Gaines v. Balt. Police Dep't

• Decision Date: 06 May 2022
• Docket Number: Civil Action ELH-21-1211
• Citation: Gaines v. Balt. Police Dep't, Civil Action ELH-21-1211 (D. Md. May 06, 2022)
• Parties: TASHAWNA GAINES, Plaintiff, v. BALTIMORE POLICE DEPARTMENT, Defendant.
• Court: U.S. District Court — District of Maryland

TASHAWNA GAINES, Plaintiff, v. BALTIMORE POLICE DEPARTMENT, Defendant.

Civil Action No. ELH-21-1211

United States District Court, D. Maryland

May 6, 2022

MEMORANDUM OPINION

Ellen L. Hollander, United States District Judge.

In this employment discrimination case, plaintiff Tashawna Gaines, a former employee of the Baltimore Police Department (the “BPD”), has sued the BPD, alleging discrimination in violation of three statutes: Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”); 42 U.S.C. § 1981; and the Maryland Fair Employment Practices Act (“FEPA”), Md. Code (2021 Repl. Vol.), § 20-601 et seq. of the State Government Article (“S.G.”). ECF 1 (the “Complaint”).^[1] The Complaint contains six counts asserting the following claims: discrimination on the basis of race, in violation of Title VII (Count I); discrimination on the basis of sex, in violation of Title VII (Count II); hostile work environment on the basis of race and sex, in violation of Title VII (Count III); retaliation, in violation of Title VII (Count IV); discrimination on the basis of race in violation of 42 U.S.C. § 1981 (Count V); and discrimination on the basis of race and sex, in violation of FEPA (Count VI). Id.

Defendant has moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) or, in the alternative, for summary judgment prior to discovery. ECF 10. The motion is supported by a memorandum (ECF 10-1) (collectively, the “Motion”) and several exhibits. ECF 10-3 to ECF 10-6. Plaintiff opposes the Motion (ECF 11), supported by a memorandum (ECF 11-1) (collectively the “Opposition”) and one exhibit. ECF 11-3. Defendant has replied. ECF 12 (the “Reply”).

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall construe the Motion as a motion to dismiss. And, I shall grant the Motion, with leave to amend.

I. Factual Background^[2]

Plaintiff, an “African American female, ” ECF 1, ¶ 14, was an employee of the BPD for sixteen years. Id. ¶¶ 17-19. She left the BPD in 2015, with the rank of sergeant, but returned to the BPD on March 13, 2017. Id. ¶ 19. However, Gaines was not rehired as a sergeant. Id. ¶ 20.^[3]

Plaintiff alleges that when she returned to the BPD in 2017, Police Commissioner Kevin Davis told her that “her supervisor status as sergeant would not be an option.” Id.^[4] But, she asserts that other, similarly situated male employees returning to the BPD were “granted their rank back as sergeant upon returning to work at BPD under the same or similar circumstances ....” ECF 1, ¶ 20. According to plaintiff, on April 26, 2019, the Equal Employment Opportunity Commission (“EEOC”) found that plaintiff established reasonable cause to believe that BPD violated Title VII when it “denied her rehire at her prior rank.” Id. ¶ 7; see id. ¶ 20.^[5]

On September 18, 2017, approximately six months after rejoining the BPD, plaintiff sought “secondary employment outside of the BPD at WBAL News Radio as a news anchor/reporter, scheduled for Saturdays and Sundays from 6 a.m. to 2 p.m.” Id. ¶ 21. Accordingly, she submitted a secondary employment request to defendant, which was approved by Lieutenant Donald Gerkin, plaintiff's Shift Commander, and Major Rich Gibson, the District Commander and Davis's “designee for the Northern District.” Id. ¶ 22. These individuals “possessed the authority to grant approval of the secondary employment.” Id.

“Subsequently however, Commissioner Davis denied the secondary employment approval claiming that the approval was null and void without his signature.” Id. The BPD claimed that plaintiff had submitted the wrong form, and that the correct form would have required Davis's approval. Id. ¶ 23. However, the Complaint contends that at the time plaintiff submitted her request in September 2017, the form she completed was the only one that was available, and that the form the BPD labels as the correct one was not created until March 2018. Id. In addition, when plaintiff filled out her request form in September 2017, she “was not informed that there were issues with the form she submitted prior to the initial approval signed by two of her superiors.” Id. (emphasis in original). Further, she was not informed “that the secondary employment she sought did not meet the requirements under the provisions of the BPD.” ECF 1, ¶ 24.

According to the Complaint, “instead of allowing Plaintiff to rectify any administrative issues, Commissioner Davis requested that Plaintiff either terminate her secondary employment or resign from the BPD or be charged with insubordination and failure to obey command.” Id. ¶ 25. In addition, Davis “advised” Gibson, Gerkin, and a third BPD officer, Sergeant Tanesha Todd, to inform plaintiff that she “was not allowed to work at her secondary employment or be subjected to the above-mentioned disciplinary issues.” Id. ¶ 26.

In the Motion, defendant cites to paragraph 25 of the Complaint to assert that plaintiff began her requested secondary employment on September 28, 2017. See ECF 10-1 at 3. The Motion also cites to the Charge that plaintiff submitted to the EEOC on November 6, 2017, in which she stated that she began her secondary employment on September 28, 2017. See ECF 103 (the “Charge”) at 1. But, the Complaint does not explicitly allege that plaintiff ever began her secondary employment. At best, it is implied by the assertion that Davis “requested that Plaintiff . . . terminate her secondary employment ....” ECF 1, ¶ 25.

In any event, plaintiff alleges that “similarly situated male Caucasian employees” who submitted a secondary employment request were able to gain approval from their shift commanders, instead of having to obtain approval from Davis. Id. ¶ 27. In particular, the Complaint mentions “Police Officer Sergeant Zimmerman (Caucasian male), ” who sought and obtained approval for secondary employment from his shift commander, without needing to receive approval from Davis. ECF 1, ¶ 29.^[6] The Complaint provides no other information as to Zimmerman or his circumstances.

Plaintiff requested an explanation as to why “similarly situated Caucasian male workers” obtained secondary employment after receiving approval from their shift commanders, whereas she was required either to terminate her secondary employment, resign from the BPD, or be charged with insubordination and failure to obey command. Id. ¶ 28. She pointed to Zimmerman as an example. Id. ¶ 29.

After plaintiff raised this issue, the BPD “rescinded their [sic] disapproval and approved the secondary employment request again.” Id. ¶ 30. When the BPD approved the request, it “did not produce any evidence that Plaintiff was asked to complete the ‘correct' form as earlier indicated by BPD.” Id. According to the Complaint, although defendant ultimately approved plaintiff's secondary employment request, it “essentially rejected the modification [sic] work schedule, which forced Plaintiff to resign from her position.” Id. No further information about the alleged rejection or a modified work schedule is included in the Complaint.

The defense included with the Motion a “Request for Secondary Employment” form submitted by plaintiff. See ECF 10-4. As discussed, infra, I may consider the exhibit. On the form, plaintiff indicated that she was seeking a position as “Radio News Anchor/Reporter.” Id. She included information as to her requested secondary employment, consistent with what is recounted above, and signed the form on September 18, 2017. Id. She also provided her “Reason for Desiring Secondary Employment, ” stating: “Career enhancement and career development in radio communications.” Id. Below plaintiff's signature is a “Reviewed By” box, with space for a signature and “Recommendation” from each reviewer. ECF 10-4. The “Reviewed By” box contains two signatures. Id. One appears to be by a sergeant, and one appears to be by a lieutenant, but the handwriting is not clear enough to identify the name of either individual. Id. Next to each signature, in boxes located under the word “Recommendation, ” each reviewer wrote “Approved.” Id. One signature is dated September 18, 2017, and the other is dated September 19, 2017. Id.

Under the “Reviewed By” box is another box, labelled “Comments About Recommendation.” Id. The word “Approved” is written in this box. Id. Below this box is a section that contains space for the name and signature of the “Commanding Officer, ” as well as a date. Id. A name and signature appear in this space, with a date of September 18, 2017. Id. However, the handwriting is not clear enough to determine the name of this individual. Below this area is a space marked “Action of the Overtime Unit Commanding Officer, ” with a space for a signature and the date. Id. The word “Approved” appears above “Action of the Overtime Unit Commanding Officer, ” with another unclear signature, and a date of October 2, 2017. Id.^[7]

Further, the Complaint alleges: “On October 28, 2017, in order to avoid insubordinations [sic] or failure to obey order, Plaintiff was forced to retire from BPD.” ECF 1, ¶ 31. On the day plaintiff resigned, she was not given a “reasonable explanation” as to why she was “forced to resign, while a similarly situated Caucasian male (Sergeant Zimmerman) was not [forced to resign].” Id.

On November 6, 2017, following plaintiff's resignation, she filed a Charge with the EEOC. Id. ¶ 7; see ECF 10-3. The Charge recounted the circumstances of plaintiff's secondary employment request and resignation, as alleged above, and asserted discrimination on the basis of race and sex, as well as retaliation. ECF 10-3 at 1-2. In the Charge, plaintiff stated that the discrimination occurred between September 28, 2017, and October 26, 2017. But,...