Mackie v. Jewish Foundation for Group Homes, No. 8:2010cv00952 - Document 37 (D. Md. 2011)

Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 5/9/11. (sat, Chambers)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : ELVIRA MACKIE : v. : Civil Action No. DKC 10-0952 : JEWISH FOUNDATION FOR GROUP HOMES : MEMORANDUM OPINION Three motions are presently pending and ready for review in this Family Medical Leave Act case: Jewish Foundation (ECF No. 28); (2) for the Group motion (1) the motion of Defendant Homes of for Plaintiff summary Elvira judgment Mackie for leave to file a second amended complaint (ECF No. 32); and (3) the motion of Defendant Jewish Foundation for Group Homes for sanctions. (ECF No. 35). Because the issues have been fully briefed and no hearing is necessary, the court now rules. Local Rule 105.6. See For the reasons that follow, Defendant s motion for summary judgment will be granted, Plaintiff s motion for leave to file a second amended complaint will be denied, and Defendant s motion for sanctions will be denied. I. Background Plaintiff Elvira United States, Jewish Foundation Mackie originally for is from Group a permanent the Homes resident Philippines. ( JFGH ) is of the Defendant a 501(c)(3) corporation performing business in Montgomery County. JFGH operates several group homes for adults with intellectual and developmental disabilities and/or chronic mental illness. From May 2005 until November 18, 2009, Mackie was employed by JFGH as a weekend counselor at the Meisel Group Home in Silver Spring, Maryland. In that role, she provided residents of the Meisel Group Home. was Senior Counselor, Ouida direct care to the Mackie s direct supervisor Sergeant. Sergeant reported to JFGH s Group Homes Administrator, Grace Lichaa, who in turn was supervised by Director of Programs, Rebecca Rubin. On October 31, 2009, Mackie left because she was not feeling well. work two hours early The following day, she called Sergeant and said she had the flu and a cough and fever, and she stayed home on sick leave. 54). she (ECF No. 28-8, Mackie Dep., at 51- Mackie did not see a doctor for treatment or diagnosis; simply took over-the-counter drank lots of juice. leave the following pain (Id. at 59). weekend, relief medication and Mackie also took paid sick November 7 and 8, 2009. (ECF No. 28-8, Mackie Dep. at 65; ECF No. 28-3, Rubin Decl. ¶ 14). Mackie spoke to Sergeant in the intervening week, and Sergeant told her to get some rest. Dep., at 41). Then on Monday, (ECF No. 28-5, Sergeant November 9, 2009, Sergeant contacted Mackie to inquire whether she could take an extra shift on November 11, 2009, a holiday. 2 (ECF No. 28-5, Sergeant Dep., at 42-43). Mackie agreed to take the shift, but subsequently Sergeant called and told Mackie that another worker would take the shift and informed her that she needed to have a meeting with Rebecca Rubin and Grace Lichaa before she could work another shift. at 61). That (Id. at 43, ECF No. 28-8, Mackie Dep., meeting was scheduled (ECF No. 28-8, Mackie Dep., at 70). for November 17, 2009. As a result, Mackie was not permitted to work on November 14 and 15, 2009, but she did receive paid leave for those days. at 143-44; ECF No. 28-3, Rubin (ECF No. 28-8, Mackie Dep., Decl. ¶ 15). When Mackie eventually had a meeting with Ms. Lichaa on November 18, 2009,1 Mackie was informed that she was being terminated because of medication errors and resident complaints. (ECF No. 28-8, Mackie Dep., at 68, 72; ECF No. 28-6, Lichaa Dep., at 86). The parties differ in their accounts of the events of the months leading up to Mackie s termination. in the five months leading up to JFGH maintains that Mackie s termination, it received complaints from family members of residents and from Mackie s co-workers about her conduct on the job. A number of the complaints relate to a resident named Hillary, an obese resident who had been placed on an exercise and diet plan. Lichaa stated that in March 2009 she received a complaint from 1 Rubin was unable to attend the meeting on that date. 3 Hillary s mother that Mackie had told Hillary she would call the police if Hillary at 14-15). misbehaved. (ECF No. 28-6, Lichaa Dep., Hillary s mother also complained that Mackie allowed her daughter to eat unhealthy fast food at the Montgomery Mall despite the fact that Mackie was present at meetings with JFGH managers where they discussed Hillary s diet and the fact that Mackie was aware of her responsibility to ensure that Hillary ate healthy food. (ECF No. 28-6, Lichaa ECF No. 28-8, Mackie Dep., at 16). coworkers reported concerns with Dep., at 46-47; JFGH also contends that Mackie s work. Lichaa explained that two of JFGH s nurses expressed their reservations about Mackie s ability to give residents correctly during the summer of 2009. Dep., at 26-29). their medications (ECF No. 28-6, Lichaa In addition, Mackie s co-worker Edgar Silos reported that Mackie had asked him to clock her out of the system at her regular time when she needed to leave early. (ECF No. 28-6, Lichaa Dep., at 61; ECF No. 28-3, Rubin Decl., Ex. 1). Because of these and other complaints, Lichaa and Rubin decided to terminate Mackie s employment in early November 2009. (ECF No. 28-6, Lichaa Dep., at 63; ECF No. 28-3, Rubin Dep., at 36-37). They initially planned to tell Mackie she was being terminated on November 4, 2009, but they rescheduled the meeting due to Mackie s illness. (ECF No. 28-3, Rubin Decl. ¶¶ 12-13; ECF No. 28-6, Lichaa Dep., at 78). 4 JFGH maintains that the decision to terminate Mackie preceded, and was entirely unrelated to, her sick leave. Mackie, however, denies that she threatened Hillary with calling the police and maintains that she shared responsibility for Hillary s food choices with (ECF No. 31-8, Mackie Decl. ¶ 5). the other counselors. In addition, Mackie explained that Hillary was taken to the mall in a van driven by another JFGH employee and with other residents and staff. (ECF No 31-8, Mackie Decl. ¶ 6; ECF No. 31-4, Lichaa Dep., at 50-51). Mackie argues that she did not make medication errors and that the reports to the inadmissible. denies that contrary from other nurses are hearsay (ECF No. 31-8, Mackie Decl. ¶¶ 7-8). she asked Edgar Silo (ECF No. 31-8, Mackie Decl. ¶ 9). to clock out and She also for her. Mackie also notes that she was recognized as an employee of the month in July 2008 and employee of the year for all of 2008. (ECF No. 31-8, Mackie Decl. ¶ 2). On March 17, 2010, Mackie filed a complaint against JFGH in the Circuit Court for Montgomery County alleging a violation of the Family Medical Leave Act ( FMLA ), 29 U.S.C. § 2601, seq., and abusive (ECF No. 2). filed an discharge under Maryland state et law. JFGH removed the case to federal court, and Mackie amended misrepresentation complaint and that promissory 5 added counts for estoppel/detrimental negligent reliance (ECF No. 21). After discovery, JFGH filed a motion for summary judgment in its favor on all counts. 3, 2010, Mackie simultaneously (ECF No. 28). filed her On December opposition to the motion for summary judgment and a motion for leave to file a second amended complaint adding counts for breach of an implied contract and violation of 42 U.S.C. § 1981. 34). (ECF Nos. 32 and JFGH opposed the motion for leave to file a second amended complaint and included a motion for sanctions in its opposition. (ECF No. 35). II. Defendant s Motion for Summary Judgment A. Standard of Review Defendant has moved for summary Federal Rule of Civil Procedure 56. judgment pursuant to It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). other words, if there clearly exists factual issues In that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party, summary judgment is inappropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co. LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001). 6 When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See Scott v. Harris, 127 S.Ct. 1769, 1774 (2007); Emmett, 532 F.3d at 297. A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. at 323. Celotex Corp., 477 U.S. [A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial. Id. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 254; Celotex Corp., 477 U.S. at 324. A mere scintilla of proof, however, will not Jenney, suffice 327 F.3d to 307, prevent 314 summary (4th Cir. judgment. 2003). Peters There must v. be sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 249. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. (citations omitted). 7 Id. at 249-50. B. Analysis 1. FMLA Claims In count I of the amended complaint, Mackie alleges that JFGH is liable for FMLA interference and relation. JFGH argues that summary judgment is appropriate on both theories because Mackie s flu was a not a serious medical condition triggering FMLA protection notice to and JFGH (ECF No. 28-1, because Mackie her intention to addition, JFGH of at 9). In did not provide take adequate FMLA contends leave. that the claims fail because none of Mackie s requests for leave were denied and there is no causal connection between her leave and her termination. (Id. at 10). To prevail on an FMLA interference claim, an employee must establish 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 Smithfield to Packing 2008)(citing Edgar which Co., v. she was Inc., 545 JAC Prods., entitled. F.Supp.2d Inc., Rodriguez 508, 443 F.3d 516 v. (D.Md. 501, 507 (6th Cir. 2006)); 29 U.S.C. § 2615(a)(1)(prohibiting an employer from interfering with an employee s FMLA rights). 8 Mackie s FMLA interference claim suffers from the fatal flaw that there is no evidence that she was denied any requested leave. To the contrary, Mackie was granted sick leave for each day she requested and was given paid leave for the dates in November 2009 when she was instructed (ECF No. 28-3, Rubin Decl. ¶¶ 14-15). not to come to work. Mackie does not make any arguments to the contrary in her opposition and appears to have at least implicitly conceded that she cannot prove FMLA interference. For an FMLA retaliation claim, a plaintiff must establish that: took (1) she engaged in a protected activity, (2) her employer an adverse adverse employment employment action action was plaintiff s protected activity. against causally her, and connected (3) the to the Yashenko v. Harrah s NC Casino Co., 446 F.3d 541, 551 (4th Cir. 2006). The Fourth Circuit applies the McDonnell Douglas burden shifting framework to FMLA retaliation claims. Thus, to succeed a plaintiff must first make a prima facie showing of each of the requisite elements. The burden then shifts to defendant to put forth a legitimate, non-discriminatory business reason for the adverse action. At that point plaintiff must prove that the defendant s proffered explanation is pretextual. There is no dispute Id. at 551. that Mackie s considered an adverse employment action. 9 termination could be The parties disagree as to whether elements one and three have been established. Beginning with the first, taking considered a protective activity. is whether leave. Mackie was entitled FMLA Id. to, leave generally is The issue in this case and actually took, FMLA Here, the parties disagree as to whether Mackie had a serious medical condition, whether she gave adequate notice of her intent to take FMLA leave, and whether her termination was causally connected to Mackie s leave.2 The FMLA provides that an eligible employee is entitled to twelve (12) weeks condition that functions of makes the § 2612(a)(1)(D). of leave the per year for a serious employee unable of employee. position such to health perform 29 the U.S.C. The Act defines serious health condition as: an illness, injury, impairment, or physical or mental condition that involves(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider. Id. § 2611(11). The FMLA also grants the Secretary of Labor authority to promulgate regulations implementing the Act. id. § 2654. Pursuant to this 2 authority, the See Secretary The parties do not dispute that Mackie is an eligible employee and JFGH is an eligible employer for FMLA purposes. 10 promulgated condition. a regulation further See 29 C.F.R. § 825.113. defining serious The regulation states: (a) For purposes of FMLA, serious health condition entitling an employee to FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in § 825.114 or continuing treatment by a health care provider as defined in § 825.115. The regulation further provides in subpart b: (b) The term incapacity means inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefore, or recovery therefrom. And in subpart c specifies that treatment: includes (but is not limited to) examinations to determine if a serious health condition exists and evaluations of the condition. And further states that: [a] regimen of continuing treatment that includes the taking of over-the-counter medications such as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider, is not, by itself, sufficient to constitute a regimen of continuing treatment for purposes of FMLA leave. Additionally in subpart d the regulation states: Ordinarily, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, periodontal disease, etc., are examples of conditions that do not meet the 11 health definition of a serious health condition and do not qualify for FMLA leave. Id. § 825.113(d)(emphasis added). Appeals for the Fourth Circuit The United States Court of clarified in Miller v. AT&T Corp., 250 F.3d 820, 832 (4th Cir. 2001) that this regulation should not be read as precluding the flu from ever qualifying as a serious health condition for FMLA purposes. Rather, the provision is best read as clarifying that some common illnesses will not ordinarily meet the regulatory criteria and thus will not be covered under the FMLA. Id. Here Mackie s alleged serious health condition was the flu. Mackie did not visit a medical provider about her condition and took only over-the-counter medications and drank extra fluids to treat the condition. There is no evidence that Mackie experienced serious complications or had anything more than a standard case of the flu. Contrary to Mackie s argument in her opposition, an inability to come to work for a few days, or even weeks, does not on its own indicate a serious health condition triggering FMLA leave. Indeed, under Plaintiff s theory any employee who felt too sick to work would be entitled to FMLA leave. that Mackie Simply put, the record facts do not establish had a serious health entitlement to FMLA leave. 12 condition triggering a JFGH also argues that Mackie did not provide sufficient information to trigger JFGH s obligation to provide FMLA leave. To trigger employers FMLA obligations, employees need not explicitly assert their rights under the Act; they must only inform their employers of their reasons for seeking leave. Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 98 (2002); see also 29 C.F.R. § 825.301(b)( An employee giving notice of the need for FMLA leave must explain the reasons for the needed leave so as to allow the employer to determine whether the leave qualifies under the Act. ). To determine if notice is adequate to trigger FMLA protection, the court should assess whether the employee informed the employer of (1) such facts as to make the employer aware that the employee needed leave due to a serious health condition; and (2) the anticipated timing and duration of the leave. omitted). Rodriguez, 545 F.Supp.2d at 516 (internal citations Without further details of the specific nature of an employee s illness, however, information merely indicating that an employee is sick is insufficient to put an employer on notice that FMLA leave may be needed. Id. (citing Collins v. NTN-Bower Corp., 272 F.3d 1006, 1008 (7th Cir. 2001)). Here, JFGH s argument in essence is that Mackie s flu was not a serious health condition and thus Mackie notifying JFGH that she had the flu did not trigger any FMLA obligations on JFGH s part. JFGH is correct insofar as the court s decision 13 that Mackie s flu did not constitute a serious health condition necessarily leads to the conclusion that the information Mackie provided about her flu did not trigger flu qualified FMLA obligations on JFGH s behalf. Even condition if Mackie s triggering evidence to element, Mackie FMLA protection, the causation satisfy must as establish a there serious is her decision to terminate Mackie was this causally Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998). the For firing connected to her FMLA protected activity. that insufficient requirement. that health was JFGH contends made before the decision makers had any knowledge that Mackie had requested or taken leave residents and the and decision coworkers was based about on complaints Mackie s from performance. (ECF No. 28-1, at 10). At this stage, the burden is on Mackie to evidence provide sufficient that JFGH s explanation pretextual to create a genuine dispute of material fact. is To that end, Mackie challenges JFGH s claim about when the decision to terminate was made and also contends that the complaints about her work performance are inaccurate. JFGH pretext correctly where the notes that termination a plaintiff decision is cannot made establish before the decision-makers learn that their employee engaged in protected activity. See Chidebe v. MCI Telecomm. Corp., 19 F.Supp.2d 444, 14 448-49 (D.Md.), aff d by, 163 F.3d 598 (1998). Here, the decision-makers have testified that the decision to terminate was made by November 4, 2009, and that only when they contacted Mackie s immediate supervisor, Ouida Sergeant, about scheduling a meeting with Mackie to inform her of her termination did they learn that Mackie was out on sick leave. Dep., at 63; supervisor ECF aware No. that 28-7, Rubin Mackie was (ECF No. 28-6, Lichaa Dep., out at on 37). sick The leave, only Ouida Sergeant, was not involved in making the decision to terminate. (Id.). In addition, employer s the proffered relevant inquiry is non-discriminatory not whether reason for the the termination was wise, fair, or objectively correct, but merely whether it was the true motivation for the act. See Hawkins v. PepsiCo., Inc., 203 F.3d 274, 279 (4th Cir.), cert. denied, 531 U.S. 875 (2000); DeJarnette v. Corning Inc., 133 F.3d 293, 298 (4th Cir. 1998)( to establish that an employer s proffered reason for the challenged action is pretext for discrimination, the plaintiff must prove both that the reason was false, and that discrimination was conduct. )(internal the real quotations reason for omitted). In the other challenged words, if JFGH believed that Mackie s performance had been unsatisfactory, it is irrelevant whether complaints were truthful. her coworkers or the resident s JFGH has identified evidence in the 15 form of deposition testimony and company records to show that Lichaa and Rubin based their decision on the complaints regarding Mackie s work performance and Mackie has not produced any evidence to show that other motivations actually prompted the decision. Accordingly, Mackie also cannot satisfy the causation requirement of her retaliation claim. For all these reasons, summary judgment in JFGH s favor will be granted on count I. 2. Abusive Discharge Maryland recognizes a common law cause of action of abusive discharge for at-will employees who can demonstrate that their former employer s motivation for discharging them contravened a clear mandate of public policy. Newell v. Runnels, 407 Md. 578, 646 (2009)(citing Adler v. Am. Standard Corp., 291 Md. 31, 47 (1981)). The claim is limited to situations where: not to allow the cause of action would leave the employee without a remedy. Id. Thus, where a statute or regulatory provision already provides an adequate and appropriate civil remedy for the wrongful available. discharge the abusive discharge tort is not Porterfield v. Mascari II, Inc., 374 Md. 402, 422 (2003). In her amended complaint, Mackie alleged that federal law and Maryland public policy protect employees against discharge when employees become ill and 16 are required to take leave. (ECF No. 21 ¶ 6). In her opposition, Mackie identifies the FMLA as the source of this policy in federal law. at 12). (ECF No. 31, Because the FMLA provides its own remedial scheme for violations of the policies expressed therein, Mackie cannot maintain an abusive discharge claim to recover for a violation of an FMLA policy. Summary judgment for JFGH will be granted on this claim. 3. Negligent Misrepresentation To establish liability for negligent misrepresentation in Maryland, a plaintiff must prove that: (1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement, (2) the defendant intends that his statement will be acted upon by the plaintiff; (3) the defendant has knowledge that the plaintiff will probably rely on the statement, which if erroneous, will cause loss or injury; (4) the plaintiff, justifiably, takes action in reliance on the statement; and (5) the plaintiff suffers defendant s negligence. damage proximately caused by the Lloyd v. Gen. Motors Corp., 397 Md. 108, 135-36 (2007). Mackie maintains that her direct supervisor, Ouida Sergeant, made false statements in early November 2009 when she told Mackie that she should stay home from work and return when she was well. (ECF No. 21 ¶ 17; ECF No. 31, at 13). 17 In requesting summary judgment, JFGH contends that Ms. Sergeant s statement is not actionable. There are multiple flaws in Mackie s claim. First, Mackie herself admitted that Sergeant did not explicitly tell her that she would return to her prior employment status after meeting with Rubin and Lichaa. (ECF No. 28-8, Mackie Dep., at 149). Moreover, the general rule is that a representation regarding future conduct essentially negligent a of the promise, is party making not actionable misrepresentation. Heritage the representation, under a theory of Oldsmobile-Imports v. Volkswagen of Am., Inc., 264 F.Supp.2d 282, 291 (D.Md. 2003). The one exception is if the party making the representation regarding its future conduct knows at the time of the representation that it does not intend to carry out the promise. Id. (citing Miller v. Fairchild Indus., 97 Md.App. 324 (1993)). Here, Mackie s contention that Sergeant s comment be construed as a promise that Mackie s job status was secure is unconvincing. But even if Mackie is taken at her word there is no evidence that Sergeant knew that JFGH did retain Mackie at the time she made the statement. not intend to Sergeant has stated that she did not know why Lichaa wanted to meet with Mackie (ECF No. 28-5, Sergeant Dep., at 43), and Mackie also testified that Sergeant told her that she did know why Mackie had to wait until November 14 18 to speak with Lichaa before returning to Accordingly work. the (ECF No. statement 28-8, Mackie cannot Dep., sustain a at 143). negligent misrepresentation claim. 4. Promissory Estoppel/Detrimental Reliance To establish liability for detrimental reliance3 Maryland, a plaintiff must establish four elements: in (1) a clear and definite promise, (2) whether the promisor has a reasonable expectation that the offer will induce action or forbearance on the part of the promise; (3) which does induce actual and reasonable action or forbearance by the promisee, and (4) causes a detriment which can only be avoided by the enforcement of the promise. Pavel Enters., Inc. v. A.S. Johnson Co., Inc., 342 Md. 143 (1996)(adopting test from Restatement (Second) of Contracts § 90(1) (1979)). JFGH contends that Mackie s claim must fail because there was no clear and definite promise. Specifically, JFGH argues that Sergeant did not clearly and definitely promise Mackie that her employment would (ECF No. 28-1, at 14). be unaffected by her sick leave. As evidence, JFGH points to Mackie s 3 In Pavel Enterprises, the Court of Appeals of Maryland expressed its preference for the nomenclature detrimental reliance instead of promissory estoppel because it more clearly expresses the concept intended and would alleviate any confusion between promissory and equitable estoppels. 342 Md. at n.2. This court will follow Pavel s lead and refer to the count as one for detrimental reliance. 19 admission during her deposition that Sergeant did not promise that Mackie would be returned to her prior position after her meeting with Lichaa. at 149). (Id.)(citing ECF No. 38-8, Mackie Dep., Mackie counters that Sergeant s statement to Mackie that it was okay for her to return to work when she felt well, and Sergeant s question to Mackie asking if she could work on the holiday followed by the response Okay, I will be working with you constituted clear and definite promises that Mackie could return to work after her sick leave. 14)(citing Sergeant Dep., at (ECF No. 31, at 13- 41-42). A more complete statement of the contours of the action or forbearance required and the result from such action or forbearance is needed to establish a clear and definite promise. See Dunnaville v. McCormick, 21 F.Supp.2d 527, 529 (D.Md. 1998)(statement they had a deal lacked sufficient detail and clear terms). Similarly, in McKenzie v. Comcast Cable Communications, Inc., 393 F.Supp.2d 362, 373 (D.Md. 2005), the court concluded that the statement we will give your wife a show in the context of employment negotiations with individual, was insufficiently definite and clear. an Likewise, Sergeant s comments to Mackie were lacking in sufficient detail and do not constitute clear and definite promises. Thus, they cannot form the basis of a claim for detrimental reliance, and summary judgment for JFGH will be granted on this count. 20 III. Plaintiff s Motion for Leave to File a Second Amended Complaint At the same time that Mackie filed her opposition to JFGH s motion for summary judgment, she filed a motion for leave to file a second amended complaint. (ECF No. 32). Mackie s proposed amended complaint does not include substantive changes to counts I-IV, but rather adds two additional counts one for breach of an implied contract and one for violation of 42 U.S.C. § 1981. The crux of Mackie s breach of implied contract claim is that JFGH s employment policies and procedures gave rise to an implied contract between JFGH and Mackie whereby JFGH agreed to impose progressive discipline prior to termination. Mackie alleges that her termination without JFGH s adherence to the progressive contract. disciple policy was a breach of that implied In proposed count VI, Mackie alleges that she was terminated on the basis of her race in violation of 42 U.S.C. § 1981. Mackie argues that these two new counts are based on facts learned during discovery and since the filing of her first amended complaint. (ECF No. 32, at 1-2). JFGH opposes the motion arguing that Mackie knew of the facts alleged in the proposed second amended complaint for at least four and a half months prior to seeking leave to amend Mackie s request would unduly prejudice it. 3). and that granting (ECF No. 35, at 1- JFGH also contends that the proposed new counts are futile. 21 Mackie s motion for leave to amend her complaint triggers both Federal Rule of Civil Procedure 15(a), governing amendments to pleadings, and Rule 16(b) government amendments to scheduling orders. odds. The standards for satisfying these two rules are at Rule 15(a)(2) states in pertinent part that leave shall be freely given when justice so requires, while Rule 16(b)(4) states that [a] schedule may be modified only for good cause and with the judge s consent. The Fourth Circuit resolved this tension in Nourison Rug Corp. v. Parvisian, 535 F.3d 295, 298 (4th Cir. 2008): Given their heavy case loads, district courts require the effective case management tools provided by Rule 16. Therefore, after the deadlines provided by a scheduling order have passed, the good cause standard must be satisfied to justify leave to amend the pleadings. This result is consistent with rulings of other circuits. See O Connell v. Hyatt Hotels of Puerto Rico, 357 F.3d 152, 154-55 (1st Cir.2004); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir.2000); S & W Enters. v. SouthTrust Bank of Ala., 315 F.3d 533, 536 (5th Cir.2003); Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir.2003); In re Milk Prods. Antitrust Litig., 195 F.3d 430, 437-38 (8th Cir.1999); Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1419 (11th Cir.1998). Fed.R.Civ.P. Rule 16(b) s good cause standard focuses on the timeliness submission. of the amendment Because a and court s the reasons scheduling for order its is tardy not a frivolous piece of paper, idly entered, which can be cavalierly 22 disregarded by counsel without peril, Potomac Elec. Power Co. v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375 (D.Md. 1999) (quoting Gestetner v. Case Equip. Co., 108 F.R.D. 138, 141 (D.Me. 1985)), a movant must demonstrate that the reasons for the tardiness of its motion justify a departure from the rules set by the court in its Scheduling Order. The standard primary consideration is movant s the for Rule diligence. 16(b) s Lack of good cause diligence and carelessness are the hallmarks of failure to meet the good cause standard. W. Va. Hous. Dev. Fund v. Ocwen Tech. Xchange, Inc., 200 F.R.D. 564, 567 (S.D.W.Va. 2001). inquiry is upon modification. should end. 1995). If the moving that party s party was not [T]he focus of the reasons diligent, for the seeking inquiry Marcum v. Zimmer, 163 F.R.D. 250, 254 (S.D.W.Va. Courts are appropriately suspicious of motions for leave to amend that appear to be motivated by a desire to defeat a motion for summary judgment. See, e.g., Goewey v. was filed United States, 886 F.Supp. 1268, 1284 (D.S.C. 1995) Mackie s motion questionable diligence. for leave to amend with Mackie maintains that she learned of the facts forming the basis of the two new counts during the deposition of JFGH s human resources director in October 2010 and that her motion was filed within a month of receiving a transcript of that deposition. 23 (ECF No. 36, at 1-2). JFGH disputes Mackie s account and points to (1) a letter sent from Plaintiff s counsel to JFGH s CEO in early January 2010 for settlement purposes stating that counsel believed Mackie was terminated based on race and/or national origin and because she took medical leave, and (2) discovery requests from Mackie where JFGH was asked to identify by race, gender, and national origin, any and all present and former JFGH employees who were disciplined or terminated for any reason between 2005 and the present. (ECF No. 35, at 3)(citing ECF Nos. 35-1 and 35-2). Mackie also argues that her motion for leave was filed promptly after she learned of the facts supporting the new claims. The record contradicts Mackie s position. on October 8, 2010, and the parties Discovery closed joint status report submitted on October 12, 2010, indicated that Mackie intended to file a motion for leave to file a second amended complaint. Yet over a month and a half passed before Mackie finally filed her motion on December 3, 2010. necessary because she deposition transcripts. was Mackie argues that the delay was waiting to obtain (ECF No. 36, at 2). a copy of the It is not clear why Mackie believed she needed to obtain an official transcript of the deposition prior to filing her motion for leave to amend. The transcript is not cited in either the amended complaint or the motion for leave, nor do the allegations in the proposed amended complaint contain a level of detail that suggests Mackie 24 was referring to lines of testimony. In light of these facts, Mackie has not made a strong argument that there is good cause to permit her to file a second amended complaint. Even if Mackie could establish good cause under Fed.R.Civ.P. 16, her motion fails to meet the standard set forth in Fed.R.Civ.P. 15. Under Rule 15(a) leave to amend shall be freely given when justice so requires. Davis v. Piper Aircraft Corp., 615 F.2d 606, 613 (4th Cir. 1980). Leave should be denied under Rule 15(a) only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would have been futile. Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). An amendment is futile if it would not survive a motion to dismiss or for summary judgment. 55 F.3d 910, 917 (4th See Perkins v. United States, Cir. 1995)(amendment is futile if the amended claim would fail to survive motion to dismiss); Sound of Music Co. v. Minnesota Min. & Mfg. Co., 477 F.3d 910, 923 (7th Cir. 2007)(amendment is futile if it would not survive a motion for summary judgment)(citing Bethany Pharmacal Co. v. QVC, Inc., 241 F.3d 854, 861 (7th Cir. 2001)). Permitting Mackie to add a count for breach of implied contract would be futile. that Defendant s Mackie s proposed count V alleges employment policies require progressive discipline of employees before the employees can be terminated 25 and that JFGH s policies constituted a unilateral pronouncement that created a legally enforceable expectation. ¶¶ 21-22). Although it is not explicit (ECF No. 32-2 from the proposed amended complaint, Mackie s memorandum and reply in support of her request make clear that her source for JFGH s alleged policy is the JFGH employee handbook. (See ECF No. 36, at 2). In Maryland, an employee handbook that states that it is not a contract cannot be construed as an implied contract. Conkwright v. Westinghouse Elec. Corp., 739 F.Supp. 1006, 1020-21 (D.Md. 1990)( Although the validity of implied employment contracts has been recognized, Maryland courts have refused to find employment contracts where . . . an express disclaimer was included. )(citing Fournier v. United States Fid. & Guar. Co., 82 Md.App. 31 (Md. 1990), aff d by, 933 F.2d 231 (4th Cir. 1991) and Md.App. 325 (Md.Ct.Spec.App. 1986), cert. denied, 309 Md. 325 (1987)). The JFGH Castiglione employee v. Johns handbook Hopkins contain ECF No. 32-3, at JFGH 00025). Hosp., such 69 disclaimers. (See The first page of the handbook states: This handbook is a general guide to JFGH s current employment policies and to some of your benefits and responsibilities as an employee. It is to be used for informational purposes only. Your employment with JFGH is at will and no provision of this handbook should be construed otherwise. Section 10.2 of the handbook discussing employee performance 26 appraisals further states Performance reviews and the appraisal process are subject to JFGH s discretion and may be changed or eliminated, as management deems appropriate. (Id. at JFGH 00085). And in Section 10.3 Expectations for Work Related Behavior the handbook states Our Agency, as an at-will employer, maintains complete discretion over corrective action and termination policies and practices. (Id.). These provisions leave no doubt that JFGH was not intending to create a unilateral contract with its employment handbook, and, thus, Mackie s breach of implied contract claim would be unsuccessful. Permitting Mackie to add the section 1981 count would also be futile. 42 U.S.C. § 1981 states: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other. 42 U.S.C. § 1981(a). Traditionally, section 1981 has been used to redress racial discrimination. Ana Leon T. v. Fed. Reserve Bank of Chicago., 823 F.2d 928, 931 (6th Cir.), cert. denied, 484 U.S. 945 (1987). The Supreme Court clarified what protection Section 1981 afforded plaintiffs, if any, in its decision in Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987). 27 In that case, the Court held that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. . . . If respondent . . . can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under 1981. Where a § 1981 Id. at 613. claim alleges employment related discrimination, courts analyze such cases employing the scheme used in cases brought under Title VII. Hawkins v. PepsiCo, Inc., 203 F.3d 274, 278 (4th Cir.), cert. denied, 531 U.S. 875 (2000); Gairola v. Commonwealth of Va. Dept. of Gen. Serv., 753 F.2d 1281, 1285-86 (4th Cir. 1985) (citations omitted). direct evidence, to establish a discharge, Mackie must prove that: claim for Absent discriminatory (1) she is a member of a protected class; (2) she was qualified for the job and performed the job satisfactorily; (3) she was discharged; and (4) following her discharge, the position remained open or she was replaced by someone of comparable qualifications outside of the protected class. See Carter v. Ball, 33 F.3d 450, 458-59 (4th Cir. 1994); Coleman v. Md. Court of Appeals, 626 F.3d 187 (4th Cir. 2010). If the plaintiff establishes a prima facie case of discrimination, the defendant must set forth a legitimate 28 non-discriminatory explanation for the termination, and the burden shifts back to plaintiff to show the proffered reason for the termination is pretextual. Ordinarily the court would first determine whether Mackie has alleged a prima facie case of discrimination on the basis of race or national origin. In determination is unnecessary. Mackie s FMLA retaliation this case, however, such a As discussed above in analyzing claim, JFGH has established legitimate non-discriminatory termination; it performance. Mackie was unable to produce any evidence to show that JFGH s applies was motivated explanation with discrimination. equal was force explanation by complaints pretextual. to for a about The Mackie s Mackie s same new her work analysis theory of Assuming without deciding that Mackie pled a prima facie case of race based discrimination, her § 1981 has fatal flaws and it would be futile to permit the requested amendment to her complaint. For all these reasons, Mackie will not be permitted to file her amended complaint. IV. Defendant s Motion for Sanctions In opposing Mackie s motion for leave to file a second amended complaint, JFGH moves the court to impose sanctions against Mackie s attorney David Branch pursuant to 28 U.S.C. § 1927. Section 1927 provides that [a]ny attorney . . . who so 29 multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess incurred costs, because expenses, of such and attorneys conduct. fees Courts reasonably have imposed sanctions under this section only when there is a clear showing of bad faith: when the attorney s actions are so completely without merit as to require the conclusion that they must have been taken for some improper purpose such as delay. Dobkin v. Johns Hopkins Univ., Civ. No. HAR 93-2228, 1995 WL 167802, at *2 (D.Md. Mar. 24, 1995)(citing Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986)). Mackie s conduct does not meet the standard of bad faith necessary to support sanctions under this provision and therefore JFGH s motion will be denied. V. Conclusion For summary motion the foregoing judgment for Defendant leave JFGH s will to reasons be granted, file motion Defendant for a JFGH s Plaintiff second amended sanctions will motion Elvira Mackie s complaint be denied. separate Order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 30 for and A

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