Ensko v. Howard County, Md., No. CIV. WDQ-04-3464.

423 F.Supp.2d 502

Susan ENSKO Plaintiff, v. HOWARD COUNTY, MARYLAND, et al. Defendants.

No. CIV. WDQ-04-3464.

United States District Court, D. Maryland.

March 22, 2006.

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Virginia Wood Barnhart, Pope and Hughes PA, Towson, MD, Harriet E. Cooperman, Saul Ewing LLP, Baltimore, MD, for Plaintiff.

Louis P. Ruzzi, Carol Saffran Brinks, Ellicott City, MD, for Defendants.

MEMORANDUM OPINION

QUARLES, District Judge.

Susan Ensko has sued Howard County, Maryland (the "County") and G. Wayne Livesay, Chief of the Howard County Police Department ("HCPD"), for employment discrimination and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1983.¹ Pending is the County's and Chief Livesay's motion for summary judgment. Also pending is Ensko's motion to seal her Opposition to Defendants' motion for summary judgment and Defendants' motion to seal their Reply. For the following reasons, Defendants' motion for summary judgment will be denied. The motions to seal will be granted.

I. Background

Susan Ensko is a 17 year veteran of the HCPD. She has alleged that over the course of her career she has been subjected to disparate treatment and a hostile work environment by fellow officers and supervisors who displayed pornography in the workplace, repeatedly made sexually explicit comments, and disparaged women and female police officers. Complaint, ¶ 18-20, 33-37. Ensko has also alleged that she was retaliated against after complaining of harassment and participating in another officer's discrimination suit. Complaint, ¶ 24-47.

Defendants have moved for summary judgment arguing that: 1) Ensko cannot prove a hostile work environment, retaliation or that the HCPD had a policy or custom of harassment; 2) there is no basis for § 1983 liability for Chief Livesay; 3) Chief Livesay is entitled to qualified immunity; 4) Ensko's claims are barred by limitations, laches, estoppel and waiver; and 5) the County has established the Faragher affirmative defense.

II. Legal Discussion

A. Standard of Review

Under Rule 56(c), summary judgment is appropriate when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In considering a motion for summary judgment, "the judge's function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2505. Thus, "the judge must ask . . . whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252, 106 S.Ct. 2505.

The court must view the facts and reasonable inferences drawn therefrom "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). However, the opposing party must produce evidence upon which a reasonable fact finder could rely. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The mere existence of a "scintilla" of evidence is insufficient to preclude summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

B. Title VII Claims

1. Hostile Work Environment Claim

In Count I of her complaint, Ensko alleges discrimination and retaliation in violation of Title VII. Under Title VII, it is unlawful for an employer to discriminate with respect to compensation, terms, conditions, or privileges of employment on the basis of sex. 42 U.S.C. § 2000e-2(a). Conduct that creates a hostile or abusive work environment constitutes sex discrimination in violation of Title VII. Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993); Meritor Savings Bank v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986); Ocheltree v. Scollon Productions, Inc., 335 F.3d 325, 331 (4th Cir.2003).

To prove a hostile work environment, the plaintiff must show: 1) that she was harassed because of her sex; 2) the harassment was unwelcome; 3) the harassment was sufficiently severe or pervasive to create an abusive working environment; and 4) some basis exists for imputing liability to the employer. Ocheltree, 335 F.3d 325; Hartsell v. Duplex Prods., Inc., 123 F.3d 766, 772 (4th Cir.1997).

Defendants argue that Ensko cannot prove a hostile work environment because the conduct she complains of was not directed at her because of her sex, cannot be attributed to her employer, and was neither severe nor pervasive.

a. Harassment Because of Ensko's Sex

An employee can show that she was harassed because of her gender if "but for the employee's gender, he or she would not have been the victim of discrimination.' Smith v. First Union, 202 F.3d 234 (4th Cir.2000); see also Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Ocheltree, 335 F.3d at 331. Sexually explicit comments, derogatory references to women, and conduct intended to objectify women are evidence that a plaintiff was harassed because of her gender. Miller v. Washington Workplace, Inc., 298 F.Supp.2d 364 (E.D.Va.2004); see also Ocheltree, 335 F.3d 325; Smith, 202 F.3d 234.

Ensko has alleged that between 1991 and 1998 she was subjected to comments that pregnancy "was another reason women shouldn't be cops", a lecture from her supervisor about having multiple sex partners, and comments about another officer's sexual preferences. Plaint. Ans. to Interrogatory No. 1 and Attached Chronology, ¶¶ 1-3. Between 2000 and 2001, while assigned to Sergeant Bill Donahue's squad, Ensko alleges that she was subjected to: 1) repeated, sexually explicit comments from Officer Perry Sauers; 2) frequent comments about "bull roasts" attended by HCPD officers (including Ensko's supervisor, Sergeant Donahue) that involved prostitutes; and 3) conversations about pornography and pornography in the workplace. Id. at ¶¶ 4-20. Between 2001 and 2004, Ensko contends that she found pornography in her office and on office computers and was subjected to comments from her supervisor, Sergeant Paul Steppe, suggesting that Ensko and another female officer had a sexual relationship. Id. at 24-29. As this alleged conduct has the effect of demeaning and objectifying women, there is a sufficient showing that the conduct complained of was because of Officer Ensko's gender.

b. Severity of the Harassment

A hostile work environment is one "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment .. ." Harris, 510 U.S. at 21, 114 S.Ct. 367. Whether conduct constitutes a hostile work environment depends on the frequency of the conduct, its severity, whether it is physically threatening or humiliating or a merely offensive utterance, and whether it unreasonably interferes with an employee's work performance. Id. at 23, 114 S.Ct. 367. This determination, however, is "quintessentially a question of fact" for the jury. Beardsley v. Webb, 30 F.3d 524 (4th Cir.1994); Paroline v. Unisys Corporation, 879 F.2d 100 (4th Cir.1989), vacated in part on other grounds 900 F.2d 27 (4th Cir.1990)(en banc).

Although occurring over 15 years, the conduct described above was, at times, frequent, highly offensive and engaged in by multiple members of the HCPD including Ensko's supervisors. Taking these facts as true and drawing inferences in favor of the plaintiff, there is a genuine issue whether the alleged conduct created a hostile work environment.

c. Imputing Liability to the HCPD

An employer may be found vicariously liable for the harassment of an employee by her supervisor. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998); Ocheltree, 335 F.3d at 334. In a case of harassment by a coworker, an employer may be held liable if it "knew or should have known of the harassment, and took no effectual action to correct the situation." Spicer v. Commonwealth of Virginia Dept. of Corrections, 66 F.3d 705, 710 (4th Cir.1995); see also Ocheltree, 335 F.3d at 334; Lyle v. ESPN Zone, 292 F.Supp.2d 758 (D.Md2003). Knowledge of work place harassment may be imputed to an employer by circumstantial evidence if the condtrct is so pervasive that a reasonable employer would have been aware of it. Spicer, 66 F.3d at 710.

Between 2001 and 2005, Ensko complained of harassment to her supervisors, Captain Ferguson and Lt. Lessner, investigators from the department's Internal Affairs Division (IAD), and Chief Livesay. Therefore, a jury could reasonably find that the HCPD was aware of the harassment. In addition, Ensko has alleged that she was harassed by her supervisor, Sergeant Steppe, for whom the HCPD may be vicariously liable. Accordingly, there is a genuine issue whether liability should be imputed to the HCPD.

d. Conclusion

For the reasons stated above, Defendants' motion for summary judgment on the grounds that Ensko failed to establish a prima facie case of harassment will be denied.

2. Retaliation Claim

Ensko has also alleged that she was retaliated against because of her complaints of harassment and participation in Linda Freeman's discrimination suit. Defendants argue that despite her allegations, Ensko did not suffer an adverse employment action. Ensko argues that she suffered an adverse action when Defendants maintained and reinforced a hostile work environment as a result of her protected activity.

To establish a prima facie case of retaliation under Title VII, a plaintiff must show that: 1) she engaged in a...