that he had approved the schedule proposed by Judy because it serves the needs of the program. He concluded, "[w]e will discuss how you can meet our programs needs tomorrow and if we can come to an agreement I will issue you a new contract. . . ."
At 1:43 on the morning of October 9, Plaintiff emailed Dykes and indicated that she felt uncomfortable meeting with him alone, without a "neutral witness."
At 9:37 a.m., Plaintiff sent an email to Jorgensen requesting "a confidential meeting with [him] as soon as possible to file a formal complaint of discrimination, harassment and retaliation against [Dykes and Judy]." Jorgensen Decl., Ex. A. She indicated that she would be bringing a tape recorder to record the meeting and requested that Stanley Frey, a member of the SSCCA Board, also be present at the meeting. Plaintiff repeated that she believed that she was being treated differently and, unlike Judy, was not permitted to have input into the new schedule. Without providing additional examples, she opined that "[t]his is not the first time I have been treated this way by Mr. Dykes and Johanna and have objected to their unilateral decisions for me that affect me (and my students) adversely and in a discriminatory way."
At 10:45 that morning, Dykes responded to Plaintiff's 6:07 a.m. email to him and stated that he found it "very disappointing" that Plaintiff did not comply with SSCCA policies and procedures which required her to find her own substitute should she be absent from school or to telephone the Headmaster in the case of an emergency absence when she cannot find a substitute. Dykes Decl., Ex. O. He then inquired:
Dykes Decl., Ex. O.
Dykes then forwarded this email, along with Plaintiff's 6:07 email, to Jorgensen and the other members of the SSCCA Board. Dykes adds an "FYI" to that forwarded email relaying that Judy had reported to him that she had "a peaceful environment to work in for the first time this year" and that she "does not want to see [Plaintiff] return."
At around noon on October 9, Plaintiff forwarded Dykes' email to Jorgensen and instructed him to "[p]lease advice Mr. Dykes to stop sending me harassing emails like the one below." Jorgensen Decl., Ex. D. She states that:
Jorgensen telephoned Plaintiff shortly after receiving this email and left a message advising Plaintiff that "things needed to be straightened out before you return" and that "we cannot have ought
In her description of the telephone call in one of her declarations,
Pl.'s Decl. D, ¶¶ 7, 8.
Responding to Plaintiff's suggestion that Plaintiff's relationship with Dykes was such that she felt the need to seek a restraining order against him, Jorgensen informed Plaintiff that she was suspended, with pay, and that he would be discussing the matter with the SSCCA Board. Shortly after this telephone call, Plaintiff forwarded to Jorgensen the series of emails between her and Dykes. Jorgensen and Frey reviewed the emails and Jorgensen had a conversation with Dykes. They state that after their review of the emails and investigation of the matter, they concluded that there was no evidence of discrimination. Instead, in their view, it was Plaintiff's unhappiness with the proposed schedule that was the primary cause of the turmoil. They further concluded that Plaintiff's emails were inappropriate, demanding, and disrespectful and that Plaintiff had violated SSCCA policy in the manner that she called out sick.
On October 12, 2014, Jorgensen called Plaintiff and offered her a severance package of three weeks' pay in exchange for her resignation. Plaintiff refused. Jorgensen then informed Plaintiff that her employment with SSCCA was terminated. On October 15, 2014, Jorgensen sent Plaintiff the official termination letter. Jorgensen Decl., Ex L.
At the time that Plaintiff's employment with SSCCA was terminated, she was attending another church in the area, Mount Airy Bible Church (MABC). In October of 2014, she told an attorney who also attended MABC, Michael Fleming, about her termination by SSCCA. While he was not an employment attorney, he offered, as a favor, to call Jorgensen "as a Christian to a Christian" to work out Plaintiff's "contract breach." Pl.'s Dep. at 304. Plaintiff stated that it was her intent to try to work out this contract dispute "within the church arena. . . . I actually was the one that wanted to follow Matthew 18:15 here, you know, if a Christian — if a brother or sister wrongs you, you go one on one, then two on one, then you take it outside the church if they don't listen to reason."
On November 4, 2014, Plaintiff filed a Charge of Discrimination with the Maryland Commission on Civil Rights (MCCR). Def.'s Ex. 8. In early December 2014, Jorgensen learned that Plaintiff had filed the MCCR Charge and that she intended to file a civil suit against SSCCA. Jorgensen states that relying on "scriptural teachings,"
One day before Jorgensen sent that email, on December 8, 2014, Plaintiff interviewed for an after school, part-time position that had opened up at the school that is associated with MABA, the Mount Airy Christian Academy (MACA). She was interviewed by Rory Rice, the School Administrator for MACA, and another member of the MACA staff, Megan Harmon. Rice states that, at the end of the interview, Plaintiff was given forms to complete, was instructed to obtain fingerprints for a background check, and was told that he would be contacting her references before a hiring decision would be made. Rice Decl. ¶¶ 6, 7. Plaintiff states that she told Rice in the interview that she would not receive a positive reference from Jorgensen because they were "still in a dispute," so she gave Rice three other references. Pl.'s Decl. E ¶ 5.
In addition to his position as School Administrator for MACA, Rice was also an Elder for MABC and, because of his service in that role, Jorgensen's email to the MABA pastors was forwarded to him for consideration. After receiving Jorgensen's email, Rice relates that he "felt it would be best to look into Ms. Maynard's situation with [Jorgensen and SSCCA]" and he spoke with Fleming. He states that he never spoke with Jorgensen, that talking to Fleming was the only investigation he undertook regarding the dispute, and that nothing he learned from Fleming influenced Plaintiff's chances at being hired for the MACA position. Rice Decl. ¶¶ 10, 11. Rice states further that, as it turned out, he was unable to offer the position to Plaintiff because the MACA librarian, who he describes as "an existing MACA employee who was held in high regard," approached him and asked him to hire her for that position, which he did.
Directly contradicting Rice's account, Plaintiff contends that she was offered the position during the interview and that the offer was only rescinded because of Jorgensen's email to MABC. An email that Plaintiff sent to Rice four days after the interview, however, belies that contention. On December 12, 2014, Plaintiff sent an email to Rice in which she wrote, "I just wanted to touch base with you and Megan about the After School position to see if you have made a decision about it, yet. I . . . was informed that Megan called one of my references, but I haven't heard any more since then. I would appreciate it if you would let me know where I stand in this process." Rice Decl., Ex. A. Rice responded that "[w]e are finalizing the hiring process and will let you know as soon as possible" but "decisions can take some time."
On September 10, 2015, the MCCR issued its Written Findings on both of Plaintiff's charges. Def.'s Exs. 10, 12. Regarding her claims that her suspension and the termination of her employment were retaliatory, the MCCR concluded that its investigation revealed that Plaintiff "continuously displayed resistance towards complying with scheduling changes, school protocols, and administrative authority" and that her employment was terminated "due to `relational conflicts' between [Plaintiff] and the school staff." Def.'s Ex. 10 at 3, 4. The MCCR concluded, "[b]ased on the evidence gathered by the Commission staff during the investigation, it has been determined that there is
While the substance of the Written Finding regarding Plaintiff's suspension and termination clearly reflected the Commission's conclusion that there was no retaliation, Plaintiff has repeatedly attempted to capitalize on what was clearly a typographical error in the original Written Finding. One sentence in the Written Finding reads "[t]he investigation determined that the [Plaintiff's] termination was based on a retaliatory motive." Def.'s Ex 10 at 5. Plaintiff cited this typographic error in her opposition to Defendant's motion to dismiss, ECF No. 11 at 5, and that prompted Defendant to ask the MCCR to amend its Written Finding, which the MCCR did on January 26, 2016. Def.'s Ex. 11 (correcting that sentence to read "[t]he investigation determined that the [Plaintiff's] termination was not based on a retaliatory motive"). Plaintiff has continued to argue that Defendant's request to correct this obvious error was improper.
The Equal Employment Opportunity Commission issued Plaintiff a Right to Sue Letter on October 27, 2015, and Plaintiff filed this action on November 20, 2015. As explained above, Plaintiff's complaint is now limited to her three retaliation claims under Title VII, arising out of her suspension, the termination of her employment, and the post-termination contact with MABC. Plaintiff has reiterated that these claims are based solely on the actions of Jorgensen and not on any conduct on the part of Dykes or Judy. Defendant has moved for summary judgment on all three claims.
Rule 56(b) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered in favor of a moving party when there is no genuine dispute as to any material fact, and the moving party is entitled to judgment as a matter of law.
Where, in a case "decided on summary judgment, there have not yet been factual findings by a judge or jury, and [one party's] version of events . . . differs substantially from [the other party's,] . . . courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion."
Before addressing the merits of Plaintiff's claims, the Court must consider briefly Plaintiff's Motion to Strike. The gravamen of that motion is that, while the declarations and many of the exhibits submitted by Defendant relate to discrimination and harassment allegedly committed by Dykes and Judy, Plaintiff's "retaliation claims are only against Pastor Eric Jorgensen." ECF No. 103 at 2. In Plaintiff's view, that renders that evidence irrelevant. As explained below, however, in order for Plaintiff to establish that she engaged in "protected activity" under Title VII, which is one of the elements of a prima facie claim of retaliation, she must establish that it was objectively reasonable for her to believe that she was discriminated against by Dykes and Judy. That renders the evidence about Dykes and Judy's conduct relevant to her retaliation claims.
Plaintiff also broadly challenges much of Defendant's evidence as "hearsay" or as statements made "without personal knowledge." Plaintiff, however, fails to identify examples of what specific statements she believes fall into those categories or, when she provides examples, they are based on mis-representations of the evidence. For example, she complains that "the bulk of [Jorgensen's] Declaration is focused on his opinion of irrelevant and unsupported hearsay complaints filed against [Plaintiff] by [Dykes and Judy." ECF No. 103 at 4. Jorgensen's opinion, however, was largely informed by his review of the emails that Plaintiff forward to him. Plaintiff complains that Frey was not present when Jorgensen sent the December 9, 2014, email to MABC, "so Frey has no personal knowledge of that matter [] nor is competent to witness anything about it." ECF No. 103 at 4. Frey, however, makes no statement about that email in his declaration.
Plaintiff also challenges Defendant's submission of pleadings from administrative proceedings and lawsuits Plaintiff has filed against her other former employers on the grounds of authenticity and relevance. These documents are either in the public record or have been otherwise authenticated. Furthermore, as discussed below, they are relevant to whether Plaintiff had a subjective belief that Dykes and Judy had discriminated against her.
The Court finds nothing objectionable in Defendant's submissions and will deny Plaintiff's motion to strike.
Turning to the merits of Plaintiff's claims, Title VII prohibits an employer from discriminating against an employee because the employee "opposed any practice" made unlawful by Title VII (the "opposition clause"), or "made a charge, testified, assisted, or participated in" a Title VII proceeding or investigation (the "participation clause"). 42 U.S.C. § 2000e-3(a). A plaintiff can prove a claim of retaliation under Title VII using either direct evidence of retaliation or through the
To establish a claim of discrimination using indirect evidence under
The Court finds that Plaintiff's first two claims — those related to her three day suspension, with pay, and the termination of her employment — fail because Plaintiff did not engage in protected activity prior to those actions being taken by her employer.
Plaintiff might be able to convince a jury that Dykes treated her unfairly. There is nothing in the record, however, from which a jury could conclude that Plaintiff had a reasonable belief that his failure to consult her was based on her gender. The whole substance of Plaintiff's complaint is that Dykes treated Judy more favorable than Plaintiff, but Plaintiff and Judy are both of the same gender. Furthermore, during the relevant time period, thirteen of the sixteen employees of SSCCA were females — all except Dykes, Jorgensen, and one teacher. Dyke's Decl., Ex. R. Under these circumstances, the fact that Plaintiff even attempted to attach the label of gender discrimination to her complaint is a clear indication that Plaintiff was attempting to use the threat of a retaliation claim to keep from being fired.
There is no more support for the reasonableness of Plaintiff's claim of age discrimination. During the relevant time period, 60% of those working at SSCCA were over 45 years of age.
Pl.'s Decl. F, ¶ 14 (describing what she told the MCCR investigator as to why she felt discriminated against). In her own opinion, while noting that she is "older," it is clear that Plaintiff attributed Dykes' decisions to Judy's family status and associated financial needs, and not to Plaintiff's age.
In her effort to support the reasonableness of her assertion of age related discrimination, Plaintiff asserts that Dykes called her "derogatory" names in his email, although, in her deposition, she could not remember what those names were. Pl.'s Dep. at 241-243. Plaintiff repeats that assertion throughout her submissions but, again, without identifying what those names might be. The Court's review of the email reveals that the closest to name calling in which Dykes might have engaged is his comment that Plaintiff's "allegations are unfounded and your deluded confabulations seem bizarre to me at best." Dykes Decl., Ex. O. While certainly critical of Plaintiff's reactions to the scheduling proposal, there is nothing about that email that reflects discrimination based on age.
The Court finds parallels between this case and a recent case before the Eastern District of New York,
In this case, there is a question as to whether Plaintiff ever had a subjective good faith belief that a Title VII violation occurred. Defendant notes that Plaintiff has now filed multiple charges of discrimination and retaliation against former employers. In 2001, Plaintiff filed a suit against her former employer, Comcast Communications of South Florida, bringing claims of religious discrimination and a claim that her employer retaliated against her for bring complaints to management about the differential treatment she suffered. Def.'s Ex. 14. In 2008, Plaintiff brought an administrative charge against a former employer, the School District of Broward County, Florida, which also included claims of retaliation. Def.'s Ex. 15. In 2013, Plaintiff filed an administrative charge with the EEOC against a former employer, the Therapeutic and Recreational Riding Center, alleging that her supervisor treated young female employees and male employees differently than her and called her derogatory names. Def.'s Ex. 16. Plaintiff has another suit currently pending in the United States District Court for the District of Connecticut against a former employer, the Stonington Community Center. Def.'s Ex. 17. That action includes allegations of discrimination and retaliation very similar to those alleged here.
This pattern of filing lawsuits might explain the language Plaintiff used in her interactions with Jorgensen. When Plaintiff emailed Jorgensen to request a meeting, it was not to simply tell him about her complaints about Dyke's scheduling, it was to "file a formal complaint of discrimination, harassment and retaliation." The language she used seemed tailored to convey that message that, if Jorgensen were to discipline her, that SSCCA would face a claim of retalitation. The language used by Plaintiff in her motion reflects that same intention. Plaintiff argues that "it is irrelevant whether my complaints to Jorgensen and Frey against Dykes and Judy on 10/09/14 were found to be true or not. I was already in `protected activity' the minute I filed them." ECF No. 75 at 1;
Plaintiff's communication with Jorgensen has all the earmarks of a pre-emptive "opposition to discrimination" that the Supreme Court cautioned against in
133 S.Ct. 2517, 2532 (2013).
The Court need not resolve, however, the question as to whether Plaintiff subjectively believed that she was being discriminated against, because it concludes that any belief she may have was not objectively reasonable. Accordingly, her complaining to Jorgensen was not protected activity and she fails to establish a prima facie case of retaliation related to her suspension or the termination of her employment.
As to Plaintiff's retaliation claim related to Jorgensen's email to the pastors at MABC, the Court finds that Plaintiff has not established a prima facie case because she cannot establish that the email resulted in an adverse employment action.
Plaintiff's efforts to create a dispute of fact on this issue are unavailing. In her opposition to Defendant's motion, Plaintiff makes the rather curious argument that
ECF No. 106-1 at 10. Rice, of course, was present at the interview and Plaintiff provides no explanation as to why he would be biased. Plaintiff also admits that it is Rice's opinion that he made no job offer.
Plaintiff correctly observes that, to prove an adverse employment action, she need not establish that she already had an offer of employment before Rice saw Jorgensen's email, she need only establish that Rice made a different decision because of the email. The record does not support that conclusion, either. Rice stated that he gave the position to a current member of MABC who was a "valued member of the MACA team," "was held in high regard," and who approached him for the position after Plaintiff's interview. Rice Decl. ¶ 12.
Finding no evidence that Jorgensen's email to MABC resulted in Plaintiff's loss of the position at MACA, the Court concludes that Defendant is entitled to summary judgment on Plaintiff' third and final retaliation claim as well.
For all of the above stated reasons, the Court concludes that Plaintiff's motion to strike and motion for judgment on the pleadings should be denied and Defendant's motion for summary judgment granted. A separate order will issue.
Pl.'s Ex. 3, Def.'s Answer to Interrogatory No. 12.
