Bryan v. Prince George's County Maryland, No. 8:2010cv02452 - Document 11 (D. Md. 2011)
Court Description: MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 7/5/11. (sat, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : WAYNE BRYAN : v. : Civil Action No. DKC 10-2452 : PRINCE GEORGE S COUNTY, MARYLAND : MEMORANDUM OPINION Plaintiff officer Wayne Bryan the Prince with Corrections ( DOC ). formerly worked George s as County a corrections Department of After Bryan was arrested and convicted of a crime in Virginia, the DOC fired him for conduct unbecoming an officer. In this action, Bryan alleges that the DOC dismissed him because of discriminatory and retaliatory animus. pending is a motion to dismiss or, in the Presently alternative, for summary judgment (ECF No. 5) filed by Defendant Prince George s County. The issues are fully briefed and the court now rules, no hearing being deemed necessary. See Local Rule 105.6. For the reasons that follow, the County s motion will be granted. I. Background A. Factual Background The following facts are uncontroverted. Bryan, who is black and Jamaican, worked as a corrections officer from late 2002 until April 6, 2009. first several years of employment were evidently DOC His rather uneventful. He received generally satisfactory reviews and was disciplined only once in his first five years of work. In the one instance of discipline, the DOC issued Bryan a letter of reprimand. 1. Bryan s Arrests and Conviction Things changed in mid-2008, when Bryan was arrested twice. First, on May 6, 2008, Bryan was arrested in Fairfax County, Virginia. Virginia authorities charged him with assault and battery on a family member, after a police officer spotted Bryan grabbing his wife by the neck and dragging her to his car. Second, on May 7, 2008, Bryan s wife filed charges in the District Court of Maryland for Prince George s County, alleging that Bryan had sexually abused her two days before. Bryan surrendered to Prince George s County Police on May 9 and was charged with a first-degree sex offense. One of Bryan s arrests eventually led to a conviction. In the Maryland action, Bryan s wife recanted her testimony and withdrew her complaint; the charges were entered nolle prosequi. The Virginia action, however, moved forward. Bryan pled not guilty to the Virginia charge, but on July 31, 2008, the General District Court of Fairfax County found Bryan guilty as charged. Among other things, the probation before judgment. court sentenced him to one year of After he successfully completed his 2 probation and an anger management course, the Virginia court dismissed the charge roughly a year later. B. Bryan s Suspension and Termination Bryan s arrests spurred the DOC to take disciplinary action against him. After the Virginia arrest, Bryan was ordered to report to the Office of Professional Responsibility and Legal Affairs ( OPRLA ). On May 9, 2008, that office suspended Bryan without pay pending completion of the criminal investigation. When Bryan was convicted in Virginia, the OPRLA sought and received approval to launch an internal investigation against Bryan. As part of that investigation, Bryan gave a statement in which he admitted to the two arrests and one conviction. After several months of investigation, the chief of the OPRLA informed Bryan that the office intended to take disciplinary action against him. The letter notified Bryan that he with had been formally charged conduct unbecoming officer because of his arrest and conviction in Virginia. letter also indicated that the OPRLA would an The recommend disciplinary action. After receiving the letter, Bryan requested a hearing before the Administrative Hearing Board ( AHB ), a three-member panel composed of DOC employees. on March 6, 2009. He appeared before the Board Both the DOC and Bryan, who was represented 3 by counsel, offered testimony and other evidence in the adversary proceeding. In the end, the Board agreed that Bryan had engaged in conduct unbecoming an officer. By a two-to-one vote, the AHB recommended that Bryan be dismissed. In a letter dated April 6, 2009, Interim DOC Director Mary Lou McDonough agreed with the recommendation of the AHB and formally terminated Bryan. C. Procedural Background Bryan appealed his termination to the Circuit Court for Prince George s County. On February 17, 2011, the court affirmed the decision of the DOC. Bryan also filed a charge of discrimination with the Prince George s County Human Relations Commission and the Equal Employment Opportunity Commission ( EEOC ) on October 8, 2008. (Def. s Ex. 1.23, at 449). In that charge, he complained: I believe I have been discriminated against in violation of Title VII of the Civil Rights Act of 1964, as amended, with regard to suspension (Administrative Leave without Pay) based on my national origin (Jamaican) and retaliation. (Id.). After receiving Bryan s certain information from the DOC. charge, the EEOC The DOC responded five months later and denied all allegations of discrimination. acknowledge, however, that Mr. requested Bryan was It did terminated from employment as a Correctional Officer on or about April 6, 2009. 4 (Def. s Ex. 1.25, at 465). The EEOC subsequently issued Bryan a right to sue letter on June 21, 2010. On September 7, 2010, Bryan filed a complaint against Defendant Prince George s County, Maryland in this court. No. 1). (ECF The complaint contains only one count titled Title VII [of the Civil Rights Act of 1964], but also references the Maryland Fair Employment Practices Act and the Prince George s County Code. (Id. ¶ 3). Bryan generally alleges that the County suspended and fired him because of his race and national origin or, alternatively, in retaliation for filing an EEOC charge. On January 27, 2011, the County filed the instant motion to dismiss or, in the alternative, for summary judgment. 5). Bryan responded in opposition on February 23. 9). The County replied on March 14, 2011. II. (ECF No. Standard of Review The County has moved to dismiss (ECF Nos. 8- (ECF No. 10). or, alternatively, for summary judgment. Because both parties rely extensively on matters outside the pleadings, the court will treat the motion as a motion for summary judgment. Cir. 2005); 2008). See Walker v. True, 399 F.3d 315, 319 n.2 (4th Offen v. Brenner, 553 F.Supp.2d 565, 568 (D.Md. A court may enter summary judgment only if there is no genuine issue as to any material fact and the moving party is 5 entitled 56(a); to judgment Celotex as v. Corp. a matter Catrett, of 477 law. See U.S. Fed.R.Civ.P. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). Summary judgment is inappropriate if any material factual issue may reasonably be resolved in favor of either party. 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). A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, but rather must set forth specific showing that there is a genuine issue for trial. facts Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting former Fed.R.Civ.P. 56(e)). proof . . . will not suffice to prevent A mere scintilla of summary judgment. Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003). If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. 249-50. (citations omitted). construe the favorable to facts the that party Liberty Lobby, 477 U.S. at At the same time, the court must are presented opposing the in motion. the light See Scott Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297. 6 most v. III. Analysis A. Title VII Bryan s claims discrimination and under Title retaliation VII come and concern events his suspension and his termination. in two two forms principal His discrimination claim, in turn, concerns two types of protected classes: race and been national origin. Some of these claims have not properly exhausted in the administrative process; those claims must be dismissed. As for the remainder, they fail on their merits. 1. Administrative Exhaustion: Race-Based Discrimination and Suspension-Related Claims The County contends that Bryan has failed to exhaust his administrative remedies as to several of his allegations. Because the failure to exhaust administrative remedies deprives a federal court of jurisdiction, Jones v. Calvert Grp., Ltd., 551 F.3d 297, 330-01 & n.2 (4th Cir. 2009), the court must start its analysis there. See Steel Co. v. Citizens for a Better Env t, 523 U.S. 83, 93-95 (1998). Before filing suit under Title VII, a plaintiff must exhaust h[is] administrative remedies by bringing a charge with the EEOC. Smith v. First Union Nat l Bank, 202 F.3d 234, 247 (4th Cir. 2000); accord Lewis v. City of Chicago, 130 S.Ct. 2191, 2196-97 (2010). The scope of the initial administrative charge places some limits on the scope of a subsequent Title VII civil 7 action. In particular, the scope of the civil action is confined to those discrimination claims stated in the initial charge, those reasonably related to the original complaint, and those developed complaint]. by reasonable investigation [of that Jones, 551 F.3d at 300 (quotation marks omitted). Title VII civil suits may not present entirely new factual bases or entirely new theories of liability not found in the initial EEOC complaint. will generally discrimination litigation be on claim such as sex. Thus, a claim in formal litigation barred one if basis, alleges such the as discrimination Id. at 300. EEOC charge race, and the formal on separate basis, a alleges Moreover, a plaintiff fails to exhaust his claims when his administrative charges reference different time frames, actors, and discriminatory conduct than the central factual allegations in his formal suit. Chacko v. Patuxent Instit., 429 F.3d 505, 506 (4th Cir. 2005). As Bryan now concedes (ECF No. 9, at 8-9), he did not exhaust his race-based discrimination claims. He did not check the race box on his charge form, and the narrative he wrote on the form made no mention of his race. Nor would it be reasonable to expect an investigation of his national origin claim to uncover evidence concerning his separate, race-based claims. Because Bryan relied only on his Jamaican origin in his EEOC charge, his claims premised on race-based discrimination 8 must be dismissed. Miles v. Dell, Inc., 429 F.3d 480, 492 (4th Cir. 2005). The County also contends, however, that Bryan failed to exhaust any claims concerning his termination. It places heavy emphasis on the fact that Bryan s EEOC charge does not reference any facts related to the termination. Indeed, Bryan filed his charge before his termination; the charge consequently speaks only to the suspension suggests his original without charge pay. must For be his liberally part, Bryan construed to relate to his subsequent termination. The administrative exhaustion claims concerning termination. Circuit s instruction that doctrine not bar the In this instance, the Fourth claims developed investigation are exhausted is decisive. 300. does by reasonable Jones, 551 F.3d at The DOC responded to the EEOC by specifically addressing Bryan s termination, indicating that it was aware that Bryan s complaint implicated his termination. Moreover, the termination was merely the culmination of a process that began with Bryan s suspension, and the suspension and termination rest on the same set of facts. both Consequently, the core contention is the same for events. See, e.g., Benard v. F.Supp.2d 461, 472 (W.D.Pa. 2006). this case were fully aware that Washington Cnty., 465 In short, all parties in a claim related to Bryan s termination could reasonably be expected to follow from the 9 administrative Atlantic investigation Maryland, Inc., of 288 his F.3d charge. 124, Bryant 132 (4th v. Cir. Bell 2002). Because Bryan exhausted his claims concerning his termination, it is appropriate to consider those claims on their merits. 2. National-Origin-Based Discrimination Bryan first alleges that the DOC suspended and terminated him because of discriminatory animus, rather than because of his arrests and subsequent conviction. To survive summary judgment on this claim, Bryan must produce either direct evidence of discrimination or make use of the test outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Because he does not possess direct evidence, Bryan s opposition employs the McDonnell Douglas approach. Proving discrimination under the familiar McDonnell Douglas framework involves three steps. First, Bryan must establish a prima facie case of discrimination. To do so, he must show that (1) he is a member of a protected class, (2) the misconduct he engaged in was comparable in seriousness to misconduct of employees outside his protected class, and (3) the disciplinary measures enforced against him were more enforced against those other employees. severe than those Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir. 1993). Second, if Bryan establishes a prima facie case, the burden shifts to the County to provide a non-discriminatory reason for the difference in 10 discipline. Id. Third, after the County provides its reasons, the burden shifts once more to Bryan to demonstrate that those reasons are pretextual. Id. Both parties concede that Bryan has established the first element of the prima facie case, in that he is a member of a protected class. established identified But the County contends that Bryan has not the any second similarly differently than he was. born comparators: Bruce. or third situated elements, employee as he who was has not punished In response, Bryan points to two U.S.- corrections officers Mark Bradley and Kenneth Both officers were accused of assault on their spouses.1 Bryan does not attempt to use his purported comparators to establish that his suspension amounted to disparate discipline. Instead, Bryan focuses only on the fact he was terminated, while his comparators were not. (See, e.g., ECF No. 9, at 15 ( Bryan was terminated, whereas Bradley was only suspended. ); id. at 16 ( Bruce was not terminated from his position. ); see also ECF 1 Bradley was criminally charged; Bruce had a civil protective order filed against him. In addition, Bryan maintains that Bruce was arrested for driving while intoxicated and he was not terminated. (ECF No. 9-1, Bryan Aff. ¶ 20). Except for the criminal docket, there is no other admissible evidence in the record concerning Bruce s arrest for drunk driving in particular, there is no evidence concerning any disciplinary process that followed Bruce s arrest. Regardless, the driving while intoxicated conviction is not similar enough to Bryan s misconduct to provide a useful comparison. 11 No. 9-1, Bryan Aff. ¶ 20). Because he has not presented any comparators similar who engaged in misconduct who were not suspended, he has not established a prima facie case as to his suspension. Nor do Bryan s ostensible comparators establish that Bryan was treated more severely when he was terminated than others outside his protected class. The similarity between comparators . . . must be clearly established in order to be meaningful. Lightner v. City of Wilmington, 545 F.3d 260, 265 (4th Cir. 2008). In particular, [t]he compared employees must have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer s treatment of them for it. Odom v. Int l Paper Co., 652 F.Supp.2d 671, 688 (E.D.Va. 2009) (quotation marks omitted). Bradley and Bruce, the are proposed comparators in this case, not similarly situated and do not prove disparate treatment for two reasons. First, because Bradley their and punishments Bruce were involved not similarly decision-makers from those involved in Bryan s termination. situated different See Forrest v. Transit Mgmt. of Charlotte, Inc., 245 F.App x 255, 257 (4th Cir. 2007) (explaining in disparate discipline case that, where different decision-makers are involved, employees are generally 12 not similarly situated. ); Popo v. F.Supp.2d 583, 589 (D.Md. 2009) (same). Giant Foods LLC, Bradley received a ten- day suspension from former DOC director Barry Stanton. Ex. 1.27, at 475). Likewise, discipline from Stanton. hand, was AHB). terminated by Bruce (in (Def. s evidently (Id. at 526). McDonough 675 received Bryan, on the other consultation with the Given the significant discretion afforded to the DOC director in making disciplinary decisions, see Prince George s Cnty. Code § 16-195(a), it is certainly possible that two directors might impose different types of punishment, without one or the other being motivated by discriminatory animus. See Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1233 (10th Cir. 2000) ( Different supervisors will inevitably react differently to employee [misconduct]. ). Second, Bryan has not established that Bradley and Bruce s misconduct was as egregious as his own, at least when taking account of all relevant mitigating circumstances. In particular, both Bradley and Bruce pled guilty to their alleged misconduct and acknowledged fault. Bryan, on the other hand, challenged the allegations at every level; indeed, he continues to insist that unbecoming. he did not engage in any form of conduct (ECF No. 9-1, Bryan Aff. ¶ 21 ( I disagree that my conduct brought disrepute on the County and the Department of Corrections as alleged by the 13 defendant. )). The County presents evidence that corrections officers responsibility receive lesser punishments. who accept Although Bryan dubs such an idea conclusory, unreliable, and speculative (ECF No. 9, at 7), it is not a novel idea that an individual acknowledges his misconduct may receive leniency. who See, e.g., Spath v. Hayes Wheels Int l-Indiana, Inc., 211 F.3d 392, 397 (7th Cir. 2000) (finding employees were not similarly situated, where one employee acknowledged misconduct and other did not). The criminal justice system, for instance, regularly accounts for the acceptance of responsibility in meting out punishments. See, e.g., United States v. Jeffery, 631 F.3d 669, 678 (4th Cir. 2011). Because Bryan attempts to build his prima facie case on comparators who are not truly comparators, his national originbased discrimination under Title VII claim fails at the first step. If the court were to focus solely on the alleged misconduct of the others, without reference to different decision makers or the mitigating circumstances for purposes of the prima facie case, it might showing. legitimate, situation be Then, said that though, Bryan the non-discriminatory differently than had court reason those of made examines a prima the facie County s for treating Bryan s the comparators: his criminal arrest and conviction in Virginia (which violated DOC 14 policy), followed by his unwillingness to accept responsibility in the DOC disciplinary process. must be pretextual because Bryan insists that the reason Bradley and Bruce were treated differently, but such an approach confuses the prima facie case with the pretext nondiscriminatory step. reason Once for the County differences in provides a disciplinary enforcement, here, their willingness to accept responsibility, Bryan must show that it was not the true reason for the different treatment, but rather a pretext for discrimination. Bryan cannot make that showing by simply listing the criteria involved in a disciplinary decision and insisting it was not met. A litigant cannot simply dub an employer s explanation false without supporting evidence. Instead, he must point to facts that render the employer s reason so questionable as to raise an inference of deceit. It is not the court s role to second-guess the DOC s analysis or assess whether its decision was wise, fair, or even correct. Dugan v. Albermarle Cnty. Sch. Bd., 293 F.3d 716, 722 (4th Cir. 2002) (quotation marks omitted). Rather, the court s only responsibility is to determine whether Bryan has met his burden of demonstrating that the DOC s explanation is unworthy of credence to the extent that it will permit the trier of fact to infer the ultimate fact of intentional discrimination. Id. at 723. that burden. 15 Bryan has not met Summary judgment will be entered for the County on Bryan s Title VII national-origin-based discrimination claim. 3. Retaliation In the second portion of his claim under Title VII, Bryan alleges that the DOC retaliated against him for engaging in protected activity. The County contends that Bryan has not established any causal connection between the filing of his EEOC complaint and his suspension and termination. Even if he had, he also has presented no evidence of pretext. Notably, Bryan offers no response or any real reference to his retaliation claim at all in his opposition. Just evidence like and his discrimination therefore must claim, employ the Bryan lacks McDonnell direct Douglas Price v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004). framework. To survive summary judgment under McDonnell Douglas, he would need to demonstrate three elements: (1) he engaged in protected activity; (2) the agency took an adverse employment action against him; and (3) there was a causal connection between the protected activity and the adverse employment action. See Davis v. Dimensions Health Corp., 639 F.Supp.2d 610, 616 (D.Md. 2009); accord Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th Cir. 2007). Once that challenge is met, the County must provide a non-discriminatory explanation for the adverse action. 16 The burden would then shift back to Bryan to show the reason is pretextual. The only identifiable protected activity in this case is the EEOC complaint Bryan filed in October 2008. That complaint could not have had anything to do with Bryan s suspension, which was imposed months earlier in May 2008. [T]he employer s knowledge that the plaintiff engaged in a protected activity is absolutely necessary to establish the third element of the prima facie case because by definition, an employer cannot action because of a factor of which it is unaware. take Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998). An employer cannot be aware, of course, of something that has not yet occurred. It follows that, as a matter of logic and as of law, the suspension was not imposed in retaliation for Bryan s protected activity. Murdock v. Northrop Grumman PRB Sys., 162 F.Supp.2d 431, 432 (D.Md. 2001); accord Morral v. Gates, 370 F.App x 396, 398 n.2 (4th Cir. 2010). Even if the suspension fact continued standing past alone the would filing not of the complaint, that establish causation. See Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 651 (4th Cir. 2002). Bryan also has not connected the filing of his complaint to his termination almost six months later. temporal proximity, as six months 17 is He cannot rely on mere too long to assume a connection based on time alone. To establish causation through temporal proximity alone, the temporal proximity must be very close. Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). A period of sixth months is not very close. See Elries v. Denny s Inc., 179 F.Supp.2d 590, 599 (D.Md. 2002) (listing cases). to support a Although other relevant evidence may be used causal connection where temporal proximity is lacking, Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007), Bryan has not summoned any such evidence here.2 In any event, even putting aside these substantial problems with Bryan s prima facie case, the lack of any evidence pretext would prove fatal to Bryan s retaliation claim. of The County has provided legitimate reasons for the actions it took. As explained above, Bryan as not offered any basis to doubt those reasons. Summary judgment will be entered for the County on Bryan s Title VII retaliation claim. B. State Law Claims Bryan also brings claims under Md. Code Ann., State Gov t § 20-1202 challenging and Prince these George s claims, the 2 County County Code § focuses 2-222. In substantial In addition, Bryan did not even attempt to make the basic showing that any of the relevant decisionmakers were aware of his EEOC complaint at the time of his termination. 18 attention on the complaint s legal citations. It also suggests that many of these state law claims are time-barred. As an Bryan s initial claims includes matter, should inadequate the be County dismissed statutory errs in because citations. arguing his To be that complaint sure, the references to state law in the complaint are inelegant. The complaint cites the relevant statute Article was 49B of recodified the Maryland without Code, substantive but revision into Title 20 of the State Government Articles of the Maryland Code. See Washington Suburban Sanitary Comm n v. Phillips, 413 Md. 606, 610 n.2 (2010). George s County provision. Code, but The complaint also cites the Prince it does not specify a particular Even so, these problems do not justify dismissal. [T]he failure in a complaint to cite a statute, or to cite the correct one, in no way affects the merits of a claim. allegations alone are what matters. Factual Jones v. Koons Auto., Inc., 752 F.Supp.2d 670, 683 (D.Md. 2010); accord Coos Cnty. Bd. of Cnty. Comm rs v. Kempthorne, 531 F.3d 792, 812 (9th Cir. 2008); Consol. Edison Co. of New York, Inc. v. UGI Utils., Inc., 423 F.3d 90, 104 (2d Cir. 2005); Shah v. Inter-Cont l Hotel Chicago Operating Corp., 314 F.3d 278, 282 (7th Cir. 2002); C&F Packing Co., Inc. v. IBP, Inc., 224 F.3d 1296, 1306 (Fed. Cir. 2000); see also Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009) (noting that legal conclusions 19 only help in building the framework of a complaint ). The import of Bryan s claims was clear, as evidenced by the County s ability to identify and respond to the state law claims. Although Bryan s state law claims survive the pleading argument, they still fail on their merits. County s Maryland courts routinely look to the Title VII context to determine the scope of liability under section 20-1202 (former Article 49B). See, e.g., State Comm n on Human Relations v. Kaydon Ring & Seal, Inc., 149 Md.App. 666, 695-96 (2003) (applying federal Title VII standards in Article 49B discriminatory termination case); Chappel v. S. Maryland Hosp., Inc., 320 Md. 483, 494 (1990) (reading state anti-retaliation provision in harmony with state provision). Although there may be some instances were section 20-1202 and Title VII apply differently, none of those instances seem suggested they apply. applicable here and neither party has Likewise, section 2-222 of the Prince George s County Code largely tracks the language of 42 U.S.C. § 2000e-2. Thus, at least in this case, all of these statutes Title VII, section 20-1202, and section 2-222 would reach the same acts and provide the same degree of liability. Because Bryan s do Title VII claims fail, succeed either. 20 his state law claims not IV. Conclusion For the foregoing reasons, the County s motion, construed as a motion for summary judgment, will be granted. /s/ DEBORAH K. CHASANOW United States District Judge 21
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