Tonin v. Balt. City Police Dep't
| Decision Date | 16 June 2020 |
| Docket Number | Civil Action No. DKC 19-0323 |
| Parties | EVA TONIN v. BALTIMORE CITY POLICE DEPARTMENT |
| Court | U.S. District Court — District of Maryland |
Presently pending and ready for resolution in this employment discrimination action is the motion to dismiss filed by Defendant Baltimore City Police Department. (ECF No. 11). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be denied in part and granted in part.
Eva Tonin ("Plaintiff"), a female of Italian descent, is a current employee of the Baltimore City Police Department ("BCPD" or "Defendant").1 Defendant hired Plaintiff in August 2012. After Plaintiff's successful completion of a probationary period, Defendant assigned her to the Southwest District ("SWD") in 2013. Sergeant John Ferinde, an American male, was Plaintiff's supervisor. Plaintiff alleges that Sergeant Ferinde "regularlysubjected her to discriminatory harassment based on her sex, national origin, and retaliation." (ECF No. 1, ¶ 10).
In March 2016, "Plaintiff was involved in a work related car accident and suffered injuries to her hip." (ECF No. 1, ¶ 11). The hip impairment limited Plaintiff's ability to bend, stand, and walk. The complaint is not entirely clear when, but at some point after the car accident and before November 2016, Plaintiff complained about Sergeant Ferinde's actions and self-reported anxiety, depression, and stress resulting from those actions.
In 2016, Plaintiff faced several disciplinary actions. (ECF No. 1, ¶¶ 16-19). On September 28, 2016, Defendant issued Plaintiff two Notifications of Internal Investigation: (1) CIU 16-01518 regarding alleged incidents on June 24, 2016 and (2) CIU 16-02145 regarding alleged incidents on July 31, 2016, September 4, 2016, and September 28, 2016. (Id., ¶ 16). On October 17, 2016, Sergeant Ferinde "filed an internal investigation complaint (CIU 16-02290) against Plaintiff for alleged failure to follow chain of command, minor neglect of duty, and disobeying a directive." (Id., ¶ 17). Seemingly related to that internal investigation complaint, "Defendant issued Plaintiff another Notification of Internal Investigation" on October 20, 2016. Plaintiff concedes that she committed the underlying infractions but contends that Sergeant Ferinde did not discipline similarly situated coworkersoutside her protected classes for committing comparable infractions. (Id., ¶ 19).
On October 23, 2016, Plaintiff filed an internal complaint alleging that Sergeant Ferinde "had subjected her to discrimination and hostile work environment based on her sex, national origin, and retaliation for reporting his actions." On November 10, 2016, Defendant suspended Plaintiff's police powers for medical reasons, identified as extreme emotional distress affecting her ability to perform her duties. On November 15, 2016, Plaintiff received therapy at Interdynamics (Defendant's contractor for psychological counseling). (ECF No. 1, ¶ 22). The therapist "diagnosed Plaintiff with extreme anxiety, confusion, inability to concentrate, daily crisis, difficulty sleeping, disturbance in appetite, [and] nightmares" and requested Plaintiff undergo a Fitness for Duty examination. (Id., ¶ 23). On November 21, 2016, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") alleging national origin and sex discrimination and retaliation (the "2016 EEOC Charge").2 (Id., ¶ 25, see also ECF No. 11-4).
In December 2016, Plaintiff underwent hip surgery. From December 2016 to February 2017, Plaintiff was on medical leave. During this time, Plaintiff received treatment from Dr. Kenneth Tapper, with MedStar Health, and Mary Louise Gercke, a nurse at Mercy Medical Center Public Safety Infirmary ("PSI"), another of Defendant's contractors.3 Dr. Tapper and Ms. Gercke disagreed about when Plaintiff would be able to return to work. On January 20, 2017, Dr. Tapper determined Plaintiff could not return to work until February 17, 2017. (ECF No. 1, ¶ 27). On February 10, 2017, Ms. Gercke asked Plaintiff about her physical limitations and commented that Plaintiff could return to work because she could squat. (Id., ¶ 28). Plaintiff informed Ms. Gercke of Dr. Tapper's recommendation. Ms. Gercke also asked Plaintiff about the 2016 EEOC Charge, which Plaintiff had not disclosed, "caus[ing] Plaintiff to become visibly upset and cry." (Id., ¶ 29).
The date of Plaintiff's return to work is unclear. After the January appointment, Dr. Tapper revised his recommended date for Plaintiff to return to work at least twice. (ECF No. 1, ¶¶ 32-33). On March 17, 2017, Dr. Tapper concluded Plaintiff could not return to work until April 1, 2017. (Id.). Plaintiff identifies her return to work as occurring both in February 2017, (id., ¶ 30),and on May 25, 2017 (id., ¶¶ 48, 51). She must have returned to work in some capacity in February 2017, however, because "Defendant issued two disciplinary actions under Preventable Departmental Accidents" at that time. (Id., ¶ 30). Plaintiff again concedes that she committed the underlying infractions but contends that Defendant did not discipline similarly situated coworkers outside her protected classes for committing comparable infractions. (Id., ¶ 31).
In April 2017, Internal Affairs ("IA") contacted Plaintiff to coordinate "an interview regarding the four . . . open IA cases that 'were connected to Plaintiff's EEOC complaint' against [Sergeant] Ferinde."4 (ECF No. 1, ¶ 34). In May 2017, Plaintiff learned that "Defendant did not recognize 'stress medical' as 'line of duty' and would not pay for her leave[.]" (Id., ¶ 41). Plaintiff contacted Gale Dyson, an administrative secretary for the SWD, who "confirmed that Defendant would not pay for 'stress medical[]'" and advised that Plaintiff had exhausted her accrued leave hours, accrued a negative leave balance, and faced wagegarnishment. (Id., ¶ 42). Defendant did not provide Plaintiff the option of utilizing its leave donation program.
On May 22, 2017, Plaintiff had a therapy session with Kimberly M. DeBerry, PhD, an Interdynamics counselor. Dr. DeBerry requested that Plaintiff be transferred from the SWD upon her return to light duty. (ECF No. 1, ¶ 47). Sergeant Hunter, the former administrative sergeant for the SWD, denied the transfer "stating that Plaintiff's injury was not recognized as 'line of duty' by the city and therefore Interdynamics is not considered." (Id., ¶ 48). Plaintiff unsuccessfully sought a meeting with Sergeant Hunter to discuss the denial. On May 25, 2017, Plaintiff returned to work and learned "that she was assigned to work the front desk for the [SWD] which caused Plaintiff to experience a severe panic attack." (Id., ¶ 52). After the panic attack, she received an assignment to the Eastern District for the night.
Beginning June 1, 2017, "Plaintiff was assigned to the Juvenile Booking Unit with [Sergeant Abdulmalik Lundy] as her direct supervisor and [Lieutenant] Charles Carter as her second-line supervisor."5 (ECF No. 1, ¶ 56). Plaintiff met with Lieutenant Carter and explained that prisoner contact exacerbated her mental health struggles. (Id., ¶ 57). Plaintiff also met with Sergeant Lundy and "disclosed that she suffered from severeanxiety/panic attacks[.]" (Id., ¶ 58). Plaintiff remained on light duty (due to her depression and stress) while assigned to the Juvenile Booking Unit although she had been cleared from light duty due to her hip injury on February 10, 2017. (Id., ¶ 61). Throughout June 2017, Plaintiff participated in an early intervention program. (Id., ¶¶ 62-66). Plaintiff also details progress made by Internal Affairs regarding the open IA cases from July 2017 to October 2017. She indicates that Detective Gordon "requested information about her EEOC complaints[]" and "explained that the complaints filed by [Sergeant] Ferinde against Plaintiff were baseless and would be closed as unsubstantiated which[,] in his opinion, strengthened Plaintiff's EEOC complaints." (Id., ¶¶ 71-72).
In February or March of 2018, all personnel in the Juvenile Booking Unit, except for Plaintiff, attended training for inmate fingerprinting certification. Lieutenant Carter informed Plaintiff that she was excluded because she was on light duty but Plaintiff alleges that another similarly situated coworker on light duty attended the training. On March 19, 2018, Plaintiff filed a second charge of discrimination with the EEOC alleging disability, national origin, and sex discrimination and retaliation (the "2018 EEOC Charge"). (ECF No. 1, ¶ 79; see also ECF No. 11-2). The 2018 EEOC Charge did not identify any specific adverse actions. (ECF No. 11-2, at 2-5).
On April 4, 2018, Lieutenant Carter informed Plaintiff "that she had to perform fingerprinting duties which required . . . direct contact with prisoners." (Id., ¶ 80). Plaintiff met with Sergeant Lundy and Lieutenant Carter "and explained again that she suffered from disabilities and the negative impact prisoner contact had on her." (Id., ¶ 81). She reminded them that she had no prisoner contact "for almost one year without any issues." (Id., ¶ 82). Lieutenant Carter requested medical documentation but commented "that Plaintiff 'could have the doctor write whatever [she] wanted[.]'" (Id., ¶ 83). On April 9, 2018, Lieutenant Carter "demanded that Sergeant Foster direct Plaintiff to go to PSI and obtain a discharge paper to prove that she cannot have contact with prisoners."6 (Id., ¶ 85). That same day, Plaintiff had a therapy session with Thomas Green, M.D., an Interdynamics counselor, and he confirmed that "contact with inmates is likely to worsen Plaintiff's symptoms and delay recovery." (Id., ¶¶ 85-87). The next day, "Plaintiff reported to PSI with Dr. Green's medical documents and met with Officer Lovitt, police liaison, and explained . . . [Lieutenant] Carter's request...
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