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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND ) ) ) ) ) ) ) ) )

ROSE CRAIG v. MARYLAND AVIATION ADMINISTRATION

CCB 01-CV-3506

MEMORANDUM

The defendant, the Maryland Aviation Administration, has moved for summary judgment against the plaintiff, Rose Craig. The issues in this motion have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, the motion for summary judgment will be granted in part and denied in part. Factual Background

Rose Craig, the plaintiff, is employed by the Baltimore Washington International Airport's ("BWI") Fire and Rescue Department, which is a part of the defendant, the Maryland Aviation Administration. The Fire and Rescue Department provides fire and emergency service to BWI. Ms. Craig has worked at BWI since 1992 as a paramedic and is also trained as a firefighter. During her time at BWI, Ms. Craig has served as both a firefighter and a paramedic. The Fire and Rescue Department organizes its firefighters and paramedics into four shifts, A through D. Each shift lasts twenty-four hours and begins at seven in the morning. After working a shift, an employee typically then has seventy-two hours off. Each shift has a Division Chief who is

responsible for the operation of the shift and who reports to the Chief of the Fire and Rescue Department. During the events at issue in this action, the Chief of the Fire and Rescue Department was Thomas Mack.1 In January, 2000, the defendant created a position called a "Paramedic Lieutenant" on each shift. The paramedic lieutenant was to supervise the paramedics on the shift. Firefighters were to be supervised by the fire lieutenant after the paramedic lieutenant position was created.2 In order to fill these positions, they invited those employees who met the qualifications to apply. Eight people applied. Because there are four shifts, there were four positions open. Ms. Craig was not one of the four initially selected to serve as a paramedic lieutenant. However, in order to have someone filling the role of a paramedic lieutenant when a shift's paramedic lieutenant was not working, the defendant gave the four people who applied but were not selected the position of acting paramedic lieutenant. An acting paramedic lieutenant was assigned to each shift, and would perform the functions and receive the pay of the paramedic lieutenant when that shift's paramedic lieutenant was unable to work. Ms. Craig became an acting paramedic lieutenant on A shift in January, 2000. In June 18, 2000, for reasons that the parties agree were unrelated to any alleged discrimination, Ms. Craig resigned her position as an acting paramedic lieutenant. (Def. Mem. Ex. 2.)

Mr. Mack was appointed Chief in August 2000 and resigned in February 2002. (Pl. Mem. Ex. A & B.) His resignation followed a vote of no confidence by the firefighters' union in August 2001. The no confidence vote was based on, among other things, a union charge that Mr. Mack made "multiple, numerous, ongoing sexual remarks and comments directed to female firefighters, paramedics, and administrative personnel." (Pl. Mem. Ex. B. Att. 1 n. 12.) Prior to the creation of the paramedic lieutenant position, both firefighters and paramedics reported to the fire lieutenant. 2
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She remained on A shift as a paramedic. On January 11, 2001, Ms. Craig asked to be assigned to an acting paramedic lieutenant position again. (Def. Mem. Ex. 3.) She specified that she was "willing to transfer to another shift if it becomes necessary." (Id.) Through the winter and spring of 2001, the acting paramedic lieutenant position on each shift became available. Ms. Craig was not assigned the position on the A shift, B shift, or C shift, but, on March 12, 2001, she was told that she would transferred to D shift to become the acting paramedic lieutenant of that shift effective April 1. D shift, however, already had an acting paramedic lieutenant, with whom Ms. Craig would have to share duties. On March 26, 2001, Ms. Craig filed a complaint of discrimination with the MAA's Office of Fair Practices asking to be named to C shift, and alleging she was discriminated against when she was not promoted because she is female. On May 9, 2001, Ms. Craig was transferred to C shift effective June 17, 2001. On May 21, 2001, Ms. Craig filed a complaint of discrimination with the Maryland Commission on Human Relations and the Equal Employment Opportunity Commission. Ms. Craig alleges that the defendant retaliated against her for protected activity in three ways. First, on August 31, 2001, Ms. Craig asked that she no longer be required to ride a fire engine as a part of her duties on C shift. This request was denied, allegedly as retaliation for the complaint she filed with the MAA's Office of Fair Practices. Second, on September 13, 2001, Ms. Craig requested new fire fighting equipment to replace worn out gear. She was given new equipment, but alleges that it was unsafe because it did not fit her properly. On November 4, she requested properly-fitting equipment and in mid-November she was given new equipment. She alleges being issued unsafe equipment was 3

retaliation for filing her discrimination complaint. Finally, on October 26, 2001, Ms. Craig was asked to assist with an emergency medical technician class at the Anne Arundel County Fire Academy. The defendant agreed to pay overtime to Ms. Craig for her time teaching the class. On November 21, 2001, the defendant informed Ms. Craig that she would no longer be paid to teach the class, rather she would have to volunteer on her own time if she were to continue teaching. Ms. Craig alleges this was retaliation for complaining about Chief Mack's conduct at a party in December of 2000. Specifically, Chief Mack told another employee of the defendant that he would like to see her "with nothing but high heels on." This was overheard by Ms. Craig and her mother, who brought the remark to the attention of Ms. Craig's union. Legal Framework

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The Supreme Court has clarified that this does not mean any factual dispute will defeat the motion, rather, "[b]y its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Further, "the party opposing a properly supported motion for summary judgment may not rest 4

upon the mere allegations in his pleading but must set forth specific facts that show there is a genuine issue for trial." Allstate Financial Corp. v. Finacorp, Inc., 934 F.2d 55, 58 (4th Cir. 1991). The court must "view the facts and draw reasonable inferences in a light most favorable to the nonmoving party," Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir.1994), but it also must abide by its affirmative obligation to ensure that factually unsupported claims and defenses do not proceed to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir.1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). Discrimination Claims

Ms. Craig alleges that she was not promoted to the acting paramedic lieutenant positions of A shift, B shift, and C shift because of her gender. A plaintiff in a Title VII case can prove discrimination either through direct evidence or circumstantial evidence. See Thompson v. Potomac Electric Power Co., 312 F.3d 645, 649 (4th Cir. 2002) ("Because [the plaintiff] presented no direct evidence of discriminatory denial of training based on race, he was obliged to proceed under the McDonnell Douglas proof scheme . . . ."); Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1354 (4th Cir. 1995) (citing United States Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714 n. 3 (1983), for the proposition that "In a Title VII action, `[a]s in any lawsuit, the plaintiff may prove his case by direct or circumstantial evidence.'"). In this case, Ms. Craig has produced both direct and circumstantial evidence of discrimination. Circumstantial evidence is evaluated under the familiar McDonnell Douglas burden shifting regime. First, the plaintiff must prove a prima facie case of discrimination. "In order to establish a 5

prima facie case [of a failure to promote in violation of Title VII], [the plaintiff i]s required to demonstrate by a preponderance of the evidence that: (1) she is a member of a protected class; (2) her employer had an open position for which she applied; (3) she was qualified for the position; and (4) she was rejected for the position under circumstances giving rise to an inference of unlawful discrimination." Taylor v. Virginia Union University, 193 F.3d 219, 230 (4th Cir. 1999) If the plaintiff is able to prove a prima facie case the burden of going forward then shifts to the employer to articulate a non-discriminatory reason for the failure to promote. If the employer is able to articulate such a non-discriminatory reason, the burden shifts back to the plaintiff to show that the articulated reason is pretextual. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146-49 (2000) (clarifying evidentiary burdens as set forth under McDonnell Douglas). A Shift

On January 11, 2001, when Ms. Craig asked to be assigned to an acting paramedic lieutenant position, the defendant maintains that Robert Lowery had already been named to that position. The affidavits of both Mr. Lowery and the decision-maker, Lieutenant Fayer, support that contention. (Def. Mem. Ex. 24 at

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