Phillips v. Univ. of Md. Balt. Cnty.

• Decision Date: 10 April 2020
• Docket Number: Civil Action No. ELH-19-570
• Parties: MONISHA PHILLIPS Plaintiff v. UNIVERSITY OF MARYLAND BALTIMORE COUNTY, et al., Defendants.
• Court: U.S. District Court — District of Maryland

MONISHA PHILLIPS Plaintiff v. UNIVERSITY OF MARYLAND BALTIMORE COUNTY, et al., Defendants.

Civil Action No. ELH-19-570

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

April 10, 2020

MEMORANDUM OPINION

In this employment discrimination case, Monisha Phillips, the self-represented plaintiff, has sued her former employer, University of Maryland Baltimore County ("UMBC"), for the second time. See Phillips v. Univ. of Md. Balt. Cty., CCB-15-02066 (hereinafter, "Phillips I").¹ She has also sued David Gleason, UMBC's General Counsel, and Maryland Assistant Attorney General Erik Delfosse. ECF 1 (the "Complaint"). I shall refer to the case sub judice as "Phillips II."

Plaintiff alleges in Phillips II that she was wrongfully terminated in retaliation for engaging in protected civil rights activities, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000e et seq. Further, she challenges the validity of her termination under a Memorandum of Understanding ("MOU") between UMBC and her union. Ms. Phillips seeks back pay, a "neutral job reference," the removal of negative notations from her personnel records, and restoration of her retirement benefits. Phillips II, ECF 1 at 7.

Defendants jointly filed a motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(5), and 12(b)(6). Phillips II, ECF 8. The motion is supported by a memorandum (ECF 8-1) (collectively, the "Motion") and eight exhibits. Id., ECF 8-2 to ECF 8-9. Ms. Phillips opposes the Motion (id., ECF 17, the "Opposition") and has submitted two exhibits. Id., ECF 17-1; ECF 17-2. Defendants have replied. Id., ECF 18 (the "Reply").

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion.

I. Background²

Ms. Phillips worked at UMBC from 1996 until 2017. See Phillips II, ECF 1, ¶ 8; see Phillips I, 2016 WL 1301276, at *1 (D. Md, Apr. 4, 2016). During that time, plaintiff claims that she "highly exceeded work expectations and was never disciplined or reprimanded." Phillips II, ECF 1, ¶ 2.

Beginning in 2008, Ms. Phillips worked as a part-time administrative assistant in UMBC's Psychology Department. See Phillips I, 2016 WL 1301276, at *1. On September 24, 2013, plaintiff filed a Charge of Discrimination with the EEOC, alleging discrimination on the basis of race and hostile work environment. Phillips II, ECF 1, ¶ 3; see also Phillips I, 2016 WL 1301276, at *2. In January 2015, plaintiff was "involuntary [sic] transferred" from the Psychology Department to the Enrollment Management Department, where she served as a Payroll Specialist. Phillips II, ECF 1, ¶ 4.

On July 15, 2015, following receipt of a Notice of Right to Sue from the EEOC, Ms. Phillips, through counsel, filed suit against UMBC and several UMBC employees, asserting claims of discrimination, hostile work environment, and retaliation. See Phillips I, ECF 1; see also Phillips II, ECF 1, ¶ 5. On September 21, 2015, in Phillips I, this Court directed the Clerk to issue summons and ordered plaintiff to serve defendants in compliance with Fed. R. Civ. P. 4. See Phillips I, ECF 4. Summons were issued the next day. Id., ECF 5.

However, plaintiff failed to provide any evidence regarding service of process. Accordingly, I issued a Show Cause Order on November 30, 2015, instructing plaintiff to effect service of process by December 16, 2015, or risk dismissal of her suit, without prejudice, pursuant to Fed. R. Civ. P. 4(m) and Local Rule 103.8. Phillips I, ECF 6. Summons were returned executed as to the individual defendants on December 14, 2015. Id., ECF 10. And, summons were returned executed as to UMBC on January 19, 2016. Id., ECF 15.

By orders of April 6, 2016 (id., ECF 17) and June 15, 2016 (id., ECF 30), the Court dismissed Phillips I as to the individual defendants. Thus, Phillips I proceeded only against UMBC. Discovery ensued. Mr. Delfosse served as litigation counsel to UMBC in Phillips I, and Mr. Gleason served as UMBC's General Counsel. See Phillips II, ECF 1, ¶¶ 6, 7.

On March 29, 2017, in Phillips I, plaintiff was deposed by Mr. Delfosse. Id. ¶ 6. During the deposition, plaintiff admitted that she had taken personnel files of another UMBC employee, without authorization, in furtherance of her lawsuit. The following deposition testimony of Ms. Phillips is relevant:

MR. DELFOSSE: These were all documents produced to us by your attorney. My question for you, you have stated that all three of these are personnel documents for Ms. McDougall and that they are part of her confidential file, personnel file. Do you know how these came into the possession of your attorney?

MS. PHILLIPS: I gave them to him.

MR. DELFOSSE: You gave them to him?

MS. PHILLIPS: Yes.

MR. DELFOSSE: Did you receive them from Ms. McDougall?

MS. PHILLIPS: No.

MR. DELFOSSE: How did you obtain them?

MS. PHILLIPS: I made a copy from the file.

MR. DELFOSSE: So you accessed Ms. Mooney's — I'm sorry, Ms. McDougall's personnel file, copied documents from it, and submitted them as — and provided them to your attorney as part of your Complaint?

MS. PHILLIPS: I did.

MR. DELFOSSE: Does Ms. McDougall know you did this?

A: I didn't tell her I was doing this, so I don't know what she knows, but I didn't tell her that I was doing this.

MR. DELFOSSE: She didn't authorize it either?

MS. PHILLIPS: No, these are payroll documents, yes.

MR. DELFOSSE: If Ms. Schneider had accessed your file, obtained the exact same documents and submitted them, would you have been upset — without your knowledge?

MS. PHILLIPS: They're, they're files that belong to the university. I —

MR. DELFOSSE: I understand they belong to the university.

MS. PHILLIPS: Uh-huh.

MR. DELFOSSE: You have made copies of them, taken them for yourself in an effort to sue the university. Did you ask the university if you could make copies of these documents?

MS. PHILLIPS: I did not.

MR. DELFOSSE: So, you didn't ask the individual to whom, of whom the documents specifically pertained and in whose personnel file they belonged;correct?

MS. PHILLIPS: Correct.

MR. SADRI [plaintiff's counsel]: At this point, I'm going to have to make an objection for the Fifth Amendment prohibition against self-incrimination.

MR. DELFOSSE: Thank you. Nothing further.

See Phillips II, ECF 8-4 (3/29/2017 Deposition Transcript) at 3, Tr. 366-68; see also Phillips I, ECF 78-6.

The day after the deposition of plaintiff in Phillips I, Jeffrey Sadri, plaintiff's attorney informed her that UMBC "was placing her on paid administrative leave." Phillips II, ECF 1, ¶ 8. Plaintiff claims in Phillips II, that this was contrary to an MOU entered into between UMBC and her union, AFSCME, which designated AFSCME as the exclusive bargaining representative for all nonexempt employees. Id. ¶ 10.³ Further, plaintiff alleges that while she was on leave, UMBC "did not reach out to [her] about meeting, they did not inform [her] of any investigatory interviews, or mitigating conferences . . . ." Id. ¶ 13. And, Ms. Phillips alleges that UMBC asked Mr. Sadri for a two-week extension to conduct its investigation, which also was in violation of the MOU. See id. ¶¶ 15-19.

UMBC terminated plaintiff on May 3, 2017, "effective immediately," because of "severe and gross misconduct." Id. ¶ 20; see ECF 8-5 (Notice of Termination). The Notice of Termination stated, in part, id. at 1:

The grounds for your termination are severe and gross misconduct. Specifically, during your sworn testimony in your deposition of March 28, 2017, you admitted to knowingly and intentionally taking, accessing, and copying, from a locked filing cabinet, the confidential personnel files of other UMBC employees . . . . Theseconfidential personnel files have been entrusted to your care as records custodian as part of your position as Administrative Assistant II with duties as payroll preparer in the Department of Psychology at UMBC. Neither the University nor the employee whose records you access and copied gave you permission to take these actions. . . .

Furthermore, as the current Administrative Assistant II and payroll preparer in the Office of Enrolment Management, you have similar access to confidential personnel files. In light of your admitted actions, the University cannot maintain you in a position having access to confidential materials.

Plaintiff alleges that UMBC terminated her "in retaliation" for her "filing a racial discrimination and retaliation law suit against them." Phillips II, ECF 1, ¶ 23; see id. ¶ 25. According to plaintiff, UMBC knew as of July 2016, "[a] full year before [plaintiff's] deposition," that she possessed personnel files, but "did not act then because [UMBC] knew those documents were not confidential and gross misconduct." Id. ¶ 23. And, she claims that UMBC "deliberately avoided following [its] own procedures in the MOU regarding the duty of the university prior to imposing sanctions" because it "did not want the union to be involved in this matter . . . ." Id. ¶¶ 24, 25.

On December 21, 2017, plaintiff filed a Charge of Discrimination with the EEOC against UMBC. Id., ECF 8-6. On the form, she checked the box indicating that she claimed discrimination based on "retaliation." Id. at 2. In the Charge, Ms. Phillips complained that she was "discharged" from UMBC on May 3, 2017, and that UMBC did not provide a "reasonable explanation" for her termination. Id. She stated, id.: "I believe I have been retaliated against because I filed a charge with the EEOC as a result [sic] engaged in a protected activity in violation of Title VII of the Civil Rights Act of 1974 as amended, with respect to discharge."

Then, by Memorandum and Order of March 26, 2018, Judge Blake granted summary judgment in Phillips I, in favor of UMBC. See Phillips I, ECF 88, ECF 89; see also CCB-15-2066, 2018 WL 1474178, at *1 (D. Mar. 26, 2018).

Thereafter, on November 26, 2018, the EEOC issued a Notice of Right to Sue as to plaintiff's 2017 complaint of retaliation. Phillips II, ECF 8-7....