Tonin v. Balt. City Police Dep't

Decision Date17 November 2020
Docket NumberCivil Action No. DKC 19-0323
PartiesEVA TONIN v. BALTIMORE CITY POLICE DEPARTMENT
CourtU.S. District Court — District of Maryland
MEMORANDUM OPINION

Presently pending and ready for resolution in this employment discrimination suit are a motion to dismiss for failure to state a claim, (ECF No. 24), and a motion for leave to file opposition to Defendant's motion to dismiss out of time. (ECF No. 27). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Plaintiff's motion for leave to file her response will be granted, and Defendant's motion to dismiss will be granted in part and denied in part.

I. Background

Unless otherwise noted, the facts outlined here are set forth in the amended complaint and construed in the light most favorable to Plaintiff. Plaintiff Eva Tonin ("Ms. Tonin") is a resident of Washington, D.C., and, until recently, was employed by Defendant the Baltimore City Police Department ("BPD"). Ms. Tonin was hired on August 29, 2010, as a Police Officer. She alleges that her performance was "always satisfactory," and she was eventually assigned to Defendant's Southwest District in 2013. It is there that her supervisor John Ferinde, she claims, first "subjected her to discriminatory harassment based on her sex, national origin, and retaliation after she reported and complained about him."

The mistreatment came to a head after Plaintiff returned to work on March 2016 following a "work-related car accident" that left her with limited ability to "walk, stand, and bend." At some point thereafter, Sgt. Ferinde's alleged "constant discrimination and harassment" caused Plaintiff to suffer from "extreme stress, anxiety and depression." A series of incidents followed where Plaintiff was increasingly denied the reasonable accommodations she felt she needed for her latter mental conditions, particularly no direct contact with prisoners. She also was subjected to a series of reprimands and transfers that she felt were retaliatory in nature due to her EEOC complaints in 2016, 2018 and 2019, as well as her continued requests, in some instances, to secure accommodations she had previously been offered.

This background is well laid out in the previous opinion partially dismissing the original complaint and granting Plaintiff leave to amend. (ECF No. 21); Tonin v. Balt. City Police Dept., No. DKC 19-0323, 2020 WL 3259083, at *1-11 (D.Md. June 15, 2020). The general allegations in the amended complaint are mostlyunchanged from those in the original complaint. (Compare ECF No.1, with ECF No. 23).1

The original complaint, filed on February 3, 2019, brought five claims against the BPD under Title VII, 42 U.S.C. §§ 2000e et seq ("Title IV") for discrimination based on sex and national origin, retaliation, hostile work environment and retaliatory hostile work environment (Counts I-V), and four claims under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq ("the ADA"). On October 7, 2019, the BPD filed a motion to dismiss for failure to state a claim. It first argued that the 2016 EEOC complaint by Plaintiff was not properly before the court and that only the conduct occurring within 300 days of the 2018 EEOC complaint filed on March 19, 2018, were not time-barred. It also challenged Counts I-V for their failure factually to support Plaintiff's discrimination claims under Fed.R.Civ.P. 12(b)(6). (ECF No. 11).

The earlier ruling held that the events underlying Plaintiff's 2016 EEOC complaint could be included as background only (except possibly as they related to a claim of hostile work environment), that only those claims occurring after May 23, 2017, were not time-barred, and that an amended complaint that added facts after the initial filing of the 2019 EEOC claim would beproperly considered. Counts I-V were dismissed with leave to amend, but Plaintiff's claims under the ADA, Counts VI-IX, survived as unchallenged on Fed.R.Civ.P. 12(b)(6) grounds. Tonin, 2020 WL 3259083 at *6-*9.

Plaintiff filed an amended complaint on July 7, 2020. (ECF No. 23). Defendant moved to dismiss the amended complaint on July 28, 2020. (ECF No. 24). On August 10, the day before Plaintiff's opposition was due, the parties filed a consent motion requesting an extension of time to file their respective opposition and reply, (ECF No. 25), which the court denied by paperless order. (ECF No. 26). Despite this denial, Plaintiff did not respond immediately to the motion to dismiss. Instead, more than seven weeks later, on October 2, 2020, she filed a motion for leave to file a response to defendant's motion to dismiss that included a proposed opposition. (ECF No. 27). Despite its earlier consent to the extension request, Defendant responded in opposition to Plaintiff's motion to file a response out of time. (ECF No. 28).

II. Motion for Leave to File Opposition

In defending her filing more than seven weeks after the opposition deadline and the denial of the parties' consent motion for an extension, Plaintiff's counsel points to numerous causes of delay. Some of these predate the previous ruling on the consent motion, such as a "family matter" and her child's birthday party she attended to on the week of August 3, 2020, as well as deadlinesin "administrative matters," and a case conference scheduled on August 6, 2020. Counsel explains how various crises occurred at work right around the time of the deadline for an opposition and afterwards. The day before the consent motion was filed, for instance, a "Senior Counsel" in her firm went on leave because her spouse tested positive for Covid-19, requiring her colleague's family to quarantine. Her colleague's absence left no one to help her "perform work or supervise Associate Attorneys." She also states that she was required to cover for some of the matters with which this colleague was involved. Plaintiff's counsel points to an August 12 email to Defendant's counsel detailing her various work and personal responsibilities and asking for his consent to the extension, to which he agreed. (ECF No. 27-4). The next day, however, a "cybercrime incident" occurred involving a client's money, and Plaintiff's counsel was tasked with working on notices to clients and government officials. Because of a security breach involved with the incident, Plaintiff's firm's "IT provider" caused Plaintiff's counsel further delays by limiting her and other colleagues' access to her computer and platforms.

The delays detailed throughout the end of August and September, on the other hand, do not revolve around discrete emergencies but report several hearing and filing deadlines for other clients and challenges for her at home amid the realities of the COVID pandemic. Plaintiff's counsel also reports that startingon September 3, 2020, she was tasked with onboarding a new Associate Attorney. All of this, she argues, presents "good cause" and "excusable neglect" that merits granting her an extension under Fed.R.Civ.P.6(b)(1)(A) and (B). Pointing to the standard for pre-trial schedule modifications, Plaintiff adds these events also satisfy the definition of "good cause" pursuant to Fed.R.Civ.P. 16(b)(4).

The BPD comments that "Defendant's counsel is sympathetic to these struggles. They are representative of the kind of struggles that all attorneys face from time to time." This, the BPD continues, is why it "consented to Plaintiff's request for additional time to file an Opposition, even though Plaintiff has had years to plead her case properly." It argues that, at this juncture, however, "these commonplace struggles do not excuse ignoring a Court Order and failing to inform the Court of the status of the Opposition until seven weeks after it was due."2 For this reason, the BPD says it did not consent to the October 1 request to file out of time and asks the court not to consider the late response.

Regardless of the merits of the initial request to extend the filing deadline, counsel cannot simply ignore the fact that therequest was denied and do nothing for nearly two months. Other cases in which leave was granted have generally involved much less delay. See, e.g., Afzal v. Aslam, No. WMN-11-395, 2011 WL 2457682 at *1 n.1 (D.Md. June 15, 2011) (granting a plaintiff's motion for leave to file opposition citing a four-day delay in filing due to CM/ECF "Accessibility Problems"). Moreover, other cases have rejected a delay of this length when a technical issue occurring firm-wide is cited. See, e.g., Johnson v. Nat'l R.R. Passenger Corp., No. 07-1806, 2008 WL 11396762 at *2 (D.D.C. April 1, 2008) ("[T]he court rejects Plaintiff's argument that an internal problem with email notifications causing him to miss the defendant's motion to dismiss [until nearly a month after the deadline] constitutes 'excusable neglect' pursuant to [Fed.R.Civ.P.] 6(b).").

Nevertheless, as Judge Bennett has stressed, the standard under Fed.R.Civ.P. 6(b) is a "discretionary" and "equitable one, and hinges on the characteristics of the delay and the movant's culpability." Lee v. Safeway, Inc., No. RDB-13-3476, 2014 WL 4926183 at *3 (D.Md. Sep. 30, 2014) (citing Lujan v. Nat'l Wildlife Fed., 497 U.S. 871, 895 (1990) and Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)). The confluence of outside events affecting Plaintiff's counsel and her firm constitutes good cause for an extension under Fed.R.Civ.P. 6(b). The prejudice to Defendant from the delay would be deminimis (the merits of its motion will be reached either way), and there is no reason to doubt the particular challenges faced by Plaintiff's counsel in light of the "cybercrime incident" at her firm and other COVID related challenges as they impacted her professional and personal life. The motion for leave to file Plaintiff's opposition will be granted, and the proposed opposition will be considered.

II. Motion to Dismiss

A. Standard of Review

A motion to dismiss...

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