Thomson v. Belton, Civil Action No. ELH-18-3116

• Decision Date: 26 November 2018
• Docket Number: Civil Action No. ELH-18-3116
• Parties: CANDUS THOMSON Plaintiff, v. MARK BELTON Defendant.
• Court: U.S. District Court — District of Maryland

CANDUS THOMSON Plaintiff, v. MARK BELTON Defendant.

Civil Action No. ELH-18-3116

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

November 26, 2018

MEMORANDUM OPINION

In this Memorandum Opinion, I shall elaborate as to the basis for my oral ruling and Order of November 2, 2018 (ECF 25), granting the motion for preliminary injunction (ECF 2) filed by Candus Thomson, plaintiff. In the Order, I directed defendant Mark Belton, Secretary of the Maryland Department of Natural Resources ("DNR"), to restore plaintiff to the job position she held with the agency on September 17, 2018, when she posted an arguably inappropriate comment on Facebook concerning a Maryland gubernatorial candidate.

Thomson served for several years as the "public information officer" for the Natural Resources Police ("NRP"), a subdivision of DNR (ECF 1-3, original job description, at 2). On October 9, 2018, she filed suit against Secretary Belton, both in his individual and official capacity (ECF 1, "Complaint"), alleging that she was unlawfully stripped of her media-related job duties because, in the early hours of Monday, September 17, 2018, while in her own living room, using her own device, she responded to a Facebook post of a professional colleague by referring to Maryland gubernatorial candidate Ben Jealous as an "assclown." ECF 35 (Transcript of November 1, 2018 hearing) at 44-45; ECF 20-5 at 2-3 (screenshot of Facebook posts); see also ECF 1, ¶¶ 11, 12. Her comment was prompted by the candidate's decision to veto reporter Tamela Baker's participation as a panelist in the only gubernatorial debate with Governor Larry Hogan. ECF 35 at 39-40; see also ECF 1, ¶¶ 9, 10, 13.

Pursuant to 42 U.S.C. § 1983, plaintiff alleges violations of her rights under the First and Fourteenth Amendments. ECF 1, ¶¶ 31-32. She also seeks declaratory and injunctive relief. Id. ¶¶ 33-35.¹ Specifically, she seeks "reinstatement of her duties" and "expungement from her human resources records [of] all references to the incident in question." Id. at 7.

Along with her verified Complaint (ECF 1), plaintiff submitted several exhibits: her fiscal year 2018 performance review (ECF 1-2) ("performance review"); NRP's official description of her position, signed February 19, 2016 (ECF 1-3); NRP's official description of Thomson's position, signed September 28, 2018 (ECF 1-4) ("new job description"); email correspondence between Thomson and DNR Deputy Secretary Joanne Throwe (ECF 20-6); a letter from plaintiff's counsel to defendant, dated September 27, 2018 (ECF 1-6); and a letter from plaintiff's counsel to defendant, dated October 4, 2018 (ECF 1-7).

Of relevance here, plaintiff also filed a "Motion for Temporary Restraining Order and/or Preliminary Injunction" (ECF 2), as well as a memorandum of law. ECF 2-1 (collectively, the "Motion"). In the Motion, she sought to enjoin Belton "from continuing any punishment of Plaintiff for her personal speech and immediately restoring Plaintiff to her previous responsibilities and duties as a Public Officer for the Natural Resources Police." ECF 2-1 at 2. She sought reinstatement through November 6, 2018, which was previously scheduled as her last date of employment with DNR.

In response to the filings, on October 10, 2018, the Court held an emergency telephone conference with counsel for both sides. See ECF 7. At that time, counsel agreed to proceed on the request for a preliminary injunction, rather than the request for a temporary restraining order. Id.

Plaintiff subsequently filed a supplemental memorandum to the Motion. ECF 8. Defendant submitted its opposition. ECF 11 ("Opposition"). In response to plaintiff's request for production of documents (ECF 12-1), I granted limited documentary production by Order of October 24, 2018. ECF 13. Plaintiff filed her reply (ECF 20, "Reply"), along with multiple exhibits (ECF 20-1 to ECF 20-8), on October 29, 2018.

The Court held a Motion hearing on November 1 and November 2, 2018, at which testimonial and documentary evidence and argument were presented. See ECF 22; ECF 23.² Plaintiff was the sole witness for her side. Defense counsel called several witnesses: DNR Secretary Belton; DNR Deputy Secretary Joanne Throwe; DNR Director of Communications Stephen Schatz; and DNR Chief Public Information Officer Gregg Bortz.

At the conclusion of the hearing, because of the urgency of the matter, including plaintiff's impending departure from DNR on November 6, 2018, I delivered a brief oral ruling, granting the Motion, and issued an Order. See ECF 25. I also informed counsel and the parties that a written ruling would follow, in order to amplify, clarify, and explain the oral ruling.³

I. Factual Background⁴

Mark Belton is the Secretary of DNR. The DNR is Maryland's principal department for policy related to natural resources. The DNR Secretary "is responsible for the enforcement of all natural resource laws of the State[.]" Md. Code (2018 Repl. Vol.), § 1-202 of the Natural Resources Article ("N.R."). The NRP, a subdivision of DNR, "serves as a public safety agency with statewide authority to enforce conservation, boating, and criminal law." N.R. § 1-201.1(a). Its responsibilities include, id. § 1-201.1(b):

(1) Providing maritime and rural search and rescue services;

(2) Providing public education in hunting, boating, and water safety;

(3) Providing primary law enforcement services for State parks, State forests, wildlife management areas, and public lands owned and managed by the Department; and

(4) Serving as the lead agency for maritime homeland security on State waterways.

For almost five years, Thomson served as the "public information officer" with the NRP. See ECF 35 at 8; ECF 8 at 1. Plaintiff testified that she came to the NRP after a long career as a newspaper reporter and editor, including twenty-five years with The Baltimore Sun. ECF 35 at 5-7; see also ECF 1, ¶ 3. At the hearing, she testified that she was leaving the DNR on November 6, 2018. ECF 35 at 6. That departure was scheduled before the incident at issue. Id.

The NRP's original position description for Thomson appears to reflect her actual duties and responsibilities.⁵ It states that the purpose of this "mission critical" position "is to ensureNRP's and DNR's external and internal messaging is consistent with Administration priorities and NRP's & DNR's mission and goals . . . ." ECF 1-3 at 3. According to DNR, the "position directly impacts the agency's ability to publicize services and activities[] [as well as] educate, inform and encourage stewardship and public safety among Maryland's citizens and visitors." Id.

Thomson's most significant duties included acting (1) "as a spokesperson for the Department, responding to media inquiries about breaking stories and proactive initiatives" and (2) "as the administrator for NRP's social media accounts (Face Book [sic] and Twitter)." ECF 1-3 at 3. Thomson also had several other responsibilities, including preparing and disseminating "press releases about breaking stories involving the NRP to inform the media/public about the incidents and provide accurate, timely information"; "writ[ing] speeches and messaging for the [NRP] Superintendent" and keeping him abreast "of all media coverage regarding the Department"; and "maintain[ing] agency stats (such as fatal boating accidents, etc.)." ECF 1-3 at 3-4.

Notably, Thomson was not a political appointee. ECF 35 at 18; see ECF 1-3 at 2 (characterizing Thomson as a "Management Service" employee). Compare Md. Code (2015 Repl. Vol., 2018 Supp.), § 6-403 of State Personnel and Pensions Article ("S.P.P.") (defining a "management service" position) with S.P.P. § 6-405 (defining a "special appointment" position). She was hired while Governor Martin O'Malley, a Democrat, was in office, and she continued to work for the NRP under Governor Larry Hogan, a Republican, who took office in 2015. ECF 35 at 8.⁶

During plaintiff's tenure at NRP, she consistently received high praise and outstanding reviews from NRP and DNR personnel. On June 2, 2014, in her end-of-cycle performance review, Captain David Larsen, who was plaintiff's supervisor at the time, described plaintiff as an "outstanding" employee and indicated that her job performance was "Exceptional." Thomson Motion Ex. 2 (collection of supervisor comments) at 5. Two months later, Colonel George F. Johnson, IV wrote a letter to plaintiff to thank her for "doing an outstanding job." Id. at 3. In the January 5, 2015, mid-cycle review, Larsen again wrote that plaintiff "has done an excellent job." Id. at 4. He said the same thing in her reviews on July 2, 2015, and January 11, 2016. Id. at 1, 2. In 2015, Larsen also nominated Thomson for 2014 DNR Employee of the Year. Thomson Motion Ex. 7 (nomination letter). The following year, NRP awarded plaintiff a raise and retroactively applied it to 2015. Thomson Motion Ex.1 at 2-3 (raise paperwork). On January 20, 2017, NRP Colonel Robert K. Ziegler, Jr., plaintiff's supervisor and the head of the NRP, sent her a letter thanking her for her service on the NRP Strategic Recruitment Plan Workgroup. Id. at 1 (letter from Ziegler). He included this letter in plaintiff's personnel filed. Id.

Plaintiff continued to receive outstanding reviews in 2018. In plaintiff's review dated January 24, 2018, Lieutenant Colonel Ernest J. Leatherbury, Jr., then her supervisor, rated Thomson as excellent, the highest possible score, on all twenty "behavioral elements" used in the performance review. Thomson Motion Ex. 3 (2018 mid-cycle review) at 3. In his comments, Leatherbury stated that Thomson's "quality and quantity of work continues to exceed all expectations." Id. at 4.

In a review dated July 31, 2018, Gregg Bortz, plaintiff's new supervisor, rated her as excellent on fifteen behavioral elements and as satisfactory on five behavioral elements. ECF 1-2 at 3. She received perfect ratings on all five behavioral elements in the Customer Service category.Id. According to...