Mentch v. Eastern Sav. Bank, Fsb, Civil No. AMD 95-3812.

• Decision Date: 08 January 1997
• Docket Number: Civil No. AMD 95-3812.
• Citation: 949 F.Supp. 1236
• Parties: Dawn M. MENTCH, Plaintiff, v. EASTERN SAVINGS BANK, FSB et al., Defendants.
• Court: U.S. District Court — District of Maryland

949 F.Supp. 1236

Dawn M. MENTCH, Plaintiff, v. EASTERN SAVINGS BANK, FSB et al., Defendants.

Civil No. AMD 95-3812.

United States District Court, D. Maryland.

January 8, 1997.

John G. Koenig, Jr., Robinson & Koenig, Ellicott City, MD for plaintiff.

Francis R. Laws, Jonathan J. Biedron, Kollman & Sheehan, P.A., Baltimore, MD, for defendants.

MEMORANDUM

DAVIS, District Judge.

The plaintiff, Dawn Mentch, filed a four-count complaint against her former employer, Eastern Savings Bank, FSB ("ESB"), and Rick Proctor and Anthony Proffitt, an Assistant Vice President and a Senior Vice President, respectively, at ESB during Mentch's tenure. In count one, Mentch asserted a claim of pregnancy discrimination under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), on the basis of her non-promotion to the position of manager of the loan processing department, against ESB and Proctor.¹ In count two, Mentch seems to have asserted — but has abandoned for purposes of summary judgment — a claim of hostile work environment on the basis of pregnancy under Title VII, against ESB and Proffitt. In counts three (now abandoned) and four Mentch asserted claims for breach of contract (in connection with her non-promotion and her inability to find an acceptable position with the bank upon her return from maternity leave, respectively), against ESB and Proctor. In a previous order, I granted the individual defendants' motions to dismiss for failure to state a claim.

Pending before the Court is ESB's motion for summary judgment. The parties have conducted extensive discovery, and the motion has been briefed; no hearing is necessary. For the reasons discussed below, the motion shall be granted.

(i)

Pursuant to Fed.R.Civ.P. 56(c), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). A party moving for summary judgment is entitled to a grant of summary judgment only if no issues of material fact remain for the trier of fact to determine at trial. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). A fact is material for purposes of summary judgment if, when applied to the substantive law, it affects the outcome of the litigation. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "Summary judgment is not appropriate when there is an issue of fact for a jury to determine at trial, which is the case when there is sufficient evidence favoring the non-moving party upon which a jury can return a verdict for that party." Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir.1991).

A party opposing a properly supported motion for summary judgment bears the burden of establishing the existence of a genuine issue of material fact. Anderson, 477 U.S. at 248-49, 106 S.Ct. at 2510-11. The nonmovant "cannot create a genuine issue of fact through mere speculation or the building of one inference upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.1985). See O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 545 (4th Cir.1995), rev'd on other grounds, ___ U.S. ___, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). "When a motion for summary judgment is made and supported as provided in [Rule 56], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in [Rule 56] must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Shealy, 929 F.2d at 1012. Furthermore, the facts, as well as the inferences to be drawn therefrom, must be viewed in the light most favorable to the nonmoving party. See Matsushita, 475 U.S. at 587-88, 106 S.Ct. at 1356-57; United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Poller v. Columbia Broadcasting Sys., Inc.,

368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962).

(ii)

In setting forth this statement of facts, a cautionary note is appropriate. The summary judgment record includes, inter alia, transcripts of the testimony of many of the key witnesses who give first hand accounts of their acts and their states of mind. Much of the critical evidence Mentch relies upon, however, includes "facts" which have as their source Mentch's own beliefs and opinions, hearsay statements by Mentch as to what others said or thought, and vague and uncorroborated factual assertions by Mentch. This latter category, for example, includes Mentch's assertion that after she advised defendants that she was pregnant, she was excluded from meetings and her supervisor ceased consulting with her. I am mindful that in discrimination cases, as in some others, access to direct proof of the elements of a plaintiff's claims is often limited, at best. Nevertheless, consistent with Supreme Court and Circuit precedent, see Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Goldberg v. B. Green and Co., Inc., 836 F.2d 845, 848 (4th Cir.1988); Rudolph v. Hechinger Co., 884 F.Supp. 184, 188 (D.Md.1995), in applying the relevant legal tests to the facts viewed in the light most favorable to Mentch here, I have taken account of the ephemeral nature of Mentch's proof.

Mentch began working for ESB in July 1990 as a loan processor. Frank McInerney, then the Assistant Vice President with responsibility for the loan processing department, and Lois Ewing, the department manager who would be Mentch's immediate supervisor, hired Mentch. As a loan processor, Mentch prepared loan applications for underwriting by analyzing credit reports, pay stubs, tax returns, home appraisals, and other documents. ESB maintained a performance appraisal system under which employees were evaluated periodically. For 1990, Ewing rated Mentch's overall performance as "excellent," the highest rating an employee could receive. Ewing noted that Mentch could improve her performance by better adapting to changes in department procedures and by improving her ability to communicate with co-workers and others. For 1991 and 1992, Ewing rated Mentch's overall performance as "very good" or "commendable," the second highest rating an employee could receive. Again, Ewing noted that Mentch should continue to improve her interpersonal communication skills. Ewing felt that Mentch was a "natural leader," and regularly commented on Mentch's "leadership qualities." Notwithstanding these positive observations and despite overall ratings that were consistently at or near the top of the performance scale, throughout her first three years at ESB, Mentch's superiors consistently expressed concern over Mentch's "confrontational" style, and Mentch's recurrent inability to conform to management's expectations that she modify this aspect of her work performance. Mentch readily admitted on deposition that the concerns expressed to her in these regards were legitimate.

In October 1992, ESB promoted Mentch to senior loan processor and group leader. In this position (although she was not a part of management, was paid an hourly wage and thus earned overtime pay), Mentch supervised three loan processors, trained new employees, and acted as a liaison with the loan origination department. In Mentch's 1993 evaluation, which covered Mentch's 12-plus months as a supervisor, as in the earlier evaluations, Ewing sketched a portrait of an employee with significant positive, but also with significant negative, indicia of performance. Ewing commented, on the one hand, that Mentch's "natural leadership qualities enable her to take control and supervise her area effectively. She demands excellence from her employees and earns their respect by setting this example." On the other hand, Ewing reiterated the need for Mentch to improve her interpersonal communication skills, noting that Mentch "needs to keep her sense of authority in perspective. Dawn also needs to think first before speaking. At times she lets her emotions control a situation rather than her good sense." Overall, Ewing indicated that she was pleased with Mentch's growth as a supervisor. Moreover, although Ewing had given Mentch a "2," the second highest rating available, McInerney, the department head, enhanced Mentch's overall rating to a "1.5" because he felt Mentch's performance warranted the higher rating.

Proffitt came to the bank in November 1993 as Senior Vice President. Mentch soon approached him to express her wish that she be given an opportunity to move into a management position under his regime. Fortuitously, in January 1994 Ewing moved to another department at ESB where she would no longer supervise Mentch. Apparently with little or no input from McInerney (see below) or Ewing, Proffitt named Mentch to the position of acting manager (as asserted by Mentch) or supervisor (the term preferred by ESB) of the loan processing department, where she took on Ewing's former responsibilities. The parties agree that Proffitt specifically advised Mentch that her new assignment would not be made permanent unless and until he was satisfied Mentch could "handle" the position. Consequently, because Mentch was merely given a probationary "try out," as it were, Proffitt would not discuss, and Mentch understood that she would not receive, a salary increase, although, since she would not be assigned to a permanent "exempt" position, she would continue to be paid overtime.

As the acting manager, Mentch supervised the entire loan processing department (apparently including more than 20 loan processors) and reported directly to...