William Harden v. Wicomico County, Maryland , 436 F. App'x 143 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1734
WILLIAM HARDEN,
Plaintiff – Appellant,
v.
WICOMICO COUNTY, MARYLAND; DOUGLAS C. DEVENYNS,
Defendants – Appellees,
v.
JACK KAVANAGH, Director,
Movant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William M. Nickerson, Senior District
Judge. (1:09-cv-01123-WMN)
Argued: May 10, 2011 Decided: June 23, 2011
Before WILKINSON and SHEDD, Circuit Judges, and David C. NORTON,
Chief United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Wilkinson and Judge Norton joined.
ARGUED: Robin Ringgold Cockey, COCKEY, BRENNAN & MALONEY, PC,
Salisbury, Maryland, for Appellant. Kevin Bock Karpinski,
KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, for
Appellees. ON BRIEF: Ashley A. Bosché, COCKEY, BRENNAN &
MALONEY, PC, Salisbury, Maryland, for Appellant. Victoria M.
Shearer, KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
William Harden appeals the district court’s order granting
summary judgment in favor of his employer, Wicomico County,
Maryland (“the County”). For the reasons set forth below, we
affirm.
I.
We view the evidence in the light most favorable to Harden,
the non-moving party. Laber v. Harvey, 438 F.3d 404, 415 (4th
Cir. 2006) (en banc). Harden was the Internal Affairs
Investigator at the Wicomico County Detention Center (“WCDC”).
In this position, he performed background checks on potential
employees, screened inmate grievances, performed drug and gang
investigations, and investigated security threats. In March of
2007, Reverend Parrot, the father of a WCDC inmate, told Harden
that the WCDC’s Director, Douglas Devenyns, was “sleeping with
his staff.”
Based upon this information, Harden interviewed several
WCDC staff members and then approached County Executive Richard
Pollitt regarding Devenyns’ alleged sexual harassment of Jean
Murry, a former nurse for a WCDC medical vendor. At Pollitt’s
direction, Harden conducted an investigation into the alleged
sexual harassment and wrote a confidential report dated April 4,
2007 (“the Report”). After reading the Report, Pollitt found
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nothing improper in Devenyns’ actions. On March 6, 2008,
Pollitt formally instructed Harden to cease his investigation of
Devenyns.
From May 2008 through July 2008, Harden engaged in a series
of actions that eventually led to his termination. He posted
information from the Report on his internet blog and mailed a
copy of the Report to a member of County Council. He also
failed to attend a training workshop, sent an insubordinate
email to the police, broke into Devenyns’ secretary’s desk, and
refused to cooperate with, or follow the instructions of, the
Chief of Security, who was his supervisor. In addition, in June
2008, Harden filed an EEOC complaint against both Devenyns and
the WCDC’s Deputy Director.
On August 12, 2008, the WCDC fired Harden for
insubordination, failure to obey lawful orders, unauthorized
disclosure of confidential information, unauthorized use of or
damage to County property, and making malicious or irresponsible
statements to other officials. Harden appealed his termination.
While Harden’s appeal was pending, the WCDC abolished the
position of Internal Affairs Investigator because of budget
cuts. In February 2009, following the hearing, the Wicomico
County Personnel Board reinstated Harden because it believed
progressive, corrective discipline might have prevented Harden
from committing the violations for which he was terminated.
4
Harden returned to work at the WCDC in March 2009 as a Support
Services Coordinator in charge of inmate grievances. Although
Harden’s pay and leave remained the same, he had fewer
supervisory powers and was reinstated as a Grade 18 employee
rather than a Grade 20 employee on the County’s employment
scale.
In response to the terms of his reinstatement, Harden
brought this case alleging causes of action for retaliation in
violation of 42 U.S.C. § 2000e-3(a) as well as interference with
his First Amendment rights to petition the government and
freedom of speech. The district court entered summary judgment
in favor of Wicomico County on all three counts after concluding
that Harden failed to establish a prima facie case for
retaliation and failed to establish sufficient evidence of a
violation of his First Amendment rights. 1
II.
Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
1
The district court held that, as a matter of law, Harden
did not have a cause of action for violation of his First
Amendment right to freedom of speech because Harden did not
engage in speech protected by the First Amendment. Harden did
not address this issue in his appellate briefs. Therefore,
Harden has abandoned that claim on appeal. See Tucker v.
Waddell, 83 F.3d 688, 690 (4th Cir. 1996).
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movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). See also, Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (finding summary judgment appropriate “after adequate
time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case[.]”). We review the
district court’s order granting summary judgment de novo.
Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir. 2007) (en
banc).
Harden argues that the district court erred in holding that
he failed to establish a prima facie case for retaliation
pursuant to 42 U.S.C.A. § 2000e-3(a). To establish a prima
facie case for retaliation, Harden must prove: “(1) that [he]
engaged in protected activity, (2) that an adverse employment
action was taken against [him], and (3) that there was a causal
link between the protected activity and the adverse employment
action.” Laughlin v. Metro. Washington Airports Auth., 149 F.3d
253, 258 (4th Cir. 1998). The first element of a prima facie
case encompasses two distinct categories of protected
activities: participation by a complainant in a Title VII
proceeding, and engaging in oppositional activities to bring
attention to an employer’s discriminatory activities. Harden
alleges that the County retaliated against him for engaging in
both types of activity, but we agree with the district court
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that Harden fails to establish a prima facie case for
retaliation under either category.
A.
First, Harden alleges that he participated in a protected
activity. “Activities that constitute participation are
outlined in the statute: (1) making a charge; (2) testifying;
(3) assisting; or (4) participating in any manner in an
investigation, proceeding, or hearing under Title VII.”
Laughlin, 149 F.3d at 259. Pursuant to this statutory
definition, Harden established the first element of a prima
facie case — that he participated in a protected activity by
filing his June 2008 EEOC complaint.
Harden has also produced sufficient facts to establish the
second prong of a prima facie case, that he suffered a
materially adverse action. “[A] plaintiff must show that a
reasonable employee would have found the challenged action
materially adverse, which in this context means it well might
have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006)(internal citation marks omitted).
When Harden returned to work after suspension without pay, he
was not reinstated as the Internal Affairs Investigator.
Although he continued to receive the same salary and leave time,
he had fewer supervisory powers and became a Grade 18 employee
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rather than a Grade 20 employee. The Supreme Court has found
that reassignment to a less desirable job after a period of
suspension without pay can amount to material harm. Id. at 70-
71.
However, Harden failed to satisfy the third prong of the
prima facie analysis -- he did not provide evidence of a causal
link between his filing of the EEOC complaint and his
reinstatement to a less desirable job. 2 Harden was not
reassigned to his prior position after his termination was
reversed because the position of Internal Affairs Investigator
had been abolished for budgetary reasons during Harden’s
suspension. Thus, Harden was placed in a less desirable
position because his former position no longer existed, not
because of retaliation. Harden has simply failed to offer
evidence sufficient to show the needed causal connection.
2
Because Harden filed his EEOC complaint anonymously, the
district court held that Harden failed to demonstrate a causal
link between the filing and Harden’s treatment. However,
because there is evidence that some people at WCDC discovered
that Harden had filed the complaint, we affirm the district
court on the basis of its alternative finding -- that Harden’s
prior position of Internal Affairs Investigator no longer
existed. See Jackson v. Kimel, 992 F.2d 1318, 1322 (4th Cir.
1993) (“In reviewing the grant of summary judgment, we can
affirm on any legal ground supported by the record and are not
limited to the grounds relied on by the district court.”).
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B.
Second, Harden alleges that he engaged in oppositional
activity intended to bring attention to what he believed to be
Devenyns’ sexual harassment of female employees when he mailed a
copy of the Report to a member of County Council and posted
information from the Report on his online blog. “To qualify as
opposition activity an employee need not engage in the formal
process of adjudicating a discrimination claim. Opposition
activity encompasses utilizing informal grievance procedures as
well as staging informal protests and voicing one’s opinions in
order to bring attention to an employer’s discriminatory
activities.” Laughlin, 149 F.3d at 259 (internal citations
omitted). We use a balancing test to determine whether an
employee has engaged in protected oppositional activity. We
“balance the purpose of the Act to protect persons engaging
reasonably in activities opposing . . . discrimination, against
Congress’ equally manifest desire not to tie the hands of
employers in the objective selection and control of personnel.”
Id. (internal citation marks omitted).
Thus, in Laughlin, we found that an employee did not engage
in protected oppositional activity when she removed sensitive
personnel documents relating to another employee from her
supervisor’s desk. We explained:
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When we apply the balancing test to the facts of this
case, we easily conclude that the employer’s interest
in maintaining security and confidentiality of
sensitive personnel documents outweighs Laughlin’s
interests in providing those documents to LaSauce [the
other employee]. Laughlin’s reaction to the situation
was disproportionate and unreasonable under the
circumstances. . . . The MWAA [the employer] had a
reasonable and significant interest in preventing the
dissemination of confidential personnel documents. . .
. Title VII was not intended to immunize
insubordinate, disruptive, or nonproductive behavior
at work.
Laughlin, 149 F.3d at 260 (internal citations omitted).
As in Laughlin, we find that the County’s interest in
protecting confidential, sensitive records outweighs Harden’s
interest in exposing Devenyns’ alleged sexual harassment.
Therefore, Harden did not engage in protected oppositional
activity, and he cannot establish a prima facie case of
retaliatory discharge for sending the Report to the member of
County Council or posting information from the Report online. 3
III.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment in favor of the County.
AFFIRMED
3
Harden also argues that the retaliation against him
interfered with his right to petition the government. However,
because there was no improper retaliation against Harden, this
claim also fails.
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