Squire v. FedEx Freight, Inc.

MIKO SQUIRE, Plaintiff, v. FEDEX FREIGHT, INC., Defendant.

Civil Action No. ELH-17-3597

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

March 12, 2020

MEMORANDUM OPINION

In this employment discrimination case, plaintiff Miko Squire has filed suit, as amended, against his former employer, defendant FedEx Freight, Inc. ("FedEx"), under the Maryland Fair Employment Practices Act ("MFEPA"), Md. Code (2014 Repl. Vol.), § 20-601 et seq. of the State Government Article ("S.G."). ECF 20 (the "Amended Complaint").¹ Squire, who is transgender, worked as a truck driver for FedEx from January 2014 to March 2017. Id. ¶ 3. He contends that he was "discharged from employment based on his gender identity, gender, and/or sexual orientation." Id. ¶ 23.

FedEx has filed a post-discovery motion for summary judgment (ECF 57), supported by a memorandum of law (ECF 57-1) (collectively, the "Motion") and several exhibits. ECF 57-2 to ECF 57-12. FedEx contends that Squire was terminated because of "his refusal to accept anassignment that was part of his job duties." ECF 57-1 at 2. Squire opposes the Motion. ECF 60 (the "Opposition"). In his Opposition, Squire contends that he was subjected to discriminatory discipline. ECF 60 at 17. He has also submitted multiple exhibits. ECF 60-1 to ECF 60-16. Defendant has replied. ECF 63 (the "Reply").

No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion.

I. Factual Background

A.

Squire was born female but has "identified as a male and lived as a male [his] whole [adult] life." ECF 63-1 (Dep. of Squire) at 3-4. From January 2014 to March 2017, Squire was employed by FedEx as a delivery driver. ECF 57-2; ECF 57-12. He was assigned to the Annapolis Junction location. See ECF 60-8 (Dep. of John Keenan, FedEx employee) at 5, p. 10.²

On plaintiff's "Personal Data" form for FedEx, Squire identified his gender as "male." ECF 57-2 at 2. The Maryland driver's license he submitted with his employment application also identified his gender as male. Id. at 3. Squire, who has two children (ECF 57-3 at 6), identified his wife as his emergency contact. ECF 57-2 at 2.

Apparently, Squire's fellow drivers were not aware that he is transgender. See ECF 60-8 at 7, p. 18-19; ECF 57-4 (Dep. of Dominick June) at 8-9, pp. 41-42. Squire acknowledged at his deposition that no one at FedEx had ever used derogatory terms for transgender people in hispresence. ECF 57-3 (Squire Dep.) at 10. Nor had any one ever told Squire that they did not want to work with him because of his gender identity. Id.

In his suit, Squire alleged that he worked for over two years without complaints about his performance. ECF 20, ¶ 6. But, Squire had actually received "written warnings eight times before February 2016" for "untimely lunch breaks." ECF 57-3 at 10, 15-16. He does not contest the validity of those warnings. Id. at 16.

In August 2016, Squire underwent a hysterectomy, the final stage of his gender reassignment surgery. Prior to the surgery, he submitted a leave request to FedEx's Human Resources representative, Terrika Martin, for time off from work. ECF 20, ¶ 7. The record does not reflect any specific information about the actual leave request, nor does it reflect that Squire disclosed the reason for the leave request. Plaintiff also appears to have applied for Short Term Disability. See ECF 57-7 (Janice Munzner Dep.) at 3.

Squire's medical leave began on August 15, 2016. ECF 57-8 at 2. In a letter dated October 10, 2016, addressed "To Whom It May Concern," Squire's gynecologist, Fouad Abbas, M.D., advised that Squire would be released to return to work on October 17, 2016. Id. at 3. The correspondence is on the letterhead of "Sinai Hospital" and "Department of Obstetrics and Gynecology[,] Division of Gynecologic Oncology." Id. at 3. It also indicates, in small print: "Practice limited to: Gynecologic Oncology, Pelvic Reconstructive Gynecologic Surgery." Id. In the letter, Squire's doctor stated: "Mr. Squire has been under my care. . ." Id.

Squire returned to work on October 17, 2016. ECF 60-10 at 4.

According to Martin, for Squire to return to work, he had to undergo a "DOT physical."³ ECF 60-2 at 8-9. Martin testified that the paperwork for the DOT physical was to be submitted to management and then forwarded to the safety team, which would clear Squire to return to his duties as a driver. Id. at 9-10.

In an undated series of email, chat, or text messages, Squire contacted Martin, asking about "bcbs," i.e., BlueCross BlueShield, "to see what they cover or don't cover."⁴ ECF 60-3 at 2. In another exchange, Squire asked Martin if he needed to get a DOT physical in order to return to work. Id. Martin responded, "You were out for your shoulder, correct?" Squire said, "no." Then, Martin asked: "What were [you] out for?" Squire answered: "i had surgery on my stomach." Martin said, "Oh ok." Id. And, she stated that she would look into it.

Thereafter, Martin advised Squire that he needed "a DOT physical along with a release," and that "[t]he surgery will have to be listed on the new physical." Id. Squire responded: "What do you mean 'surgery would have to be listed on physical'?" Id. Martin answered: "Not sure that's what was stated." Id. Squire then replied, id. at 3: "ok because if i have to give a copy to my supervisor. To me thats [sic] against my privacy. . . ." Id. at 3. Martin answered: "It goes into your medical file which is secured. If this is required per DOT regulations there should not be an issue. I would suggest asking those questions to the person conducting the physical." Id. Martin indicated she was not working at Squire's location that day. Id.

Later, Squire wrote: "Giving it to ur supervisor is breaking the Hippa Law, and confidential. Only because of the medical information that's on it." Id. Martin responded that Squire could fax the information to Debra Rhoades, a Leave of Absence Specialist for FedEx. ECF 60-3 at 3; ECF 60-10 at 2. But, she also said that Squire had "to provide the hard copies to [his] manager," because it "goes into your medical file." ECF 60-3 at 3.

Squire avers that FedEx "had [him] put the reason [he] was out on [his] DOT form" and that he listed "hysterectomy" on the paperwork. ECF 60-1 at 5. He testified that he gave a copy of the form stating he had had a hysterectomy "to HR and Kevin [Brown]," id., who was Squire's manager. ECF 60 at 3.

Brown no longer works for FedEx, nor was he deposed. ECF 57-1 at 10. Plaintiff notes that his "counsel tried extensively to locate and serve Mr. Brown with a Notice of Deposition in this case." ECF 60 at 15 n.3. He add, id.: "Unfortunately, Kevin Brown is too common a name, and counsel's efforts were unsuccessful."

Andrew Bartnik, the Operations Manager and FedEx's Rule 30(b)(6) deponent (ECF 60-9 at 2), testified at his deposition that such paperwork was usually given to him or the center manager. ECF 60-5 at 10. It is stored in the employee's medical file, which is "[l]ocked in a cabinet in the center manager's office." Id.

On October 14, 2016, shortly before Squire's return from medical leave, there was a flurry of electronic activity concerning Squire. An email was sent at 12:37 p.m. from "noreply@fedex.com" to Rhoades. ECF 60-10 at 3. The subject line was "MIko [sic] Squire, 2644594-Release/Physical." Id. Another email was sent at 12:54 p.m. from Brown to Rhoades, Bartnik, and two other FedEx employees, Lee Bitler and Peter Filipowicz. Id. at 2. The subject line is "Miko Sqrire [sic], 2644594." Id. The record does not include the content of this email. At1:27 p.m., Rhoades forwarded the email from Brown to Janice Munzer, Disability Benefits Specialist for FedEx. Id. at 2. At 2:30 p.m., Munzer forwarded the email to Rhoades and to Tammy Rogers, who worked in the Safety Department at FedEx. ECF 57-7 at 3, p. 12. The word "Hysterectomy" appears in the body of the email. ECF 60-10 at 2. The email indicates that it included as attachments the release/physical attachment from the initial email and a personnel change request form with Brown's signature, approving Squire's return to work. The document also contains a handwritten notation, as follows: "Drivers [sic] does not want others to know reason off wk." Id.

Munzer works in Harrison, Arkansas. ECF 57-7 at 7, p. 33. At her deposition, Munzer denied that she hand wrote the words that appear on the printout of the email. Id. at 5, p. 25.

At her deposition, Munzer acknowledged that she sent two emails, almost at the same time, one with the word "hysterectomy," and one with the word "surgery" in place of "hysterectomy." Id. at 5, p. 24; id. at 7, p. 30-31. Both were sent to Rhoades and Rogers. Id. at 5, p.24. The one with the word "surgery" is not part of the record. Notably, she indicated that the email with the word "hysterectomy" did not appear to have been "sent to anyone in the service center." Id. at 7, p.32. The locations of the other members of the email chain, aside from Brown, are not specified in the record.

The emails appear to have been produced from the inbox of Rogers. ECF 60-10 at 2-3. Rogers was responsible for determining whether a driver returning to work after a medical leave was in need of a physical and for reviewing the physical. ECF 57-7 at 3, p. 12.

B.

On March 8, 2017, Squire's shift began at 9:30 a.m. ECF 57-1 at 3; see ECF 57-3 at 3 (indicating that Squire routinely worked the "9:30 run"). Squire had finished his deliveries for theday when, at 4:23 p.m. he received a text message from "Dispatch," via his supervisor, James Patterson. ECF 57-10 at 3; ECF 57-12 at 3; ECF 60 at 5. Patterson indicated that Squire should "come back for a delivery." ECF 57-10 at 3; ECF 60-1 at 10. The message also stated that Squire could "pick which one" of two delivery run options he wanted. ECF 57-10 at 3.

The options were "a coffing [sic] to a funeral home" or "a keferator to a res." Id. Squire responded "NIETHER" [sic], to...