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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : VICTORIA RACHEL-SMITH : v. FTDATA, INC. : MEMORANDUM OPINION Presently pending and ready for resolution in this sexual harassment case are: (1) Defendant's Motion to Strike and for Sanctions and Costs; (2) Plaintiff's Motion to Strike Defendant's Motion for Summary Judgment on Plaintiff's Amended Complaint; (3) Defendant's Motion for Leave to File Motion for Summary Judgment on Plaintiff's Amended Complaint; (4) Defendant's Motion for Summary Judgment on Plaintiff's original Motion Amended for Complaint (incorporating and (5) The : Civil Action No. DKC 2001-3707 :

Defendant's

Summary

Judgment);

Plaintiff's Motion to Strike Defendant's Affirmative Defense.

issues have been fully briefed and no hearing is deemed necessary. Local Rule 105.6. For the reasons that follow, the court shall:

(1) grant in part and deny in part Defendant's motion to strike and for sanctions and costs; (2) deny Plaintiff's motion to strike Defendant's motion for summary judgment on Plaintiff's amended complaint; (3) grant Defendant's motion for leave to file summary judgment motion on Plaintiff's amended complaint; (4) grant

Defendant's motion for summary judgment as to count I (claims brought under the Prince George's County Code), the retaliation

claim under count II (Title VII claims), count III (assault), and count IV (wrongful discharge/prostitution); (5) deny Defendant's motion for summary judgment as to the quid pro quo and hostile work environment sexual harassment claims under count II; and (6) . I. Defendant's Motion to Strike and for Sanctions and Costs. A. Background In a letter to Plaintiff's counsel on February 20, 2002, FTData requested an Independent Medical Examination (IME) of

Plaintiff.

Plaintiff responded that she would let FTData know by

February 25, 2002 whether she intended to seek damages beyond "garden variety" emotional distress and therefore whether a Rule 35 IME would even be necessary. FTData did not hear from Plaintiff by

the appointed date and Plaintiff did not return FTData's phone calls. On February 27, 2002, FTData filed a motion seeking an order requiring examination of Plaintiff pursuant to Fed. R. Civ. P. 35. In response, Plaintiff sent FTData a letter on March 11, 2002, outlining terms on which she would agree to an IME and filed her opposition to FTData's motion on March 14, 2002. FTData offered a On

counter-proposal in the reply brief it filed on March 29, 2002.

April 17, 2002, the court issued an order requiring Plaintiff to submit to an IME to be conducted by Dr. Brian Schulman. court's order included instructions that the examination The be

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conducted, "on date and at time as shall be agreed upon by counsel," "Plaintiff "as may is normally done the by Dr. Schulman," held and that the

audiotape

discussions

during

examination so long as said taping does not materially interfere with the examination." Paper 21.

Through correspondence and telephone calls, counsel for the parties set May 31, 2002 as the date for the IME. On May 14, 2002,

Plaintiff requested that a microphone be set up in Dr. Schulman's office to transmit the IME conversation to a recording device outside the examination room that would be monitored by a court reporter who would later transcribe the tape. FTData consulted Dr. Schulman and advised Plaintiff that Dr. Schulman felt that the proposed audio-taping monitored by a court reporter would

materially interfere with his ability to conduct the examination but that he would agree to allow Plaintiff to bring a tape recorder with her and personally record the session herself. On May 21, 2002, Plaintiff informed FTData that she intended to file a motion to disqualify Dr. Schulman because he would not agree to the recording and monitoring of the IME. On May 22, 2002,

FTData contacted Magistrate Judge Day's chambers to ask if there were a way to resolve the issue quickly. Judge Day's law clerk

attempted to conference Plaintiff's counsel in on the telephone call to advise the parties of the manner in which Judge Day would like the issue to be brought before him for resolution.

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Plaintiff's

counsel

could

not

be

reached,

however,

so

the

conference call was scheduled for the next morning. On the morning of May 23, 2002, Plaintiff faxed her Motion for Clarification to FTData and Judge Day's chambers. Judge Day

conducted the telephone conference after having a chance to review Plaintiff's motion and ruled that Plaintiff was permitted to tape record the IME by bringing an unobtrusive recording device into the examination area, but no technician could be involved in the tape recording of the IME. Paper 38.

On May 28, 2002, Plaintiff advised FTData that she would not appear for the IME on May 31, 2002. FTData objected that Judge

Day's order was in place and that Plaintiff was expected to appear for the IME on May 31, 2001. she would be responsible FTData also informed Plaintiff that for paying Dr. Schulman's $500

cancellation fee if she did not appear for the IME on May 31, 2002. Plaintiff responded that she would not pay the fee. Plaintiff did

not appear for the IME on May 31, 2002 and did not file a motion for protective order or a motion to stay. Plaintiff did, however,

file a Rule 72 objection to Judge Day's order of May 28, 2002.1 FTData filed its motion to strike pursuant to Rule 37(b) on May 31, 2002. B. Analysis

The court denied Plaintiff's motion to disregard the May 23, 2002 Order of Judge Day in an order on August 15, 2002. Paper 73. 4

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Defendant argues that because Plaintiff did not appear for the IME with Dr. Schulman on May 31, 2002, she disobeyed a court order for examination pursuant to Rule 35(a).2 Rule 37(b) governs

sanctions that may be imposed on parties who fail to comply with court orders under Rule 35(a) and allows a court, in its

discretion, to make the following orders: (A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; (C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; . . . In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Defendant asks the court to strike Plaintiff's claim for damages for alleged mental, psychological, and emotional damages and to require Plaintiff to pay FTData's expenses and attorney's fees and

The IME of Plaintiff was conducted by Dr. Schulman on August 27, 2002. 5

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the $500 cancellation fee incurred as a result of Plaintiff's failure to appear for the court-ordered IME. Plaintiff disputes that she disobeyed the court's order for an examination. Plaintiff points out that Judge Day's Order of April

17, 2002 does not by its terms impose a particular deadline or date for Plaintiff's IME; instead, the Order leaves it to the discretion of the parties to agree upon a date for the examination. Because

negotiations over the manner in which the recording of the IME could take place were ongoing, Plaintiff argues that the parties were never in full agreement or, in the alternative, that

Plaintiff's May 28, 2002 notice to Defendant that she would not be appearing for the IME on May 31, 2002 voided any agreement the parties may have come to regarding the date and time of the IME. Based on a review of the materials submitted as exhibits documenting the communications between Plaintiff, Defendant, and the court, it is clear that the parties had, by May 14, 2002, reached agreement on the date and time that the IME would take place. See Paper 46, . What the parties had not reached

agreement on, however, was the manner in which the recording of the IME would take place. Regarding this, Judge Day's Order of April

17, 2002 specified that the examination "shall be conducted as is normally done by Dr. Schulman. . . . Plaintiff may audiotape the discussions held during the examination so long as said taping does not materially interfere with the examination." Paper 21. The

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parties had difficulty agreeing on an interpretation of this portion of the April 17, 2002 Order and on May 22 and 23, 2002, the parties contacted Judge Day's chambers in their efforts to clarify the court's Order. As a result, Judge Day issued an Order on May

23, 2002 clearly instructing that an unobtrusive tape recording device may be used during the IME but that there would be no technician to monitor the examination, no transmission from inside the examination room to the outside, and anyone who might set up the tape recording device would need to leave the examination area during the course of the examination. Plaintiff then exercised her right to file an objection to Judge Day's Order and notified Defendant on May 28, 2002 that she would not appear for the scheduled IME, however, Plaintiff did not file any motion to stay or extend the time for the IME. The court finds that Plaintiff did technically disobey the court's order by not appearing for the May 31, 2002 IME -- even if disputes over the audio-taping of the IME were ongoing at the time. According to the plain language of Rule 37(b)(2), the court shall require the disobedient party to pay reasonable expenses caused by the failure, including attorney's fees, "unless the court finds that the failure was substantially justified or that other

circumstances make an award of expenses unjust."

Given the number

and types of discovery disputes

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