Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 1 of 31
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`Southern Division
`
`*
`
`*
`
`*
`
`*
`
`
`
`
`
`
`
`
`
`
`Case No.: GJH-13-02514
`
`
`
`Plaintiff,
`
`
`SUSAN WILLIAMS,
`
`
`v.
`
`SILVER SPRING VOLUNTEER FIRE
`DEPARTMENT,
`
`
`*
`
`
`Defendant.
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`
`
`
`*
`
`
`*
`
`
`*
`
`
`*
`
`*
`
`*
`
`
`
`
`MEMORANDUM OPINION
`
`This is a sex discrimination and retaliation case brought by Susan Williams (“Williams”)
`
`against the Silver Spring Volunteer Fire Department (“the Fire Department”) for purported
`
`violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq., and the
`
`Maryland Fair Employment Practices Act (“FEPA”), Md. Code Ann., State Gov’t, §§20-601 et
`
`seq. and the Maryland Human Rights Act (“MHRA”), §§20-001 et seq. This Memorandum
`
`Opinion and accompanying Order address the Fire Department’s Motion for Summary
`
`Judgment, ECF No. 16, and its Motion to Strike Certain Exhibits Attached to Williams’
`
`Opposition, ECF No. 25. A hearing is not necessary. See Loc. R. 105.6 (Md.). For the reasons
`
`stated below, the Fire Department’s Motion for Summary Judgment is GRANTED, in part, and
`
`DENIED, in part. The Fire Department’s Motion to Strike is DENIED.
`
`I.
`
`
`
`BACKGROUND
`
`The Fire Department is an organization of volunteer firefighters and emergency medical
`
`technicians who, having met the State of Maryland’s and Montgomery County’s training
`
`standards, provide emergency medical, fire, and rescue services to the Silver Spring area. See
`
`
`
`1
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 2 of 31
`
`ECF No. 16-7 at ¶ 2. In October 2007, Williams became a volunteer member of the Fire
`
`Department where she performed services as an Emergency Medical Technician (“EMT”). See
`
`ECF No. 1 at ¶ 18. Williams alleges that as a volunteer EMT, she “received some monetary
`
`compensation and received time-based status for each year she worked for [the Fire Department],
`
`including monthly monetary awards, Maryland Income Tax credits, Maryland property tax
`
`credits, and received a minimum [Length of Service Award Program] payment of $300.00 per
`
`year.” Id. at ¶ 23. Although the parties dispute whether Williams actually received any monetary
`
`compensation for her service as a volunteer EMT, including the receipt of any Length of Service
`
`awards, it is not disputed that volunteers, like Williams, are eligible to receive certain fringe
`
`benefits, such as disability benefits, death benefits, and survivor benefits. See ECF No. 22-22.
`
`From the time Williams started volunteering in 2007 through early 2008, Williams claims
`
`that she was supervised by Deputy Chief John Thompson (“Thompson”). Id. at ¶ 27. While the
`
`parties dispute the extent to which Thompson directly supervised Williams, there is at least some
`
`evidence that Thompson supervised her work to some degree. See e.g., ECF No. 22-3 at 78:10-
`
`80:20; ECF No. 22 at 20-21; ECF No. 16-4 at 5-7. At the heart of Williams’ complaint are
`
`allegations that Thompson: (1) regularly made sexually suggestive comments to her; (2) touched
`
`her inappropriately; (3) engaged in stalker-like behavior; and (4) humiliated, degraded, and
`
`retaliated against her for exercising her Title VII rights. Specifically, Williams testified at her
`
`deposition about multiple examples of unwelcome sexual advances by Thompson. See ECF No.
`
`22-2 at 219:4-12; 394-5-21; 398:6-399:6. For example, Williams described an incident in
`
`February 2008 when Thompson “grabbed [her] ass” and rubbed his legs against her. See ECF
`
`No. 22-1 at 113:8-115:8. Additionally, Williams testified about an incident that occurred on June
`
`12, 2008 during a Fire Department Board meeting when Thompson, in uniform and in the
`
`
`
`2
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 3 of 31
`
`presence of numerous colleagues, walked over to where Williams was seated and began to
`
`straddle her waist and grind his pelvis on her. See id. at 130:17-22; 131:1-15; see also ECF No.
`
`16-12 at 10-11. Williams also testified about other instances where Thompson engaged in
`
`stalker-like behavior by seeking her out at monthly Fire Department membership meetings so
`
`that he could sit next to her and rub his legs against her. See ECF No. 22-1 at 145:19-148:14.
`
`When Williams would move away from Thompson, or otherwise tell him to stop, she testified
`
`that Thompson would continue to engage in the unwanted touching. See id. at 187:22-19.
`
`Williams also testified about how Thompson would make comments about her physical
`
`appearance. See id. at 194:12-21. Finally, Williams testified about an incident that occurred at a
`
`January 4, 2010 monthly membership meeting where Thompson publicly berated her for filing
`
`an EEOC complaint. See ECF No. 22-1 at 161:6-163:10. This shaming occurred in the presence
`
`of Williams’ colleagues and persisted despite efforts by Thompson’s superiors to stop his verbal
`
`attack. See ECF No. 22-9; see also ECF No. 22-10.
`
`On July 27, 2008, Williams complained to one of her superiors, Captain Howard, about
`
`Thompson’s conduct. See ECF No. 22-2 at 309:16-21. The matter was quickly referred to
`
`Battalion Chief Mark Davis, who initiated an internal investigation. See id. at 137:15-22; 138:1-
`
`17; see also ECF No 16-2 at ¶ 10. As a result of the investigation, Thompson was verbally
`
`reprimanded by Fire Chief McGary, who also instructed him not to interact with Williams. See
`
`ECF No. 16-4 at 15-16; see also ECF No. 16-7 at ¶ 11. Despite the Fire Department’s efforts,
`
`however, Thompson continued to make unwelcome remarks to Williams and took hostile actions
`
`against her such as purposefully parking his car to block her car in a parking spot. See ECF No.
`
`16-13 at 219:18-225:20. When the alleged harassment continued, Williams reported her concerns
`
`to members of the Fire Department’s Board. See ECF No. 22-2 at 243:7-252:20. Despite the
`
`
`
`3
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 4 of 31
`
`renewed complaints, Williams contends that the harassment continued and the Fire Department
`
`did not do anything to stop it. Indeed, the Fire Department continued to assign shifts to Williams
`
`that might overlap with Thompson’s shifts, despite Fire Chief McGary’s instruction to
`
`Thompson to not interact with Williams. ECF No. 23-5. Ultimately, Williams filed a Charge of
`
`Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on April 7,
`
`2009. See ECF No. 16-14. When the harassment allegedly continued, Williams petitioned the
`
`District Court of Maryland for Montgomery County for a Peace Order on January 7, 2010, which
`
`was granted. See ECF No. 16-15; see also ECF No. 23-7. Williams also contends that as a result
`
`of her decision to complain about Thompson’s harassment, she was retaliated against by being
`
`reassigned to a lower membership tier at the Fire Department, by being restricted to certain work
`
`locations, by being denied training opportunities, and by being verbally attacked by Thompson.
`
`See ECF No. 1 at ¶¶ 72-78, 81-83; see also ECF No. 22 at 28-29.
`
`On May 29, 2013, Williams received the EEOC’s Notice of Right to Sue. See ECF No. 1
`
`at ¶ 13. On August 28, 2013, Williams filed suit in this Court against the Fire Department
`
`claiming that she was the victim of unlawful sex-based discrimination (hostile work
`
`environment, quid pro quo, and disparate treatment) as well as retaliation for engaging in
`
`protected activity. See id. The Fire Department has filed a motion for summary judgment and a
`
`motion to strike that is currently before the Court. For the reasons discussed more fully below,
`
`the motion for summary judgment is granted, in part, and denied, in part, and the motion to strike
`
`is denied.
`
`II.
`
`STANDARD OF REVIEW
`
`Summary judgment is proper if there are no issues 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
`
`
`
`4
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 5 of 31
`
`(1986); Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 302 (4th Cir. 2006). A material
`
`fact is one that “might affect the outcome of the suit under the governing law.” Spriggs v.
`
`Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby,
`
`Inc., 477 U.S. 242, 248 (1986)). A dispute of material fact is only “genuine” if sufficient
`
`evidence favoring the non-moving party exists for the trier of fact to return a verdict for that
`
`party. Anderson, 477 U.S. at 248-49. However, the nonmoving party “cannot create a genuine
`
`issue of material fact through mere speculation or the building of one inference upon
`
`another.” Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1986). The Court may only rely on facts
`
`supported in the record, not simply assertions in the pleadings, in order to fulfill its “affirmative
`
`obligation . . . to prevent ‘factually unsupported claims or defenses' from proceeding to
`
`trial.” Felty v. Grave–Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987). When ruling on a
`
`motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all
`
`justifiable inferences are to be drawn in [her] favor.” Anderson, 477 U.S. at 255.
`
`III. DISCUSSION
`
`
`A.
`
`Preliminary Issues
`
`The Fire Department has raised several preliminary issues that the Court must address
`
`before turning to the substance of its motion for summary judgment. The first issue concerns a
`
`motion to strike filed by the Fire Department that seeks to exclude certain exhibits from the
`
`Court’s consideration. See ECF No. 25. The second issue concerns whether Williams, a
`
`volunteer firefighter who receives no direct remuneration but who is otherwise entitled to certain
`
`fringe benefits, is a covered “employee” under Title VII. See ECF No. 16-4 at 25-27; see also
`
`ECF No. 22 at 1-2, 11-13. The third issue concerns the scope of discriminatory conduct that the
`
`
`
`5
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 6 of 31
`
`Court may consider in evaluating the viability of Williams’ claims. See ECF No. 16-4 at 27-28;
`
`see also ECF No. 16-14 at 2.
`
`
`
`1.
`
`Motion to Strike
`
`The Fire Department has filed a motion to strike Exhibits 6, 8-11, 15, 19, and 21-24 that
`
`were attached to Williams’ opposition to the Fire Department’s motion for summary judgment.
`
`See ECF No. 25. The Fire Department contends that these exhibits, some of which include e-
`
`mails, text messages, and business records, must be struck because they were not “authenticated
`
`by and attached to an affidavit that meets the requirements of Rule 56(e).” Id. at 2. In support of
`
`this argument, the Fire Department relies on Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) –
`
`a case that was “superseded by an amendment to Rule 56” in 2010. Wonasue v. Univ. of
`
`Maryland Alumni Ass’n, No. 11-3657, 2013 WL 5719004, at *8 (D. Md. Oct. 17, 2013).
`
`Under the amended Fed.R.Civ.P. 56, “facts in support of or opposition to a motion for summary
`
`judgment need not be in admissible form; the new requirement is that the party identifies facts
`
`that could be put in admissible form.” Wake v. Nat’l R.R. Passenger, Corp., No. 12-1510, 2013
`
`WL 5423978, at *1 (D. Md. Sept. 26, 2013) (emphases in original) (citing Niagara Transformer
`
`Corp. v. Baldwin Techs., Inc., No. 11-3415, 2013 WL 2919705, at *1 n. 1 (D. Md. June 12,
`
`2013) (“Importantly, ‘the objection [now] contemplated by the amended Rule is not that the
`
`material ‘has not’ been submitted in admissible form, but that it ‘cannot’ be.’”) (citation
`
`omitted)). Thus, instead of “a clear, bright-line rule (‘all documents must be authenticated’),”
`
`Rule 56(c)(2) now prescribes a “multi-step process by which a proponent may submit evidence,
`
`subject to objection by the opponent and an opportunity for the proponent to either authenticate
`
`the document or propose a method to doing so at trial.” Foreword Magazine, Inc. v. OverDrive,
`
`Inc., No. 10-1144, 2011 WL 5169384, at *2 (W.D. Mich. Oct. 31, 2011). Now, when the
`
`
`
`6
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 7 of 31
`
`opposing party – here, the Fire Department, objects on admissibility grounds, “[t]he burden is on
`
`the proponent[,] [Williams] [,] to show that the material is admissible as presented or to explain
`
`the admissible form that is anticipated.” Fed.R.Civ.P. 56, Adv. Cmte. Notes, 2010 Amendments.
`
`Here, Williams has satisfied this burden by establishing the admissibility of the disputed
`
`exhibits.
`
`First, the Fire Department argues that the exhibits cannot be considered because they
`
`cannot be authenticated. See ECF No. 25. This argument is unavailing. Fed.R.Evid. 901 states
`
`that to properly authenticate a document “the proponent must produce evidence sufficient to
`
`support a finding that the item is what the proponent claims it is.” Although not necessarily
`
`required, Williams submitted a declaration in response to the Fire Department’s motion to
`
`strike which indicates that she either has personal knowledge of Exhibits 6, 8-11, 15, 19, and 21-
`
`24 or otherwise adequately explains how she became familiar with the documents such that she
`
`can introduce them as a witness at trial. Williams’ declaration therefore can serve as the basis for
`
`introduction of any of her exhibits at the summary judgment stage. See United States v. Hassan,
`
`742 F.3d 104, 133 (4th Cir. 2014) (citing United States v. Vidacak, 553 F.3d 344, 349 (4th Cir.
`
`2009) (noting “the burden to authenticate under Rule 901 is not high – only a prima facie
`
`showing is required” and “the proponent need only present evidence sufficient to support a
`
`finding that the matter in question is what the proponent claims”)); see also United States v.
`
`Patterson, 277 F.3d 709, 713 (4th Cir. 2002).
`
`Next, the Fire Department argues that Williams’ exhibits cannot be considered because
`
`they contain hearsay. See ECF No. 25 at 2. The Fire Department, however, does not specify
`
`which documents or which portions of documents contain inadmissible hearsay. Nor did the Fire
`
`Department respond to Williams’ arguments raised in opposition to its hearsay objection. In fact,
`
`
`
`7
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 8 of 31
`
`the Fire Department did not respond to any of Williams’ arguments raised in her opposition. The
`
`Fire Department’s vague hearsay objection is therefore not well-taken and will be denied on this
`
`basis alone. See Maltas v. Maltas, 197 F.Supp.2d 409, 427 (D. Md. 2002) (“It is not the
`
`responsibility of the court to sift through the documents to determine exactly what should be
`
`excluded, if anything.”), rev’d on other grounds, 65 F.App’x 917 (4th Cir.2003). In any event,
`
`Williams has provided the Court with an adequate basis upon which it can rely when considering
`
`the exhibits for summary judgment purposes. For example, Exhibits 6, 10, 11, 15, and 19,
`
`produced to Williams by the Fire Department, satisfy the business records exception to the
`
`hearsay rule. See Fed.R.Evid. 803(6). Exhibits 7 and 21 also satisfy the business record
`
`exception. See id. Additionally, Exhibits 6, 10, 11, 15, 19, and 21-24 are not being offered for the
`
`truth of the matter asserted; rather, they are each being offered for another permissible purpose.
`
`See Fed.R.Evid. 801(c)(2); see also ECF No. 26 at 5-6. Finally, the Court will also consider
`
`Exhibits 8 and 9 under the residual hearsay exception. See Fed.R.Evid. 807. For these additional
`
`reasons then, the Court will deny the Fire Department’s motion to strike.
`
`
`
`2.
`
`Coverage under Title VII
`
`Turning to the motion for summary judgment, the Fire Department argues, as a threshold
`
`matter, that this Court lacks jurisdiction to hear Williams’ claims because, as an unpaid
`
`volunteer, she is not a covered “employee” under Title VII. See ECF No. 16-4 at 25-27. If
`
`Williams is not a covered “employee” under Title VII, the Court must dismiss all of her claims.1
`
`
`1 This would include dismissal of Williams’ state FEPA claims. FEPA is the state law analogue
`of Title VII and its interpretation is guided by federal cases interpreting Title VII. See Haas v.
`Lockheed Martin Corp., 914 A.2d 735, 742 (2007). Therefore, for purposes of this
`memorandum, this Court’s analysis of Williams’ Title VII claims shall constitute its analysis of
`her FEPA claims. See, e.g., Linton v. Johns Hopkins Univ. Applied Physics Lab., No. 10-276,
`2011 WL 4549177, at *4 (D. Md. Sept. 28, 2011) (applying Title VII case law to pendent FEPA
`claims).
`
`
`
`8
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 9 of 31
`
`Title VII defines an “employee” as “an individual employed by an employer.” 42 U.S.C.
`
`§ 2000e(f). Because the statute’s tautological definition provides little guidance to courts, the
`
`Fourth Circuit has advanced an approach that “analyz[es] the facts of each employment
`
`relationship under a standard that incorporates both the common law test derived from principles
`
`of agency and the so-called ‘economic realities’ test.” Garrett v. Phillips Mills, Inc., 721 F.2d
`
`979, 981 (4th Cir. 1983). “The common law test primarily considers the importance of the
`
`employer’s control over the employee.” Evans v. Wilkinson, 609 F. Supp. 2d 489, 493 (D. Md.
`
`2009) (citing Cobb v. Sun Papers, Inc., 673 F.2d 337 (11th Cir. 1982). However, “[w]here, as
`
`here, the case involves a volunteer, the [Fourth Circuit has] emphasized that the primary focus
`
`should not be on the employer’s control of the individual but rather on whether or not ‘as a
`
`matter of economic reality [an individual is] dependent upon the business to which they render
`
`services.’” Finkle v. Howard Cnty., Md., 12 F.Supp.3d 780, 785 (D. Md. Apr. 10,
`
`2014) (quoting omitted). Of particular importance to this case is the Fourth Circuit’s decision in
`
`Haavistola v. Cmty. Fire Co. of Rising Sun, 6 F.3d 211 (4th Cir. 1993), which dealt with a
`
`remarkably similar fact pattern that involved the same question presented here – namely, whether
`
`a volunteer firefighter, who receives no direct remuneration but receives certain fringe benefits,
`
`is a covered “employee” under Title VII.
`
`In Haavistola, the plaintiff was a volunteer at a privately-formed corporation that
`
`provided “firefighting, emergency medical/paramedic, and rescue services to Rising Sun,
`
`Maryland and the surrounding area.” Id. at 213. Although she received no direct compensation,
`
`the plaintiff “did not affiliate with the company without reward entirely.” Id. at 221. In
`
`particular, as a volunteer, the plaintiff received the following benefits:
`
`state-funded disability pension, survivors’ benefits for dependents;
`scholarships for dependents upon disability or death; bestowal of a
`
`
`
`9
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 10 of 31
`
`state flag to family upon death in the line of duty; benefits under
`the Federal Public Safety Officers' Benefits Act when on duty;
`group life
`insurance;
`tuition reimbursement for courses
`in
`emergency medical and fire service techniques; coverage under
`Maryland's Workers Compensation;
`tax-exemptions
`for
`unreimbursed travel expenses; ability to purchase, without paying
`extra fees, a special commemorative registration plate for private
`vehicles; and access to a method by which she may obtain
`certification as a paramedic.
`
`
`
`Id. at 221 (internal citations omitted). On a motion for summary judgment, the district court
`
`found that these benefits were insufficient, as a matter of law, to make the plaintiff an employee
`
`under Title VII. Id. The Fourth Circuit, however, reversed, holding that “[b]ecause compensation
`
`is not defined by statute or case law, . . . it cannot be found as a matter of law.” Id. The Fourth
`
`Circuit went on to conclude that “[t]he district court must leave to a factfinder the ultimate
`
`conclusion whether the benefits represent indirect but significant remuneration as [the plaintiff]
`
`contends or inconsequential incidents of an otherwise gratuitous relationship as the [defendant]
`
`argues.” Id. at 221-22.
`
`
`
`The facts of Haavistola are remarkably similar to those presented in this case. Here,
`
`Williams was a volunteer EMT for the Silver Spring Fire Department. Although she has not
`
`adduced any evidence to suggest that she was paid a salary or otherwise directly compensated for
`
`her work as a volunteer firefighter, Williams has nevertheless demonstrated that, pursuant to the
`
`Montgomery County Code § 21-21, she was entitled to various fringe benefits as a result of
`
`becoming a volunteer EMT. See ECF No. 22-22. For example, upon becoming a volunteer EMT,
`
`Williams was immediately eligible for disability, death, and survivor’s benefits, provided she
`
`met certain requirements. See id. at 1-2. Additionally, Williams was eligible to participate in
`
`other benefit programs, such as the Montgomery County tuition assistance program, and was
`
`also able to receive discounts on transit and recreational facilities. Id. at 3. Although Williams
`
`
`
`10
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 11 of 31
`
`may not have ever actually received disability, death, or survivor’s benefits, it does not change
`
`the fact that, just like the plaintiff in Haavistola, “these insurance-type benefits would have
`
`provided her with coverage as soon as she began working” although not technically available
`
`until death or injury. See Haavistola, 6 F.3d at 221-22 (fringe benefits consisted largely of
`
`benefits available upon injury or death). Because this Court is bound by Haavistola, it cannot
`
`find, as a matter of law, that the “significant remuneration benefits available upon injury or
`
`death” Williams would have received as a volunteer EMT are insufficient to bring her under the
`
`ambit of Title VII. Id. at 222; see also Finkle, 12 F.Supp.3d at 785-86 (declining to find, as a
`
`matter of law, that plaintiff, a volunteer auxiliary police officer, was not a covered “employee”
`
`under Title VII where the plaintiff, although not directly compensated for her work, “would have
`
`been entitled to significant remuneration benefits available upon injury or death”).
`
`The Court is aware of Judge Titus’ decision in Evans v. Wilkinson, 609 F. Supp. 2d 489,
`
`493 (D. Md. 2009), which found that a volunteer EMT, who received no salary but did enjoy
`
`certain indirect benefits, was not a covered “employee” under Title VII. Id. at 497. Evans,
`
`however, is distinguishable from this case. Evans dealt with a volunteer EMT who was eligible,
`
`upon meeting certain conditions, to receive benefits as a result of volunteering with the
`
`Lexington Park Volunteer Rescue Squad. Id. at 496. In particular, the plaintiff was eligible for
`
`“(1) a Length of Service Program that provided volunteers who had reached the age of 55 and
`
`completed at least 20 years of ‘certified active volunteer service’ with a monthly payment of
`
`$125 for the rest of their life; (2) a first-time homeowner’s assistance program that provided
`
`eligible volunteers with up to $12,500 toward the purchase of their first home; and (3) a
`
`scholarship program for Volunteer Rescue Squad volunteers who satisfied the Length of Service
`
`Program requirements.” Finkle, 12 F.Supp.3d at 785-86 (citing Evans, 609 F.Supp.2d at 494-96).
`
`
`
`11
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 12 of 31
`
`In reaching its conclusion that the plaintiff was not a covered “employee,” the Court observed
`
`that the plaintiff had failed to “adduce[ ] evidence that she actually received any of the benefits –
`
`or was even eligible for – those benefits.” Evans, 609 F. Supp.2d at 496 (emphasis in original).
`
`The same cannot be said here. Williams, by the very fact that she became a volunteer with the
`
`Fire Department, was immediately eligible for and covered by the Fire Department’s disability,
`
`death, and survivor’s benefits. See ECF No. 16-17. These types of benefits were not at issue in
`
`Evans – although they were in Haavistola. Evans is therefore distinguishable and the Court will
`
`follow the Fourth Circuit’s pronouncements in Haavistola, as it must. Accordingly, the Court
`
`will decline the Fire Department’s request to dismiss Williams’ claims on the basis that she is not
`
`a covered “employee” under Title VII.
`
`
`
`3.
`
`Scope of Discriminatory Conduct
`
`
`
`Next, the Fire Department argues that Williams has impermissibly expanded the scope of
`
`her sexual harassment claims by including several alleged acts of discrimination that were not
`
`included in her initial EEOC charge and are therefore untimely. See ECF No. 16-4 at 27-28.
`
`Specifically, the Fire Department contends that the February 2008 incident and the January 2010
`
`incident cannot be considered by this Court because the February 2008 incident occurred more
`
`than 300 days from the filing of Williams’ EEOC charge and the January 2010 incident, which
`
`post-dated Williams’ EEOC charge, was not included in her administrative filing. See id. at 28.
`
`When Williams filed her charge with the EEOC, however, she specifically indicated that the
`
`discrimination of which she complained was a continuing violation. See ECF No. 16-14 at 2.
`
`Under the continuing violation theory, “[i]f one act in a continuous history of
`
`discriminatory conduct falls within the charge filing period, then acts that are plausibly or
`
`sufficiently related to that act, which fall outside the filing period, may be considered for
`
`
`
`12
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 13 of 31
`
`purposes of liability.” Lewis v. Norfolk S. Corp., 271 F.Supp.2d 807, 812 (E.D. Va. 2003). The
`
`continuing violation theory applies to hostile work environment claims, which are “composed of
`
`a series of separate acts that collectively constitute one unlawful employment practice” and are
`
`timely if “an[y] act contributing to the claim occur[red] within the filing period.” Nat’l R.R.
`
`Passenger Corp. v. Morgan, 534 U.S. 101, 117 (2002) (“It does not matter . . . that some of the
`
`component acts of the [claim] fall outside the statutory time period.”). The acts that occur within
`
`the filing period need not, standing alone, constitute a violation of Title VII for the continuing
`
`violation doctrine to apply. See Gilliam v. S. Carolina Dep’t Of Juvenile Justice, 474 F.3d 134,
`
`141 (4th Cir. 2007).
`
`Williams testified that, in January 2010, Thompson stood up at a monthly Fire
`
`Department meeting and publicly berated her in the presence of her colleagues about her
`
`decision to file a discrimination charge with the EEOC. See ECF No. 22-1 at 161:6-163:10.
`
`Williams also testified about an incident that occurred in February 2008 when Thompson
`
`allegedly “grabbed [her] ass” and touched her leg inappropriately. See id. at 111:13-121:16.
`
`These two incidents of alleged sexual harassment by Thompson are sufficiently related to
`
`allegations of conduct before and after those dates, which accuse Thompson of other unwanted
`
`sexual advances towards Williams. Accordingly, the continuing violation doctrine applies and
`
`the Court will consider the January 2010 incident and the February 2008 incident when
`
`analyzing whether Williams has established viable Title VII claims. See Gilliam, 474 F.3d at
`
`141 (concluding that the continuing violation doctrine applied to supervisor reprimands outside
`
`the charge filing period, because plaintiff made allegations of similar reprimands occurring
`
`within the filing period); see also Nesbitt v. Univ. of Maryland Med. Sys., No. 13-0125, 2013 WL
`
`6490275, at *4 (D. Md. Dec. 6, 2013).
`
`
`
`13
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 14 of 31
`
`B.
`
`Sexual Harassment
`
`Turning to the merits of Williams’ claims, the Court will first address her sexual
`
`harassment claims. Title VII makes it illegal for an employer “to fail or refuse to hire or to
`
`discharge any individual, or otherwise to discriminate against any individual with respect to his
`
`compensation, terms, conditions, or privileges of employment, because of such individual's race,
`
`color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). “Courts have long endorsed and
`
`adopted the EEOC’s interpretation that sexual harassment is a form of prohibited sex
`
`discrimination.” Bruce v. Fair Collections & Outsourcing, Inc., No. 13-3200, 2014 WL
`
`3052477, at *3 (D. Md. June 30, 2014) (citing Merit or Sav. Bank, FSB v. Vinson, 477 U.S. 57,
`
`65-66 (1986)). Actionable workplace sexual harassment claims come in two forms: (1) claims
`
`of a hostile work environment due to severe or pervasive sexual harassment and (2) claims
`
`of quid pro quo sexual harassment. See Fitter v. Cmty. Imaging Partners, Inc., 735 F.Supp.2d
`
`379, 390 (D.Md.2010). Williams asserts both types of claims.
`
`1.
`
`Hostile Work environment
`
`“To establish a Title VII claim for sexual harassment in the workplace, a female plaintiff
`
`must prove that the offending conduct (1) was unwelcome, (2) was based on her sex, (3) was
`
`sufficiently severe or pervasive to alter the conditions of her employment and create an abusive
`
`work environment, and (4) was imputable to her employer.” Ocheltree v. Scollon Prods., Inc.,
`
`335 F.3d 325, 331 (4th Cir. 2003). The Fire Department argues that Thompson’s conduct was
`
`not sufficiently severe or pervasive to create an abusive work environment, and, even if it were,
`
`that the conduct was not imputable to the Fire Department. See ECF No. 22-4 at 29-35.
`
`14
`
`
`
`
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 15 of 31
`
`a.
`
`Severe or Pervasive
`
`To determine if conduct is sufficiently severe or pervasive, the Court must consider: “(1)
`
`the frequency of the discriminatory conduct; (2) its severity; (3) whether it is physically
`
`threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably
`
`interferes with an employee’s work performance.” Smith v. First Union Nat’l Bank, 202 F.3d
`
`234, 242 (4th Cir. 2000). The conduct must be both subjectively and objectively offensive in
`
`order to be cognizable under Title VII. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22
`
`(1993). Naturally, courts often assume the conduct is subjectively offensive. See Ziskie v.
`
`Mineta, 547 F.3d 220, 227 (4th Cir. 2008). “[T]he objective severity of harassment should be
`
`judged from the perspective of a reasonable person in the plaintiff’s position, considering ‘all the
`
`circumstances.’” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)
`
`(quoting Harris, 510 U.S. at 23). “Summary judgment should not be granted unless no fact
`
`finder reasonably could conclude that the conduct was so severe or pervasive as to create an
`
`abusive [] environment.” Williams v. Poretsky Mgmt., Inc., 955 F. Supp. 490, 497 (D. Md. 1996).
`
`Here, a reasonable juror could conclude that Thompson’s conduct was so severe or pervasive
`
`that it created an abusive environment.
`
`Williams testified at her deposition about multiple examples of unwelcome sexual
`
`advances by Thompson. See ECF No. 22-2 at 219:4-12; 394-5-21; 398:6-399:6. For example,
`
`Williams described an incident in February 2008 when Thompson “grabbed [her] ass.” See ECF
`
`No. 22-1 at 113:8-115:8. Williams testified that later that evening, Thompson approached her as
`
`she was seated alone on a bench, sat next to her, and then proceeded to rub his leg against hers.
`
`See id. at 114:7-22. Williams also testified about an incident that occurred on June 12, 2008
`
`during a Fire Department Board meeting when Thompson, while in uniform and in the presence
`
`
`
`15
`
`

`
`Case 8:13-cv-02514-GJH Document 27 Filed 01/16/15 Page 16 of 31
`
`of numerous colleagues, walked over to where Williams was seated and began to straddle her
`
`waist and grind his pelvis on her. See id. at 130:17-22; 131:1-15; see also ECF No. 16-12 at 10-
`
`11. According to Williams, she was so “mortified” by Thompson’s conduct that she “shoved
`
`him” off her lap and left the meeting. See id. 131:3-133. Williams also testified about other
`
`instances where Thompson engaged in stalker-like behavior. See id. at 194:12-21. Specifically,
`
`Williams described how Thompson would seek her out at monthly Fire Department membership
`
`meetings and sit next to her, often rubbing his legs against her. See ECF No. 22-1 at 145:19-
`
`148:14. When Williams would move away from Thompson or oth