Bosse v. Baltimore County, Case No. PWG-09-050.

Decision Date10 March 2010
Docket NumberCase No. PWG-09-050.
Citation692 F. Supp.2d 574
PartiesRichard J. BOSSE, Jr., Plaintiff, v. BALTIMORE COUNTY, et al., Defendants.
CourtU.S. District Court — District of Maryland

John B. Stolarz, The Stolarz Law Firm, Baltimore, MD, for Plaintiff.

Jeffrey Grant Cook, James J. Nolan, Jr., John Edward Beverungen, Baltimore County Office of Law, Towson, MD, for Defendants.


PAUL W. GRIMM, United States Magistrate Judge.

This Memorandum and Order addresses Defendants Baltimore County, James P. O'Neill, and Captain David Swain's Motion for Summary Judgment, Paper No. 30; Plaintiff Richard J. Bosse, Jr.'s Cross-Motion for Partial Summary Judgment, Paper No. 36;1 Opposition of Defendants to Plaintiff's Motion for Summary Judgment and Defendants' Reply in Support of Their Own Motion for Summary Judgment, Paper No. 44; and Plaintiffs Reply to Opposition of Defendants to Plaintiffs' sic Motion for Summary Judgment, Paper No. 50.2 A hearing was held on March 9, 2010. For the reasons stated herein, Defendants' Motion for Summary Judgment on Plaintiffs Family Medical Leave Act, 29 U.S.C. §§ 2601-54 ("FMLA"), claims is GRANTED IN FULL as to Defendants O'Neill and Swain;3 Defendants' Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART as to Defendant Baltimore County; and Plaintiff's Cross-Motion for Partial Summary Judgment is DENIED. This Memorandum and Order disposes of Paper Nos. 30, 36, 44, and 50.


Plaintiff is a Correctional Officer in the Baltimore County Department of Corrections (the "Department"), a position Plaintiff has held since December 1994. Mem. in Supp. of Defs.' Mot. for Summ. J. 1 ("Defs.' Mem."), Paper No. 30-3. Defendant O'Neill is the Director of the Department and Defendant Swain, a Department employee, is Plaintiffs supervisor. Am. Compl. ¶¶ 5, 6, Paper No. 21-2.

Plaintiff's son Eric Bosse was born in January 2001 and later diagnosed with "chronic moderate to severe asthma and severe food allergies." Pl.'s Mem. 2. During Plaintiff's tenure with Baltimore County, he has taken leave under the FMLA on multiple occasions. Defs.' Mem. 2. According to Plaintiff, "many (but not all) of his FMLA requests were to care for his son's severe medical condition." Pl.'s Mem. 2. He also took FMLA leave due to his own medical needs. Am. Compl. ¶ 34.

While working for the Department, Plaintiff filed three complaints with the United States Department of Labor ("DOL"). The first was in 2000, and in it he alleged that he had to use personal sick leave when his asthma prohibited his attendance at work, because Baltimore County was not complying with the FMLA. Pl.'s Mem. 16. He added that he received verbal counseling for taking FMLA leave. Id. The second was in 2006, when he complained that he was suspended for three days for taking leave under the FMLA rather than working required overtime. Id. When Defendants deposed Plaintiff in July 2009, Plaintiff said that the matter was resolved to his satisfaction. Bosse Dep. 10:3-11:17, July 21, 2009, Defs.' Mem. Ex. 6, Paper No. 30-8. The third was in 2008, when he allegedly was disciplined again "for taking leave sanctioned by the FMLA." Pl.'s Mem. 16. As a result of these complaints, Baltimore County "agreed to remove the disciplinary actions from Plaintiff's personnel file." Id. But, Plaintiff alleged that Defendants "have not removed the counseling notation from plaintiffs performance evaluation." Am. Compl. ¶ 20; see also Bosse Dep. 14, 15-16 (stating that Defendants did not remove the notation that he was "counseled for lateness" and did not note that the punishment "was rescinded").

Plaintiff filed a Complaint in federal court on January 9, 2009, Paper No. 2, and Defendants filed an Answer the same day, Paper No. 6.4 As amended, the Complaint stated that "Defendants have imposed unlawful restrictions on Plaintiff's use of FMLA, or have made unnecessary and burdensome requests making the Plaintiff's use of FMLA unduly difficult." Am. Compl. ¶¶ 14-15. Asserting that he "has provided Defendant Baltimore County appropriate documentation and has been authorized to use intermittent leave under the FMLA for attendance at the son's medical appointments or to care for his son as prescribed by the child's physician's medical certification," Plaintiff alleged that "Defendants' actions constitute interference with Plaintiffs substantive rights under FMLA." Id. ¶ 39. Plaintiff asserted that Defendants' interference with his use of FMLA leave happened "repeatedly," without identifying all instances or the time period in which they occurred. Id. ¶ 37. Further, he alleged that Defendants retaliated against him for using FMLA leave, id. ¶ 43, based on the fact that Defendants allegedly "made it very clear that the Plaintiff's absenteeism, comprised mostly of FMLA leave, was a major factor in Defendants' decision not to promote him." Id. ¶ 23. Plaintiff claimed that he unsuccessfully applied for promotions from 2005 to 2008. Id. ¶¶ 21, 24.

In addition, according to Plaintiff, when he tore a ligament in his right ankle in 2008, he asked for FMLA leave and "requested that vacation, personal, and compensation leave be substituted for qualified FMLA" when he "exhausted all his earned sick leave." Id. ¶ 34. Plaintiff alleged that "defendant, in violation of the FMLA statute, refused to permit the Plaintiff to use such other accrued leave with the result that Defendant Baltimore County unlawfully deducted money from Plaintiff's paycheck." Id. Plaintiff claimed that Defendants violated Baltimore County Policy § 9.16 by coding some of Plaintiffs FMLA leave as "unpaid unauthorized absence" instead of "unpaid leave with permission," which led to him being counseled for taking FMLA leave. Id. ¶ 37. Plaintiff contended that he was denied FMLA leave, despite his timely requests, on multiple occasions in 2008 and 2009. Id. However, he admitted that the payroll records were corrected to reflect FMLA leave for his March 2008 absence. Id.

In addition, Plaintiff claimed that Defendants Baltimore County and O'Neill deprived him of his right to free speech under the First and Fourteenth Amendments and 42 U.S.C. § 1983 "by impermissibly depriving the plaintiff of a promotion on account of plaintiff's exercise of his First Amendment right to petition for redress of grievances" and "by repeatedly and continuously making it unreasonably difficult to avail himself of the rights afforded by the FMLA." Id. ¶¶ 50, 55. Plaintiff also alleged that Defendants Baltimore County and O'Neill's actions violated Article 40 of the Maryland Declaration of Rights. Id. ¶ 59. Finally, he asked for injunctive relief such that Defendants could not violate the FMLA or "make it difficult for Plaintiff to claim the benefits" of the FMLA. Id. ¶ 66.

On September 9, 2009, Defendants moved for summary judgment, and on October 19, 2009, Plaintiff filed his opposition thereto, as well as a cross-motion for summary judgment on his interference claim. Paper Nos. 30, 36. On November 18, 2009, Defendants filed their opposition to Plaintiff's cross-motion and a reply to Plaintiff's opposition. Paper No. 44. Plaintiff filed his reply to Defendants' opposition on December 14, 2009. Paper No. 50.


Summary judgment is only proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Meson v. GATX Tech. Servs. Corp., 507 F.3d 803, 806 (4th Cir.2007) (citing Fed.R.Civ.P. 56(c)). The moving party bears the burden of demonstrating that no genuine dispute exists as to material facts. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.1987). When considering cross-motions for summary judgment, "the court must view each motion in a light most favorable to the non-movant." Linzer v. Sebelius, No. AW-07-597, 2009 WL 2778269, at *4 (D.Md. Aug. 28, 2009); see Mellen v. Bunting, 327 F.3d 355, 363 (4th Cir.2003); see also Ricci v. DeStefano, ___ U.S. ___, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (drawing all reasonable inferences in favor of non-moving party on motion for summary judgment); George & Co., LLC v. Imagination Entm't Ltd., 575 F.3d 383, 391-92 (4th Cir.2009) (same); Dean v. Martinez, 336 F.Supp.2d 477, 480 (D.Md.2004) (same).

If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify specific facts showing that there is a genuine issue for trial. The existence of only a "scintilla of evidence" is not enough to defeat a motion for summary judgment. Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Moreover, to be entitled to consideration on summary judgment, the evidence supporting the facts set forth by the parties must be such as would be admissible in evidence. See Fed.R.Civ.P. 56(c); see also Sakaria v. Trans World Airlines, 8 F.3d 164, 171 (4th Cir.1993) (finding that the district court properly did not consider inadmissible hearsay in an affidavit filed with motion for summary judgment); Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir.1993) ("The summary judgment inquiry thus scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof in the form of admissible evidence that could carry the burden of proof in his claim at trial."). With regard to documentary evidence, this Court previously has held that "unsworn, unauthenticated documents cannot be considered on a motion for summary judgment. To be admissible at the summary judgment stage, documents must be authenticated by and...

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