Tynes v. Mayor & City Council of Balt.
| Decision Date | 28 March 2023 |
| Docket Number | CIVIL 1:22-cv-01452-ELH |
| Parties | NICOLE TYNES, Plaintiff, v. MAYOR AND CITY COUNCIL OF BALTIMORE, Defendant. |
| Court | U.S. District Court — District of Maryland |
Plaintiff Nicole Tynes, an “African American female,” was employed as a paramedic by the Baltimore City Fire Department (“BFD” or “Department”). ECF 9 ¶¶ 4, 7. Her employment began on August 20, 2014 and she was terminated on September 8, 2021. Id. ¶¶ 6, 60.
On June 14, 2022, as a result of plaintiff's termination, Tynes filed an employment discrimination suit against the Mayor and City Council of Baltimore (the “City”). ECF 1. The First Amended Complaint followed. ECF 9 (“Amended Complaint”). It contains two counts. In particular Count I asserts a claim for retaliation, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), and Count II asserts a claim for discrimination on the basis of disability, in violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C § 12101 et seq.[1]
The City has moved to dismiss the Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(1) and (6) or, in the alternative, for summary judgment under Fed.R.Civ.P. 56. ECF 11.
The motion is supported by a memorandum (ECF 15) (collectively, the “Motion”) and several exhibits. ECF 11-3 to ECF 11-19.[2] Plaintiff opposes the Motion (ECF 16, the “Opposition), supported by numerous exhibits. ECF 16-3 to 16-9. Defendant has replied. ECF 19 (the “Reply”).[3]
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion.
Plaintiff commenced employment with the BFD on August 20, 2014. ECF 9, ¶ 6. On April 18, 2016, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). See ECF 11-3. Then, on April 22, 2016, she filed a nearly identical charge with the Maryland Commission on Civil Rights (“MCCR”). See ECF 11-5. I shall refer to both submissions collectively as the “2016 Charge.”[5] The 2016 Charge was filed against Battalion Chief Theresa Harp, in her official capacity, alleging “discrimination on the basis of race and retaliation.” ECF 9, ¶ 8; see also ECF 11-3; ECF 11-5.
In the 2016 Charge, plaintiff claimed that on February 16, 2016, she was subjected, inter alia, to bullying, harassment, and threats of insubordination by Lieutenant Christian Donley and Harp, both of whom are Caucasian. ECF 9, ¶ 8. Further, plaintiff stated that she made “a formal complaint” to the “EEO office” of the BFD on March 2, 2016, and thereafter was subjected to “ongoing harassment and a hostile work environment ....” ECF 11-5 at 2. In the Amended
Complaint, plaintiff claims that the 2016 Charge also alleged that “Harp illegally seized and kept [her] personnel file as an act of retaliation,” and that two paramedics were assigned as her partners, in order “to spy on her,” creating a hostile work environment. ECF 9, ¶ 8. However, the text of the 2016 Charge does not mention that plaintiff's partners spied on her or that her personnel file was seized.
The MCCR issued a “Written Finding” on November 29, 2016. See ECF 11-6. It found “no probable cause” as to plaintiff's claims of race discrimination and retaliation. Id. at 6. And, on February 6, 2017, the EEOC adopted the MCCR's findings and issued a “Dismissal And Notice of Rights.” See ECF 11-4. However, Tynes did not initiate a lawsuit within the requisite 90 days.
Tynes was injured on the job on March 3, 2017. ECF 9, ¶ 10; see ECF 11-7; ECF 16-4. A few days later, on March 7, 2017, she was transferred to the Fire Marshal's Office, under the supervision of Commander Derrick Ready. ECF 9, ¶ 10.[6] Tynes claims that she had no incidents or discipline while stationed at the Fire Marshal's Office between March 7, 2017 and April 30, 2018. Id. ¶ 11. During her tenure at the Fire Marshal's Office, Tynes was not supervised by Harp or Donley. ECF 9, ¶ 11. And, in 2017, Tynes was recognized for her work by Chief Theresa Everett. Id. ¶ 28.
However, during the time that plaintiff was assigned to the Fire Marshal's Office, she was on medical leave. In her 2018 Charge (ECF 11-7; ECF 16-4), discussed infra, Tynes states: “From March 20, 2017 to April 30, 2018 I was out on medical leave due to a work related injury to my right arm.”
Tynes “sought to file a return to duty slip” at BFD's headquarters on April 30, 2018. ECF 9, ¶ 12. But, she complains that Harp required her to file her slip at a specific fire station. Id. And, Emergency Medical Technician Normal Wheeler contacted plaintiff on May 8, 2018, and told her “that she was being set up by Acting Lieutenant Maria Murray....” Id. ¶ 13.
In May of 2018, Tynes filed a request with the BDF for additional training. Id. ¶ 15. She also claimed that Paramedic Laura Woolfson “created a hostile working environment” and “made false accusations” against her. Id.¶ 14
Tynes filed an internal complaint with the BFD on or about May 22, 2018. ECF 16-9 at 14-16.[7] She complained that Woolfson “was disrespectful,” id. at 14;, lied to “EMS 1” by saying that Tynes “‘did nothing on [a] call,'” id. at 15; and “attacked” Tynes's medical knowledge. Id. at 16.[8] Tynes also stated that she “felt trapped between Chief Harp and Woolfson.” Id. at 16. As a result, Murray prepared “a special report” for Niles Ford, Chief of the BFD. ECF 9, ¶ 15.
On May 24, 2018, Harp filed an internal complaint with the Department, accusing Tynes of making false statements in her complaint of May 21, 2018. Id. ¶ 16. According to Tynes, Harp referenced “Plaintiff's allegations against Harp in the April 22, 2016, EEOC charge.” ECF 9, ¶ 16; see ECF 16-7 (Harp Complaint). Indeed, Harp stated that Tynes's complaint of May 21, 2018, was in “retaliation for her previous complaint being dismissed and exposed as false.” ECF 16-7 at 4.
Plaintiff filed a “Charge of Discrimination” with the Baltimore Community Relations Commission (“BCRC”) on July 6, 2018. ECF 9, ¶ 17; ECF 11-7 (the “2018 Charge”). It was “automatically filed” with the EEOC. ECF 9, ¶ 17. Tynes alleged that Harp's complaint against her was in retaliation for plaintiff's previous “protected activity on March 22, 2016.” Id. ¶¶ 1719; see ECF 11-7.
An administrative hearing as to Harp's complaint was held on January 23, 2019. ECF 9, ¶ 21. Then, on February 26, 2019, based on Harp's complaint, Tynes was “punished” with a seventeen-day unpaid suspension, and eleven disciplinary points were added to her record. Id. ¶ 22.
With the assistance of her union, Tynes filed a grievance against the BFD on March 28, 2019. Id. ¶ 23. A hearing was held on January 28, 2020. Id. ¶ 24. And, on February 5, 2020, Tynes and the BFD entered a settlement agreement by which Tynes was reimbursed for her seventeen-day suspension, and her disciplinary points were removed. Id. ¶ 25.
On or about June 29, 2020, Tynes was informed that she was eligible for a Fire Inspector position with the Office of the Fire Marshal. Id. ¶ 29. She subsequently interviewed for the position. Id. ¶ 30.[9] Out of fifteen candidates (id.), Tynes ranked 12th. Id. ¶ 34.[10] But, she claims that the assessment was subjective. ECF 9, ¶ 32. And, no explanation was provided as to “scoring criteria.” Id. ¶ 33.
Shonnie Thorpe and Yolanda Dioses ranked first and seventh, respectively, and they were hired for the position. Id. ¶ 35. But, plaintiff notes that she holds a Fire Inspector III Certification, which is the highest certification that is attainable. Id. ¶¶ 26, 27. She also states that she had a higher Fire Inspector Certification than the two people who were hired. Id. ¶ 36. However, the two persons who were selected did not have a pending EEOC Charge. Id. ¶ 35.
On October 29, 2020, Tynes amended her 2018 Charge (“First Amended Charge”). Id. ¶ 37; see ECF 11-8. She added an additional claim for “the subjective selection of less qualified candidates for the Position because of retaliation.” ECF 9, ¶ 37.
On or about January 12, 2021, Tynes was “off duty for suffering abdominal pain.” Id. ¶ 38.[11] She underwent a “partial hysterectomy" on February 8, 2021, performed by Dr. Dwight Im. Id. ¶ 39. On July 29, 2021, Dr. Im cleared Tynes to return to work, with no restrictions. Id. ¶ 40.[12]
Plaintiff had an appointment with Dr. Peter Lee at Mercy Business and Employee Health Services (“PSI”) on August 2, 2021. Id. ¶ 41.[13] She was “ordered to have a Functional Capacity Evaluation (“FCE”).” Id. Plaintiff “had a FCE” on August 16, 2021. Id. ¶ 42. According to Tynes, the FCE was “improper”, as it was “specifically designed for fire-fighters not paramedics.” Id. ¶ 43. Moreover, Tynes claims that she was assaulted by the FCE evaluator, and she reported the incident to PSI on August 24, 2021. ECF 9, ¶ 44. The FCE cleared plaintiff “to return to full duty,” id. ¶ 45, and she did so on August 31, 2021. Id. ¶ 46.
On September 1, 2021, plaintiff was informed by Department Instructor Vera Chapman that she needed to complete a Return to Duty Evaluation (“Evaluation”) and protocol testing. Id. ¶ 47. “Plaintiff failed the Evaluation due to stress caused by” the FCE. Id. ¶ 48. Department Captain Jennifer Triaca informed Tynes that needed to return to PSI for the Evaluation. Id. ¶ 49.[14] Triaca also threatened Tynes with insubordination. Id.
Nurse Practitioner Mary Lou Gercke placed plaintiff on “‘off duty' status” on September 1 2021, for a non-line of duty medical issue related to Tynes's “anxiety over the work-ordered evaluation.” Id. ¶ 50. But, plaintiff explained “that she was suffering from test anxiety only,” id. ¶ 50, and was “able to retake the test...
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