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Opinions – 8/8/11: U.S. District Court, Maryland


False arrest

BOTTOM LINE: Police officer who arrested plaintiff for disorderly conduct, resisting arrest, and assault was entitled to summary judgment on plaintiff’s claim of false arrest because plaintiff failed to make a showing that officer acted contrary to the purpose for which the criminal process was later issued, which was to quell an alleged act of violence that a community member had purportedly witnessed.

CASE: Barnes v. Montgomery County, Maryland, Civil Action No. AW-09-2507 (filed July 18, 2011) (Judge Williams). RecordFax No. 11-0718-40, 21 pages.

FACTS: Tony Barnes alleged that he was outside of a friend’s apartment on June 17, 2008, when Officer Ringo Lagos was dispatched in response to a report that a fight was in progress. Upon the officer’s arrival, no one in Barnes’ group was fighting; however, Officer Lagos ordered Barnes and others to sit on the sidewalk. Meanwhile, a crowd gathered and additional officers arrived at the scene, including two other police officers. At some point the crowd became antagonistic towards the officers.

Claiming that he smelled marijuana and observed open containers of alcohol near the vehicle, Officer Lagos searched Barnes’ car, despite Barnes’ protestation that the containers were not his. Officer Lagos did not find marijuana in the car. Barnes claimed that at that point, Officer Lagos lifted him up and handcuffed one of his wrists. As Barnes had one wrist in handcuffs, another officer, Officer Moss, shot him with a Taser gun. Officer Lagos then allegedly dropped Barnes to the ground, handcuffed his other wrist, and Officer Moss then Tased Barnes four more times. Barnes was arrested for disorderly conduct, resisting arrest, and second-degree assault. He was held in jail for two days and received hospital treatment for injuries sustained from the Taser shots. Barnes claimed that he was fired from his job after his arrest.

The state dismissed the second-degree assault charge before trial, and at the trial, the state court granted Barnes’ motion for judgment of acquittal on both the charges of disorderly conduct and resisting arrest. On September 24, 2009, Barnes filed suit against Montgomery County and the individual police officers in Maryland district court, alleging a 42 U.S.C. §1983 claim for violations of his civil rights as protected under the Fourth and Fifth Amendments, as well as state tort claims of assault, battery, false arrest, false imprisonment, and malicious prosecution. Defendants filed a motion for partial dismissal of Barnes’ complaint on the grounds that Barnes’ claims were too broadly pled. The court granted the motion, but also granted Barnes leave to amend his Complaint.

Barnes filed an Amended Complaint on April 26, 2010, alleging violations of §1983 (Counts I and II), malicious prosecution (Count II), false imprisonment (Count IV), false arrest (Count V), and violations of the Maryland Declaration of Rights. Defendants filed a Motion for Partial Dismissal of Barnes’ amended complaint on May 6, 2010. The court granted the motion without prejudice, leaving Barnes the right to reassert his claim against Montgomery County on the condition that Barnes prevailed against the individually named defendants in the matter. Before the Court issued its ruling on the motion, Barnes filed a Second Amended Complaint on November 9, 2010. While Defendants’ motion to dismiss was still pending, Defendants filed a motion for summary judgment, seeking judgment on Count VIII of Barnes’ Second Amended Complaint for abuse of process.

Barnes filed a cross motion for summary judgment on February 24, 2011, seeking summary judgment on his common-law claims for false arrest, false imprisonment, and malicious prosecution. Barnes also moved for summary judgment on his claims for false arrest, false imprisonment, and malicious prosecution brought under 42 U.S.C. §1983. Additionally, Barnes moved for summary judgment on his claims for false arrest, false imprisonment, and malicious prosecution brought under Articles 24 and 26 of the Maryland Declaration of Rights. Finally, Barnes moved for summary judgment on Count VI of the Second Amended Complaint for battery. The district court granted Defendants’ motion granted and denied Barnes’ motion.

LAW: The district court first considered the motion for summary judgment filed by Defendant Officer Lagos, seeking summary judgment on Count VIII of Barnes’ Second Amended Complaint for abuse of process. In Barnes’ Second Amended Complaint, he claimed that criminal process was issued against him, in that Defendant Lagos arrested Barnes for second-degree assault, disorderly conduct, and resisting arrest. Specifically, Barnes argued that Defendant Lagos abused the criminal process in that his sole reason for initiating criminal proceedings against Barnes was that in the previous three months, the police had previously been dispatched multiple times to the location at which Barnes was arrested. Defendant Lagos moved for summary judgment on this count on the grounds that there was no dispute of material fact that Officer Lagos was not the officer that actually brought charges against Barnes, and that Barnes failed to present evidence supporting an abuse of process claim.

Maryland state courts and federal district courts have clearly articulated that the essential elements of abuse of process are: (1) an ulterior motive; and (2) a willful act in the use of the process not proper in the regular conduct of the proceeding. Cottman v. Cottman, 56 Md.App. 413, 430 (1983). In this case, Barnes did not establish facts sufficient to support an abuse of process claim. There was no indication from the pleadings that by arresting Barnes, Defendant Lagos was acting in a manner that diverged from the regular use of the criminal process that was eventually issued. Moreover, even if Lagos was acting pursuant to an ulterior motive, namely that Barnes was in a location with a history of criminal activity, and was exercising a bias against Barnes because of the location he was in, Lagos did not act contrary to the purpose for which the process was later issued — that is, to quell an alleged act of violence that a community member had purportedly witnessed. Accordingly, the court granted summary judgment in favor of Defendant Lagos on Barnes’ abuse of process claim.

Barnes requested that the court hold Montgomery County vicariously liable for the abuse of process that Defendant Lagos allegedly committed, and Defendant Montgomery County likewise moved for summary judgment on Barnes’ claim against Montgomery County for abuse of process. The district court found that Defendant Montgomery County was entitled to governmental immunity on Count VIII of the Amended Complaint.

Accordingly, the court granted summary judgment to Montgomery County on Barnes’ abuse of process claim.

COMMENTARY: Barnes sought summary judgment on his claims of common law false arrest and false imprisonment, arguing that his arrest for second degree assault and battery, disorderly conduct, and resisting arrest were not legally justified. However, the police officers alleged that when they arrested Barnes, he was on top of another man, hitting him. The officers further alleged that Barnes attempted to invoke the crowd around him to fight the officers. Thus, there was clearly a genuine dispute of material fact as to whether the police had probable cause to arrest Barnes.

Probable cause is to be determined based upon evaluation of facts, viewed from the standpoint of an objectively reasonable officer, and not on the officer’s actual state of mind at the time the challenged action was taken. Wengert v. State, 364 Md. 76, 90 (2001). The mere existence of the genuine disputes in this case was a sufficient basis for the court to deny Barnes’ motion for summary judgment on his false arrest claim. The benefit of trial would illuminate the factual ambiguities as to whether the officers had probable cause to arrest Barnes for assault and battery.

Accordingly, Barnes’ motion was denied.

Labor & Employment Law

Sexual harassment

BOTTOM LINE: In plaintiff’s lawsuit against her former employer, summary judgment in favor of defendant employer on plaintiff’s retaliation claim was not appropriate because the employer alleged that its reason for firing plaintiff was that plaintiff made false allegations of sexual harassment, and plaintiff raised a material issue of fact as to whether defendant employer believed in good faith that plaintiff’s allegations of sexual harassment were false.

CASE: Louis v. Sun Edison, LLC, Civil Action No. 8:10-cv-0078-AW (filed July 15, 2011) (Judge Williams). RecordFax No. 11-0715-40, 28 pages.

FACTS: Plaintiff Crystal Louis began working for Sun Edison on June 18, 2008 as a Human Resources benefits manager. At Sun Edison, Louis reported to Prasad Bathini, director of Human Resources. In turn, Bathini reported to Carole Jacolick, the vice president of Human Resources. Plaintiff alleged that her supervisor, Bathini, subjected her to ongoing sexual harassment throughout much of her tenure at Sun Edison.

Louis did not initially report these incidents to any of the managers or Human Resources employees at Sun Edison because she was unconvinced of the effectiveness of Sun Edison’s sexual-harassment policy and fearful of potential retaliation. On October 16, 2008, however, after a confrontation with Bathini, Louis made a formal complaint against Bathini and reported the ongoing harassment to Sun Edison’s General Counsel, Kevin Lapidus. When she informed Lapidus of the ongoing sexual harassment by Bathini, Louis was visibly shaken, crying and upset, and Lapidus sent her home to relax and told her that Sun Edison would investigate her complaint. Louis was put on paid administrative leave pending the outcome of the investigation.

Bathini reported the confrontation to Jacolick and stated that he considered Louis to have committed insubordination. Bathini denied engaging in any inappropriate or harassing behavior. Sun Edison put Bathini on administrative leave as well, pending a full investigation into the situation. On October 17, Sun Edison hired Susan Carnell, who had conducted two similar sexual-harassment investigations in the past, to handle the case. In its final report completed on October 31, Carnell rejected the allegations made by Louis against Bathini and articulated her grounds for doing so. Louis countered that Carnell’s and Sun Edison’s conclusions reflected hostility, bias, and prejudgment.

On October 29, Louis filed criminal charges and a petition for a peace order against Bathini, alleging assault and harassment. Bathini was arrested on October 31 and released from jail the following day. The charges were dismissed shortly thereafter. According to Louis, the Assistant State’s Attorney informed her that the County did not have resources to pursue her charges, and her best method was to bring a civil suit against Bathini.

During the pendency of the investigation of the criminal charges filed by Louis, Sun Edison kept both Louis and Bathini on paid administrative leave. After learning of the dismissal of the charges, however, Sun Edison informed Louis in a letter that her employment was being terminated effective December 19 because the company had concluded that she had made a false allegation of sexual harassment and that the company viewed that act as “gross misconduct” warranting the termination of her employment.

About two weeks after her termination, Louis filed claims of discrimination and retaliation against Sun Edison with the Prince George’s County Human Relations Commission (“PGHRC”). PGHRC conducted an investigation and issued a determination on August 18, 2009, concluding that there was insufficient evidence to support the allegation that Sun Edison discriminated against Louis based on her sex and subjected her to sexual harassment. The PGHRC also stated that there was insufficient evidence to support the allegation that Sun Edison terminated Louis in retaliation for filing a sexual harassment complaint against her supervisor.

On January 13, 2010, Louis filed suit in United States district court against Bathini and Sun Edison for sexual harassment, discrimination, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§2000e to 2000e–17 (“Title VII”). Sun Edison filed a motion for summary judgment. The court granted the motion in part and denied it in part.

LAW: In Counts III and V of her complaint, Plaintiff alleged that Sun Edison committed retaliation in violation of Title VII. To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in a protected activity; (2) her employer took an adverse employment action against her; and (3) a causal connection existed between the protected activity and the asserted adverse action. King v. Rumsfeld, 328 F.3d 145, 150-51 (4th Cir.2003). In this case, Sun Edison did not challenge Plaintiff’s prima facie case for retaliation but instead argued that it was entitled to summary judgment on these counts on the grounds that it had legitimate and non-retaliatory reasons to terminate Plaintiff because it believed in good faith, based on Carnell’s investigation, that Plaintiff had committed gross misconduct by making a false allegation of sexual harassment against her supervisor.

Sun Edison correctly contended that if it genuinely believed that Plaintiff had brought false charges against Bathini, such a reason would be a legitimate and non-retaliatory basis for discharge. See, e.g., Hatmaker v. Mem ‘l Med. Ctr., 619 F.3d 741, 745 (7th Cir.2010). However, the type of employment decision at issue in this case presented a unique problem in that it was undisputed that Sun Edison fired Plaintiff because of the sexual-harassment complaint she filed. Ordinarily, such a termination would epitomize what it means to retaliate against an employee for protected activity. The only consideration preventing Sun Edison’s stated, non-retaliatory motive from being a clearly retaliatory one was that it claimed that Plaintiff’s complaint was false. Maryland courts have not yet articulated a clear approach for handling cases of this nature.

It is exceptionally difficult to disentangle retaliatory from non-retaliatory motives when the reason for termination is the employee’s filing of a false complaint, because the proffered reason for termination is inextricably intertwined with the protected conduct at issue. Pye v. Nu Aire, Inc., 641 F.3d 1011, 1022 (8th Cir.2011). Often, courts are presented with situations where an employee arguably has some performance-related problems, experiences some sort of discrimination (whether harassment or otherwise), engages in protected activity to report the discrimination, and is subsequently fired. Courts can resolve such cases by giving appropriate deference to the employer’s performance-related concerns while nonetheless detecting cases where the employer’s asserted reason may be a pretext for retaliation.

However, the question here was not whether there was a causal link between the protected activity and the adverse employment action; there was indisputably such a link. Rather, the critical question was whether Sun Edison fired Plaintiff for the mere fact that she complained, or for the further reason that her complaint was false. Detecting pretext and retaliation would necessarily be more difficult here than in the typical case, and more careful scrutiny of the Sun Edison’s asserted grounds for termination was therefore required. In her complaint, Plaintiff limited herself to the theory that Sun Edison did not honestly believe that her allegations were false, or, at the very least, that Sun Edison’s hostility to her allegations led it to prejudge the outcome of the investigation before it had begun. As such, Plaintiff raised a dispute of material fact as to whether Sun Edison’s asserted reason for firing her (the falsity of her sexual-harassment allegations) was a pretext for the real motive of hostility to her protected activity. Therefore, Sun Edison was not entitled to summary judgment on Counts III and V.

In Count II of her complaint, Plaintiff alleged quid pro quo sexual harassment in violation of Title VII. To establish a quid pro quo sexual-harassment claim, a plaintiff must demonstrate that: (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; (3) the harassment complained of was based upon sex; (4) plaintiff’s reactions to the harassment affected tangible aspects of compensations, terms, conditions or privileges of employment; and (5) the employer knew or should have known of the harassment and took no effective remedial action. Rachel–Smith v. FTData, Inc., 247 F.Supp.2d 734, 745 (D.Md.2003). Here, Sun Edison challenged Plaintiff’s ability to establish the fourth element of the prima facie case, contending that Plaintiff could not identify a connection between the termination of her employment and her refusal to succumb to Bathini’s alleged sexual advances. Sun Edison particularly emphasized that the decision to terminate Plaintiff was made by Lapidus, Jacolick and Zeigler; Bathini was not involved.

However, Sun Edison was incorrect in assuming that an alleged harasser’s lack of direct role in the termination decision-making process necessarily defeats causation. An indirect but nonetheless substantial role in the final decision can establish such a connection as well. Here, Plaintiff claimed that after being repeatedly rejected by her, Bathini made it clear that Plaintiff’s life would be better if she submitted to his demands. Although Bathini did not ultimately take part in the three-person panel that rendered the final decision to fire Plaintiff, it would not stretch the bounds of rationality for a juror to conclude that Bathini’s words to Jacolick contributed to Plaintiff’s termination. Therefore, summary judgment was inappropriate on Count II.

In Count I, Plaintiff alleged that Sun Edison created a hostile workplace environment in violation of Title VII. Sun Edison requested summary judgment based on the affirmative defense set forth by the Supreme Court in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), and Faragher v. City of Boca Raton, 524 U.S. 775 (1998). However, the Faragher/Ellerth defense is not available to an employer when a supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. Pitter, 735 F.Supp.2d at 394. Given that there was a genuine dispute of fact regarding whether Bathini’s alleged harassment culminated in a tangible employment action, there was also a genuine dispute of fact as to whether the Faragher/Ellerth defense was available to Sun Edison. As such, Sun Edison was not entitled to summary judgment on Count I.

Finally, in Count IV of her complaint, Plaintiff alleged that Sun Edison committed gender discrimination in violation of Title VII. To establish a prime facie case of discriminatory discharge, a plaintiff must establish certain elements, one of which is that the plaintiff’s position was filled by a similarly qualified applicant outside the protected class. King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir.2003). In this case, Plaintiff failed to establish at least this fourth element, in that she did not provide any evidence that a male employee replaced her at Sun Edison after her termination. Therefore, Sun Edison was entitled to summary judgment on Count IV.

Accordingly, the Court granted in part and denied in part Sun Edison’s motion for summary judgment.