GEORGE L. RUSSELL, III, District Judge.
THIS MATTER is before the Court on Defendant's, Comcast Cable Communications Management, LLC ("Comcast"), Motion for Summary Judgment (ECF No. 48) and Motion in Limine to Exclude the Affidavits of Karen Davis and Kirby Duffy (ECF No. 49). The Motions are ripe for disposition. Having reviewed the Motions and supporting documents, the Court finds no hearing necessary pursuant to Local Rule 105.6 (D.Md. 2014). For the reasons outlined below, the Court will deny the Motion in Limine and deny in part and grant in part the Motion for Summary Judgment.
Comcast employed Plaintiff Rylinda Rhodes, a female, from May 2007 to August 1, 2012. At all times relevant to this matter, Rhodes was employed as a dispatch representative (also referred to as "dispatcher"). In 2009, Rhodes began working in Comcast's Network Operations Center ("NOC") in Silver Spring, Maryland. Upon her arrival, she noticed that the male dispatchers on her team used vulgar language, including profanity, and described various sexual acts and women's body parts. Some male dispatchers took pictures of her and other female employees' breasts and used a smartphone application to manipulate the size of the breasts in the photos. Rhodes repeatedly complained to her supervisor, Tim Glass, about the vulgar language, but he assured her that her male coworkers' unprofessional language would stop. Despite Rhodes's complaints, the behavior continued.
In 2010, Comcast consolidated its regional NOCs and created two NOCs for its mid-Atlantic operations, one in Millersville, Maryland and the other in Richmond, Virginia. Around April 2010, Comcast transferred Rhodes and the other dispatchers on her team to the Millersville NOC. Rhodes noticed that the male dispatchers' behavior persisted and she continued to complain to her supervisors about their vulgar language, which included describing sexual acts and calling female customers "bitches." Despite her complaints, the language continued. In May 2010, Rhodes began applying for different jobs at Comcast.
From June 18, 2010 to October 17, 2010, Rhodes left work on short-term disability leave. On June 23, 2010, Rhodes was admitted into Washington Adventist Hospital, diagnosed with bipolar disorder, and began an intensive outpatient program on June 24, 2010. On October 13, 2010, Rhodes's physician permitted her to return to work part-time with possible discharge from the outpatient program.
In March or April 2011, Rhodes complained to Glass about her coworkers' behavior, and Glass merely stated "what do you want me to do? They are set in their ways." (Rhodes Dep. at 168, ECF No. 54-2). Rhodes obtained intermittent FMLA leave from April 10, 2011 to April 9, 2012. On June 14, 2011, Rhodes applied for a supervisor position in the Millersville NOC, but was rejected for the position. Rick O'Leary, a supervisor in the Millersville NOC, informed Rhodes that she would not be considered for the position because she was on FMLA leave.
In summer 2011, Rhodes informed her supervisor Laura Kelley that she had bipolar disorder and had weekly meetings with Kelley regarding her male coworkers' use of vulgar language. In August 2011, Rhodes emailed Quentin Sa'Lay in Comcast's human resources department, stating she made several complaints about unprofessional behavior. Also, in or around August 2011, one of Rhodes's coworkers, Michael Davis, grabbed her breasts. Rhodes did not immediately report this incident.
Due to the stress and anxiety caused by her working environment, Rhodes obtained short-term disability leave from September 21, 2011 to January 1, 2012. When she returned to work, she confronted Davis and told him never to touch her again. Rhodes was then absent from work on January 8, 9, 22, 23, 26, 29, and 31, 2012. In late January or early February 2012, Davis stated to Rhodes, while looking at her breasts, "I missed them girls." (Rhodes Dep. at 212-13). Rhodes was then absent from work on February 15, 16, 18, and 21, 2012.
On February 22, 2012, Kelley sent out an email to Rhodes and her coworkers requesting that they refrain from using profanity at work because the human resources department was alerted to the subject matter of their conversations. Rhodes's last day of work was February 29, 2012, when she went on short-term disability leave from March 1 to May 19, 2012.
On May 22, 2012, Rhodes's insurance company informed her that her medical records confirmed that was no longer considered unable to perform her job and she was released to return to work effective May 20, 2012. On May 22, 2012, Rhodes contacted Lori Llewellyn, a leave of absence consultant at Comcast, stating she would submit a certification from her healthcare provider substantiating her need for medical leave from May 20, 2012.
On May 22, 2012, Rhodes met with Sa'Lay and informed him that she could not return to the Millersville NOC due to the vulgar language and sexual conversations she repeatedly overheard and the incident involving Davis. Sa'Lay put Rhodes in contact with Tyra Franklin, the human resources representative assigned to the Millersville NOC. On May 29, 2012, Rhodes met with Franklin to discuss the vulgar language and incident with Davis. Franklin informed Rhodes that Comcast would investigate her complaints and the workplace environment would improve. Rhodes stated she would not return to the Millersville NOC because the environment was detrimental to her health. Franklin then instructed Rhodes to apply for other positions within Comcast for which she believed she was qualified. Rhodes requested that she be reassigned to another location or placed in another position comparable to her current position as a dispatcher.
On May 30, 2012, Glass sent an email to various supervisors in the Millersville NOC, including Kelley, stating they must ensure that they maintain a professional environment and keep the employees' personal conversations minimal and appropriate. He further stated that some of Rhodes's complaints to the human resources department were accurate. Also, on May 30, 2012, Nanette Winder, an employee engagement advisor at Comcast, instructed Franklin to have Rhodes complete Comcast's "Interactive ADA process." (ECF No. 54-24).
In June 2012, Franklin offered Rhodes a dispatcher position in the Richmond NOC, but Rhodes refused to accept the offer because Comcast would not pay for Rhodes's relocation expenses. Rhodes also refused to return to the Millersville NOC. On June 1, 2012, Winder began an investigation into Rhodes's complaints. On June 4, 2012, Rhodes again complained to Winder about the inappropriate language and touching that she experienced in the Millersville NOC. On June 29, 2012, Llewellyn mailed Rhodes a letter stating that if she did not submit a certification form from her healthcare provider by July 6, 2012, Comcast would assume that she was no longer interested in remaining employed and terminate her.
On July 3, 2012, Winder concluded that Rhodes's complaints about Davis could not be substantiated. Winder told Rhodes the results of the investigation and that she was expected to return to work at the Millersville NOC because Comcast was taking steps to improve the office's environment. Rhodes then stated that she would never return to the Millersville NOC because she did not feel safe there and she would not accept the position in the Richmond NOC because Comcast would not pay for her relocation expenses.
On July 6, 2012, Rhodes again complained to Winder about the sexual language and misconduct that occurred in the Millersville NOC. On July 9, 2012, Winder again directed Rhodes to return to work at the Millersville NOC immediately. On July, 11, 2012, Toni Ekeh, a human resources representative, informed Winder that a termination letter for Rhodes would be drafted. On July 13, 2012, the human resources department circulated an office etiquette document in the Millersville NOC addressing its expectations for appropriate office behavior. On August 1, 2012, Comcast terminated Rhodes's employment because of her health and because she refused to return to work.
The following aforementioned facts are in dispute: 1) whether Rhodes made any complaints regarding vulgar and sexual language prior to May 2012; 2) whether Comcast terminated Rhodes because of her health; and 3) whether any employees used vulgar or sexual language in the NOCs.
On June 25, 2012, Rhodes filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). (ECF No. 1). On March 11, 2014, Rhodes received a right to sue notice from the EEOC. (
On August 4, 2014, Comcast filed an Answer. (ECF No. 9). On August 31, 2015, Comcast filed Motions for Summary Judgment and in Limine. (ECF Nos. 48, 49). On September 17, 2015, Rhodes filed Oppositions to the Motions. (ECF Nos. 54, 55). On October 13, 2015, Comcast filed Replies to the Oppositions.
Under Rule 56(a), the Court must grant summary judgment if the moving party demonstrates there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party.
"[T]he mere existence of
Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1).
To prove a claim for hostile work environment based on sexual harassment, a plaintiff must show "that the offending conduct (1) was unwelcome, (2) was based on her sex, (3) was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment, and (4) was imputable to her employer."
When determining whether the conduct was based on sex, the crucial issue is "whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed."
Further, a plaintiff must show that "the environment would reasonably be perceived, and is perceived, as hostile or abusive."
"[S]imple teasing, off-hand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment."
Extremely serious isolated incidents are those which amount "to a change in the terms and conditions of employment."
"The status of the harasser also is relevant to element four of a hostile work environment claim, which necessitates proof that the harassment is imputable to the employer."
Comcast argues that Rhodes has failed to present any evidence of a hostile work environment because the disputed vulgar language was not directed towards her; the disputed conduct only involved her co-workers, but no supervisors; and she did not promptly inform Comcast of the disputed conduct. Rhodes has testified that, in 2009, her male co-workers often discussed sexual acts and women's body parts, particularly women's breasts. She stated they took pictures of women's breasts in the office and used a smartphone application to alter the size and shape of the breasts in the pictures. She further testified that one of her male co-workers took a picture of her breasts. Also, Rhodes testified that a male co-worker, Davis, touched her breasts and, after she told him never to touch her again, commented that he "missed them girls," in reference to her breasts.
Rhodes also testified that her male co-workers would refer to Comcast customers as "bitches." While the derogatory term was not directed toward her, the United States Court of Appeals for the Fourth Circuit has repeatedly rejected the notion that only conduct directed at the plaintiff may be considered.
Rhodes testifies, and Davis and Duffy declare, that their supervisors were made aware of the gender-related language used in the NOCs, but failed to take any action to stop it. Rhodes testifies that she informed Comcast of her co-workers' statements in 2009 when she complained to Glass and in 2010 and 2011 when she complained to Glass and Kelley. Ms. Davis declares that one supervisor laughed at the sexual jokes and remarks and another supervisor made a sexual proposition towards her. Duffy declares the supervisors were aware of the sexual language in the workplace. When considering all of the circumstances, Rhodes has presented sufficient evidence to demonstrate a hostile work environment based on sexual harassment imputable to Comcast.
Comcast, however, presents evidence that it was unaware of the gender-based harassment. Glass, Franklin, and Kelley testified that Rhodes never made any complaints about her coworkers' use of sexual language or sexual advances. Franklin testified that Rhodes only began to make such complaints on May 21, 2012, when she complained to Sa'Lay, and May 29, 2012, when she complained to Franklin. Glass and Sa'Lay testified that vulgar or offensive language was never used in the Millersville NOC. Franklin testified that Comcast's investigation demonstrated that gender-related comments were never made in the workplace and Rhodes's complaint about Davis touching her breasts was unsubstantiated.
Because of the contradictory evidence presented by both parties, the Court finds that there is a genuine dispute as to whether a hostile work environment existed in this matter. The Court will, therefore, deny the Motion for Summary Judgment as to this claim.
Title VII prohibits discrimination against an employee in retaliation for opposing an employer's illegal discrimination practices or participating in Title VII enforcement proceedings. 42 U.S.C. § 2000e-3(a). A plaintiff must establish a retaliation claim under the "burden-shifting" scheme set forth in
To support a claim for retaliation, a plaintiff must demonstrate: (1) "that [s]he engaged in a protected activity," (2) "that the employer took an adverse action against h[er]," and (3) "that a causal relationship existed between h[er] protected activity and the employer's adverse action."
A protected activity includes opposing unlawful employment practices that "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race," including the maintenance of a sexually hostile work environment. 42 U.S.C. § 2000e-2(a)(1);
Though it is not necessary that an employee's underlying hostile work environment claim be meritorious in order to succeed on a retaliation claim,
Further, "[a] causal connection for purposes of demonstrating a prima facie case exists where the employer takes adverse employment action against an employee shortly after learning of the protected activity."
It is disputed whether Rhodes complained about the use of sexually-charged language in the Silver Spring and Millersville NOCs before May 2012. Between September 2009 and September 2011, Rhodes applied to and was rejected for seven positions with Comcast. The temporal proximity of Rhodes's disputed complaints and Comcast's failure to hire her for one of the seven positions gives rise to an inference of causation.
Though Rhodes's pre-2012 complaints are disputed, it is undisputed that in May, June, and July 2012, she complained about her co-workers' sexually-charged language and being groped by Davis. After the 2012 complaints, Comcast terminated Rhodes's employment. The temporal proximity between Rhodes's last undisputed complaints of sexual harassment on July 6, 2012 and her termination on August 1, 2012, gives rise to an inference of causation.
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To prove a failure to accommodate claim, a plaintiff must show: "(1) that [she] was an individual who had a disability within the meaning of the statute; (2) that the employer had notice of [her] disability; (3) that with reasonable accommodation [she] could perform the essential functions of the position; and (4) that the employer refused to make such accommodations."
The ADA defines a disability as: "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(1). Major life activities include,
To be substantially limited in her ability to work, Rhodes must show her mental impairment precluded her "from more than one type of job, a specialized job, or a particular job of choice."
In this case, Rhodes has not met her burden of establishing that her mental impairment substantially limits her ability to work. Rhodes does not present any evidence of her inability to perform several types of jobs. In fact, Rhodes applied, and sought Comcast's assistance in applying, to various positions at Comcast in several locations, including the Millersville NOC. (
Next, Rhodes argues that she has demonstrated a record of a disability. (ECF Nos. 48-12, 48-21, 54-15, 54-17). The medical records state her disorder required partial hospitalization and intensive outpatient treatment, and permitted her to work part-time (ECF No. 54-15); and her disorder was considered a chronic condition that required her intermittent absence from work from April 10, 2011 to April 9, 2012 (ECF No. 54-17). The record also reflects that Rhodes was released to return to work effective May 20, 2012. (ECF No. 48-10).
Because Rhodes argues Comcast discriminated against her from late May 2012 to August 1, 2012—after she was medically able to return to work—by failing to fulfill her requested accommodations of employing her in another position in Comcast or paying for her relocation to Richmond and by terminating her, Rhodes has failed to demonstrate a record of disability at the time of the alleged discrimination. The Court, therefore, concludes that Rhodes has failed to sufficiently demonstrate that she was actually disabled or had a record of disability under the Act.
Even assuming Rhodes could demonstrate that she was disabled under the ADA, she cannot demonstrate that Comcast failed to reasonably accommodate her disability. A reasonable accommodation may include "job restructuring, part-time or modified work schedules, [and] reassignment to a vacant position." 42 U.S.C. § 12111(9)(B). An accommodation is reasonable "unless [the employer] can demonstrate that the accommodation would impose an undue hardship."
A plaintiff is qualified if she is "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). "A regular and reliable level of attendance is an essential function of one's job."
Comcast employed Rhodes as a dispatcher. The position required "regular, consistent, and punctual attendance." (ECF No. 48-5). It is undisputed that Rhodes took unapproved breaks (Rhodes Dep. 208: 9-19, ECF No. 54-2) and was on unapproved leave from May 20 to August 1, 2012. It is also undisputed, however, that Rhodes's poor attendance stemmed from the stress and anxiety she experienced due to the working conditions at the Millersville NOC. Rhodes argues that she could perform the essential functions of the dispatch representative position with reasonable accommodations, specifically (1) enforcement of Comcast's sexual harassment policies in the Millersville NOC, (2) an expense-paid relocation to another NOC, or (3) reassignment to a different position within Comcast.
"[A]n employer is not obligated to provide an employee the accommodation he or she requests or prefers; the employer need only provide some reasonable accommodation."
Additionally, in June 2012, Comcast attempted to transfer Rhodes to a vacant dispatcher position in the Richmond NOC, but Rhodes refused the accommodation because she preferred to have Comcast pay for her relocation expenses. Comcast was not obligated to pay for Rhodes's relocation expenses; its offer to relocate her to the Richmond NOC provided Rhodes with
In sum, Rhodes could not perform an essential duty of her position as a dispatcher—maintaining regular, consistent, and punctual attendance. The Court, therefore, concludes Rhodes cannot sufficiently demonstrate that she was a qualified individual with a disability under the Act or that Comcast failed to provide her with a reasonable accommodation.
To prove a wrongful discharge claim, a plaintiff must prove "(1) [she] is within the ADA's protected class; (2) [she] was discharged; (3) at the time of [her] discharge, [she] was performing the job at a level that met [her] employer's legitimate expectations; and (4) [her] discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination."
A plaintiff must "first establish that [s]he is a `qualified individual with a disability' under the ADA."
The ADA provides that "[n]o person shall discriminate against
Alternatively, under the burden shifting method, "[t]o establish a prima facie retaliation claim under the ADA, a plaintiff must prove (1) [she] engaged in protected conduct, (2) [she] suffered an adverse action, and (3) a causal link exists between the protected conduct and the adverse action."
Rhodes does not present any arguments regarding her ADA retaliation claim in her Opposition. In the Complaint, Rhodes demonstrates that she engaged in protected activity when she informed Comcast of her mental impairments and requested reasonable accommodations in May 2012. Though Rhodes cannot demonstrate that she is a qualified individual with a disability under the ADA, a jury could find that she had a reasonable and good faith belief that her request for an accommodation—i.e., relocation or reassignment—was protected under the Act. The record shows that Rhodes's termination was temporally proximate to her request that Comcast accommodate her perceived disability.
Additionally, Rhodes presents direct evidence that she was terminated because of health: Comcast's records state Rhodes was involuntarily terminated because of her health. (ECF No. 54-27). The record also demonstrates, however, that Comcast did not terminate Rhodes because of her health. (ECF No. 54-9) (stating Rhodes was not terminated due to her health). The Court, therefore, concludes that a genuine dispute exists regarding whether Comcast terminated Rhodes because of her health. Accordingly, the Court will deny Comcast's Motion as to this claim.
Under the FMLA, eligible employees are entitled to "a total of 12 workweeks of leave during any 12-month period" for certain health or family reasons. 29 U.S.C. § 2612(a)(1). An employer violates the Act when it "interfere[s] with, restrain[s], or den[ies] [an employee's] exercise or attempt to exercise" her FMLA rights.
To state a claim for unlawful interference with an entitlement to FMLA benefits, an employee must allege that: "(1) she was an eligible employee; (2) her employer was covered by the statute; (3) she was entitled to leave under the FMLA; (4) she gave her employer adequate notice of her intention to take leave; and (5) the employer denied her FMLA benefits to which she was entitled."
Rhodes presents absolutely no evidence regarding her eligibility for FMLA benefits, that she was entitled to leave under the Act, or that Comcast denied any FMLA benefits to which she was entitled. The Court will, therefore, grant Comcast's Motion as to this claim.
FMLA claims arising under the retaliation theory are analogous to those derived under Title VII and are analyzed under the
It is undisputed that Rhodes engaged in protected activity by taking intermittent FMLA leave from April 10, 2011 to April 9, 2012. (ECF No. 54-17). It is also undisputed that Rhodes applied and was rejected for a supervisor position in June 2011. Rhodes testified that her supervisor Rick O'Leary informed her that she would not be considered for the position because she had taken FMLA leave in June and July 2011. While on intermittent leave, Comcast issued a written warning to Rhodes regarding her attendance during January and February 2012. After Rhodes's FMLA leave expired on April 9, 2012, Comcast terminated her on August 1, 2012. The Court, therefore, finds that Rhodes has presented sufficient evidence to support this retaliation claim. As such, the Court will deny Comcast's Motion as to this claim.
For the foregoing reasons, Comcast's Motion for Summary Judgment (ECF No. 48) is DENIED in part and GRANTED in part. Counts III, IV, VI, X, and XII of the Complaint (ECF No. 1) are DISMISSED and judgment is entered in favor of Comcast for these Counts. Comcast's Motion in Limine to Exclude the Affidavits of Karen Davis and Kirby Duffy (ECF No. 49) is DENIED. Comcast shall be permitted thirty days to depose Ms. Davis and Duffy. A separate Order follows.
Additionally, though Comcast presents evidence that it never received any certification forms from her health care provider substantiating her medical condition from March 2012 to August 2012, it is disputed that Comcast had notice of Rhodes's mental impairment. Rhodes testifies that she informed Yolanda Jackson, Laura Kelley, and Tony Ekh, Sr. of her disorder in 2011 and 2012. (ECF No. 54-12).
