Ensor v. Jenkins

• Decision Date: 25 March 2021
• Docket Number: Civil Action No. ELH-20-1266
• Parties: AMANDA J. ENSOR, Plaintiff, v. CHARLES A. JENKINS, et al. Defendants.
• Court: U.S. District Court — District of Maryland

AMANDA J. ENSOR, Plaintiff, v. CHARLES A. JENKINS, et al. Defendants.

Civil Action No. ELH-20-1266

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

March 25, 2021

MEMORANDUM OPINION

In this employment discrimination action, plaintiff Amanda Ensor, a Sergeant ("Sgt.") employed in the Frederick County Sheriff's Office ("FCSO" or "Sheriff's Office"), filed suit against defendants Frederick County (the "County"); the FCSO; Frederick County Sheriff Charles Jenkins; Captain ("Capt.") Ronald Hibbard of the FCSO; Lieutenant ("Lt.") Jason Null of the FCSO¹; and Lt. Gregory Warner of the FCSO. ECF 1. Plaintiff later filed an Amended Complaint. ECF 3.² Jenkins, Hibbard, Null, and Warner were sued in their official and individual capacities.Id. I shall refer to the individual defendants and the FCSO collectively as the "FCSO Defendants."³

The suit concerns an investigation and disciplinary proceeding conducted by the Sheriff's Office, which was prompted by Sgt. Ensor's participation in a video published on YouTube.⁴ Plaintiff characterizes the video as a "prank video" intended to "foster community goodwill," on which she collaborated with "famous YouTubers who live in Frederick County." Id. ¶ 19. She alleges that she was unlawfully investigated, penalized, and effectively demoted as a result of her participation in the video. Id. ¶ 24. And, according to Sgt. Ensor, since her alleged demotion, she has been "harassed, discriminated against and retaliated against in a multitude of ways." Id. ¶ 28.

The Amended Complaint contains five counts and seeks damages as well as equitable relief. See id. ¶¶ 45, 53, 67, 77, 89. Sgt. Ensor alleges disparate treatment on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") (Count I), and in violation of the Maryland Fair Employment Practices Act ("FEPA"), Md. Code (2014 Repl. Vol., 2017 Supp.), § 20-601 et seq. of the State Government Article ("S.G.") (Count II). ECF 3 at 17, 19. The remaining three counts invoke the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"). In Count III, plaintiff alleges "Unlawful Interference and Denial of FMLA Benefits Due to Transfer/Demotion in Violation of 29 U.S.C. § 2615(a)(1)." ECF 3 at 21. In both Count IV and Count V, plaintiff asserts "Discrimination/Retaliation for taking FMLA Leave in Violation of 29 U.S.C. §2615(a)(2)." Id. at 23, 25. Count IV concerns leavetaken by plaintiff in October 2018. Id. ¶ 74. Count V concerns leave taken by plaintiff in March 2020. Id. ¶ 84, 85. Sgt. Ensor seeks damages as well equitable relief. See id. ¶¶ 45, 53, 67, 77, 89.

Multiple motions are now pending. The County has filed a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), or in the alternative, a motion for summary judgment (ECF 5), supported by a memorandum of law. ECF 5-1 (collectively, the "County Motion"). It has also submitted several exhibits. The FCSO Defendants have filed a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (ECF 13), supported by a memorandum of law. ECF 13-1 (collectively, the "FCSO Motion"). They have also submitted several exhibits. Although the FCSO Motion invokes Rule 12(b)(1), the FCSO Defendants do not contend that the Court lacks subject matter jurisdiction over the suit. Rather, they assert Eleventh Amendment immunity as to certain claims against defendants in their official capacities. Id. at 10, 13, 23.

Plaintiff's opposition to the County Motion is docketed at ECF 18 and accompanied by exhibits. Her opposition to the FCSO Motion is docketed at ECF 19. The County's reply is at ECF 20, and the FCSO Defendants' reply is at ECF 21.

No hearing is necessary to resolve the motions. See Local Rule 105.6. For the reasons that follow, I shall construe the County Motion (ECF 5) as one to dismiss and I shall deny it. I shall grant in part and deny in part the FCSO Motion (ECF 13).

I. Background⁵

A.

Sgt. Ensor began working for the Sheriff's Office as a Deputy Sheriff in October 2002. ECF 3, ¶ 15. She was a "a hard-working employee" who regularly received "accolades and 'attaboys' . . . for a job well done." Id. For over eighteen years, plaintiff often received "excellent" performance evaluations and never received a "bad" one. Id.

Plaintiff alleges that since she joined the FCSO, "she has been treated differently because she is a woman." Id. ¶ 32. For instance, in 2004 plaintiff's superior told her that "he had a 'hit list' for women at work he wanted to have sex with," and asked her "if she wanted to have sex with him." Id. The question made plaintiff feel "extremely uncomfortable." Id. "A similar incident occurred with another supervisor a few years later." Id.

In addition, Sgt. Ensor alleges that she experienced "discrimination based on gender when she became pregnant . . . in 2011." Id. ¶ 33. When plaintiff was six-months pregnant she was placed on "light duty." Id. Her superior at the time attempted to bar plaintiff from working overtime hours, which plaintiff resisted, insisting "that she could not be denied overtime just because she was pregnant." Id. Shortly thereafter, plaintiff was transferred out of the Narcotics section. Id. After returning from maternity leave, plaintiff "returned to Narcotics" but was again "forced out." Id. ¶ 34.

Sgt. Ensor characterizes the culture of the Sheriff's Office as "one of discriminatory animus toward multiple protected characteristics, including sex." Id. ¶ 14. Sheriff Jenkins, who leads theFCSO, contributes to that culture, according to plaintiff. See id. Sgt. Ensor alleges: "Defendant Jenkins has publicly expressed that females should not be in supervisory or command positions. He talks about women in a derogatory manner. . . ." Id. Moreover, the Sheriff "disapproved of women taking leave time." Id. ¶ 17.

In February 2017, Sgt. Ensor "had serious medical surgery," for which her doctors directed her to take six to eight weeks off from work "to recuperate." Id. However, because plaintiff "feared retaliation" from the Sheriff, "she shortened her leave time to two weeks." Id. But, the Amended Complaint states that this incident is not "the subject of this action." Id.

According to the Amended Complaint, plaintiff has lived in Hagerstown, which is not located in Frederick County, since 2005. See id. ¶¶ 3, 35. FCSO policy prohibits FCSO vehicles "from being taken out of county." Id. ¶ 35. Although plaintiff was "grandfathered in under the current policy," for a period in 2011, plaintiff's superiors prohibited her from driving her vehicle to her home. Id. In plaintiff's view, this reflected "animus" toward her. Id.

B.

In 2016, Sgt. Ensor served as the FCSO's Police Information Officer ("PIO"). ECF 3, ¶ 20. The role entailed engaging in "community building activities" and managing the "online presence" of the Sheriff's Office. Id. She alleges, in part, id. ¶¶ 22-23:

22. . . . As PIO, Sgt. Ensor developed the only presence for the FCSO. She created different social media platforms for the agency and was commended by supervisors, deputies and the public on numerous occasions for her work. . . . At no time during her assignment as the PIO was Sgt. Ensor required to run anything by the Sheriff. He freely allowed Sgt. Ensor to post any video or information that she chose, without speaking to him first. His position was that he trusted her judgement and never monitored what she posted. The only time he expressed concern about posting was to ensure that she posted things for him pertaining to his political appearances.

23. As PIO, Sgt. Ensor looked for ways to promote a positive image of FCSO. She sought to highlight the good works of the FCSO and to interact with thecommunity in a way that engendered respect. Sometimes that was as simple as showing the community that FCSO can have fun and be cool. One of the vehicles she used to accomplish this was posting photos and short videos. . . .

The Amended Complaint does not specify when plaintiff's tenure as PIO began or ended. But, she clearly held the position in 2016. See ECF 3, ¶ 20. In the FCSO Motion, defendants assert that plaintiff did not serve as PIO in September 2018. See ECF 13-1 at 4 n.2. Plaintiff does not dispute the assertion.

Until January 2019, plaintiff was "the only female sergeant of Patrol Team Operations" employed by the FCSO. Id. ¶ 16. "As the Sergeant of Patrol Team 1, she was in charge of all discretionary calls. She oversaw between 15 and 30 deputies and provided supervisory responses on calls involving overdoses, deaths, serious crashes, and any crime involving communication with the States [sic] Attorney's Office . . . ." Id.

In September 2018, Ms. Ensor "participated in" a "prank video" with two other officers and the so-called Dobre Brothers. Id. ¶ 19.⁶ Exhibits submitted by defendants reflect that plaintiff's participation in the video occurred on September 29, 2018. See, e.g., ECF 13-5 at 4. The Dobre Brothers are "famous YouTubers who live in Frederick County." Id. Earlier in 2018, the Dobre Brothers "were contacted" by the FCSO and invited to participate in a "viral lip synch challenge that was going on for many law enforcement agencies," although ultimately the "challenge did not come to fruition." ECF 3, ¶ 23.

As to the events of September 29, 2018, plaintiff alleges, id.:

[The Dobre Brothers] asked if the Sheriff's office would 'prank' their brother, Marcus, by arresting him at their residence. Marcus was in on the prank. Sgt. Ensor did not record the video or post it on any social media sites. She participated in thestaged prank to promote a positive relationship with the Dobre brothers in the community and to show that the police can interact with the public and have fun.

In light of Sgt. Ensor's prior experience as PIO, she was "comfortable with the [Dobre Brothers'] request." Id. ¶ 20. And, she ensured that, at the end of the video, the Dobre Brothers disclosed that the apparent arrest was staged and...