Allen v. Dorchester Cnty., Civil Action No. ELH-11-01936

FLOYD G. ALLEN, JR, Plaintiff, v. DORCHESTER COUNTY, MARYLAND, Defendant.

Civil Action No. ELH-11-01936

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Date: September 30, 2013

MEMORANDUM OPINION

Plaintiff Floyd Allen, an African-American, was suspended and demoted by his employer, defendant Dorchester County, Maryland ("County"), after the County determined that Allen had misappropriated and sold County property. Thereafter, Allen filed suit against the County,¹ alleging that the County imposed harsher punishment on him than it had on Caucasian employees who had committed comparable transgressions, in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. §§ 2000e et seq.; the Fourteenth Amendment to the United States Constitution; and the laws of Maryland. At the close of discovery, the County filed a motion for summary judgment (ECF 55), specifically addressing plaintiff's federal claims (the "Motion"). The Motion is supported by a memorandum of law("Memo," ECF 55-3) and voluminous exhibits.² Plaintiff filed an opposition ("Opposition" or "Opp.," ECF 60), also supported by exhibits,³ and defendant replied ("Reply," ECF 61). No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will grant the Motion.

Factual Summary

A. Plaintiff's Employment History

On April 28, 1988, Allen was hired by the Roads Board for Dorchester County (the "Roads Board" or "Roads"), to work as a part-time Motor Equipment Operator ("MEO") I. See Affidavit of Jane Baynard, County Manager for Dorchester County ("Baynard Aff.," ECF 55-4) ¶ 2. He became a full-time employee on October 31, 1988. Id. In 1990, Allen was "transferred to the County Landfill" and given a "one grade salary upgrade." Id. Upon rejoining the Roads Board in 1996, Allen received another "one grade salary upgrade." Id. In 1998, Allen was reclassified as an MEO III and, in 2006, he was reclassified as an MEO IV. Id. However, in 2008 Allen was demoted to an MEO III for disciplinary reasons. Id. ¶ 3. This demotion, along with other discipline imposed at the time, gave rise to this lawsuit.

B. The County Roads Board

Jane Baynard was appointed as the County Manager in 1999 and has held that position at all relevant times. See Deposition of Jane Baynard ("Baynard Dep.," ECF 55-26) at 8:13-15. As County Manager, she "oversee[s] the day to day of the various departments within DorchesterCounty government and to act as liaison between the department heads and the county counsel [sic]." Id. at 9:16-19.

Baynard has explained that, until 2002, the Roads Board was governed by Chapter 40 of the Dorchester County Code (the "County Code"). See Baynard Aff. ¶ 6; ECF 55-6. Under the County Code, the Roads Board was "possessed of all the powers and authority the County Commissioners possess with respect to roads and bridges in the county . . . ." County Code, Art 1, § 40-1; Baynard Aff. ¶ 6. The County Roads Engineer, who was appointed by the County Commissioners, id. § 40-5, headed the Roads Board. County Code, Art. 1 § 50-6; Baynard Aff. ¶ 6. At the relevant time, Elvin Thomas was the County Roads Engineer. See, e.g., Suspension Memorandum, ECF 55-14. Under the County Code, the County Roads Engineer was vested with exclusive authority over County Roads employees, including the power to discipline them. It stated: "Every county employee engaged in the construction or maintenance of county roads shall be under the exclusive jurisdiction and control of the County Roads Engineer . . . ." County Code, Art. 1 § 40-7a; See Baynard Aff. ¶ 6. Additionally, the County Code provided that any employee with a "complaint or grievance concerning the terms, conditions or procedures of his employment may take the complaint to the County Roads Engineer," who "shall consider the complaint and answer promptly." County Code, Art. 1 § 40-7e. The County Roads Engineer was required to "keep the County Roads Board informed generally concerning all complaints and their answers." Id.

In 2002, "the Dorchester County Charter became effective, rendering the commissioner form of government obsolete." Baynard Aff. ¶ 6. However, "[a]s a matter of practice, prior to July 1, 2005, the County Commissioners [and subsequently, the County Council], were notinvolved in the discipline decisions" affecting Roads Board employees. Id. ¶ 7. Rather, until July 1, 2005, the County Roads Engineer retained control over Roads Board employees. Id. Thereafter, the County Council "assumed control over all personnel aspects . . . including the imposition of discipline . . . ." Id.

C. The Ditch Spoil Incident⁴

In March 2008, Jay L. Newcomb, a member of the County Council, informed Baynard that constituents from his district had called to complain about a County employee selling "ditch spoil" in the Madison area of Dorchester County. See Baynard Aff. ¶ 8. "Ditch spoil" refers to the topmost layer of earth that is removed from the ground when the County performs roadside ditching. See Deposition of Gary C. Phillips, Sr., former County Highway Maintenance Supervisor ("Phillips Dep.," ECF 55-27) at 40-41. Because ditch spoil is situated at the top of the ground, it contains salt, bottles, cans, and other trash that need to be removed before it can be reused. Id. at 41-42. By contrast, "topsoil" refers to "clean dirt," which sits just below the ditch spoil, and is more desirable. Id. at 41. As a matter of course, the County would offer any ditch spoil to the property owner whose property abuts the ditch, but it would stockpile topsoil to use at a later date. Id. at 40.

Baynard and County Human Resources Manager Becky Dennis visited the Madison area to investigate the complaint relayed to Baynard by Newcomb. Baynard Aff. ¶ 8. According to Baynard, she and Dennis observed piles of ditch spoil on several roads and were informed by two property owners that they had paid cash to an employee for ditch spoil. The first paid $1,200 for 60 loads and the second paid $20 for one load. Id.; see Investigation Summary, ECF55-8 at 2-3. A third property owner, Betty Miller, sought to purchase 20 loads of ditch spoil, with payment by check. She was instructed by the seller to make the check payable to "Sandy Allen." Id.; see Investigation Summary at 1.

Sandy Allen is Floyd Allen's spouse. Baynard Aff. ¶ 8. And, "[t]he instruction came to the property owner during a telephone call placed from 443 477 7477, which was determined to be Mr. Allen's cell phone number." Id.; see Investigation Summary at 1. Miller received the ditch spoil but did not write the check to Ms. Allen. Baynard Aff. ¶ 8; see Investigation Summary at 1. Baynard also averred that two others "agreed to accept dirt but did not pay for it," and that Phillips learned of another incident in which Allen received $420 for ditch spoil. Baynard Aff. ¶ 8; see Investigation Summary at 4.

After conducting this investigation, Baynard concluded that Allen was the employee who had been selling ditch spoil to County residents. Baynard Aff. ¶ 9. On April 1, 2008, Baynard, Dennis, and Robert Tenanty, Director of the Department of Public Works, met with Allen. Id. ¶ 10. According to Baynard, Allen at first denied that he asked anyone for money to deliver dirt to their property. Id. When pressed, Allen claimed that he had never asked for money, but admitted that he had on one occasion accepted money as a tip. Id. Baynard informed Allen that the matter would be investigated and that a hearing would be held before the County Council. Id. She also informed him that discipline up to and including termination could be imposed against him and that a criminal investigation might result. Id. Pending the hearing before the County Council, Allen was suspended, with pay, on April 1, 2008. Id. ¶ 11.

The County Council held a hearing on April 15, 2008, id., at which Baynard presented her findings. Id. ¶ 12. Allen was permitted to speak in his own defense, id., and he brieflydescribed his twenty years of employment. ECF 55-7.⁵ He also claimed that, several years earlier, a Caucasian employee, Mark Elliott, had been caught selling dirt on Swan Harbor Road, but had only been suspended and was now a foreman in his department. Id. Allen also raised a number of other incidents of alleged misconduct by County Roads employees, and he claimed that he was "only doing what he was taught." Id. Allen admitted that he had accepted money for ditch spoil, but denied the specific allegations from the property owners. Id.; Baynard Aff. ¶ 17.

After the hearing, the County Council voted to suspend Allen for 30 days, without pay, effective April 17, 2008, and to reclassify him as an MEO III upon his return to paid employment on May 19, 2008. Baynard Aff. ¶ 17.⁶ Allen was also placed on probation for six months, with the understanding that at the end of that period the Roads Supervisor and the Director of Public Works would meet with the County Council to assess whether Allen should be reclassified as an MEO IV. Id.

On October 9, 2008, Allen filed a charge of discrimination with the United States Equal Employment Commission ("EEOC"), Baltimore Field Office. EEOC Complaint, ECF 34-1. In his charge, Allen alleged that the County targeted him because he is a minority and that the County turned "a blind eye to investigating and disciplining many of the County's white male employees for similar or worse misconduct . . . ." Id. at 2.

According to Baynard, on two occasions during Allen's probationary period he indicated to Roy Mills, Highway Division Manager, that he did not wish to operate the Gradall Excavator.Id. ¶ 18. Plaintiff denies that he has ever "refused to operate any piece of County equipment during [his] employment with Dorchester County." Allen Aff. 1 ¶ 10. On another occasion, Allen left a County truck unattended with its keys still in the ignition. Id. According to Baynard, Allen left the truck in the travel lanes of the roadway without attaching...