Adams v. Wallenstein

• Decision Date: 11 May 2011
• Docket Number: Civil Action No. DKC 08–1601.
• Citation: 43 NDLR P 59,814 F.Supp.2d 516
• Parties: Kenneth ADAMS v. Arthur WALLENSTEIN, et al.
• Court: U.S. District Court — District of Massachusetts

43 NDLR P 59

814 F.Supp.2d 516

Kenneth ADAMS

v.Arthur WALLENSTEIN, et al.

Civil Action No. DKC 08–1601.

United States District Court, D. Maryland.

May 11, 2011.

Samuel C. Hamilton, Law Office of Samuel Hamilton, Silver Spring, MD, for Plaintiff.

Heather Ann Mulloy, Office of the County Attorney for Montgomery County MD, Patricia P. Via, Office of the County Attorney for Montgomery County MD, Rockville, MD, for Defendants.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this employment discrimination and retaliation case is a motion for summary judgment filed by Defendant Arthur Wallenstein. (ECF No. 52). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, Defendant's motion will be granted. ¹

I. BackgroundA. Factual Background

Unless otherwise stated, the facts herein are uncontroverted.

On April 5, 2004, Montgomery County hired Plaintiff Kenneth Adams to work as a correctional officer at the Montgomery County Detention Center (“MCDC”). After completing an initial training class, Adams was placed on the 6:30 am to 3:00 pm shift. For his first two weeks on duty, he was paired with a senior officer. After that time, he worked various posts on his own.

Starting in May 2004, Adams received monthly evaluations from his supervisor, Lieutenant A. Gomes. Initially, these evaluations were favorable. His evaluations for the months of April and May 2004, for instance, both indicated that he had not been absent or late to work and instructed him to “keep up the good work.” (ECF No. 52–4, Exs. 2A & 2B, at 1–2). In his evaluation for the month of June, however, Lt. Gomes noted that Adams had taken a day of sick leave and informed Adams to “watch his use of sick leave.” ( Id., Ex. 2C, at 3). Nevertheless, Adams took eight hours of sick leave in July and eight more hours in August. After Adams took an additional 16 hours in October, Lt. Gomes spoke with Adams again about his use of sick leave; the evaluation indicates that Adams assured Gomes he would improve. Adams then used 8 more sick leave hours in November 2004 and 18 more hours in December. In his December evaluation, Adams was once more cautioned that he was a probationary employee who could face discipline (including extended probation or termination) if he continued to use too much sick leave. Other than issues pertaining to sick leave, Gomes' evaluations were generally positive in 2004.

In addition to cautioning Adams during his December review, Lt. A. Gomes sent Adams a letter dated December 23, 2004. The letter advised Adams:

[Y]ou have been employed with Detention Services, namely MCDC since April 5th, 2004[and] in that span of time to the present day you have used 61 hours of sick leave. That is almost 8 hours for every thirty (30) days. This is unacceptable for a new employee. Officer Adams[,] I have talked to you about your use of sick leave and if it does not improve you will be subject to extension of your probation status or possible termination.

(ECF No. 52–5, Ex. 3).

In 2005, Adams continued to accrue absences. Thus, in a memorandum dated February 22, 2005, Lt. Gomes informed Adams that, as a result of his absences, he had “met the criteria for two or more of the Absence Categories as defined in section (d) of Appendix XI of the Collective Bargaining Agreement.” (ECF No. 52–6, Ex. 6, at 1). In particular, Adams had seven or more absences in a six-month period and three or more unscheduled absences on a Friday, Saturday, or Sunday during the preceding six months. The memorandum urged Adams to improve his performance and informed him that he would be placed in a disciplinary track. Adams signed that memorandum. In a letter to Deputy Warden James Jones dated the same day, Lt. Gomes reported the numerous absences, recommended that Adams' probation be extended, and recommended termination in the event his “record” did not improve. (ECF No. 52–7).

In another memorandum dated March 10, 2005, Director of the Montgomery County Department of Correction and Rehabilitation (“MCDCR”) Arthur Wallenstein and Human Resources Manager Ivonne Gutiérrez–Anglin informed Adams that his probation period would be extended by six months. (ECF No. 52–8). The letter explained that the “primary reason” for Adams' additional probation was his “having missed work and not being able to obtain acceptable training and experience during your probationary period.” ( Id. at 1).

In September 2005, Adams received an evaluation of his performance since the date he was hired from Lt. Gomes. That evaluation was largely positive, indicating that Adams met expectations in most areas of performance. The notable exception was “Expectation 11: Maintains regular and punctual attendance as specified in Personnel Regulations and the Collective Bargaining Agreement.” (ECF No. 52–9, Ex. 7, at 4). In that area, Adams' evaluation was marked “Does Not Meet Expectations.” ( Id.). Gomes wrote:

Pvt. Adams['] probation was extended for not meeting the attendance requirements during his first year. Since his probation was extended he has improved dramatically. Recently he has missed 4 days do [sic] to a verified illness. In order to maintain this job he will need to make sure he can come to work more consistently. This supervisor will continue to monitor his attendance record.

( Id.). Gomes also commented that Adams needed to “vastly improve his attendance record,” and warned Adams during the evaluation that “he must come to work or he will eventually work himself out of this job.” ( Id. at 6). Portions of Adams' deposition testimony indicate that—despite the many warnings-Adams took additional sick leave in August and September 2005. (The parties have not provided, however, any records of his absences after February 2005.)

On September 23, 2005, Adams was sent a memorandum placing him on administrative leave with pay, effective immediately, pending “termination during probation.” (ECF No. 52–10, Ex. 8). Adams' termination letter, which followed on October 5, 2005, explained that he had “failed to achieve a satisfactory level of performance during [his] probationary period” because of “abuse of leave” and “coming into work late.” (ECF No. 52–11, Ex. 9). His termination was effective October 28, 2005.

B. Procedural Background

On March 5, 2007, Adams filed a charge of discrimination with the Montgomery County, Maryland Office of Human Rights and the Equal Employment Opportunity Commission (“EEOC”). (ECF No. 52–13). In that charge, Adams contended that he had faced discrimination “because of [his] color and race (Black) and in retaliation for complaining about sexually explicit emails in violation of Title VII” of the Civil Rights Act of 1964 (“Title VII”). ( Id.). The charge noted four particular events: (1) his extended probationary period in April 2005; (2) the “inappropriate” email he received in July 2005; (3) a comment made by a second line supervisor in “September or October 2005”; and (4) his discharge on October 27, 2005. ( Id.). The EEOC dismissed Adams' claim and issued a right-to-sue letter on March 14, 2007. (ECF No. 52–15).

On June 13, 2007, Adams filed suit against Wallenstein and Gino Renne, president of Adams' union, in the Circuit Court for Montgomery County. (ECF No. 1). He then filed an amended complaint on May 12, 2008 and finally served the amended complaint on Wallenstein on May 22, 2008. ( Id. ¶ 3). Wallenstein removed the amended complaint to this court on June 19, 2008. ( Id.).

The complaint asserted three claims against both defendants: (1) race-based discrimination and retaliation claims under Title VII; (2) disability-based discrimination under the Americans with Disabilities Act (“ADA”); and (3) violation of the Family Medical Leave Act (“FMLA”). (ECF No. 2 ¶¶ 16–28). In count four, Adams asserted a claim for breach of duty of fair representation against Renne alone. ( Id. ¶¶ 29–32). Because he was never served, Renne was dismissed from the case without prejudice on March 3, 2009, rendering count four effectively moot. (ECF No. 25).

After discovery closed, Wallenstein moved for summary judgment on November 30, 2010. (ECF No. 52). Adams opposed on February 3, 2011 (ECF No. 57) and Wallenstein replied shortly thereafter (ECF No. 59).

II. Standard of Review

A court may enter summary judgment only if there is 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(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 facts showing that there is a genuine issue for trial.’ ” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.2003) (quoting former Fed.R.Civ.P. 56(e)). “A mere scintilla of proof ... will not suffice to prevent 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.” Liberty Lobby, 477 U.S. at 249–50, 106 S.Ct. 2505. (citations omitted). At the same time, the court must construe the facts that are presented in the light most favorable to the party opposing the motion. See Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Emmett, 532 F.3d at 297.

III. AnalysisA. Title VII

In count one of his complaint, Adams assets claims...